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Case Number: 160576

Whether the Department was justified in refusing access to certain records relating to the setting up of a Judicial Council under sections 28, 29, 30 and 35 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 2 September 2016, the applicant made a request for copies of all correspondence and memos of meetings between the Department and members of the judiciary generated between 1997 and March 2016 on the subject of the setting up of a Judicial Council. It appears that he subsequently refined his request by narrowing the time frame for records generated to between June 2006 and March 2016 that were not previously released under the FOI Act.

On 7 November 2016, the Department granted full access to 16 of the 27 records it identified as coming within the scope of the request and partial access was granted to the remaining 11 records. In refusing access to parts of those records, the Department relied on sections 28, 29 and 37 of the FOI Act. The applicant sought an internal review of that decision, following which the Department upheld the original decision. On 28 December 2016, the applicant sought a review by this Office of that decision.

In conducting this review, I have had regard to the correspondence between the Department and the applicant as described above. I have also had regard to the correspondence between this Office and both the Department and the applicant on the matter, and to the contents of the records at issue. In referring to the records at issue I have adopted the numbering system used by the Department when processing the request.

Scope of the Review

Following correspondence with this Office, the Department agreed to release the redacted aspects of the records which related to section 37. As such, it has now agreed to release record 6 in full. Accordingly, this review is concerned solely with whether or not the Department was justified in refusing access to certain parts of records 3, 5, 9, 11, 15, 18, 19, 21, 22, and 23, and to the attachments to records 3, 9, 21 and 23, under sections 28 and 29 of the FOI Act. (I note that the attachments to record 15 are identical to those attached to record 9).

Preliminary Matters

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse access to certain parts of the records at issue was justified.

It should also be noted that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.

Analysis and Findings

The records at issue comprise correspondence between the Minister for Justice and Equality or the Secretary General of the Department and the Chief Justice relating to the formulation of the Judicial Council Bill. A number of the records include attachments that were withheld, comprising various drafts of the Scheme of the Bill and two documents comprising comments received from the judiciary in relation to the draft Scheme. The Department originally relied on sections 28(1)(a) and 29(1) of the FOI Act in refusing to grant the request in full. In its submission to this Office, it also argued that sections 30(1) and 35(1) apply. It is worth noting at this point that the General Scheme of the Judicial Council Bill has since been published.

Section 28(1)(a)
Section 28(1)(a) provides for the discretionary refusal of a request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose.

In its submission to this Office, the Department argued that all of the records at issue, including the various attachments, were created for the purpose of submission to the Government for its consideration. Its argument appears to be that the records are directly related to the development of the final text of a bill that will be submitted to Government for approval. For section 28(1)(a) to apply, a record must fulfil three criteria, as follows:

• the record has been (or is/ was proposed to be) submitted to the Government for its consideration,
• it has been (or is/ was proposed to be) submitted by a Minister of the Government or the Attorney General and
• it was created for the purpose of submission to the Government for its consideration

It is not sufficient that a record contains information relating to another record that meets the criteria. The correspondence between the judiciary and the Minister or the Department, and the attachments to records 9 and 23 comprising comments received from the judiciary, are clearly not records that were proposed to be submitted to Government, nor were they created for that purpose. I note that for the purposes of section 28, a record is defined as including a preliminary or other draft of the whole or part of the material contained in the record. The records in question are not captured by that definition. I find, therefore that section 28(1)(a) does not apply to those records.

Section 28(3) provides that section 28(1) does not apply to a record if and so far as it contains factual information relating to a decision of the Government that has been published to the general public or if the record relates to a decision of the Government that was made more than 5 years before the receipt by the FOI body of the FOI request. I am satisfied that section 28(3) does not apply in this case.

On the other hand, I accept that the attachments to records 3, 9 and 21 comprising various drafts of the Scheme of the Bill fulfil all three criteria for section 28(1)(a) to apply. The fact that the General Scheme of the Judicial Council Bill has since been published does not alter the fact that the records are captured by section 28(1)(a). It is also noteworthy that, unlike other exemptions, section 28 does not contain a public interest balancing test. I find therefore, that the Department was justified in refusing access to the various drafts of the Scheme of the Bill as attached to records 3, 9 and 21 under section 28(1)(a). As I have found these records to be exempt, I do not need to consider whether they are also exempt under any other provision of the FOI Act.

Section 29(1)
Section 29(1) provides for the discretionary refusal of a request if the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes and the body considers that the granting of the request would be contrary to the public interest.

I accept that the records at issue relate to the deliberative processes of the Department in relation to the development of the Judicial Council Bill. However, for the exemption to apply, the Department must also explain why it considers that release of the records would be contrary to the public interest. In its decision on the request, the Department identified a number of factors in favour of withholding the records, including

• release would impair a future decision,
• release would lead to the disclosure of material that had yet to be considered by Cabinet, and
• the matter to which the records refer is not yet complete and release would present an incomplete account.

As the Bill was published during the course of the review, this Office asked the Department if it wished to reassess its position on the release of the records. In response, the Department argued that access should be refused until such time as the Bill's progress has been completed, i.e. until the legislation has been enacted. In my view, the Department has failed to adequately explain why the release of the records at this stage would be contrary to the public interest in circumstances where the General Scheme of the Bill has since been published. The records comprise correspondence relating to the draft heads of the Bill, details of which are now publicly available. Accordingly, having regard to the provisions of section 22(12)(b), I find that the Department has not satisfied this Office that release of the records would be contrary to the public interest and that section 29(1) does not, therefore, apply.

Section 30(1)(c)
In its submission to this Office, the Department also argued that section 30(1) applies to the records as their release could disclose positions taken, or to be taken, in negotiations between the Department and the judiciary on the content of the proposed Bill. This is a claim for exemption under section 30(1)(c). It seems to me that the records at issue concern a process of consultation that the Department undertook with the judiciary. It was open to the Department to accept or reject any of the comments submitted by the judiciary. As such, I do not accept that the release of the records could reasonably be expected to disclosure positions taken for the purpose of negotiations. I find that section 30(1)(c) does not apply.

Section 35(1)(a)
Section 35(1)(a) provides for the mandatory refusal of a request if

• the record sought contains information given to an FOI body in confidence, and
• on the understanding that the information would be treated by it as confidential, and
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

While the Department argued that all of the records are private and confidential, it has provided no explanation of why it considers this to be the case. For this reason alone, it seems to me that the Department has not justified its refusal on the ground that section 35(1)(a) applies. For the avoidance of doubt, I am satisfied that it does not apply. I find it difficult to accept that any party making submissions or comments on draft legislation could reasonably generally expect that such submissions would be treated as confidential. Furthermore, I do not accept that the judiciary would refuse to make similar submissions in the future on matters of such importance to it if the records at issue in this case are released. I find that section 35(1)(a) does not apply

Decision

I hereby vary the decision of the Department in this case. While I find that the Department was justified in refusing access to the various drafts of the Scheme of the Bill as attached to records 3, 9 and 21, I find that it was not justified in refusing access, either in whole or in part, to the remaining records and I direct the release of those records.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator