Whether the Department of Education & Skills was justified, under section 29 of the FOI Act, in refusing access to certain parts of three records relating to correspondence between the Department and both Cavan & Monaghan Education and Training Board (CMETB) and Education Training Boards Ireland (ETBI) on the matter of religious instruction 

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 August 2017 the applicant sought access to correspondence between the Department and both the CMETB and ETBI since January 2017 relating to religious education and religious instruction and records pertaining to new guidelines which will replace or supersede the terms of Circular 73/74 with respect to the teaching of religion.  

In its decision of 8 September 2017, the Department refused access to the three records it identified as coming within the scope of the applicant's request under section 29 of the FOI Act relating to deliberations of public bodies. On 12 September 2017, the applicant sought an internal review of that decision.  The Department issued its internal review decision on 3 October 2017 in which it affirmed the original decision to refuse the request. On 5 October 2017, the applicant sought a review by this Office of that decision.  

During the course of the review, the Department indicated its willingness to part-grant the request and provide the applicant with access to the three records with the redaction of certain information. The Department maintained its position that the redacted parts of the records were exempt under section 29 of the FOI Act.  

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Department's correspondence with the applicant as outlined above and to communications between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

This review is concerned solely with whether the Department was justified in its refusal to grant access in full to the three records at issue under section 29.  

Preliminary Matters 

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse to grant access in full to the three records at issue was justified.

Analysis and Findings

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative processes of an FOI body and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to satisfy this Office that both requirements are met.

The public interest test contained in section 29(1)(b) requires the FOI body to be of the opinion that releasing the records at issue would be contrary to, or against, the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the 'deliberative processes' of an FOI body. An FOI body relying on this exemption should identify both the deliberative process(es) concerned and any matter in particular records which relates to these processes. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The three records at issue in this case are overlapping emails from April 2017 between a Departmental official, the Chief Executive of CMETB and the General Secretary of ETBI following an email query submitted by a journalist in relation to religious teaching at ETB schools in general and in particular the situation regarding schools operating under CMETB.  The email correspondence was concerned primarily with responding to that query. The Departmental official provided guidance on the nature of the response and directed the General Secretary to extracts from a public speech given on the matter by the Secretary General of the Department. The correspondence also referenced the ongoing work undertaken by the Department in revising the existing circular dealing with religious instruction at vocational schools. Despite the fact that the correspondence at issue indicated that this work was nearing completion, the Department has informed this Office that the matter has not yet been concluded and the work continues.

Following its submission to this Office wherein the Department indicated that it was prepared to part-grant the applicant's request, only four sections of the records remain at issue. As the records are somewhat overlapping I will refer to the sections by subject matter as opposed to the record numbers:

Section 1:  The initial email query from the journalist sent on 12 April 2017 at 11:11, which prompted the subsequent exchange of emails (appearing in all three records)

Section 2:  The final paragraphs of an email from the Departmental official to the General Secretary of ETBI sent on 13 April at 10.22 in response to the General Secretary's request for clarification of a particular matter arising from the journalist's query (appearing in record 1 and record 3)

Section 3:Response from the General Secretary of ETBI to the Departmental official, sent on 13 April at 11.18 (appearing in record 1 and record 3)

Section 4:An email from the Departmental official to the Chief Executive of CMETB, sent on 13 April 2017 at 14:34 wherein he forwarded copies of the emails exchanged to that point (appearing in record 1)

In its internal review decision of 3 October 2017, the Department stated that both it and ETBI have been in discussion regarding religious education in a multi-denominational setting and how such schools can meet the expectations of parents and pupils in a modern context. It referred to Article 44 of the Constitution and section 30 of the Education Act 1988 as providing that parents have a right to have their children opt out of religious classes if they so wish. It stated that as part of these considerations the Department is in the process of reviewing Circulars 73/74 and 7/79 in conjunction with ongoing work by ETBI on their guidance on religious diversity and inclusion.

In its submission of 16 November 2017 to this Office, the Department argued that the records relate to the deliberative process involved in consulting various parties on the creation and publishing of a new circular. It argued that the records contain opinions and advice shared between the ETB and the Department in relation to the new circular as part of the consultation process.

Having regard to the Department's comments as set out in its internal review decision, I accept that it is engaged in an ongoing deliberative process regarding religious teaching in ETB schools. However, having reviewed the relevant sections of the records at issue, I cannot accept that they contain matter relating to that deliberative processes or, as argued, that they contain opinions and advice shared between the ETB and the Department in relation to the new circular as part of the consultation process. While section 2 certainly makes reference to the fact that the relevant Department Circulars are being reviewed, the records relate to discussions around how best to respond to a media query. They form no part of the ongoing deliberative process, nor do they contain any substantive details relating to that process.

It should be noted that simply because a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all of the provisions of section 29, and that equally, if a deliberative process is at an end this does not mean that the exemption automatically does not apply.  It is also important to recall that section 29 provides assistance in understanding what type of records fall within its remit.  While not exhaustive, section 29(1) provides that matters relating to deliberative processes includes 'opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or the staff of the body for the purpose of those processes'.

Having regard to the contents of the relevant sections of the three records at issue, I find that they do not contain matter relating to the deliberative processes of an FOI body and that section 29(1)(a) does not apply.

I should add that even if I had found the records to contain such matter, I am not satisfied that the Department has satisfactorily shown how release of the records would be contrary to the public interest. The Department argued that the matter is a controversial, contentious, and sensitive issue and that it would not be appropriate at this time to release documents that could inadvertently frustrate its efforts to publish a new circular. However it did not explain how the release of the specific records at issue could give rise to that harm

In conclusion, therefore, I find that the Department was not justified in refusing to grant full access to the three records at issue under section 29(1) of the FOI Act.

For the sake of completeness, I note that the Department also argued that it also refused access to the initial email query from the journalist on the ground that release could result in a breach of confidentiality between the parties to the email. It did not identify any relevant exemption which it considered to apply. Section 35 provides for the protection of confidential information held by an FOI body. As no argument has been made that the provisions of section 35 apply, I do not consider it necessary to examine this exemption in detail. In any event, there is nothing in the record which suggests to me that either party to the email could reasonably expect that it should be treated as confidential. It is also noteworthy that when the journalist in question submitted his email query, he included, with the applicant's consent, a letter from the applicant that had been published in his newspaper and correspondence that the applicant had with the principal of his local school.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department of Education & Skills.  I find that it was not justified in refusing access to three records under section 29 of the FOI Act and direct that these records be released in their entirety.                                                                    

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator