Whether the Council was justified in refusing access to certain minutes of meetings and reports relating to the Royal Canal Urban Greenway project under sections 29 and 30 of the FOI Act

17 April 2020

Background

On 15 July 2019, the applicant sought access to copies of project progress reports and meeting minutes for the engineering consultancy services for the Royal Canal pedestrian and cycle route (12th Lock to Kildare County boundary), commonly referred to as the Royal Canal Urban Greenway. On 13 August 2019, the Council issued a decision in which it refused access to all 16 records it identified as coming within the scope of the applicant’s request under sections 29 and 30 of the FOI Act. On 20 August 2019, the applicant sought an internal review of that decision. The Council issued its internal review decision on 9 September 2019, in which it affirmed its original decision. On 27 September 2019, the applicant sought a review by this Office of that decision.

I have now completed my review of the Council’s decision. In conducting the review, I have had regard to the communications between the Council and the applicant, as outlined above, and to correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the contents of the records at issue.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in refusing access to certain records of meeting minutes and progress reports relating to the Royal Canal Urban Greenway project (the Project) under sections 29 and 30 of the FOI Act.

Analysis and Findings

The Council relied on both section 29(1) and 30(1)(c) in refusing access to the records in question. 12 of the records are described as draft minutes of various meetings while the remaining four are described as progress reports.

Section 29 – Deliberative Process

Section 29(1) provides for the refusal of a request where (a) the record sought contains matter relating to the deliberative processes of an FOI body and (b) the body considers that 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 have been met.

The section further provides that, without prejudice to the generality of paragraph (b), in determining whether to grant or refuse to grant the request, the body must consider whether the grant of the request would be contrary to the public interest by reason of the fact that the requester would become aware of a significant decision that the body proposes to make.

A deliberative process can be described as a thinking process, which informs decision making in an FOI body. 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.

In a submission to this Office, the Council stated that the Project is for a shared pedestrian and cycle route on the Royal Canal Greenway and is currently in a phase called the Route Options Assessment Process. It said this involves deliberation between various members of the steering group and the design team, which comprises of the National Transport Authority (NTA), Waterways Ireland and various departments of the Council. A specified consultant company has been appointed as the engineering and environmental consultant for the Project, to work alongside the Council project team.

The Council submitted that the purpose of the deliberative process is to carry out an objective, robust and unbiased route options assessment for the Project and to make a decision on the preferred route, with each potential route option assessed on its own merits. It said that the final outcome of the deliberation process is to identify a preferred route for the Royal Canal Urban Greenway and to prepare a Final Route Options Assessment Report which will be put on public display in a second non-statutory public consultation. It stated that when the received public submissions are considered the preferred route will be submitted for a formal planning approval process and will undergo the full rigours of the statutory planning process.

The Council added that the deliberative process is still ongoing and that a final decision has not yet been made on the preferred route for the Project. It said the deliberative process also involves discussion on the assessment and analysis of the various environmental surveys, studies and reports that have been carried out for the Project to date. According to the Council, all of these environmental and topographical reports have already been released.

In relation to the meeting minutes sought, the Council said they form part of a record of the deliberative process to date, including opinions and advice of the various stakeholders in the steering group and the design team. It submitted that meeting minutes record opinions expressed at a certain time but may change and evolve over the course of the deliberative process. It stated that the meeting minutes held on record are drafts and have not been officially agreed by all attendees at the meetings.

Having considered the matter carefully, I am satisfied that all of the records at issue contain matters relating to the deliberative processes of the Council and that the first requirement for section 29(1) to apply is met. The question I must consider, therefore, is whether the release of the records would be contrary to the public interest.

The public interest test at section 29(1)(b) is a stronger public interest test than that at many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The test at subsection (1)(b) requires the public body to show that the granting of the request would be contrary to the public interest.

The Act clearly envisages that there will be cases in which disclosure of the details of a public body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. This Office expects the body concerned to be in a position to show how granting access to the particular records sought would be contrary to the public interest, for example, by identifying a specific harm to the public interest flowing from release.

In his application to this Office, the applicant stated that the requested progress reports will provide a record of key project information, which is of importance to the general public but in particular to over 500 households adjacent to the proposed route. He suggested some of this information will include important environmental information related to the extent of habitat clearance and replacement, mitigation measures to reduce impact on protected species, extent and nature of hazardous waste material to be removed from unlicensed landfill and potential impacts on the environment and residents, details of environmental studies undertaken, statements of progress on design works, outlined drawings of the scheme, list of properties likely to be acquired under Compulsory Purchase Order, details of consultations with key stakeholders and public bodies, running costs of the project and the expenditure of public funds, and details of project timeframe.

In its submission to this Office, the Council stated it has already released a significant amount of material relating to the Project. It explained that the route options assessment process commenced in January 2018. The Council stated that a data collection stage was carried out, where various environmental and topographical surveys were carried out and reports prepared, all of which have since been released under FOI. It said in tandem with the data collection phase, a deliberative process was carried out between the project steering group and project design team. It stated that the engineering design consultant prepared a 207 page draft Route Options Assessment Report which assessed all of the various route options considered and that this draft report was released by the NTA under FOI.

The Council added that a total of 12 route options were assessed and from this assessment process, an emerging preferred route was identified. It said the emerging preferred route was then displayed as part of a non-statutory public consultation process. The Council submitted that, following the consultation process, where over 600 submissions were received, the steering group and design team decided to carry out a more detailed preliminary design and ground investigation studies to help definitively make a decision on a final preferred route. According to the Council, following completion of the additional surveys and studies, and finalising of the Route Options Assessment Report, it is planned to carry out a non-statutory public consultation on the final preferred route. The Council stated that the Final Route Options Assessment report will be published, alongside the supporting background reports and assessments, including many that have already been published in a draft format.

The Council argued that it is not in the public interest to release the records sought. It said the deliberative process is now at a critical stage and a final decision has not yet been made on the final preferred route. It argued that the public interest would best be served by the negotiation process for the route options assessment being carried out in an objective, unbiased and robust manner, where each route option will be assessed on its merits. It argued that release of the meeting minutes would potentially disrupt the carrying-out the assessment in the manner desired and that it could be hugely detrimental to the process.

The FOI Act itself recognises a public interest in the enhancement of transparency and accountability in relation to the manner in which public bodies carry out their functions. Indeed, in performing any function under the Act, FOI bodies must have regard to—

(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,

(b) the need to strengthen the accountability and improve the quality of decision- making of FOI bodies, and

(c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

While the Council argued that the release of the meeting minutes would potentially disrupt the assessment process for identifying a final preferred route for the project, it did not explain how the release of the specific records at issue might give rise to that harm. Having carefully examined the contents of the records at issue, I fail to see how release would adversely affect the conducting of an objective, robust and unbiased route assessment process. I am satisfied that release would not result in the disclosure of sensitive information prematurely. In the circumstances, I find that the Council has not justified its claim that release of the records would be contrary to the public interest. Accordingly, I find the Council was not justified in refusing access to the withheld records under section 29(1).

Section 30 (1)(c) – Negotiations

Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on by or on behalf of the Government or an FOI body.

This provision is designed to protect positions taken for the purpose of any negotiation carried out by or on behalf of an FOI body. It does not contain a harm test and records relating to past, present or future negotiations may be protected under section 30(1)(c).

The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise”.  An FOI body relying on section 30 (1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is a negotiation including whether the FOI body was trying to reach some compromise or some mutual agreement.

According to the Council, the Project involves negotiations between the various members of the steering group and the design team, which comprises of the NTA, Waterways Ireland, various departments of the Council and the specified consultancy firm. However, the Council did not identify any information in the records that would disclose positions taken (or to be taken), etc., for the purpose of any negotiations.

Even if I was to accept that the route options assessment process involves discussions with a view to some settlement or compromise such that it constitutes a negotiation, it remains for the Council to show how the release of the records at issue could reasonably be expected to disclose positions taken or to be taken for such a negotiation. In my view, it has not done so.

Having examined the records at issue, I am not satisfied their release could reasonably be said to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Accordingly, I find that the Council was not justified in refusing access to the withheld records under section 30(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council. I direct release of the withheld 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 four weeks after notice of decision was given.

 

 

Stephen Rafferty

Senior Investigator