Whether the Department was justified in refusing access to records relating to the inspection of a named school, under sections 15(1)(a) and 29 of the FOI Act

24 April 2020

Background

On 15 September 2019, the applicant made an FOI request to the Department for records relating to a named school. On 11 October 2019, the Department granted access to certain information and refused access to the remaining records on the ground that they were exempt under section 29 of the FOI Act. On 13 October 2019, the applicant applied for an internal review in respect of the withheld information. On 7 November 2019, the Department issued its internal review decision, in which it affirmed its original decision under section 29. On 8 November 2019, the applicant applied to this Office for a review of the Department’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the Department for the purposes of this review.

Scope of the Review

During the review process, the applicant agreed to refine the scope of this request to exclude Record 10 and any duplicate of that information. Records 10 and 14 therefore fall outside the scope of this review and references to “the records” should be taken to exclude them. Furthermore, the applicant queries whether further records within the scope of his FOI request exist and are held by the Department. Accordingly, this review is concerned with whether the Department was justified in refusing access to the records under sections 15(1)(a) or 29 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

The applicant maintains that the following records should exist: (a) correspondence from the National Council for Special Education (NCSE) in response to the Department’s email of 20 June 2019 and (b) minutes of a meeting of 7 June 2019 between the Department and the patron of the school concerned. During the review process, the Investigator asked the Department about its record-management practices and the steps it had taken to search for any records falling within the scope of the request.  The Department says that records relating to special educational issues in the school concerned are saved to electronic folders in its Special Education Section. Regarding (a), the Department says that there is no record of its having received a response from the NCSE to its email of 20 June 2019. It says that it consulted both the sender of the email of 20 June 2019 and the special education officials who were copied into that email and other relevant Department officials, who searched their email directories. In addition, the Department searched the relevant electronic folders. The Department says that no reply was found. Regarding (b), the Department consulted those staff who attended the meeting of 7 June 2019, who advised that no record of the meeting (including minutes) was taken. The Department says that it searched the relevant electronic folders and found no minutes. It advises that on 26 August 2019, it sent the applicant an email about the meeting, but that other than that email, no record of the meeting exists.

The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. In the circumstances, I am satisfied that the Department has taken reasonable steps to search for the records sought. I find that the Department was justified in refusing access to further records under section 15(1)(a) of the FOI Act.

Section 29 – Deliberations of FOI bodies

Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest

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 process 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 show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records.

Moreover, section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant to my assessment of whether it would be contrary to the public interest to release the records.

Submissions

The records comprise an inspection report for a named school and related correspondence between the Department, the NCSE and the school concerned. The Department says that the relevant deliberative process is consideration of the inspector’s report and engagement with the school and other parties on the report’s findings. It submits that it is not in the public interest to release the records while this process is ongoing. In summary, it outlines the following harms which could flow from release: first, it says that some matters in the report are still contested and require clarification. Secondly, it says that releasing the records without outlining how the issues raised in the report will be addressed could cause unnecessary concern among parents about the future of the programme concerned. Thirdly, it says that releasing the records without the school’s consent could impede the Board of Management in its operation of the school. Finally, it says that releasing the records could impede the deliberative process and the plan for the future.

In response to a question from the investigator about whether releasing the record would lead to the requester becoming aware of a significant decision that the FOI body proposes to make, the Department says that release could lead the requester to conclude that the Department could make a decision impacting on the operation of the programme concerned, which would be contrary to the public interest. However, I do not consider that drawing a conclusion about the possibility of a decision amounts to “becoming aware of a significant decision that is proposed”, for the purposes of section 29(1). I therefore do not propose to consider this point further.

The applicant says that this case centres on an inspector’s report about a school for children with special needs. He submits that withholding it is wrong. He says that the school inspectorate make “whole-school evaluation reports” publicly available and the report under review is no different. He notes that the report was sent to a third party in June 2019 and submits that this obliterates the Department’s justification for withholding the report.

The Department says that “whole-school evaluation” reports contain comprehensive reviews of a school’s operation and there is a time-frame for the school to respond before publishing them. It says that the report under review is not a whole-school evaluation report. Furthermore, the Department acknowledges that the report was circulated in error to a third party. However, it says that this mistake does not change its decision to withhold the report.

Analysis and Findings

Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation. The Department advised this Office that various pieces of information in Records 1, 2, 5, 7 and 8 comprise factual information. I agree that the records contain factual information; e.g. background facts, as opposed to proposals or recommendations. Moreover, I consider that there is more factual information than that listed by the Department. However, given my conclusion on section 29(1) below, I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision. That said, I consider it pertinent that the records contain factual information and will return to this point below.

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. In this case, the stated purpose of the school inspection was to gather information in relation to the programme concerned. The inspection report contains findings and recommendations. The Department sent the report to the school and asked it to respond to its concerns and recommendations. It said that it would undertake a review of the school’s allocations and needs in light of the inspection. The Department also contacted the NCSE to invite its comments on certain matters. The school replied in September 2019, responding in detail to the majority of the Department’s concerns. As noted above, the Department’s position is that it does not hold a record of a reply from the NCSE.

I accept that the records contain matter relating to a deliberative process about the findings of the inspector’s report and its implications for the school and the programme concerned. I therefore find that section 29(1)(a) applies to the records. I am then required to consider section 29(1)(b).

Section 29(1)(b)

The Commissioner has found that the FOI Act clearly envisaged that there will be cases in which disclosing the details of an FOI 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 was 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.  It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. The Commissioner does not accept that the purpose of section 29 is to protect the deliberative process until its completion. If it were, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

Regarding the applicant’s submission, I do not consider that the circulation of the report to a third party through what the Department says was an error or the publication of “whole-school evaluation reports” determines whether the records are exempt under section 29 of the FOI Act.

However, I do consider the background to the inspection to be relevant to my assessment of the public interest. The Department has advised that the inspector who conducted the inspection is assigned to its Special Education Section. Their remit was to gather information on how the operation of the programme concerned relates to the school, particularly in the context of Department circulars. The Department says that where the Special Education Section requests that inspectors visit schools for particular reasons, any resulting communications (including reports) are not published on its website. It also advises that the programme concerned is funded by the HSE, while the school is funded by the Department in the same way as mainstream primary and post-primary schools; i.e. it gets funding for management of day-to-day costs through capitation and ancillary grants, while staff are on the Department’s payroll. In the circumstances, I believe that there is a public interest in transparency around schools operating within the standards prescribed and around how the Department exercises its functions regarding schools.

I must also consider each of the harms claimed by the Department. First, regarding the matters requiring clarification, I note that the school was given the opportunity to reply to the report and did so in September 2019. The clarifications which the Department says are necessary are to be made by the Department itself. In that respect, it says that it intends to write to the school as soon as possible. Secondly, regarding the possible concern among parents, I believe that it would be open to the Department to explain where matters stand generally, if necessary, to alleviate any such concerns. Thirdly, although the Department has claimed that release could impede its own deliberations and the school’s operations, it has not substantiated these assertions. It is not clear to me from reviewing the records and the Department’s submissions how releasing the records could result in such harms; i.e. I am not satisfied that there is a link between release and the alleged harms. Since the FOI request in September 2019, discussions have taken place between the Department, the school and other parties and they have agreed to make a plan for the programme concerned. The Department says that it is a sensitive matter and a plan is yet to be agreed. I appreciate that the records concern sensitive matters. However, I must decide whether releasing them would be contrary to the public interest and in the circumstances, I am not satisfied that it would. In reaching this conclusion, I am also mindful of the fact that much of the content comprises factual information, rather than deliberative material which, as I have explained above generally discloses accounts of the weighing up of information and options in order to make decisions. I find that section 29(1)(b) does not apply to the records and that the Department was not justified in refusing access to them under section 29.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department’s decision as follows. I find that it was justified in refusing access to further records under section 15(1)(a) of the FOI Act. I annul the Department’s decision under section 29 of the FOI Act and direct the release of the records. For the avoidance of doubt, any names and contact details of individuals other than staff members of FOI bodies should be redacted, in accordance with section 37 of the FOI Act.

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.

                                       

Elizabeth Dolan

Senior Investigator