Whether TII was justified in refusing access, under section 29(1) of the Act, to anonymised versions of the responses submitted to the consultation on the Metrolink Proposal for an intervention shaft in Albert College Park

3 August 2021

Background

In a request dated 31 January 2021 to the National Transport Authority (NTA), the applicant sought access to all the responses submitted to the consultation on the Metrolink proposal for an intervention shaft in Albert College Park, with all relevant personal information redacted as appropriate.  On 3 February, the NTA informed the applicant that it did not hold the records sought and that it had transferred the request to TII.

In a decision dated 3 March 2021, TII refused the request under section 29(1) of the FOI Act applied. It informed the applicant that the results of a survey of residents’ opinion in relation in relation to the construction of an intervention shaft in the park (the report) was being prepared and would be made publicly available.  On 4 March 2021, the applicant sought an internal review of that decision, following which TII affirmed its refusal of the request. It also provided her with a copy of the report, which had been finalised in the meantime. 

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by TII in support of its decision.  I have also had regard to the contents of the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether TII was justified in refusing, under section 29(1) of the Act, the applicant’s request for all the responses submitted to the consultation on the Metrolink Proposal for an intervention shaft in Albert College Park, with relevant personal information redacted as appropriate. In its submissions to this Office, TII advised that four of the submissions were blank.  As such there are 191 records coming within the scope of the review. 

Analysis and Findings

Section 29(1) provides that a request may be refused if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office that both requirements have been met.

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 fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.

The records at issue are submissions made to TII in response to a non-statutory local area public consultation on the Metrolink proposal for an intervention shaft in Albert College Park, undertaken in March 2020.  This followed on from a non-statutory public consultation in respect of the Metrolink Preferred Route in March 2019. The purpose of the consultation was to provide local residents with information on the proposed siting of the intervention shaft and to allow interested parties to give their views on the proposal.

The consultation, through a questionnaire, sought the views of the public on three specific points and gave the opportunity to provide any other information or comment. The points are (i) The environmental impacts arising from the construction stage (ii) the park amenity when the tunnel shaft is operational and (iii) the aesthetics/appearance of the tunnel.

An overview brochure was prepared to accompany the questionnaire. The brochure indicated that all feedback would be reviewed to assist in the finalisation of designs for inclusion in the Metrolink planning application to An Bord Pleanála.  While the questionnaire contained a data protection notice to inform respondents of the personal data TII may collect and use in connection with the project and the uses it may make of such data, it contained no information as to whether or not the submissions received would be made publicly available.

In its submissions to this Office, TII said that the public consultation exercise is an important part of the design and scheme development process for Metrolink and that the issues raised in the submissions are currently being carefully considered and evaluated by the Metrolink team.  It said that the submissions will inform decisions by TII and the NTA in determining the final scheme proposal submitted as part of the Railway Order application and therefore are part of TII’s deliberative process. It said that the deliberative process in relation to Metrolink will come to an end when An Bord Pleanála makes its decision on the Railway Order application.   

I accept that the records contain matter relating to a deliberative process and that section 29(1)(a) applies. Accordingly, I must consider whether release of the records would be contrary to the public interest as required by section 29(1)(b). For release to be contrary to the public interest, this Office would generally expect the body to identify a specific harm to the public interest flowing from release. Furthermore, a mere assertion of harm without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

While the Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations before a decision based on those deliberations has been made would be contrary to the public interest, that is not to say that such disclosure is always, as a matter of principle, contrary to the public interest.  While further deliberations are ongoing in relation to Metrolink, this does not, of itself, mean that it is contrary to the public interest to refuse access to all records in any way relevant to the overall process.

According to TII, the report of the consultation process disclosed only anonymised and very limited content from the submissions. It argued that it is in the public interest that a final proposed design for the Metrolink Project is reached through deliberations and processes which are protected from undue intrusion.

TII also said that respondents to the Consultation were not specifically informed that their individual responses could be released under FOI or otherwise published. It argued that had respondents been informed that their responses to the Consultation could be published, perhaps

the responses received would have been different or more formal in nature and not as frank or insightful. It argued that if submissions made by members of the public under a public consultation process fall to be released under FOI (even with redaction) this could potentially discourage general public participation in future consultation processes. It noted that all stakeholders and members of the public will have the opportunity to make submissions on the final Metrolink design at Railway Order application stage during the statutory process with An Bord Pleanála.

In essence, TII has suggested that the release of the submissions would be contrary to the public interest; 

(i) If their release would cause undue intrusion on the deliberative process in relation to its application for a Railway Order for Metrolink, and

(ii) if submissions made by members of the public under a public consultation process fall to be released under FOI (even with redaction) this could potentially discourage general public participation in future consultation processes

Before considering TII’s concerns, I would again note that the applicant sought access to the submissions “with all relevant personal information redacted as appropriate”. As such, TII’s concerns should be considered in that context. In relation to the first concern, it is not at all clear to me that the release of the submissions in this case might cause undue intrusion on the ongoing deliberative process. I note that the report of the consultation process contains a summary of the submissions received. Among other things, it describes the main concerns of the respondents. It also contains specific extracts from the various submissions, described as “samples of positive sentiment and suggestions made by residents” and “samples of negative sentiment”. Clearly, a decision was taken to publish the report on the basis that its release would not cause undue intrusion on the deliberative process.

It seems to me that the report represents an accurate picture of the breadth of comments made in the submissions and of the sentiment of the respondents to the proposals under consideration. In the circumstances, I fail to see how that release of the more detailed submissions might cause undue intrusion on the deliberative process.

In relation to the second concern, this is essentially an argument for the general protection of submissions made on foot of such consultations. As a general proposition, I do not accept that section 29 serves to protect such submissions as a class. Indeed, submissions received on statutory process are often published as a matter of course. In any event, I do not accept that the release of anonymised submissions would discourage general public participation in future consultation processes.

In conclusion, therefore, I find that TII has not shown that the release of the records would be contrary to the public interest. I find, therefore, that section 29(1) does not apply. I direct the release of the submissions, with the redaction of all information that would reveal, or lead to the revelation of, the identities of the respondents.

I note that TII expressed a concern that a number of the submissions received were handwritten and if released there is the possibility that, even with redaction, the individual respondents could be identified. The report of the consultation states that the submission response form and information brochure was delivered to approximately 4,250 homes in the Glasnevin and Ballymun areas and was also made available online and through other local public facilities. This means that the potential number of people reached was huge. From this there were 191 submissions made, of which about one third are handwritten. Given the size of the pool of potential respondents, the release of handwritten submissions with the redaction of other identifying features such as names and addresses of the respondents is unlikely, in my view, to lead to the revelation of the identities of those respondents.

In any event, if the TII has such concerns, it is open to it to provide transcribed versions of those submissions. Such an approach would, in my view, be consistent with section 17 of the Act which provides that access may be given to a record by providing the requester with a transcript of the information concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of TII to refuse access, under section 29(1), to the responses submitted to the consultation on the Metrolink Proposal for an intervention shaft in Albert College Park. I direct the release of the submissions made, with the redaction of all information that would reveal, or lead to the revelation of, the identities of the respondents.

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