Whether the Council was justified in refusing access to emails sent by a named company to a named Council official relating to proposals for shared e-bike services  

9 February 2023

Background

In a request dated 13 September 2022, the applicant sought access to emails from a named company (-˜Company X-™) to a named official of Cavan County Council relating to proposals for shared e-bike schemes, sent between 1 May 2022 and 30 August 2022 and as detailed on the lobbying register. 

In a decision dated 12 October 2022 the Council issued its decision.  It identified 10 records as falling with the scope of the applicant-™s request.  It refused access to all records on the basis of section 29 of the FOI Act. 

On 18 October 2022 the applicant sought an internal review of this decision.  The applicant also indicated that he had made similar requests to two other county councils, based on returns detailed on the lobbying register, and the applicant indicated that relevant records had been released to him on foot of these requests.  

On 9 November 2022 the internal reviewer affirmed the Council-™s decision.  

On 14 November 2022, the applicant applied to this Office for a review of the Council-™s  decision.

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 applicant-™s comments in his application for review and to the submissions made by the Council in support of its decision.  I have also regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Council was justified in refusing access to the records at issue on the basis of section 29 of the FOI Act

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicants-™ motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Finally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent.  Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

The records at issue in this case relate to correspondence from Company X to Council officials providing an outline of the services it provides as well as correspondence from Council officials outlining its preliminary views on the proposal. 

The Council has refused access to all records on the basis of section 29(1) of the FOI Act.

Section 29 -“ Deliberative processes

Section 29(1) provides for the discretionary refusal of a request 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 considered by the body for the purpose of those processes, and (b) the body considers that the granting of 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. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) 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 processes 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 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.

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 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.

In both his application for an internal review and in his appeal to this Office, the applicant has argued that two other county councils had released records relating to correspondence from Company X regarding proposals for shared e-bike services.  The applicant further argued that it is in the public interest to release information relating to lobbying by companies seeking to partner with public bodies.  

In its submission to this Office, the Council said it had refused access to the records sought by the applicant as it was engaged in an ongoing deliberative process regarding the possibility of entering into a contract with Company X to provide e-bike services.    It indicated that it understood that the other councils referred to by the applicant in his request for an internal review had either signed a contract with a company or already had a scheme in place.  It stated that this was in contrast to Cavan County Council where no decision had yet been taken on whether a contract would be entered into with Company X.   It further stated that release of the records would result in the integrity of the deliberative process being impaired.  The Council stated that it was in the public interest to allow it to make a decision without undue intrusion. 

While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. This is not to say it automatically follows that it is contrary to the public interest to release some or all records relating to an ongoing deliberative process. Neither does it follow that it is contrary to the public interest to release records that comprise an incomplete view of the factors and issues under consideration. Each case must be determined on its own merits.

Having carefully considered the matter, I am satisfied that the consideration on whether to enter into a contract with Company X to provide e-bike services can reasonably be described as a deliberative process for the purposes of the FOI Act.  It seems to me that release of the records at this point in time would give an insight into the Council-™s thinking on the matter in circumstances where it has not yet determined how it wishes to proceed.   I am satisfied that such deliberations require the balancing of competing interests and as such require the necessary space in order for the Council to make an informed decision in a timely and efficient manner. I am satisfied that in order to protect the integrity of the process it is not in the public interest to release the relevant records at this point in time. In this respect, it should be borne in mind that release of records under FOI is accepted to be effectively the same as publishing them to the world at large. I am equally satisfied that there is a strong public interest in ensuring that this process is not compromised by the release of records that could inhibit the full and frank consideration of all relevant issues by the Council.

Bearing in mind the provisions of section 18 as outlined above, I find, therefore, that section 29(1) applies to the relevant records.

I have also considered whether any of the exceptions to section 29(1) as set out in section 29(2) apply to the information. Bearing in mind the provisions of section 18(1) as referred to above, I am satisfied that none of these exceptions apply to the information. 

In summary, therefore, I find that, at this time, the Council was justified in refusing access to the relevant records on the basis of section 29. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-™s decision to refuse access to the relevant records on the basis of section 29 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.
 

Mary Connery
Investigator