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Whether the refusal of access by the Department to records concerning the education of children with autism and special needs is justified under section 29(1) and section 30(1)(a) and (c) of the FOI Act and whether the partial grant of access to certain records is justified under section 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 March 2015 the applicant made an FOI request to the Department for a number of records in relation to three research projects which the National Council for Special Education (NCSE) has undertaken for the purpose of advising the Department on policy regarding the education of children with autism and the provision of special education: "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland" (Set 1); "Project Iris" (Set 2) and "Autistic Spectrum Disorder secondary data analysis and Autistic Spectrum Disorder literature review" (Set 3).

By letter dated 9 April 2015, the Department refused access to the records on the basis that they were exempt from release under sections 29(1) and 30(1) of the FOI Act. On 13 April 2015 the applicant applied for an internal review in respect of all of the records. By letter dated 11 May 2015, the Department issued its internal review decision, in which it affirmed its original decision. On 15 May 2015, the applicant applied to this Office for a review of the Department's decision.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Department; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following five points.

First, in neither its original nor internal review decision did the Department provide the applicant with a proper schedule or reasons. For example, the required consideration of the public interest was omitted from both decisions. Accordingly, on 6 July 2015 this Office exercised its power under section 23 of the FOI Act to direct the Department to provide it with a statement of reasons and findings. By letter dated 24 July 2015, the Department provided this Office with a statement of reasons and findings, enclosing a revised schedule of records which it subsequently issued to the applicant by letter dated 18 August 2015. The Department released certain records to the applicant on foot of this revised schedule. The Secretary General of the Department stated in response to this Office's statutory notice that the Department would look at its FOI procedures and training with a view to improvement. I would remind FOI bodies of their obligation under section 13 of the FOI Act to provide reasoned decisions. I also draw attention to the manual of the Central Policy Unit (Department of Public Expenditure and Reform) on dealing with FOI requests, which contains a sample schedule of records and guidance on preparing schedules. It is difficult to understand why decision-makers would not follow the requirements of the FOI Act and use the FOI resources available.

Secondly, 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. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner[2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Thirdly, it is important to note that 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 me that its decision is justified.

Fourthly, in its submissions to this Office the Department refers to a commercial interest which it says the applicant has or had in the areas being researched. The Department states that releasing the records could provide an advantage, whether real or perceived, to the applicant. I do not know if this is the case or not. However, it is not relevant to my analysis, since section 13(4) requires me to disregard the reasons for an FOI request. In any event, the disclosure of records under the FOI Act is to be treated as disclosure to the world at large and accordingly, could not be said to benefit the applicant alone.

Finally, I should mention that this Office received a request for a review of an FOI decision by the NCSE in relation to records concerning the same subject matter. A separate decision on that will issue (Case Number 150225). As the NCSE's observations in that case pertain to this matter, I refer to them in this decision.

Scope of the Review

As noted above, following this Office's intervention, the Department released further records to the applicant by letter dated 18 August 2015. Furthermore, following contact from the applicant, an Investigator in this Office asked the Department about certain records which were not included on its schedule but which would appear to be held by it. By letter dated 11 September 2015, the Department issued a partly revised schedule of records to the applicant and indicated its position that access was refused to the additional records which it had identified. Accordingly, the scope of my review is confined to the records or parts of records which were withheld from the applicant and outlined on the most recent schedule, provided to the applicant by letter dated 11 September 2015.

Analysis and Findings

Section 29 - deliberative process

Section 29(1) of the FOI Act provides:

"A head may refuse to grant an FOI request -

(a) if 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, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make".

The exemption under section 29 has two requirements:

(a) the record must contain matter relating to the deliberative process; and
(b) disclosure must 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 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 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. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.

The NCSE has statutory functions to conduct and commission research and advise the Department on matters relating to special education. Both the Department and the NCSE have advised this Office that a quality assurance process within the NCSE determines whether its research complies with certain standards and that it is not unknown for research which does not comply with those standards to be rejected or changed. It is this process of deliberation to which the Department refers in relying on section 29. The Department submits that the NCSE should be afforded the opportunity to accept or reject research material and that it is not in the public interest for research to be released before the NCSE has completed its deliberative process. I note from communications with the NCSE that, on publication of the report, details of the methodology, the data and its reasons will be disclosed to the public.

Having carefully considered the records within the scope of this review, I accept that some, but not all, of the records within the scope of this review contain matter for consideration by the NCSE in such deliberations.

I do not accept that the following records contain matter to be taken into account by the NCSE in its deliberations (e.g. opinions, advice, recommendations):

1. Set 1: record 1, the email in record 10 and record 11; Set 2: the emails in records 1 and 2;
Set 3: the email in record 1, records 2 and 3, the cover email and advisory group terms of reference in record 5; records 7, 8, 9, 11, 12, 15, 16. In my view these records consist of correspondence relating to the process of compiling the research report, rather than opinions or advice or material of that nature for deliberations by the NCSE.

2. Set 1: records 3 and 5; Set 2: the attachment in record 2; Set 3: records 4, 10 and 17 consist of minutes of advisory or steering group meetings. The NCSE has advised this Office that the NCSE research committee does not consider the minutes of the relevant advisory/steering groups when deliberating on the content of research reports.

3. Set 2: record 4 relates to the drafting of a response to a Parliamentary Question, the content of which response is now available online on www.oireachtas.ie.

Accordingly, I am not required to consider the application of section 29(1)(b) to the records listed above. I find that the Department's refusal of access to them is not justified under section 29(1) of the FOI Act.

I do accept that section 29(1)(a) applies to the remaining records, on the basis that they include matter for consideration by the NCSE in its deliberations about the reports, namely: set 1: records 6, 7, 8, 9 and the letter in record 10; Set 2: the draft table of contents and draft report in record 1; Set 3: the remaining contents of record 5, records 13 and 14.

Section 29(2) contains a list of matters which disapply section 29(1) exemptions. I consider two of these to be of potential relevance here. Although records 8 and 9 of Set 1 include lists of sample schools, which could be taken as "factual information" under section 29(2)(b), in the particular circumstances I consider that they would relate to the NCSE's deliberations on the methodology of the reports. Furthermore, although record 6 of Set 1, record 1 of Set 2 and records 13 and 14 of Set 3 include draft reports by experts, I consider that they do not fall under section 29(2)(e), as they are commissioned for the purposes of a decision by the NCSE, pursuant to section 20 of the Education for Persons with Special Educational Needs Act 2004 so that they are reports commissioned under an enactment. Therefore, I find that none of the exceptions in section 29(2)(b) apply to the above records.

The Public Interest

I am therefore required to consider section 29(1)(b) in relation to the remaining records. The Commissioner has found that the FOI Act clearly envisaged that there will be cases in which disclosure of 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 (see Case 98058 Mr McAleer of the Sunday Times & the Department of Justice, Equality and Law Reform on www.oic.ie). 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.

As noted above, my jurisdiction is to make a new decision in light of the circumstances applying at the date of the review. It is possible that release of a particular record at a particular point in time would be contrary to the public interest, but that with the passage of time this would no longer be the case. 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 NCSE has advised this Office that it has now completed its deliberations on the content of both "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland" and "Autistic Spectrum Disorder secondary data analysis and Autistic Spectrum Disorder literature review". It has not yet published these reports. However, it has already published the report for Project Iris on its website www.ncse.ie. I consider the advanced stage of all three reports to be a relevant factor which would favour release.

I am also mindful that 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 as to whether it would be contrary to the public interest to release these records.

The Department says that access to the records would undermine and prejudice the NCSE's deliberative functions. However, at this advanced stage, I do not see how this could be the case. Moreover, in view of the fact that the NCSE will be publishing the reports' methodology, data and reasons, I do not accept that releasing records which relate to the deliberations preceding those reports would cause harm. In conclusion, I do not believe that the Department has shown that releasing the records would be contrary to the public interest. I therefore find that its refusal of access to the remaining records in Sets 1, 2 and 3 is not justified under section 29(1) of the FOI Act.

Section 30 - functions and negotiations

Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or the methods employed for the conduct thereof"

...

(c) 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".

The Department invokes section 30(1)(a) and section 30(1)(c) in this case.

When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation. The FOI body should identify the potential harm or prejudice to the relevant test, examination etc and show how release of the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc.

Having examined the records, I am satisfied that they relate to the NCSE's research process and accept that this process can be classified as an examination or investigation for the purposes of section 30(1)(a).

The Department submits that releasing the records could prejudice the effectiveness of the methods of the NCSE in two ways: (a) by generating speculative challenges to the research before it is completed (thereby compromising the committee's capacity to discharge its functions); and (b) by leading to the possible withdrawal of cooperation from future participants (e.g. schools) by disclosing their identities.

However, at this advanced stage, I do not accept that there are adequate grounds for the Department's expectation that disclosing these records could jeopardise the NCSE's ability to complete its reports. In Case 100112 (Mr X & University College Cork), the Commissioner distinguished between the process of conducting a review and implementing that review's recommendations. I believe that this distinction is applicable here as between the process of completing the research reports and any recommendations which may flow from them. Since the process of completing the research reports is over, I do not see how this function could be harmed by releasing the records. Neither do I accept that the release of lists of the participant schools would lead to the withdrawal of their participation in the future. In that regard, I note that although the NCSE referred to a possible impact on the goodwill of the school participants, it did not refer to their withdrawal from future participation.

Section 30(1)(c) does not contain a harm test; however, public bodies should identify the relevant negotiations at issue. The Department submits that releasing the records could disclose future positions which the Department might adopt on the education of children with autism in future negotiations with school management bodies, education partners, teacher unions and other government departments. I understand from the Department's submissions that there exist very different views on the education of children with autism and special needs. However, the Department has not demonstrated to me that the records disclose particular positions which it would adopt in any negotiations and such policy positions are not apparent to me from reviewing the records. Nor has it pointed to specific negotiations which are likely to take place. I therefore reject this argument.

Accordingly, I find that the Department's refusal of access to the records in Sets 1, 2 and 3 is not justified under section 30(1) of the FOI Act.

Section 37 - personal information

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. It excludes from this definition the names of individuals who hold or held a position as a member of staff of an FOI body (exception (I)(B) of the definition at section 2(1) of the FOI Act refers).

Some of the records which the Department released to the applicant were partially redacted on the ground that the redactions consisted of personal information of third parties; namely record 4 of Set 1 and records 1, 6 and 16 of Set 3. Having reviewed these records, I accept that some of the redacted material constitutes personal information. However some of the material consists of names of staff members of an FOI body and therefore does not fall within the definition of "personal information".

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances apply to the records which contain personal information. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I am required to consider whether, on balance, the public interest in granting the request outweighs the public interest in upholding the right to privacy of the individual concerned. In weighing up the public interest under section 37(5), I have had regard to the Supreme Court judgment in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26, which distinguishes between private and public interests. In the circumstances, I cannot identify a public interest in granting access to this personal information. I find that the Department was justified under section 37(1) of the FOI Act in withholding those parts of the redacted material which constitute personal information. As regards section 37(5)(b), it has not been argued that release of their personal information would benefit the individuals and I find that this exception does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm the decision to refuse access to parts of record 4 of Set 1 and records 1, 6 and 16 of Set 3 which comprise personal information and are exempt under section 37 (subject to the release of the names of individual staff members of FOI bodies contained within those records). I annul the decision to refuse access to the remaining records and direct their release. This is subject to the redaction of any personal information in the records to be released, such as the names and contact details and personal e-mail addresses of individuals (other than the names and contact details of staff members of FOI bodies such as the Department or the NCSE).

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator