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Whether the refusal of access by the NCSE to records concerning the education of children with autism is justified under section 29(1) and section 30(1)(a) and (c) 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 NCSE for a number of records in relation to three research projects which the NCSE has undertaken for the purpose of advising the Department of Education and Skills (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"; "Project Iris" and "Autistic Spectrum Disorder secondary data analysis and Autistic Spectrum Disorder literature review".

On 14 April 2015, the applicant restricted the scope of his request to certain records relating to one of the research projects, namely "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland", as listed at paragraphs (a) to (e) of his original request. By letter dated 13 May 2015, the NCSE 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 15 May 2015, the applicant applied for an internal review in respect of the records. On 8 June 2015, the NCSE issued its internal review decision, in which it affirmed its original decision. On 24 July 2015, the applicant applied to this Office for a review of the NCSE's decision.

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

Preliminary Matters

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]".

Moreover, 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 NCSE to satisfy me that its decision is justified.

Scope of the Review

The scope of my review is confined to the records which the applicant outlined at (a) to (e) of his request, in relation to "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland".

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 of Education and Skills on matters relating to special education. The NCSE has 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 NCSE refers in relying on section 29. The NCSE submits that the records remain part of the deliberative process until a decision is made on the publication of the research report. It further submits that the premature release of the records could impair the integrity of the research project; contaminate the quality assurance process; provide information out of context and not fairly disclose reasons for decisions made. Finally, it states that on publishing 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. records 2, 6, 23 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.

2. records 7, 11, 12, 13, 14, 19, 24, 25, 26, 29 in my view 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.

Accordingly, I am not required to consider the application of section 29(1)(b) to the records listed above. I find that the NCSE'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: records 1, 3, 4, 5, 8, 9, 10, 15, 16, 17, 18, 20, 21, 22, 27 and 28. Section 29(2) contains a list of matters which disapply the section 29(1) exemptions. I consider one of these to be of potential relevance here. Although records 3, 8, 9, 10, 15, 16, 17, 18, 20, 21 and 22 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 report.

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 "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland". I consider the advanced stage of the report 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.

At this advanced stage, I do not see how releasing the records could impair the NCSE's deliberative process or contaminate the quality assurance process. In view of the fact that the NCSE will be publishing the report's methodology, data and reasons, I do not accept that releasing records which relate to deliberations preceding the report would cause harm. In conclusion, I do not believe that the NCSE has shown that releasing the records would be contrary to the public interest. I therefore find that its refusal of access to the records 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 NCSE 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 NCSE submits that releasing the records could cause a challenge to the research and impact on the NCSE's capacity to complete the quality assurance process.

However, at this advanced stage, I do not accept that there are adequate grounds for the NCSE's expectation that disclosing the records could jeopardise its ability to complete its report. 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.

Section 30(1)(c) does not contain a harm test; however, public bodies should identify the relevant negotiations at issue. The NCSE submits that releasing the records could impact on the Department's capacity to negotiate with interested parties. I understand from the NCSE and the Department that there exist very different views on the education of children with autism. However, the NCSE has not demonstrated to me that the records disclose particular positions which the Department would adopt in any negotiations and such policy positions are not apparent to me from reviewing the records. Neither has the NCSE pointed to specific negotiations which are likely to take place. I therefore reject this argument.

Accordingly, I find that the NCSE's refusal of access to the records is not justified under section 30(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the NCSE and direct the release of the records. This is subject to the redaction of any personal information to be released, such as the names and contact details and personal e-mail addresses of individual people (other than the names and contact details of staff members of FOI bodies such as the NCSE or the Department).

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 four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator