Whether the Department was justified in refusing access, under sections 29(1), 30(1)(a) and 42(j) of the FOI Act, to certain records relating to the retention or deletion of records by officeholders or public servants

3 October 2022

Background

In a request dated 15 September 2021, the applicant sought access to records, from 1 August 2021 to the date of the request, relating to the issue of retention or deletion of records by officeholders or public servants when held on mobile phones, in text messages, private emails, messaging services or other such communication methods. He did not receive a response within the statutory timeframe and sought an internal review of the deemed refusal of his request on 26 October 2021. On 3 November 2021, the Department contacted the applicant to notify him that the original request had got caught in its spam filters. It apologised for the inconvenience caused and the parties agreed that the request would be treated as a new application but that the time period for records sought would expand as far as 2 November 2021. In further correspondence between the applicant and the Department, the scope of the request was amended slightly to the following:

-�Copies of any records held or created in the Minister for Foreign Affairs Office (including by the Minister-�s Special Advisors), and the Department-�s Press Office/Communications Office, and the Security and Corporate Compliance Unit, referring or relating to the issue of retention or deletion of records by officeholders or public servants when held on mobile phones, in text messages, private emails, messaging services or other such communication methods -�

On 8 December 2021, the Department issued a decision to the applicant in which it part-granted his request. It identified 62 records as falling within the scope of the request. It granted access to 24 of the records in full, to 12 in part, and refused to release the remaining 26 records. The records, or parts of records, were refused under sections 29(1), 30(1)(a), 31(1)(a), 37(1), 42(j) of the FOI Act. On 13 December 2021, the applicant sought an internal review of the decision to refuse certain records under sections 29, 30 and 42. He said that the records refused under sections 31 and 37 could be excluded from the scope of the internal review. On 6 January 2022, the Department affirmed its decision. The applicant applied to this Office for a review of the Department-�s decision on 2 February 2022.

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 Department, to the correspondence between the parties as set out above, and to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department when processing the request.

Scope of Review

This review is concerned with whether the Department was justified in refusing access to 18 records under section 29(1), to six records under section 42(j) and to one record under section 30(1)(a) of the FOI Act.

Preliminary Matters                                                                       

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the Department to justify its decision to refuse access to the records concerned in this case.

Analysis and Findings

Section 29: Deliberations of FOI bodies

The Department refused to release records 28, 31, 33 to 37, 41, 43, 44 to 47, 53 and 55 to 58 under section 29(1) of the FOI Act. Section 29(1) provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) granting the request would be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to 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 at section 29(1) has two independent requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. 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. 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.

In his application for internal review, which he referred to in his application to this Office, the applicant said the Department provided no detailed explanation of what the deliberative process was, nor did it provide reasons for what harm would be caused by release of the records.

In its submissions to this Office, the Department said that records 53 and 55 to 58 are concerned with the formation of a Records Management Policy. It said that the records contain observations on, and copies of, draft policies not yet finalised. It said that records 28, 31, 33 to 37, 41, and 43 to 47 were created as part of the deliberative process of preparing an internal message to staff of the Department and that they contained advice and recommendations.

A -�deliberative process-� as envisaged by section 29(1)(a) 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. Having had regard to the contents of the records concerned, I accept that they contain matter relating to the deliberative process of the Department, including advice, opinions, draft wording and proposals feeding into the final wording of particular departmental communications and policies. I therefore find that the records at issue meet the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the records meet the requirements of section 29(1)(b) of the Act.

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to, or against, the public interest. Where a body wishes to rely on section 29(1) to refuse access to records, I would expect it to be in a position to explain how release of the records would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in section 29 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. What I must consider is whether release at this point in time is contrary to the public interest.

Records 28, 31, 33 to 37, 41, and 43 to 47 all date from September 2021 and relate to the drafting of internal communications for circulation to all staff in the Department. The Department said, in its internal review decision, that disclosure of these records would be contrary to the public interest in so far as it is important for a Department to be able to work through a deliberation, to share views and opinions, and to accept recommendations before finalising a decision. It said that the release of these exchanges would undermine the outcome of the deliberative process, i.e. the final message.  In its submissions it said that the public interest would be better served by the Department being able to carry out advisory and decision-making processes without undue intrusion.

I fully accept that it is important for an FOI body to be able to work through a deliberation, to share views and opinions, and to accept recommendations before finalising a decision. Section 29 is a clear acknowledgement there will be cases where disclosure of the details of an FOI body-�s deliberations, whether before or after a decision based on those deliberations has been made, would be against the public interest. However, this is not to say that such

disclosure is always, as a matter of principle, against the public interest.

On the matter of the Department-�s argument that release of the earlier exchanges would undermine the final message, while I also accept that there may be instances where the release of earlier drafts of a final message could undermine the final message, the Department has not explained how the release of the records at issue might do so in this case. Neither is it apparent to me from an examination of the information contained within the records how the harm identified might arise.

Moreover, in so far as the Department argued that the public interest would be better served by it being able to carry out advisory and decision-making processes without undue intrusion, it has not explained how the release of the records might cause such -�undue intrusion-�. Accordingly, as I am not satisfied that the Department has satisfactorily shown that the release of the records would be contrary to the public interest, I find that section 29(1)(b) does not apply to records 28, 31, 33 to 37, 41, and 43 to 47.

Records 53 and 55-58 contain communications and draft policy documents connected to a records management project in the Department. The Department said that the policy is still being formulated and that disclosure of the records before the policy has been finalised would be contrary to the public interest. It said that premature release of the records would impair the process of formulating new policies without any countervailing benefit to the public interest.

The Department-�s arguments in relation to these records also seem to me to be broad, class-based arguments with no specific reasons given as to how the harm it envisages might arise from the release of the particular records. I note that the records are all from October 2021 but that the Department in its submissions dated 23 June 2022 stated that the policy has yet to be finalised. I also note that the Department highlighted, in itsCorporate Governance Framework 2021 - 2023, that a Records Management Project was underway and that this would involve the development of new systems, policies and procedures for the management of records in the Department.

It is not evident to me either from the Department-�s arguments or from an examination of the records how the release of these records could hamper the Department-�s policy-making process, or otherwise be contrary to the public interest. I am not satisfied that the Department has satisfactorily shown that the release of the records would be contrary to the public interest. I find that section 29(1)(b) does not apply to records 53, and 55 to 58.

In conclusion, therefore, I find that the Department was not justified in refusing access to records 28, 31, 33 to 37, 41, 43, 44 to 47, 53 and 55 to 58 under section 29(1) of the FOI Act.

Section 30: Functions and negotiations of FOI bodies

The Department refused to release record 59 under section 30(1)(a) of the FOI Act. Section 30(1)(a) of the Act provides for the discretionary refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The public interest test at section 30(2) must also be considered.

Section 30(1)(a) envisages two potential types of "prejudice" or harm. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or prejudice the "procedures or methods employed for the conduct thereof-�. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits, in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

Record 59 is a submission to this Office from the Department dated 28 October 2021 in the course of a review under the FOI Act. The Department said that this submission was made on the understanding that it would be treated with discretion and held in confidence. It said it believed that its release would prejudice the effectiveness of inquiries made by this Office and the procedures for the conduct of those inquiries. It referred to paragraph 6 of this Office-�s Summary Procedures document which says that submissions to the OIC will generally not be shared.

I accept the Department-�s point that, in the course of a review by this Office, submissions are generally not shared with the other parties to the review. Moreover, it is noteworthy that the Act does not apply to recordsheld by this Officerelating to the performance of our statutory functions. Indeed, I fully accept that the releaseby this Officeof records relating to a review as a matter of course could reasonably be expected to prejudice the effectiveness of our review procedures. Nevertheless, it is noteworthy that the Oireachtas did not choose to protect records relating to a review as a class when it passed the FOI Act 2014, as was formerly the case in the FOI Act 1997 &2003. Under the 2014 Act, any such records held by other FOI bodies are subject to release unless they are otherwise exempt.

Accordingly, it is not appropriate for any public body to seek to refuse access to records relating to a review by this Office as a class. Instead, the body must have regard to the nature and contents of the specific records sought. It is worth noting that to ensure procedural fairness, we notify the relevant parties of material issues that arise in the course of a review and we also reflect the main arguments made by the FOI body (or of any other relevant party) in the body of the decision, to the extent that we can do so without inadvertently disclosing the content of an exempt record. 

Having carefully examined record 59, I note that the review to which it relates was finalised almost a year ago. The Department-�s arguments contained in the record are reflected in the final, published decision. I am satisfied that there is nothing in the record that would disclose the contents of other exempt material. I do not accept that the Department has shown that the release of this record would prejudice the effectiveness of investigations or inquiries conducted by this Office (or by or on behalf of any other FOI body), or that it would prejudice the procedures or methods employed for the conduct thereof. Nor is the possibility of prejudice evident to me from an examination of the record itself.

I find that section 30(1)(a) does not apply to record 59.

Section 42: Restrictions of Act

The Department refused to release records 7, 13, 14, 17, 18 and 60 under section 42(j) of the FOI Act. Section 42(j) provides that the FOI Act does not apply to -�a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee (including such proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State (whether answered orally or in writing))-�.

In essence, the provision serves to exclude from the scope of the Act briefing material given to a member of the Government or a Minister of State for use for the purposes outlined. The applicant argued that while the exclusion might apply to one or two of the records, it was clear that several of the records were internal communications and not records that weregivento a Minister or Minister of State for use in either of the Houses of the Oireachtas.

The Department said Record 7 is a letter prepared for the Minister by the Department and subsequently sent to the Joint Committee on Foreign Affairs and Defence (JCFAD). It said that it was sent in response to a sitting of the JCFAD and that it was of the belief that this constitutes part of the proceedings of a committee of the Oireachtas. It said that records 3, 14, 17, 18 and 60 are copies of the briefing material prepared for the Minister for his appearance before JCFAD. It said that although they are not addressed to the Minister, the records contain the text of the document used by him at the JCFAD meeting in September 2021.

The Investigator asked the Department for further clarification in relation to these records, noting that it was not apparent to her either from an examination of the records or from the Department-�s submission, that the records were -�given by an FOI body to a member of the Government or a Minister of State-�. She also noted that record 60 was dated 29 October 2021, almost two months after the Minister's appearance at the meeting of the Oireachtas committee in question. No additional relevant information was provided by the Department.

Having carefully examined the records, I am prepared to accept that record 18, which is dated 6 September 2021 and entitled -�SCCU brief on FOI and Retention Policy (FINAL)-� was given to the Minister for Foreign Affairs for use by him at the JCFAD which took place the following day, 7 September 2021 and at which he discussed, among other things, FOI and record retention.

However, it is not apparent to me that any of the other five records meet the first requirement of section 42(j) which is that they must have been given by an FOI body to a member of the Government or a Minister of State. As already stated, record 7 is a letter from the Minister to the Chair of the Joint Committee on Foreign Affairs and Defence, dated 2 September 2021. While staff in the Department may have played a role in drafting the text of this letter, I cannot see how a letter from the Minister to a third party can be seen as a record given by the Department to the Minister. The remaining records are inter-Departmental emails containing different versions of the briefing note on FOI and record retention.

I find that the Department was justified in refusing record 18 under section 42(j), but that it was not justified in refusing access to records 7, 13, 14, 17 and 60.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that the Department was justified in refusing to release record 28 under section 42(j) of the Act. However, I find that it was not justified in refusing to release the remaining records under, variously, sections 29(1), 30(1)(a) and 42(j), and I direct their release.

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 by the requester 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.

Stephen Rafferty
Senior Investigator