Whether ABP was justified in refusing access to a recording of a particular oral hearing

27 June 2022

Background

The applicant's FOI request of 15 December 2021 sought access to a copy of the recording of a particular oral hearing.

ABP's decision of 10 January 2022 refused the request under section 11(7)(b) of the FOI Act. It said that the case was still live and that granting the request would impact on the impartial nature of its decision making process. However, it should be noted that section 11(7)(b) is not, of itself, an exemption provision or a ground on which to refuse a request. It simply explains that the right of access provided for by section 11 does not apply to exempt records. While ABP also referred generally to section 29(1) of the FOI Act (deliberative processes), it did not state that it was relying on this provision, or explain why it applied. 

The applicant sought an internal review on 12 January 2022. He noted that the Board's decision had not referred to any exemption provision. He also queried how its impartiality could be affected by the release of a recording of a public meeting, which he said is information already effectively in the public domain.

ABP affirmed its refusal of the request on 2 February 2022, again by reference to section 11(7)(b) of the FOI Act. It referred generally to section 29(1), but again did not seek to rely on this provision or explain why it was doing so. On 8 February 2022, the applicant applied to this Office for a review of ABP's decision.

Section 23 of the FOI Act provides that where the Commissioner considers that the statement of the reasons for an FOI body's decision is not adequate, he shall direct the head of the body to furnish both to the requester concerned and to him a written statement containing any further information in relation to those matters that is in the power or control of the body. Having regard to ABP's decisions, this Office issued a notice to ABP under section 23 on 4 March 2022. This notice required ABP to provide this Office and the applicant with a statement setting out various details, including the particular sections of the FOI Act being relied on to refuse the request, and ABP's reasons for so doing.

ABP's ensuing statement of 25 March 2022 said that it was relying on section 29(1) of the FOI Act. It said that the records relate to the Board's deliberative processes on a live strategic housing application. It said that the process was statutorily governed and that a decision on the matter had yet to be made. It said that release of the record to persons outside of the planning appeal process was not in the public interest because it may be injurious to the Board's impartiality in determining the application before it.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, ABP, and the applicant, to the recording at issue and the provisions of the FOI Act. I note that this Office received no submission from ABP.

Scope of Review

The scope of this review is confined to whether ABP's decision on the applicant's request is justified under the provisions of the FOI Act.

Preliminary Matters

As noted earlier, ABP's decisions purported to refuse the applicant's request under section 11(7)(b) of the FOI Act, which is not, of itself, an exemption provision. ABP has been subject to FOI for over 20 years. It should be well aware that the exemptions to the right of access are contained in sections 28 to 41 of the FOI Act (i.e. in Part 4 of the Act).

Furthermore, ABP should also be well aware of what the FOI Act requires to be contained in decisions made under the Act, as provided for by sections 13(2) and 21(5) of the FOI Act. In particular, further to sections 13(2)(d) and 21(5)(c), where an FOI body decides to refuse to grant a request, the notification of the decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

ABP's decisions did not comply with the above requirements. I would remind ABP of these, and also the usefulguidance for FOI bodiesthat is available on the website of the Department for Public Expenditure and Reform's Central Policy Unit (CPU). In addition, the Minister for Public Expenditure and Reform has published a Code of Practice (the Code) for public bodies pursuant to section 48 of the Act. The Code is also available on the CPU's website, and includes key details relevant to the processing of requests and the contents of decisions. Under section 48(3) of the FOI Act, public bodies must have regard to the Code in the performance of their functions under the Act.

Analysis and Findings

Section 29 -� deliberative processes

Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, 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 requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met.

A deliberative process 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 in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest.

While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant to the issue of the public interest. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make.

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.

It is noted that, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that -�it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.-�

I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that -�[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard-�.

Section 29(1)(a)

ABP says that the recording relates to an application for a Strategic Housing Development (SHD), which must undergo a process governed by the Planning and Development (Housing) and Residential Tenancies Act 2016 and the Planning and Development (Strategic Housing Development) Regulations 2017, and upon which the Board has yet to make a decision. The applicant accepts that the requested record relates to a deliberative process. In any event, it seems to me that the processes further to which ABP is considering the SHD application, which includes the oral hearing the subject of the requested recording, are deliberative in nature. I find that the first requirement of section 29(1), as set out at section 29(1)(a) of the FOI Act, has been met in this case.

Section 29(1)(b)

In considering section 29(1)(b), I must consider whether release of the records at this point in time is contrary to the public interest. It is relevant that the release of records under FOI is accepted generally to be the same as publishing them to the world at large.

ABP's statement of 25 March 2022 says that the disclosure of records concerning live cases to the world at large -�is not in the public interest on the basis that the factors in favour of the refusal of these records outweigh those in favour of release, as the release of these records may be injurious to the impartiality of the Board when determining the case.-�

In inviting its submissions, this Office's Investigator referred ABP to the applicant's observation that it appeared to have carried out a public interest balancing test, rather than that required by section 29(1)(b). She also asked it to respond to a number of queries. One such query concerned the Investigator's view that the relevant legislation does not appear to prohibit ABP from publishing the recording whilst deliberations are ongoing. She asked ABP to refer her to the relevant provision or requirement if she was wrong.

The Investigator also commented that the record concerned an oral hearing carried out in the public domain, which any member of the public could attend (and whom she said could presumably record the hearing on a phone or other device). The Investigator asked ABP to explain how in such circumstances, release of the recording to the world at large now (i) would be contrary to the public interest and (ii) injurious to the impartiality of ABP's deliberations, which is its stated position.

A further query concerned this Office's decision inCase No. OIC-110190-W7X6G1, which the applicant said was relevant to the case at hand. The Investigator noted that each review in this Office is treated on its own merits. She asked ABP to explain why the circumstances of the current case differ to those in Case No 110190, such that release of the records at issue would be contrary to the public interest.

I accept that the deliberative process to which the recording relates has not concluded. I accept that there will be occasions when disclosure of material relating to an FOI body's deliberations, before 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.

The recording concerns a part of the deliberative process that was held in public. I now understand that no other recordings of the hearing concerned were permitted. Otherwise, however, I have no reason to disagree with the Investigator's other observations as set out above, particularly given that no submission has been received from ABP.

In particular, I am not aware of, nor has ABP referred me to, any legal prohibition on publishing the recording at issue while the deliberative processes to which it relates are ongoing. Furthermore, ABP has not explained how, in all of the circumstances, disclosure of the recording would be contrary to the public interest and/or injurious to the impartiality of its deliberations and it is not apparent to me how such outcomes would arise.

I see no reason to consider that disclosure of the recording at this point in time would be contrary to the public interest. I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has not been met in this case. I find that ABP is not justified in withholding the record under section 29(1) of the FOI Act.

ABP has made no claim that any other provisions of the FOI Act apply. For avoidance of doubt, I see no basis to find that the recording is exempt under any of the exemptions intended to protect the interests of third parties i.e. sections 35 (confidential information), 36 (commercially sensitive) or 37 (personal information).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul ABP's refusal of the record and I direct it to grant access to the record concerned.

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.

Deirdre McGoldrick
Senior Investigator