Whether the Department was justified, under sections 29(1) and 36(1) of the FOI Act, in refusing access to certain records relating to the identification of a permanent site for a new primary school in Dublin

2 December 2022

Background

In a request dated 20 July 2021, the applicant sought access to all records relating to the permanent site for a new primary school in Booterstown/Blackrock including the determination of need for a primary school in the Booterstown/Blackrock area from the Forward Planning section of the Department. In a decision dated 18 August 2021, the Department part-granted the request. It identified 180 relevant records of which it released four. The remaining records were refused under sections 15(1)(d), 15(1)(i), 29(1), and 30(1)(a) of the FOI Act. The applicant requested an internal review of the Department-�s decision on that same day. On 10 September 2021, the Department varied its original decision. In relation to four records, it amended the basis for refusal to section 15(1)(d). It also said that two of the records had been included on the Schedule in error and did not fall within the scope of the request. No further records were released. On 10 February 2022, the applicant applied to this Office for a review of the Department-�s decision.

During the course of the review, the Department released two further tranches of records to the applicant, some in full and some in part. It also said that some of the outstanding records were exempt under section 36(1) as well as section 29(1). The applicant was informed of this revised position and given an opportunity to comment.

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 correspondence between the applicant and the Department as outlined above, and to the communication between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

At the outset, the applicant agreed to omit from the scope of the review the records refused under sections 15(1)(d) or 15(1)(i) of the FOI Act (i.e. the records refused because they were already in the public domain, or had previously been released).

Following the release of the additional records (including those that had been originally refused under section 30(1)(a)), it was agreed with the applicant that the review would be confined to the Department-�s refusal to release the following outstanding records:

• Records 4, 5, 6, 11, 14, 15, 16, 17, 20, 21, 25, 26, 31, 32, 33, 34, 35, 36, 37, 44, 47, 69, 71, 74, 75, 120, 122, 124, 125, 127, 141, 147, 148 and 152, in full, and
• Records 1, 19, 27, 28, 40, 55, 56, 62 and 72 in part.

Parts of records 1, 40, 55, 56, 62 and 72 were refused on the basis that they were not relevant to the scope of the request. Having examined each of these records, I am satisfied that the information falling within the scope of the applicant-�s request in records 55, 56, 62 and 72 has now been released to the applicant and that the information withheld from these records falls outside the scope of the request. Accordingly, I will not consider these records further. In relation to records 1 and 40, however, I find that some of the withheld information does fall within the scope of the request and I will consider this in the course of this review under the exemptions claimed by the Department.

There were redactions made, under section 37(1), to small amounts of personal information in some of the records that were released to the applicant. Following consultation with the applicant, I have not examined these redactions in the review. As the redactions to record 27 were made under section 37(1) only, I will not consider this record further.

Therefore, all that remains to be considered in this review is whether the Department was justified, under sections 29(1) and 36(1) of the FOI Act, in refusing to release:

• Records 4, 5, 6, 11, 14, 15, 16, 17, 20, 21, 25, 26, 31, 32, 33, 34, 35, 36, 37, 44, 47, 69, 71, 74, 75, 120, 122, 124, 125, 127, 141, 147, 148 and 152, in full, and
• Records 1, 19, 28, 40, in part.

Preliminary Matters                                                                        

Section 13(4) of the FOI 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 applicant's motives for seeking access to the information 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.

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 29: Deliberations of FOI bodies

The Department refused to release all of the records remaining within the scope of the review under section 29(1) and in these circumstances I have considered this exemption first.

Section 29(1) of the Act 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. 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 are met. 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 exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it is very important to go on to consider whether section 29(2) applies in relation to the record concerned.

Section 29(1)(a): Whether the records relate to a deliberative process

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. 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.

In its submissions, the Department said that the deliberative process in this case involved the identification, assessment and acquisition of sites for new schools announced in the Dun Laoghaire-Rathdown area in 2018, of which the school in question was one. It provided a detailed account of the process involved which first required the identification of potential properties in the relevant area that were already in the ownership of the State. I am satisfied that this Site Acquisition Process is a deliberative process, and that all of the records at issue contain matter relating to this deliberative process. I therefore find that the records 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.

Section 29(1)(b): Whether the granting of the request would be contrary to the public interest

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, this Office expects 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.

In its submissions and in further communications with this Office, the Department said that the Site Acquisition Process for suitable school sites (both temporary and permanent) in highly developed urban areas, where land is scarce, is particularly complex and challenging for the Department, and that this has proved to be the case with the school in question. It explained that in relation to the search for a suitable site for the school, eleven sites were initially identified as potential site options but, for various reasons, ended up not being viable. It said that a site in the ownership of Dun Laoghaire-Rathdown County Council has been identified for the school and its sale to the Department has been approved by the elected members of the Council. However, it says that this has not yet been completed and the contract will be subject to the final grant of planning permission for a permanent school building on the site. Furthermore, it said that the process to identify a site for this school is inextricably linked to the site acquisition process for other schools in the South Dublin area, both at present and in the future.

The Department also said, more broadly, that the Site Acquisition Process is a dynamic process which is influenced by current and future school requirements. It said that numerous external factors can influence and change these requirements in any School Planning Area, which can result in a site option that had been ruled out previously being considered again. It said that the release of records pertaining to the assessment of and deliberations on a particular school site option can affect future negotiations on the acquisition of that site. The Department noted that due to the complexities relating to the acquisition of land, any acquisition is at risk of not completing right up to the date of closing. It said that the release of certain records relating to the land could negatively affect this process which would not be in the public interest.

In relation to this FOI request and the release of records containing information about the acquisition of a suitable site for the school in question, the Department said that it has sought to provide a significant amount of information to the applicant, both through the FOI process and otherwise. I note that the records that were released to the applicant in the course of this review were done so on the basis that, with the passage of time and further progress made, those particular records became less sensitive. However, the Department said that it believed that the release of the outstanding records would not be in the best interests of the public.

The applicant expressed frustration at the delays and uncertainty experienced by families and the wider school community in securing a permanent location for the school. She argued that parents are part of the public and that they have the right to understand why the Department chose what to do, and what not to do, as it is children and families that have to live with the consequences of these actions. She also said she wished to understand why a site that was ruled out at one stage was later reconsidered.

While I appreciate the applicant-�s position, it seems to me that the public interest in this case ultimately lies in the Department being able to fulfil its role of securing appropriate sites for schools, and then securing planning permission and building these schools for the best price and as quickly as possible.

I accept the Department-�s arguments that this is a complex process and one that remains at risk of being derailed right up to the date of closing, and indeed until the granting of planning permission. In these circumstances, I accept that the Department needs to keep alternative options open and that there is certain information that it not currently in the public domain relating to various sites that could, if it were released, prejudice its ability to negotiate around the acquisition of such sites and secure appropriate planning permission. It seems to me that the release of such information would be contrary to the public interest.

In these circumstances, I accept that section 29(1)(b) applies to the following records or parts of records: 1, 4, 5, 6, 11, 16, 17, 19, 20, 21, 25, 26, 28, 31, 32, 33, 34, 35, 36, 37, 40, 44, 47, 69, 71, 74, 75, 120, 122, 124, 125, 127, 147, 148 and 152.

I do not, however, accept that it applies to records 14 or 15 which I find to be administrative in nature. I do not accept that these records contain any information whose release would be contrary to the public interest.

In relation to record 141, I find that section 29(1)(b) applies to the redaction within the body of the email dated 12 May 2021. However, I do not find that it applies to the attachment to that email which contains information already in the public domain.

Section 29(2)

The exemption at section 29(1) does not apply to a record if, and in so far as, it contains any of the information or matter referred to in section 29(2). This includes (b) factual information and (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.

Many of the records to which I have found section 29(1) to apply contain some factual information. Section 18(1) of the FOI Act provides for the release of non-exempt material from an otherwise exempt record -�if it is practicable to do so-�. However, section 18(2) provides that section 18(1) does not apply if the resulting copy would be misleading. I am of the view that it would not be practicable to attempt to extract any factual information from the records while at the same time ensuring that the redacted copies are not misleading under section 18 of the Act. Furthermore, it is relevant that the factual information is in many instances inextricably linked to other types of information such as proposals and opinions. 

Records 19, 28, 37, 40, 44, 47 and 125 all contain reports completed by external consultants for the Department, including detailed assessments of various site options. The Department made no reference to section 29(2) in its submissions but it seems me that these reports fall clearly within the exclusion set out at under 29(2)(e), and therefore section 29(1) does not apply to them.

Conclusion on section 29

I accept that the following records, in full or in part, are exempt from release under section 29(1): 1, 4, 5, 6, 11, 16, 17, 20, 21, 25, 26, 31, 32, 33, 34, 35, 36, 69, 71, 74, 75, 120, 122, 124, 127, 141 (redaction in body of record only), 147, 148 and 152.

However, I find that section 29(1) does not apply to records: 14, 15, 19, 28, 37, 40, 44, 47, 125, or the attachment to record 141.

Section 36: Commercially sensitive information

It is the Department-�s position that section 36(1) also applies to the refused records and I will examine the records to which I have found section 29(1) not to apply under this exemption, i.e. records 14, 15, 19, 28, 37, 40, 44, 47, 125, and the attachment to record 141.

Section 36(1) provides a mandatory exemption for commercially sensitive information. As a general principle, the Commissioner takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. He has found that there is some uncertainty as to the position of FOI bodies under section 36. However, depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to his Office, from relying on the provisions of section 36. Given the circumstances in this case, where the Department is in the process of acquiring land for schools, it seems reasonable to me to consider the commercial interests of the Department in examining the records at issue.

Section 36(1)(c)

The Department did not specify which sub-section of the exemption it was relying on but I am satisfied that section 36(1)(c) is the most relevant exemption provision to consider. Section 36(1)(c) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet section 36(1)(c) is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

The Department said that the contracts for the acquisition of a number of sites, both for the school in question and for other schools, are not yet closed and that negotiation discussions are ongoing. It said release of the information contained within these records could harm these negotiations. As discussed in more detail under section 29 above, the Department said that due to the complexities relating to the acquisition of land, any acquisition is at risk of not completing right up to the date of closing and that the release of certain records relating to the land could negatively affect this process. Furthermore, the Department said that it remained possible that a site option that had been ruled out at one stage may have to be considered again at a later date. With this in mind, having carefully examined the remaining records, I am satisfied that records 19, 28, 37, 40, 44, 47 and 125 contain information whose disclosure could prejudice the conduct or outcome of contractual negotiations that the Department is involved in. I do not, however, find that records 14, 15 or the attachment to record 141 contain any such information.

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Section 36(3)

Having found that section 36(1)(b) applies to records 19, 28, 37, 40, 44, 47 and 125, I am now required to consider whether, on balance, the public interest would be better served by granting than by refusing access to this information, under section 36(3). On the one hand, section 36(1)(c) itself recognises a public interest in protecting commercially sensitive information. In this case, I accept that there is a public interest in protecting information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations. On the other hand, I must consider whether there is a public interest in disclosing the specific content of the withheld information.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.

However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. It is also important to have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

I refer to my consideration of various public interest factors in relation to section 29(1) above, albeit the public interest test under that exemption is slightly different. I have also considered these factors under section 36(3) with regard to the contents of the relevant records, and I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

I find that the public interest would, on balance, be better served by refusing access to the information at issue. I find, therefore, that the Department was justified in refusing access to records 19, 28, 37, 40, 44, 47 and 125, in whole or in part, under section 36(1)(c) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I affirm its decision to refuse access to certain records under sections 29(1) and 36(1), as outlined above. However, I find that it was not justified in refusing access to records 14 and 15 or the attachment to record 141, 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 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.

Emer Butler
Investigator