M College, c/o XYZ Solicitors and Department of Public Expenditure, NDP Delivery and Reform [2024] IEIC 133418 (28 March 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Department was justified in refusing access, under sections 29(1), 30(1)(a), 30(1)(b) and 30(1)(c) of the FOI Act, to certain records in respect of a meeting held on 31 March 2022 between Departmental representatives and various representatives of Irish Trade Unions

28 March 2024

Background

The applicant in this case, a private third-level college, submitted a request to the Department through its legal representatives on 5 April 2022 for meeting minutes, meeting information pack, and certain correspondence relating to a meeting held between representatives of the Department and various representatives of Irish trade unions, which took place on 31 March 2022. It specified that it was seeking any associated correspondence emanating from or generated as a result of the meeting which specifically referenced the applicant and a named degree programme in general nursing. References to communications with the applicant in this decision include references to communications with its legal representatives.

The meeting in question was a meeting of the Public Services Agreement Group (the PSAG). The PSAG is provided for under the Building Momentum Public Service agreement (Building Momentum) and comprises employee representatives nominated by the Irish Congress of Trade Unions, representatives of public service employers nominated by the Department, and an Independent Chair. According to the Department, the function of the PSAG is to deliberate on matters which could potentially impact the stability of Building Momentum or which could affect the wider public service. It is relevant to note here that the outsourcing provisions of Building Momentum provide that "the parties reaffirm their commitment to the appropriate use of direct labour, where consistent with efficient and effective public service delivery. The provisions of recent public service agreements relating to external service delivery will continue to apply."

At the time, the PSAG was considering an alleged breach of the outsourcing provisions provided for under Building Momentum. Essentially, two colleges had formulated a strategic partnership for the delivery of an undergraduate nursing degree. The applicant was providing the undergraduate nursing degree programme and a public college was to deliver the internship element of the degree programme i.e. placements for students in hospitals. The Union side of the PSAG alleged that the delivery of these placements was in breach of the outsourcing provisions of Building Momentum and industrial action was threatened should the placements commence.

On 18 May 2022, the Department refused the request under sections 29(1), 30(1)(a) and 30(1)(b). It said the records sought concern a matter that had not been finalised and would be subject to further discussions between the Department of Health and a number of other stakeholders. It said that granting the request would be contrary to the public interest while the matter remains under consideration. It said the PSAG is an important industrial relations forum comprised of senior Departmental management and trade union officials and that the group has a vital role in ensuring the maintenance of a stable industrial relations environment. It said it would not be in the public interest to disclose records pertaining to a matter referred to the group which remains open and subject to further negotiation and discussion.

On 1 June 2022, the applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. On 19 December 2022, the applicant applied to this Office for a review of the Department's decision.

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 set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. 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 in the schedule of records it prepared when processing the request.

Scope of Review

The Department refused access to all 15 records it identified as falling within the scope of request under sections 29(1), 30(1)(a) and 30(1)(b) of the Act. During the course of the review, it argued that the records at issue are also exempt under 30(1)(c). The applicant was informed of this and invited to make submissions on the matter, which it did.

As record 5 was released to the applicant during the review on foot of a separate review involving the HSE, I will not consider it further in this decision. Moreover, records 7, 9, 11 and 14 contain details of other matters the PSAG was considering at the time that do not specifically relate to the applicant and the nursing degree programme in question. That information will not be considered for release as I am satisfied that it falls outside the scope of the applicant's request.

Accordingly, this review is concerned solely with whether the Department was justified in refusing, under sections 29(1), 30(1)(a),30(1)(b), and 30(1)(c), the remaining 14 records at issue, apart from certain information in records 7, 9, 11 and 14 which is not captured by the applicant's request.

Preliminary Matters

Before I consider the substantive issues arising, I would like to make a number of preliminary points. First, 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 Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records at issue was justified.

Secondly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Thirdly, it is important to note that a review by this Office is considered to be "de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the "de novo" nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions that serve to protect third party interests, notwithstanding the fact that such provisions were not initially relied upon as a ground for refusing access to the records in the Department's decision on the request.

Finally, I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the records at issue in this case and of the reasons for my decision is somewhat limited.

Analysis and Findings

The records

Records 1 to 4 comprise internal emails and/or emails between the Department and the Department of Health. Records 2 to 4 are, for the most part, incorporated within record 1. The emails concern the matter of student placements that was to be considered at the PSAG meeting of 31 March 2022. Records 6 and 8 are simply covering emails. Records 7 comprise the minutes of the PSAG meeting. Record 9 is a briefing note concerning the nursing degree programme and other matters that fall outside the scope of the request. Records 10, and 13 to 15 essentially comprise administrative emails concerning the meeting, while record 11 comprises the meeting agenda. Record 12 comprises a note of the relevant action agreed at the meeting.

Section 29(1) - Deliberations of FOI Bodies

Section 29(1)(a)

Section 29(1) provides for the discretionary refusal of a request if (a) 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 for the purpose of those processes, and (b) the body considers that the granting of 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. Furthermore, 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 records would be contrary to the public interest.

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 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. 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 how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

In its submissions, the Department explained that the function of the PSAG is to deliberate on matters that could potentially impact the stability of Building Momentum or could affect the wider public service. It noted that Building Momentum provides that the PSAG will work proactively to; address anomalies, issues of interpretation, disagreement or problems which may arise; make a determination on whether a dispute shall be determined in accordance with the procedures laid out in the Agreement; make a determination on any matter associated with the correct operation of dispute resolution procedures; and adjudicate in the event of a dispute. It further noted that Building Momentum provides that the PSAG will consider matters referred by the parties in the first instance, following which it may make a recommendation to the parties in relation to the dispute, potentially including the need for further discussion through the resumption of conciliation.

The Department said the matter that is the subject of the records at issue concerns an industrial dispute that has been the subject of consideration and discussion as part of the agenda of the PSAG. It said that to ensure that stable industrial relations are maintained nationally, in the health sector (to which the present matter relates) and across all sectors of the public service, it is essential that the deliberations of the PSAG remain confidential. It said that to release records of the body whose very function is to deliberate on important industrial relations matters in the context of Building Momentum would impact on the ability of that body to fulfil its core and key function and would set an extremely dangerous precedent that could have a wide-ranging impact on the management of industrial relations for the public service. It said all industrial disputes, particularly those which are escalated to higher levels, carry a risk of industrial action. It said the deliberations and engagements by management, union officials and the PSAG have thus far averted any industrial action in respect of the matter. It said the confidentiality of all communications pertaining to the PSAG is a key kernel of management and the PSAG's role in carrying out this function.

The Department further argued that the releasing of any records pertaining to deliberations by the PSAG would impact on its ability to fulfil its core and key function. It said the minutes of those meetings are indicative of the PSAG's deliberations and record the outcome of those discussions in respect of the matter at that time. It noted that senior officials from the Department are members of the PSAG. It said other records contain correspondence between senior union officials and local management pertaining to the deliberations and on the matter of referral to PSAG. It said all of this correspondence informs the PSAG deliberations and consideration in respect of the matter. It said the range of records reflect discussions between officials on management and union sides, discussions between the Department and the Department of Health, and which fed into discussion at the PSAG in respect of the matter. It said release of the records would compromise the ability of government departments, union officials, and the PSAG to deliberate on an industrial dispute in order to maintain industrial stability for the citizen.

Following a request for further clarification of the deliberative process at issue, the Department explained that the PSAG deliberations originally centred on whether there might be a breach of the outsourcing provisions in Building Momentum. It said disagreement on this point was not resolved, and it is conceivable that this point of discussion may arise again. It said that focus has since turned to potential avenues for resolving the dispute. It said the matter remains in dispute and deliberations are continuing regarding how the issue might be overcome in a manner that is acceptable to both management and the staff side. It said there is a very real concern that the proposed release of the records could limit and compromise the ability of the parties to develop a resolution of the matter at hand.

Having regard to the details of the Department's submissions, I am satisfied that the records at issue contain matter relating to deliberative processes, namely deliberations as to whether there was a breach of the outsourcing provisions in Building Momentum and options for resolving the dispute. I am also satisfied that the deliberative processes can reasonably be described as the deliberative processes of the PSAG and, indeed, those of the Department and the Department of Health given their involvement in the industrial relations matter. Accordingly, I accept that the records relate to the deliberative processes of an FOI body and that section 29(1)(a) applies to the records.

Section 29(1)(b)

As I have indicated above, for section 29(1) to apply, the FOI body must also show that the granting of the request would be contrary to the public interest. The FOI Act clearly envisages 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 is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29(1) should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

As I have outlined above, the Department said the confidentiality of all communications pertaining to the PSAG is a key kernel of management and the PSAG's role of deliberating on important industrial relations matters in the context of Building Momentum. It argued that to release PSAG records would impact on its ability fulfil its core and key function and would set an extremely dangerous precedent that could have a wide-ranging impact on the management of industrial relations for the public service. It said the parties to the PSAG have agreed that discussions remain confidential to the Group. It said this confidentiality is a fundamental principle underpinning voluntarist industrial relations arrangements. It said this is in line with the practice of maintaining confidentiality in talks on national pay agreements. It said the PSAG is made up of the parties who agree the provisions and wording of national pay agreements. It said the PSAG has reinterpreted provisions of Building Momentum and issued updates in this regard. It said that accordingly, the matter at issue is clearly tied to that process and warrants the same level of confidentiality.

The applicant argued that the Department has sought to employ a blanket application of section 29 to the records at issue and that it failed to identify any specific harm to the public interest for the exemption to apply. It said that simply by virtue of deliberations being ongoing is not a sufficient ground to refuse the records, and that the Department is employing "industrial relations" as a catch all term to ward off scrutiny. It said this rationale would allow a carte blanche approach to FOI requests as they would not be subject to any FOI request being successful. It argued that the public interest favours release of the records. It said the nursing degree course in question was established in response to the ongoing unprecedented shortage of nursing staff in Ireland. It said the decision to pause the placements is to the detriment of the course, the students, and the wider public as a whole. It said it is in the public interest that meetings of the relevant FOI bodies that have been making decisions which have a direct impact on the crisis and have far reaching implications are fully transparent.

My Analysis

I should say at the outset that I accept, as a general principle, the Department's arguments as to the importance of ensuring the confidentiality of PSAG discussions concerning what are often difficult and sensitive industrial relations matters. I accept that if all such discussions were subsequently to be made available, the various parties may be less inclined to actively participate in what are voluntary industrial relations arrangements. Having said that, I do not accept that any and all records relating to the PSAG should be treated as confidential such that a blanket protection for such records would exist, regardless of their content.

It seems to me that the Department's arguments concerning harm to future PSAG discussions are not reflective of the information actually contained in the records at issue. Rather, they appear to be based on a desire to protect all records relating to the PSAG as a class. While I understand the Department's concerns in relation to the confidentiality of the current negotiations and the positions adopted therein, the Department has not pointed to any specific information contained in the records at issue whose release would impact on its ability fulfil its core and key function or how release might cause such harm.

I note that a number of the records at issue contain details of action taken by the HSE on the student placements matter. However, that action is already known to the applicant. Moreover, it is also relevant to note again that one of the records to which the Department initially refused access was released to the applicant during the review on foot of a separate review involving the HSE. That record (record 5) comprises a letter from one of the union representative bodies to the HSE and contains details of the student placement issue and the action taken as described in the other records. In circumstances where the HSE itself released a record which set out the action it took on the matter and where the action in question is known to all parties involved, including the applicant, I do not accept that the release of the records at issue which disclose that same action would impact upon the willingness of those parties to continue to engage with the PSAG to the extent that it would impact on the PSAG's ability fulfil its core and key function.

Moreover, I do not accept that the release of records that are essentially administrative in nature in relation to the PSAG meeting process itself, and are concerned with matter such as attendees, speakers and times, whether such information is indicative of matters under discussion or not, might compromise the role of the Group. It is commonly known, for example, that PSAG will comprise equal numbers of employee representatives nominated by the Irish Congress of Trade Unions; representatives of public service employers nominated by the Department of Public Expenditure and Reform; and an independent Chair appointed by Government following consultation with the parties. In the circumstances where the matter under consideration involves a health sector dispute, I do not accept that the release of names of individuals and Trade Unions representatives from that sector who were in attendance might give rise to the harms identified by the Department. In my view, the release of the records would not disclose the details of confidential negotiations that might serve to undermine any future such negotiations and discussions. I find that the Department has not satisfactorily shown that the release of the records at issue would be contrary to the public interest. I find, therefore, that section 29(1) does not apply to the records in question.

I should add that, in any event, section 29(2)(b) provides that section 29(1) does not apply to a record if and in so far as it contains factual information. The information in the records at issue which describes the HSE's action taken in respect of the student placement matter is, in my view, factual information, including the relevant parts of record 7, 9, 11, and 12. Pursuant to section 29(2)(b), I find that section 29(1) cannot apply to the relevant parts of those records

Section 30 - Functions and negotiations of FOI bodies

Section 30(1)(a)

Section 30(1)(a) provides that for the 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. 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 and having identified that harm, consider the reasonableness of any expectation that the harm will occur.

In relation to section 30(1)(a), the Department said the records relate to the core function of the PSAG which is to deliberate on matters that might present a threat to the stability of industrial relations in the Public Service. It argued that the publication of any materials pertaining to or emanating from the work of this group could impact its ability to confidentially deliberate and/or make recommendations on issues of national importance. It argued that this could threaten the core function of the PSAG or similar oversight bodies in the future. It noted that the PSAG plays a vital role in addressing industrial disputes of national importance, and said its absence would risk industrial unrest across all sectors of the public service. It said the release of documents relating to deliberations of Government Departments leading to or emanating from these meetings would impact the PSAG's ability to meet, and in turn impact its work in de-escalating industrial disputes and providing guidance to management and staff representative bodies in public service sectors so that stable industrial relations environment is maintained.

The applicant argued that any refusal under section 30(1)(a) must be made in light of each of the particular records contents as well as the relevant facts and circumstances of the case. It further noted that the onus is on the FOI body to produce evidence of prejudice. It argued that it is not sufficient for an FOI body to claim prejudice without providing supporting evidence that access to the record could reasonably be expected to result in prejudice. It noted 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.

My Analysis

Section 30(1)(a) envisages two potential types of "prejudice" or harm, namely (i) prejudice to the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body, and (ii) prejudice to the procedures of methods employed for their conduct. The Building Momentum Agreement provides for agreed dispute resolution procedures, one of which includes the consideration of certain matters by the PSAG. While I accept that the PSAG may consider matters referred to it by the parties following which it may make recommendations to the parties in relation to a dispute, it is not apparent to me that the consideration by the PSAG of a matter referred to it can reasonably regarded as a test, examination, investigation, inquiry or audit. Rather, it is a process for seeking to resolve a disagreement or conflict between the parties in respect of industrial relations matters. In any event, even if it could, the question remains as to whether the release of the records at issue could reasonably be expected to prejudice the effectiveness of such tests, examinations, inquiries or audits or the procedures or methods employed for their conduct.

The Department's arguments in relation to the applicability of section 30(1)(a) are essentially the same as those made in respect of the applicability of section 29, namely that the release of any records pertaining to or emanating from the work of the PSAG could impact its ability to confidentially deliberate and/or make recommendations on issues of national importance. In other words, all such records should be treated as confidential as a class. Yet again, the Department has not pointed to any specific information contained in the records at issue whose release could reasonably be expected to prejudice either the effectiveness of the PSAG's functions or the procedures used. As I have outlined above, and for the same reasons as outlined, I do not accept that the release of any parts of the records at issue could reasonably be expected to impact upon the willingness of relevant parties to continue to engage with the PSAG to the extent that it would impact on the PSAG's ability to fulfil its core and key functions. Having considered the matter, I am not satisfied that the Department's expectation of harm is reasonable. I find, therefore, that section 30(1)(a) does not apply to the records at issue.

Section 30(1)(b)

Section 30(1)(b) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on that section to refuse a request, it should identify both the relevant function concerned and the significant adverse effect on the performance of that function which is envisaged. It should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case.

The Department argued that the release of the records would adversely affect PSAG's core function. It said the role of Government departments in conducting deliberations on industrial relations matters would also be severely impacted by the release of the records. It said such adverse effects would be significant as they threaten the stability of public service industrial relations for all citizens. It said that in relation to the matter in question, sectoral management and the union side remain in dispute and it argued that any release of records might compromise management's position on engagements on this matter or in respect of management's and PSAG's general approach to managing disputes that arise across the public service.

The Department further argued that the release of records concerning meeting arrangements would divulge information regarding the frequency of meetings and sectoral attendees. It said that in these instances, a particular challenge faced in managing national industrial relations matters is the need, in so far as possible, to ensure parity of esteem for staff unions/associations across all sectors of the public service. It argued that release of the records could create challenges for management in this regard. It said the PSAG has and may, in the future, call on sectoral management and/or on sectoral representatives from the Staff Side to attend meetings of the Group. It argued that were this information to be released, groups in some sectors may try to assert that they have not been granted parity of esteem, and this could adversely impact on the work of the Group. It added that the Group can be convened on an emergency basis where intervention is required to avert impending IR issues which could impact on the provision of critical services to the public and it argued that it is important, for this reason also, that the circumstances in which meetings of the Group are convened remains confidential to the parties.

Among other things, the applicant noted a previous decision of this Office (Case 98099 available on www.oic.ie wherein the then Commissioner found that where the sole consequence of release of a record would be to cause a "potentially difficult industrial relations situation" then section 30(1)(b) would not apply, and argued , therefore, that the FOI body must specifically identify a harm of a significant nature which can reasonably be expected.

My Analysis

The Department's arguments are, in large part, yet again based on a desire to protect all PSAG records as a class regardless of the precise nature of the contents of the records at issue in this case. I do not accept the Department's argument that any release of records, regardless of their contents, might compromise management's position on engagements on the matter in question or in respect of management's and PSAG's general approach to managing disputes that arise across the public service.

The Department's argument that the release of information concerning the frequency of meetings and sectoral attendees may result in some groups asserting that that they have not been granted parity of esteem also seems to be based on a concern about the release of such information generally as a matter of course as opposed to being based on a concern about the release of the specific records at issue. It is important to note that each decision this Office makes is based on the merits and specific circumstances of the particular case and does not act as a precedent that all future cases must follow. In any event, the records at issue in this case concern details about a single specified meeting. Moreover, it is not apparent to me how assertions made by any particular group that that it has not been granted parity of esteem in terms of sectoral attendees would arise only as a result of the release of records on foot of an FOI request, as surely such matters would be apparent to the group in the course of the process itself. Furthermore, the Building Momentum Agreement specifically provides that the PSAG will comprise equal numbers of employee representatives and public service employers representatives.

Accordingly, I find that the Department has not satisfactorily shown that the release of the records at issue could reasonably be expected to have a significant adverse effect on the performance by the Department of its management functions. I find that section 30(1)(b) does not apply.

Section 30(1)(c)

Section 30(1)(b) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to 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 section is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. Unlike section 30(1)(a) and 30(1)(b), this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to 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 said the records at issue relate to negotiations which are carried out on behalf of the Government in the context of national public sector pay policy and the pay agreement. It said a number of the records sought would identify management positions, in the context of both sectoral negotiations and PSAG deliberations, in respect of the matter concerned. The Department further argued that the frequency of meetings forms part of the confidentiality in which the PSAG operates, and contributes to negotiating positions taken by or on behalf of Government in these sensitive industrial relations matters. It said the records concerning meeting arrangements also include attendee lists including, in some instances, sectoral management attendees. It said that in these instances, sectoral management are instructed to attend meetings of PSAG for the purpose of negotiations being carried on by the Group.

My analysis

I do not accept that the disclosure of the frequency of meetings and/or meeting attendees comprises disclosure of negotiating positions or procedures or criteria or instructions used or followed for the purpose of negotiations. In relation to the disclosure of the action taken by the HSE in relation to the student placements matter as contained in records 1, 3, 4, 7, 9, and 12, I am not satisfied that the action taken can reasonably be described as a negotiating position or a procedure or criteria or instructions used or followed for the purpose of negotiations. Instead, it seems to me to describe an action that was taken pending a resolution, through negotiation, of the dispute relating to the student placement matter. I find that section 30(1)(c) does not apply to any of the records at issue.

I would add that even if I had found section 30(1)(c) to apply, I would have to consider, pursuant to section 30(2), whether the public interest would, on balance, be better served by granting than by refusing to grant the request.

In its submissions, the Department noted that if the release of the records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of public bodies and expenditure of public funds means that, in the absence of any other applicable exemption, the records should be released. It said it had regard to the fact that the FOI Act recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business when considering the request. It said, however, that in relation to the records at issue, where the release of the record discloses positions taken for the purposes of negotiations which could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a public interest factor weighing in favour of refusing the request. It said that it therefore considered that the public interest weighed in favour of refusing the request. It said an impact on the stability of public sector industrial relation also carries potentially significant costs to the Exchequer which could be attributed to the release of the records, and which is another reason the decision weighs in favour of refusal.

The applicant, in its submissions, included arguments in relation to the importance of student placements in the context of its degree programme. It said the PSAG meetings and the decision that stemmed from the meetings have a significant negative impact on the public and continues to do so. It argued that it is in the public interest that such decisions are reversed.

It is important to note that this Office has no role in determining the appropriateness, or otherwise, of any decisions taken in respect of the wider industrial relations matter. As I have outlined above, section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body and there is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, the consequences of disclosure are, indeed, relevant when considering where the balance of the public interest lies, in my view.

The Department argued that while the negotiations have developed to a new stage, the issues concerning the student placement matter may arise again. However, as I have explained above, the information concerning the action taken by the HSE in relation to the student placements matter is already known to all of the interested parties, including the applicant. As such, I see no basis for concluding that the release of the records might cause any particular harm to ongoing discussions on the specific matter. Moreover, the information in question is quite specific to the particular issues arising. The release of the records would not, in my view, involve the disclosure of positions that might be taken or plans, procedures, criteria or instructions that might be used or followed for the purpose of other future negotiations. In sum, I am satisfied that the release of the records would have no adverse effect on conduct by the Government or the FOI body of its negotiations. A such, I see no basis for concluding that the public interest would, on balance, be better served by refusing the request.

Section 37 - Personal information

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where the FOI body considers that access to the record sought would involve the disclosure of third party personal information. For the purposes of the FOI Act, personal information is defined as including information relating to the employment or employment history of the individual. A number of the records contain the names and email address of individuals employed by staff representative organisations. I am satisfied that such details are exempt under section 39(1) and that the public interest in protecting the privacy rights of those individuals outweighs the public interest in the release of the information in question.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision. I find that the Department was not justified in refusing access to the records at issue under sections 29(1), 30(1)(a), 30(1)(b), or 30(1)(c). I direct the release of the records subject to the redaction of the names and email addresses of any individuals employed by staff representative organisations mentioned in the records.

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.

Stephen Rafferty, Senior Investigator

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> M College, c/o XYZ Solicitors and Department of Public Expenditure, NDP Delivery and Reform [2024] IEIC 133418 (28 March 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/133418.html Cite as: [2024] IEIC 133418

Irish Information Commissioner's Decisions

M College, c/o XYZ Solicitors and Department of Public Expenditure, NDP Delivery and Reform

Background

Scope of Review

Preliminary Matters

Analysis and Findings

Decision

Right of Appeal