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Mr X and the Department of Communications Climate Action and Environment

Case Number: 150394 and 160042

Whether the Department has justified its refusal to release various records concerning the National Broadband Plan (NBP)

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The NBP envisages the delivery of broadband to all areas of the country, through a combination of commercial and State led investment. State intervention is considered necessary to deliver broadband in those areas of the country where it is uneconomic for the commercial sector to invest. The Department published a draft Intervention Strategy, and parts of seven expert reports, in July 2015, which was followed by a public consultation. On 22 December 2015 the Department commenced a competitive procurement process that, I understand, will result in the award of a 25 year contract or contracts for the delivery of broadband services to the intervention area. According to the Department, there are a number of stages in the procurement process, which is "not expected to be completed until 2017". On 5 July 2016, the Department was reported as having announced that it had narrowed the short list of potential bidders to three, and selected its preferred ownership model.

Both the individual who made the requests and internal review applications described below, and the applicant to this Office (a firm of solicitors), are acting on behalf of a group of internet service providers.

On 19 August 2015, an individual made an FOI request to the Department for three records that had been commissioned by the NBP unit but which it had not published: (i) Financial Appraisal of the NBP; (ii) the Cost Modelling Report; and (iii) the Cost Benefit Analysis Report. The Department's decision of 11 September 2015 refused access to the records under various provisions of the FOI Act. On 24 September 2015, the individual sought an internal review of the Department's refusal, which the Department affirmed on 16 October 2015.

On 28 August 2015, the individual made a further FOI request to the Department, seeking unredacted copies of the reports that the Department had partially published in July 2015: (i) PwC's State Aid Compliance Report; (ii) PwC's Benefits of High Speed Broadband; (iii) Analsys Mason Technical Report; (iv) KPMG's Governance Report; (v) KPMG's Ownership Report; (vi) KPMG's Funding Report; and (vii) PwC's Broadband Strategy for Ireland Report. It seems that, having spoken to the individual, the Department took this request to encompass the same records as those requested on 19 August 2015. It invited him to withdraw the later request. The individual's letter to the Department of 24 September 2015 said that the request was not being withdrawn and sought an internal review of the Department's effective refusal thereof. The Department wrote to the individual on 16 October, maintaining its position that the records requested on 28 August "have been the subject of [the request of 19 August 2015]". Notwithstanding this, however, the Department's separate internal review decision of 16 October 2015, affirming the refusal of the records requested on 19 August 2015 as described above, also referred to the records the subject of the later request.

On 10 November 2015, the applicant sought a review by this Office of the Department's decisions. This Office mistakenly took the application to be concerned only with the request of 19 August 2015. Case No. 150394 was opened in relation to that review. However, when that review commenced in January 2016, it was realised that a second review should have been commenced in relation to the entirely separate request of 28 August 2015 (Case No. 160042 refers). On 9 March 2016, this Office issued a notice to the Department, under section 23 of the FOI Act, in relation to Case No. 160042. That notice required the Department to inform the applicant and this Office of its substantive position on the later request. The Department's response of 29 March 2016 explained why it considered various provisions of the FOI Act to apply to the details concerned.

The Department has confirmed that it is not prepared to release further information from the records at issue in light of the July 2016 developments in the procurement process. I understand the Department's position to be that the records at issue contain more detail than it might be prepared to make public in the course of the procurement process.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the Department, and the applicant. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.

Payment of Application Fees to this Office

Although he paid the required application fee for Case No. 160042, the applicant argues that he should not have been required to do so. He says that the FOI Act specifies that a fee is due to this Office in respect of an internal review decision, and that the Department's internal review decision dealt with what it considered to be one request for the same records.

Further to section 22 of the FOI Act, this Office can only review a public body's decision on a request upon application. In addition, the FOI Act requires up-front fees to be paid to this Office where the records the subject of that review do not contain only personal information about the applicant. If the appropriate fee is not paid, the application for review is deemed by the FOI Act to be invalid.

While a full copy of the Cost Benefit Analysis report was, essentially, sought in both requests, otherwise the applicant made two separate requests for different records. The Department's treatment of the requests does not change this. Accordingly, two application fees were required to be paid to this Office for reviews on both requests to be conducted. The fact that the same issues may be relevant to both reviews does not change this requirement.

Scope of the Review

This review is confined to whether the Department has justified its refusal to release (i) any elements of the three records specified in the request of 19 August 2015 and (ii) the remainder of the seven records specified in the request of 28 August 2015. It should be noted that PwC's Benefits of High Speed Broadband report (sought in the second request) is part of the Cost Benefit Analysis (CBA) report sought in the first request.

The review cannot have regard to, or make findings on, any views expressed by the applicant regarding the various stages in the procurement process and/or its compliance with European Commission State Aid, or other requirements.

 

Preliminary Matters

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body shows to my satisfaction that its decision was justified. Although the applicant objects to the Department being permitted to provide what he considers to be "the missing substance to its so-far empty argument", I must give proper consideration to any submissions any FOI body makes in seeking to discharge its obligations under section 22(12)(b). Furthermore, a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than by reference to the facts and circumstances that applied at an earlier date.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. It follows that the description I can give of the material at issue is limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

Section 29(1)

Section 29(1) is a discretionary exemption, and is one of the provisions relied on by the Department in this case.

The applicant is correct in saying that the Department "has the power to refuse the request under this section, but not the obligation to do so." However, I do not have any remit, if this is what the applicant is suggesting, to go behind the Department's decision to exercise its discretion to apply section 29. All I can examine is whether or not the Department has justified its application of that exemption to the material at issue.

In her judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC26 (known as "the Rotunda judgment"), Macken J. considered that a right holder in information corresponding to the various exemptions is fully entitled to refuse to grant the information sought, provided the conditions set out in the particular corresponding section are met.

Section 29(1) 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. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to this Office's satisfaction that both section 29(1)(a), and section 29(1)(b), have been met.

In relation to the first requirement, I note that the applicant says that "[t]he unpublished reports relate to the [Department's deliberative processes] in the sense that they are (an essential) part of the NBP proposals to justify the same for the purposes of both domestic and EU law." He goes on to explain why he considers the public interest to warrant release of the details. Thus, the applicant appears to accept the Department's position that the withheld material meets the requirements of section 29(1)(a) of the FOI Act. While, in normal circumstances, I would see no need to consider an issue that has been accepted by the parties to a review, I have decided to set out my own views and findings on both requirements of section 29(1) in this particular case.

Section 29(1)(a)
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.

Section 25(3) prevents me from describing the material in the fully withheld reports, or the details withheld from the other reports, to any extent. They can be summarised as representing the Department's "quite conservative" assessment of various technical engineering designs for the State led investment aspect of the NBP, based on different theoretical scenarios and assumptions, related costs and financial projections. In so far as some of the records have been partially published, it is worth stating the obvious to note that the release of the remainder of such records would provide more insight into the subject matter of those partially released reports as well as providing some insight into the contents of the fully withheld reports.

As I understand it, the withheld material has informed the development of the NBP strategy to date, which itself presumably required consideration of various options. Furthermore, according to the Department, the details concerned will also be used as benchmarks against which it will compare the proposals made by the prospective bidders in the ongoing procurement process (which proposals, by their nature, are based on the tenderers' own assumptions, estimated costs, and so on, having regard to their own capabilities and resources). In short, the details at issue will enable the Department to evaluate which of the proposals concerned are most likely to provide the best value for money solution for the delivery of broadband to the intervention area. I accept that this is a deliberative process of the Department, and that the details at issue relate to that process. 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)
The public interest test contained in section 29, as set out 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. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.

Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue 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 the 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 relevant FOI body proposes to make.

However, I will firstly address those arguments put forward by the applicant that I do not consider to be relevant to my consideration of section 29(1)(b).

The applicant says that because "the [Department's] deliberative processes in relation to the data requested has (unusually perhaps) been conducted as part of an open public consultation process ... the question of whether its disclosure would be in the public interest has to be considered in that light, not merely as part of the more usual deliberative processes normally conducted in private." He also says that the "request should be granted unless it can be reasonably be determined that it is against the public interest to release data comprising a vital part of deliberative processes which the FOIA body has voluntarily chosen (inter alia because it wishes following the conclusion of the process to be able to apply for approval from the European Commission for State aid to be granted to a selected tender which it chooses to implement its final decision regarding ... broadband access) to conduct as part of an open and transparent public consultation process."

Quite simply, I do not accept that the public consultation that was carried out earlier in the process obliges the Department to disclose, effectively to the world at large, the details at issue (which details the applicant acknowledges comprise "a vital part of [the relevant] deliberative processes"). I take this view irrespective of whether the Department had any option but to engage in a process that required such public consultation, and irrespective of its reasons for making any such choice.

Neither do I consider the Department to be obliged to release the details at issue because (as argued by the applicant in relation to the separate section 36 of the FOI Act) it may be the practice in other jurisdictions to do so.

I also disagree with the applicant's view that the "Department has subsequently fatally undermined [its justification for withholding the details at issue] by subsequently agreeing to release the benefit side of the CBA". The fact that the Department considered it appropriate to release certain details of its analysis in December 2015, prior to commencement of the procurement process, does not mean that it is obliged, whether as part of that procurement process or under FOI, to release all other such details.

Furthermore, and although not argued by the applicant, the fact that the Department has updated the material it previously published is not, in my view, relevant to my consideration of the public interest in this case. While one could argue that such updating renders the details at issue obsolete, I nonetheless consider that they would provide interested parties with a significant insight into the Department's current estimates.

In considering the public interest, the Supreme Court, in the Rotunda judgment, has made it clear that I can only have regard to "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." In light of this, I do not accept the applicant's argument that "the fact that a requester has a very specific and personal interest related to a public consultation process that is supposed to be effective in obtaining access is ... a factor that may be borne in mind by the Commissioner. " This is, quite clearly, a private interest, even if an interest that might be shared by a variety of internet service providers.

The applicant also draws attention to section 11(3) of the FOI Act. This provision requires FOI bodies, when performing any function under the Act, to "have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs"; to the need "to strengthen the accountability and improve the quality of decision making of public bodies"; and the need to inform scrutiny by the public of the activities of FOI bodies and "facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies". These matters to which public bodies should have regard seem to me to derive from the overall public interest of ensuring openness and accountability, as recognised by the FOI Act itself. That said, section 11(7)(b) is equally relevant, which states that "[n]othing in this section shall be construed as applying the right of access to an exempt record ... where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release."

As I have already highlighted, the public interest test in section 29 weighs more strongly in favour of release of records than do the public interest tests in other FOI Act exemptions. Release of the material at issue would undoubtedly serve the public interest in ensuring openness and accountability regarding a project of such importance to the country as a whole, which will be funded by the taxpayer in the form of State intervention. Release could enable further analysis of whether the Department has complied with all appropriate requirements for a project of this nature.

However, it is not appropriate to direct release of the material at issue purely because there are public interest factors weighing in favour of release, or because such release would achieve the various aims set out in section 11(3). Neither would it be appropriate to direct release on the basis of assertions to the effect that the public consultation and/or ensuing tendering process do not comply with relevant European State Aid (or other) requirements. Even if the Department has, as the applicant claims, failed to comply with all relevant tendering requirements (a matter I have no remit to determine), it is not the case that the records at issue automatically fall to be released. For one thing, the records at issue may well contain far more information than a tendering body would be required to make public as part of a tendering process. Thus, while a determination by an appropriate authority regarding a failure to comply with tendering requirements would, I accept, add some further weight to the public interest in release, it would not necessarily determine the release or otherwise of the records at issue. I should make it clear that I am not aware of any such determination having been made in this case.

The public interest against release is recognised in the various exemptions in the FOI Act, including that in section 29, and in the Long Title to the Act itself. In considering section 29(1)(b), it is not apparent to me, nor has it been argued, that release of the details would result in the applicant becoming aware of a significant decision that the Department proposes to make. The applicant's position appears to be that this is the only public interest argument against release that must be considered where section 29 is concerned, and that the details at issue fall to be released accordingly. However, section 29(1)(b) makes it clear that such consideration is "without prejudice to the generality of paragraph (b)". Therefore, I am obliged to also consider whether the granting of the request would be contrary to the public interest.

I accept that the procurement process is complex and at a relatively early stage. I understand the Department's position to be that, as the relevant deliberative processes have not concluded, release of the material at issue at this point in time would be likely to influence the designs put forward and cause bidders to base their costs on what funding they believe to be available rather than on the actual costs they would otherwise have estimated. In short, it considers release of the details at issue to be likely to affect the quality of proposals put forward, and/or increase the ensuing cost to the taxpayer (which in turn has implications for approval from the European Commission), than would otherwise have been submitted.

The applicant maintains that release of the details at issue "would not, and could not, ... prejudice the public tender process." He says that the "flaw" in the Department's argument "is that it assumes a tender process which is not competitive". He says that tenderers will have carried out their own cost calculations and projections and will know their competition will have done likewise. He says that tenders "will therefore disregard any of the [Department's] figures where theirs do not agree, but they will be inhibited from seeking to take any advantage from this because they know that their competitors will have much the same information and that if they bid too high to try and exploit any apparent differences they will be likely to fail in their bid, the entire purpose of which is (or at least ought to be) to award the tender, on a scored system, to the least expensive tenderer".

It is not part of my role to determine what the effects of release would actually be in this case. Neither have I remit to examine whether the tender process is competitive, or whether (as seems to be the applicant's position), there might be a better way for the State to obtain the required solution.

It is reasonable to accept that one party to any prospective business arrangement gains an advantage over the other party when they become aware of that other party's requirements and budgets. In the case at hand, it is reasonable to accept that disclosure of the details at issue increases the risk of a reduction in the overall quality of proposed solutions, and/or of costs being inflated. This potentially reduces the pool of options from which the Department can choose, and/or increases the requirement for State funding, and, overall, reduces the value for taxpayer money that might otherwise be achieved. There may also be implications for European Commission approval.

I do not consider that any action that might result in such outcomes, despite the applicant's views on the likelihood of them happening, would serve the public interest in any way. Thus, I accept that the Department has identified a specific harm to the public interest flowing from release of the details at issue at this point in time.

Notwithstanding that I have recognised certain public interests in favour of release, I consider the Department to have justified its view that release of the details at issue 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 also been met in this case.

In finding, thus, that the Department has justified its refusal of the details at issue under section 29(1) of the FOI Act, I should also make it clear that I would not accept that those details are permanently exempt under that provision. I accept that it is possible, depending on the stage of the deliberative process reached at the time of a future FOI request, that the public interest in withholding the release of the information might be weakened. However, it is not appropriate for me to speculate on when that might be.

Section 29(2) - The Exceptions to Section 29(1)
Section 29(2) provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (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.

The applicant argues that the details at issue comprise "unbiased factual data" (section 29(2)(b) refers). I do not accept that the material at issue is, as suggested by the applicant, entirely factual given that it clearly concerns features of possible designs, their estimated costs depending on various scenarios, possible ensuing returns, and so on. Furthermore, having regard to this Office's approach to the release of non-exempt material from an otherwise exempt record as provided for by section 18 of the Act, it seems to me that it would not be practicable to attempt to extract any details amongst those opinions, estimates, etc. that could be described as factual from the records while at the same time ensuring that the redacted copies are not misleading under section 18 of the Act. I find that the section 29(2)(b) exclusion does not apply.

I have also considered whether the exclusion at part (e) applies. This essentially provides that section 29(1) cannot apply to the report of a specified expert unless the report is used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.

I have not considered whether, for the purposes of the FOI Act, the reports at issue do indeed contain the opinions or advice "of a scientific or technical expert relating to the subject of his or her expertise". Neither have I considered if the Department may be making the relevant decisions under some enactment. The reports at issue have clearly been commissioned for the purposes of various decision making relating to the NBP, which I accept is a scheme for the purposes of section 29 of the FOI Act.

As the term "scheme" is not defined in the FOI Act, I have had regard to the ordinary meaning of the term. The Oxford English Dictionary defines it as "[a] plan, a design; a project, an enterprise; a programme of work or action to attain an objective ... ". At the most basic level of analysis, the NBP is a large-scale plan for attaining high speed broadband coverage nationwide. The related Strategy documents explain how, as part of the NBP, the Government proposes to intervene to deliver quality high speed broadband in areas where it is uneconomic for the commercial sector to invest. These documents set out key elements of that proposed intervention strategy, including the technical and other standards "to be met by the winning bidder(s) in the procurement process".

I accept that, having regard to the above, the NBP is a scheme for the purposes of s29(2)(e) of the FOI Act. As the procurement process to which the details at issue relate is clearly an element of this scheme, I find that the 29(2)(e) exclusion cannot apply.

I find that none of the other exceptions at section 29(2) apply in this case.

Other Exemptions
Having regard to my finding that section 29(1) applies to the material at issue, I have not considered the other provisions of the FOI Act that were relied on by the Department in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal of the details at issue under section 29(1) of the FOI Act.

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.

 


Elizabeth Dolan
Senior Investigator