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Ms X and Department of Public Expenditure and Reform (FOI Act 2014)

Case Number: 170008

Whether the Department has justified its refusal to grant access to records of 2016 correspondence between it and the Office of the Data Protection Commissioner (the ODPC) regarding the Public Services Card (the PSC)

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

On 24 October 2016, the applicant made a request to the Department for all correspondence for 2016 between it and the ODPC regarding the PSC.

The Department's decision, dated 22 November 2016, refused to grant access to the three relevant records, citing section 29(1) of the FOI Act (deliberations of public bodies). The applicant sought an internal review of this decision on 24 November 2016. On 21 December 2016, the Department's internal review decision affirmed its refusal to release any records, relying on sections 29(1) and 31(1)(a) (legal professional privilege) of the FOI Act.

On 3 January 2017, the applicant sought a review by this Office of the Department's refusal of her request.

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.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal to grant access to the relevant records. The Department's decision referred only to three records. However, there are four attachments to record 1, which were designated on the Department's internal review schedule as records 1A to 1D.

As well as concerning the PSC, some of the above records appear, to varying degrees, to also concern other matters. In the absence of any argument that information about such other matters fall outside the scope of the request, I have proceeded on the basis that the Department considers the records to be relevant to the request.

Preliminary Matters

At the outset, it is relevant to note a number of 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 (whether stated or suspected) 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). This Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

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 head of the relevant public body shows to my satisfaction that its decision was justified.

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.

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

Records 1, 1A, 1D, 2 and 3 - Section 29
Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purpose of these processes), 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.

When considering section 29(1)(a), this Office considers that 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.

I am constrained in the description I can give of the records. The applicant is of the view that because the PSC project is "very much live", the records cannot relate to deliberations. I understand that PSCs have been in use since 2012. Nonetheless, I am satisfied that the records are concerned with how the Department and other FOI bodies might advance certain additional proposals in relation to the PSC and other matters. I am satisfied, accordingly, that the records contain information relating to the deliberative processes of the Department and the other FOI bodies concerned, and meet the requirements of section 29(1)(a) of the FOI Act.

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.

In relation to her view that it is in the public interest that the records be released, the applicant refers to the ongoing drive to encourage all citizens to apply for a PSC and the estimated cost of the scheme of €60 million by the end of 2017. She says that certain European Court of Justice cases "preclude the transfer and processing of personal data between two public administrative bodies without the persons concerned ... having been informed in advance". She also says that it is not clear whether the Department or the Department of Social Protection is the data controller in relation to the PSC projects, which she says has legal and fundamental rights implications for all citizens as the project proceeds. The applicant also refers to a report by the Comptroller and Auditor General that said the Department had failed to develop a business case, or carry out a comprehensive risk evaluation, for the rolling out of the PSC.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The 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 public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

There is a public interest of ensuring openness and accountability, as recognised by the FOI Act itself, in respect of any changes that may be made to the PSC card, which has implications for citizens and the public purse. Release would further this public interest, and also enable analysis of whether the proposals referred to in the records comply with data protection requirements. However, the Comptroller and Auditor General's findings about the historical lack of business cases or risk evaluations regarding the PSC do not provide me with any basis to direct the release, in the public interest, of records concerning proposals in relation to the PSC that are currently under evaluation.

Section 25(3) prevents me from elaborating on most of the public interest arguments made by the Department in this case. However, it says that the matters referred to in the records are still under deliberation. While appearing to acknowledge that release of the information would enable public debate, the Department's main concern is that release at this point in time would "significantly undermine" the ongoing analysis of the issues concerned. In the circumstances, 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 requirements of section 29(1)(b) of the FOI Act have been met in this case.

I find that the Department has justified its refusal of the records at issue under section 29(1) of the FOI Act.

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 maintains that the records must contain factual information and are likely to seek, or contain, ODPC advice and/or guidelines.

I do not accept that the records are captured by the exception at section 29(2)(a). They contain proposals and views regarding a deliberative process as distinct from formalised rules and guidelines relevant to administrative processes, which is what I consider section 29(2)(a) to be concerned with. In so far as the records contain factual information, as well as proposals, views, opinions etc., I have had 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 factual information from the records and at the same time ensure that the redacted copies are not misleading. I find that the section 29(2)(b) exclusion does not apply. In so far as the applicant may also be claiming that section 29(2)((e) of the FOI Act is relevant, I do not consider the records to comprise reports, studies or analyses. Furthermore, while those in the ODPC would have a variety of educational qualifications and expertise, I do not consider that, in preparing any of the records under review, they were acting as scientific or technical experts. In this regard, I adopt the former Commissioner the late Mr Kevin Murphy's approach to the term "technical expert" i.e. an expert in the mechanical arts and applied sciences generally, as set out in his decision in Case No 98099, Mr John Burns and the Department of Education and Science available on www.oic.ie.

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

Records 1B and 1C - Sections 31(1)(a) and 42(f)

Section 31(1)(a) of the FOI Act is a mandatory exemption applicable to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of "once privileged always privileged" applies where privilege is based on advice privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. Section 31(1)(a) does not require the consideration of the public interest.

Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by, in particular, the Attorney General or the Office of the Attorney General, other than a record relating to general administration.

The internal review schedule describes records 1B and 1C as letters to and from the Office of the Attorney General. When told that this Office would have to consider section 42(f) accordingly, the applicant replied that she would have to accept that record 1C is "covered by the legal professional exemption if it consists of legal advice from the AG to the department". She said that matters of fact set out in record 1B "cannot be covered by legal professional privilege", in which case the record may be releasable in redacted form.

I have taken these comments to mean that the applicant wants me to decide on both records. I am satisfied that record 1B, including any matters of fact in it, is a confidential communication made between the Department and the Office of the Attorney General for the purpose of obtaining legal advice and that it attracts advice privilege. I find that it is exempt under section 31(1)(a) of the FOI Act. Record 1C is a letter created by the Office of the Attorney General, which provides legal advice and does not concern the general administration of that Office. I find that, as provided for by section 42(f) of the FOI Act, record 1C is not subject to the Act.

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 sections 29(1), 31(1)(a), and 42(f) 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