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The Freedom of Information Act - Compliance by Public Bodies
Chapter 6 - The Use of the Exemptions contained in the FOI Act
The Exemptions
One of the keys to the successful operation of the Act is the ability of public bodies to interpret and apply the exemptions in the Act properly and consistently. In this chapter I identify difficulties and deficiencies in the application of some of the exemptions - in particular, those provided for in sections 19, 20 and 26 of the Act. Since the primary purpose of this investigation is to examine the practices and procedures adopted by public bodies for the purposes of compliance with the Act, I do not consider it appropriate to attempt to review in detail how each public body has applied these exemptions. Instead, I have tried to identify instances in which decision makers generally appear to have taken a narrow view of an exemption or appear to be uncertain how to deal with it or where I believe there is an underlying problem contributing to overuse of the exemption.
My comments are based partly on my own experience of reviews which have come before me and partly on the results of the sample which I examined during this investigation. My conclusions are necessarily tentative because time did not allow for an in-depth analysis of how the exemptions are being applied by each of the public bodies concerned. Nevertheless, I am satisfied that the problems identified are sufficiently widespread to warrant consideration by public bodies.
Section 19
The effect of this section was explained at Committee Stage in the Seanad by the sponsoring Minister of State, at that time, Eithne Fitzgerald T.D. in the following terms: (see Seanad Debates Vol. 149, Col. 1572).
"It provides limited and time bound protection for matters prepared for Government, related briefing material and Government records. This material can become available and the protection will no longer be applicable when five or more years elapse from the relevant decision being made or, in respect of factual information, where the associated decision has been published, unless another exemption protects the information. Basically, after a Government decision has been made and published, the factual material relating to that decision is released. Secondly, within five years the whole memorandum is released, unless there is some degree of protection because it concerns security or the personal affairs of an individual. In other words, the material is intrinsically covered by another exemption."
The section contains both mandatory and discretionary exemptions. The mandatory exemption is contained in section 19(2) and requires access to be refused to records (other than memoranda to Government and briefing material) which contain the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement. This provision is intended to be sufficiently narrow to be consistent with the decision in the case of Attorney General v. Hamilton on Cabinet confidentiality (see comments of sponsoring Minister in the Dáil : Dáil Debates Vol. 477, Col. 765).
The discretionary exemption is contained in section 19(1) and applies to other records such as memoranda to Government and associated briefing material but with two exceptions. Access cannot be refused under section 19(1) to records which relate to a decision of the Government made more than five years earlier nor to records to the extent that they contain factual information about a published decision of the Government. Where discretion to refuse access does exist e.g. where the records relate to a decision of the Government and contain something other than factual information then, before exercising the discretion in favour of release, the decision maker is required to consult with the leader of each political party which participated in the Government which made the decision to which the record relates.
In practice, it appears that decision makers rarely, if ever, consider exercising their discretion to release. Nor have decision makers been provided with any guidance as to when it might be appropriate to exercise their discretion to release or how to go about the consultation process envisaged by the section where release is contemplated. This has led to a perception among some decision makers that the section 19 exemption is mandatory in its entirety. It has also resulted in situations in which decision makers appeared to feel obliged to refuse access to Government memoranda even though their contents had already been released in their entirety by way of press release.
I am concerned that an exemption which is clearly intended to be applied with discretion, is regarded, in practice, as mandatory. Further, the refusal of access to records whose contents are already largely in the public domain is not an encouragement to the creation of a more open public service. It appears to place the emphasis on finding the correct "technical" basis for refusal rather than making information available "to the greatest extent possible consistent with the public interest and the right to privacy". Such a minimalist approach can easily spill over into the use of other exemptions resulting in an overly cautious approach to the release of other information.
Section 20
Section 20 is concerned with ensuring that the right of access to official records does not prejudice the deliberations of public bodies. The application is discretionary, which means that records which fall within its scope may be released at the discretion of the decision maker/internal review officer in the public body concerned. It is an important exemption and one which is used frequently by public bodies, particularly Government Departments.
For the exemption to apply, two requirements must be met. The first is that the record must contain matter relating to the deliberative process; the second is that disclosure must be contrary to the public interest. These are the two independent requirements. The fact that the first is met carries no presumption that the second is also met.
The Public interest Test
Evidence gathered from the reviews which came before me and during the investigation suggests that some decision makers are experiencing problems in applying this exemption. Some displayed a basic misunderstanding of the nature of the public interest test which section 20 requires, confusing it with the public interest balancing test contained in sections such as 21, 26 and 27. This latter test applies when a decision maker, having decided that access may be refused on the ground that some harm will be caused by release or may reasonably be expected to be caused by release, must then consider whether, notwithstanding any such harm, the public interest would, on balance, be better served by release. The point of this "balancing" test is that it involves a presumption that a harm of some kind has already been identified and is weighing against release. When a decision maker uses a balancing test in section 20, or the language of a balancing test, then the message conveyed to the requester is that the decision maker considers that the release of material relating to the deliberative process is, of itself, harmful and is only permitted where some public interest can be identified which will outweigh the harm previously identified. Not surprisingly, a decision maker starting from this premise is most unlikely to release records.
The correct application of the public interest test in section 20 requires the decision maker to identify some particular reason why release would be contrary to the public interest. In essence this public interest test is a harm test although, in contrast to the harm tests in provisions such as sections 21 and 23, the specific harms are not identified in the section. The harm to the public interest must be considered having regard to the contents of the record or records at issue in each particular case.
Release during Deliberative Process
A second problem with the application of section 20 is the view among some decision makers that material relating to the deliberative process should not be released until that process has concluded. I can discern no such principle in the terms of section 20 and if, indeed, the purpose of the section is to protect matter relating to the deliberative process until that process had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines. It is true that section 20 provides that a decision maker must consider whether release would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. This falls well short of any justification for the view that material must always be protected until the deliberative process has concluded.
The view that nothing should be released until the deliberative process has concluded seems to have led some decision makers to refuse access simply because an issue, which was once the subject of deliberations, has yet to result in a final outcome. For example, in one case a matter which had been decided by the Government some time earlier was the subject of subsequent representations to the Department. Access to the records dealing with these representations was refused, apparently because at the date of the request the Government decision had not yet been implemented. It seemed that very little consideration, if any, was given to what harm might be caused by release.
The evidence gathered in the course of the investigation tends to reflect my experience in dealing with reviews of decisions where section 20 has been involved. A number of such reviews have been settled on the basis that by the time the review came to be dealt with the information had been released because the deliberative process had concluded. This is not a satisfactory outcome from the requester's point of view and it gives rise to suspicion among some users of the Act that refusals under section 20 are tactical, designed to defer access until it suits the public body.
While section 20 does not require, as a matter of principle, that material should be withheld until the conclusion of a deliberative process, it is open to a public body to argue, in any particular case, that the public interest requires no disclosure until the process has been completed. However, any arguments on this ground must be supported by the facts of the case and a specific harm to the public interest flowing from the release must be identified.
Section 26
Section 26 is a mandatory exemption concerned with protection of information held by public bodies which is received in confidence from third parties where:
- disclosure would be likely to prejudice the giving of similar information to the public body in the future and it is of importance to it that it receives such information (section 26(1)(a)), or
- the information is subject to a legal duty of confidence owed to the supplier of the information (section 26(1)(b)).
This is a complex exemption and it would appear that many decision makers experience difficulty in applying it correctly. In some cases the exemption is invoked in circumstances where it is inappropriate to do so.
Protecting the Identity of a Supplier of Information
In some cases what the public body seeks to protect is the identity of the person who has provided information to it in confidence, as opposed to the contents of the information. In such cases, access may more appropriately be refused under section 23(1)(b) or section 46(1)(f) - which provide that access may be refused if it could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information in confidence to a public body in relation to the enforcement or administration of the civil law or in relation to the enforcement of the criminal law.
Information used to influence Policy Making or Legislation
A second set of circumstances in which it may not be appropriate to invoke section 26 is where the information at issue is intended to influence policy making or legislation. In such circumstances, it is most unlikely that a legal duty of confidence is owed to the provider of the information. However, public bodies may feel that refusing to treat such information in confidence will reduce the flow of information to them. In my view this is a consequence which must be suffered in the interests of democracy. The alternative is to permit policy to be formulated and legislation to be enacted on the basis of secret representations - something which is wholly at odds with the concepts of openness and transparency which the FOI Act was intended to foster. As I pointed out in my decision in Case Number 98058 - Mr Phelim McAleer and the Department of Justice, Equality and Law Reform, there may be unusual circumstances in which persons providing information or opinions which are intended to influence policy or legislation also provide information of an essentially private nature about themselves or their business. Section 26 or other exemptions may properly be invoked to protect such confidences. This apart, public bodies should be slow to invoke the section to protect inputs to the policy making and legislative processes.
Information provided by other Public Bodies
A third set of circumstances in which the application of section 26 may be inappropriate is where the information was provided by another public body. This is only an issue where the provider of the information is a public body which has not yet been brought within the scope of the Act - such as the Garda Síochána. Where the provider of the information is another public body which is within the scope of the Act then the information cannot be protected under section 26 unless it is the subject of a duty of confidence owed to someone other than the public body, a member of its staff or a person providing services to it under a contract of services (see section 26(2)).
Where the provider of the information is a public body not yet within the scope of the Act (but whose future inclusion is provided for by the First Schedule of the Act), then a claim for exemption under section 26 requires a decision maker in the recipient public body to conclude either that release would be likely to prejudice the flow to the recipient public body of future similar and important information or that it would involve a breach of a duty of confidence owed to the provider of the information. One possible situation in which the flow of information to the recipient public body could be prejudiced is where the provider of the information has obtained that information in confidence from a third party. In my decision in Case Number 98100 - Ms Fiona McHugh and the Department of Enterprise, Trade and Employment I accepted that in such circumstances disclosure would be likely to prejudice the giving of similar information to the first public body which, in turn, would prejudice the provision of the information to the recipient public body. Apart from this exceptional situation it is difficult to accept that one public body would simply refuse to provide information to another public body where the information concerned is of importance to the latter public body (and presumably intended to be used to discharge its functions). This means that recourse to the exemption in section 26(1)(a) will not normally be justifiable.
As regards section 26(1)(b), in the absence of a duty of confidence imposed by statute or by an agreement, the only other basis on which refusal might be considered is if an equitable duty of confidence was owed either to the public body providing the information or to someone who, in turn, had provided the information to it. This latter duty arises where disclosure of the information would involve "unconscionable" behaviour on the part of the recipient - something which seems rather unlikely, at least in the case of information which was not received originally from some third party.
The fact that section 26 may not apply in the circumstances outlined above does not mean that the information sought to be protected should always be released. The Act has a number of exemptions which protect the functions of both the provider of the information and the recipient public body as well as protecting the privacy interests of third parties. The concentration on section 26, sometimes to the exclusion of other more appropriate exemptions, tends to distract decision makers from identifying real harms which could be caused by release. In other cases it results in the refusal of access to information whose disclosure could not conceivably cause any harm.
Determining whether Information was given in Confidence
Even where section 26 is correctly invoked decision makers appear to have problems in determining whether information was given in confidence or is subject to a legal duty of confidence. Given the volume of business transacted by public bodies, it is not surprising that express assurances of confidentiality are relatively rare. This means that decision makers often have to decide whether an assurance of confidence was implied. This is not an easy task particularly since the decision maker may not be able to establish with certainty the precise circumstances in which the information was given to the public body and the use to which the provider of the information intended it to be put. Even where express assurances of confidentiality are given problems can arise. Some such assurances may be inappropriate, or their scope may be misleading, as where, for example, information is given to a public body and it is intended that active use will be made of it to the detriment of another person. In such cases, if active use is made of the information then fair procedures may require disclosure of the substance of the information to the person affected regardless of any prior assurances given to the provider of the information.
The problems in applying section 26 could be eased if public bodies were to develop and publish clear guidelines on the collection and use of information obtained from third parties and a clear policy on when confidentiality would be assured to such parties. Such guidelines, provided they observed the principles underlying the FOI Act in this area, would create greater certainty for suppliers of information as well as ensuring that information was not withheld unnecessarily from requesters. Based on the evidence of the investigation it seems that some public bodies have attempted to put suppliers of information on notice of the possibility of release of information under the FOI Act. In many cases this guidance is framed as advice that the public body will treat the information as confidential unless required to release it by virtue of the FOI Act or otherwise by law. While this is clearly better than ignoring the issue altogether, it can create considerable uncertainty for the supplier of the information. The approach taken by the health boards in developing guidelines for administrative access (see chapter 7) is a good example of the value of developing general guidelines on the collection, use and disclosure of information.
Recommendations
The Central Policy Unit should provide guidelines to public bodies on the circumstances in which the discretionary exemption in section 19 (meetings of the Government) should be invoked and on how the consultation procedures provided for in section 19(4) should be undertaken.
Each public body should re-examine its use of the exemption in section 20 (deliberations of public bodies) to ensure that information is only withheld on clearly arguable grounds, not merely on the ground that the decision making process has not concluded or that release could cause embarrassment to the body or to the Government. Senior management should provide support to decision makers by clearly indicating the circumstances in which section 20 should not be invoked.
