Mr E and Department of Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: 22 May 2020
• Judgment Date: 22 May 2020
• Case Outcome: The Senior Investigator annulled the Department?s decision. He directed the release of the report.
• Respondent: Department of Agriculture, Food and the Marine
• Record Number: OIC-56322-J6J5G2
• Court: Information Commission

Whether the Department was justified in refusing access to a cost-benefit analysis report concerning the development of a deep water quay at Rossaveel Harbour, Co. Galway, under sections 29(1), 30(1)(a) and 40(1)(b) of the FOI Act

22 May 2020

Background

In a request dated 8 August 2019, the applicant sought access to the “report or cost benefit analysis carried out in 2016-2018 about the future development of Ros a’Mhíl, Co. Galway, possibly including reference to the proposal to develop a deepwater harbour at the site”. In a decision dated 15 August 2019, the Department refused access to the report at issue under sections 29(1) (deliberative process), 30(1)(a) (functions and negotiations), and 40(1)(b) (financial and economic interests of the State) of the FOI Act. Following a request for internal review, the Department affirmed its decision. On 5 September 2019, the applicant sought a review by this Office of that 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 communications between the parties, as above, and to those between this Office and each party on the matter. I have also had regard to the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The Department identified a single report as coming within the scope of the applicant’s request. The report is entitled “Rossaveel Harbour Deep Water Quay Cost Benefit Analysis Final Report 23rd June 2017”. This review is concerned solely with whether the Department was justified in refusing access to the report under sections 29(1), 30(1)(a), and 40(1)(b) of the FOI Act.

Analysis and Findings

Section 29 – Deliberations of FOI bodies

Section 29(1) provides for the refusal of a request where (a) the record sought contains matter relating to the deliberative processes of an FOI body and (b) the body considers that granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show that both requirements have been met.

The section further provides that, without prejudice to the generality of paragraph (b), in determining whether to grant or refuse to grant the request, the body must consider whether the grant of the request would be contrary to the public interest by reason of the fact that the requester would become aware of a significant decision that the body proposes to make.

A deliberative process can be described as a thinking process, which informs decision making in an FOI body. 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.

In its submissions the Department stated that the deliberative process at issue relates to the feasibility analysis of the appropriateness or otherwise of the development of a deep water quay at Rossaveel Fishery Harbour Centre, Co. Galway. It said the report was prepared in order to measure the economic benefits...