Mr X and National Council for Special Education

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 23 December 2015
• Case Outcome: The Senior Investigator annulled the NCSE's decision under section 29(1) and section 30(1)(a) and (c) and directed the release of the records subject only to the redaction of personal information of individuals.
• Court: Information Commission
• Record Number: 150225
• Respondent: National Council for Special Education

Whether the refusal of access by the NCSE to records concerning the education of children with autism is justified under section 29(1) and section 30(1)(a) and (c) of the FOI Act

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 9 March 2015 the applicant made an FOI request to the NCSE for a number of records in relation to three research projects which the NCSE has undertaken for the purpose of advising the Department of Education and Skills (the Department) on policy regarding the education of children with autism and the provision of special education: "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland"; "Project Iris" and "Autistic Spectrum Disorder secondary data analysis and Autistic Spectrum Disorder literature review".

On 14 April 2015, the applicant restricted the scope of his request to certain records relating to one of the research projects, namely "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland", as listed at paragraphs (a) to (e) of his original request. By letter dated 13 May 2015, the NCSE refused access to the records on the basis that they were exempt from release under sections 29(1) and 30(1) of the FOI Act. On 15 May 2015, the applicant applied for an internal review in respect of the records. On 8 June 2015, the NCSE issued its internal review decision, in which it affirmed its original decision. On 24 July 2015, the applicant applied to this Office for a review of the NCSE's decision.

In conducting this review I have had regard to the NCSE's decision on the matter; the NCSE's communications with the applicant and with this Office; the applicant's communications with the NCSE and with this Office; the submissions of the NCSE; the content of the withheld records, provided to this Office by the NCSE for the purposes of this review and to the provisions of the FOI Act.

Preliminary Matters

My jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Moreover, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the NCSE to satisfy me that its decision is justified.

Scope of the Review

The scope of my review is confined to the records which the applicant outlined at (a) to (e) of his request, in relation to "An Evaluation of Eduational Provision for Students with Autistic Spectrum Disorders in the Republic of Ireland".

Analysis and Findings

Section 29 - deliberative process

Section 29(1) of the FOI Act provides:

"A head may refuse to grant an FOI request -

(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 by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof 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".

The exemption under section 29 has two requirements:

(a) the record must contain matter relating to the deliberative process; and

(b) disclosure must 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 to the satisfaction of the Commissioner that both requirements have been met.

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 public interest test contained in this provision...