Mr X and the Arts Council

• Judge: Stephen Rafferty 21 August 2015
• Judgment Date: 21 August 2015
• Case Outcome: The Senior Investigator varied the decision of the Council. While he found that the majority of the withheld information was exempt from release under section 37, he directed the release of details of the number of writers short-listed.
• Court: Information Commission
• Record Number: 150093
• Respondent: The Arts Council

Whether the Council was justified in refusing access to records relating to the award of the Irish Laureate for Fiction under the provisions of sections 30, 35, 36 and 37 of the FOI Act

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

Background

On 31 January 2015 the applicant submitted a request to the Council for records relating to the award of the inaugural Irish Laureate for Fiction. On 9 March 2015 the Council issued its decision on the request. Of the 17 records identified as coming within the scope of the applicant's request, the Council released four records in full, five in part and refused access to eight records.

The applicant sought an internal review of the Council's decision on 12 March 2015. By letter dated 30 March 2015, the Council affirmed its original decision. The applicant subsequently applied to this Office on 31 March 2015 for a review of the Council's decision.

In a submission to this Office dated 22 June 2015, the Council varied the exemptions relied upon in relation to a number of the records that had been refused in whole or in part. I note that Mr Art Foley of this Office wrote to the applicant on 27 July 2015, in which he detailed the alterations that been made to the exemptions that the Council considered to apply to the records at issue, and informed the applicant that in his view, the Council was justified in its decision to refuse access to the records. He invited the applicant to make any further submission he wished if he disagreed with this view. On 4 August 2015 the applicant indicated that he required a binding decision on the matter. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Council and the applicant as outlined above. I have also had regard to communications between this Office and the applicant, to communications between this Office and the Council, and to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule it issued with its internal review decision

Scope of Review

This review is concerned with whether the Council was justified in refusing access to records 3, 4, 9, 11, 12, 14, 15 and 17 and in granting only partial access to records 1, 5, 7, 8 and 16.

Preliminary Matters
At the outset I should explain that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. 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 a more recent judgment, 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 his decision]". As this review is considered to be de novo,the Council is entitled to argue during the course of a review by this Office that exemptions not originally applied support...