Mr X and the Department of Justice and Equality

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 15 October 2015
• Case Outcome: The Commissioner varied the decision of the Department. He annulled its decision in relation to all but one of the records, which he found to be exempt under section 15 of the FOI Act as it is already in the public domain. He found that the Department had not justified its decision to refuse access to the remaining records on the basis of section 29(1) or section 37(1) of the FOI Act (except in relation to a small amount of personal information in one record).
• Court: Information Commission
• Record Number: 150098
• Respondent: Department of Justice and Equality

Whether the refusal of access to records concerning representations made on the Legal Services Regulation Bill 2011 (the Bill) by the Department is justified under section 29(1) and section 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 20 February 2015 the applicant made an FOI request to the Department for "all records held by or on behalf of the Department of Justice concerning representation (sic) made by or on behalf of the Bar Council and its committees, The Law Library, The Honourable Society of the Kings Inns and individual barristers relating to the Bill...dated later than 4 October 2011...this request includes but is not limited to all correspondence received or sent, submissions and internal responses to those correspondences and submissions".

By letter dated 20 March 2015, the Department refused access to the records on the basis that they were exempt from release under sections 15(1), 29(1), 42(f) and 37(1) of the FOI Act. On 26 March 2015 the applicant applied for an internal review in respect of all of the records except for records 1-6, 28-32 and 37. He requested a redacted copy of record 46, which the Department had refused under section 37(1) on the ground that it contained personal information. By letter dated 2 April 2015, the Department issued its internal review decision, in which it affirmed its original decision. On 9 April 2015, the applicant applied to this Office for a review of the Department's decision.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the views of the representative body and legal professionals who replied to this Office's invitation to make submissions; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and to the provisions of the FOI Act. I use the term "representative bodies" to denote organisations which represent the interests of various sectors of the legal profession.

Scope of the Review

This review concerns the records which the applicant sought in his request for an internal review. In that request, the applicant stated that he was "not seeking access to records which contain internal analysis, summarisation, reaction or commentary on any of the submissions". Records 27 and 40 consist solely of internal analysis etc. and are therefore excluded from the scope of this review. Records 11, 31, 33, 34 and 50 consist partly of internal analysis etc. and I deal with them in my decision below.

The Department refused access to all of the records within the scope of this review under section 29(1), with the exception of record 46, which it refused under section 37(1). Accordingly, the sole question for this review is whether the Department was justified in refusing access to those records under section 29(1) and section 37(1) of the FOI Act.

Preliminary Matters

I should explain that 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]".

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 Department to satisfy me that its decision is justified.

Analysis and Findings

As noted above, the Department refused access to all but one of the records within the scope of this review under section 29 of the FOI Act. However, it is clear from an examination of the records that not all of the records which it refused under section 29 relate to the Department's deliberative process. I have therefore found it helpful to categorise them in the table set out below.

NUMBER DESCRIPTION RECORD NUMBER

• 1 - a record already in the public domain: 11 (Compecon Report 3 March 2012)
• 2 - correspondence between representative bodies and the Department about consultation on the Bill: 8, 12, 15, 18, 19, 51
• 3 - briefing notes for the Minister for speeches to, and meetings with, representative bodies: 39, 41
• 4 - submissions to the Department about the Bill (made by representative bodies and members of the legal profession) and minutes of meetings between the Minister and representative bodies: 7, 9, 10, 11 (apart from Compecon Report 3 March 2012), 13, 14, 16, 17, 20, 21, 22, 23, 24, 25, 26, 33, 34, 35, 36, 38, 42, 43, 44, 45, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58

Section 15(1)(d) - information in the public domain

Category 1

Having examined record 11, I note that it contains a report titled "Compecon Report 3 March 2012", which is already in the public domain. I therefore find that this part of record 11 is exempt under section 15(1)(d) of the FOI Act, on the basis that it is already in the public domain.

Section 29 - deliberative process

As noted above, the Department relied on section 29 to refuse access to all but one of the records. Its decision stated that the Bill is subject to a deliberative process by the Minister and her officials.

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 public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. In order to avail of the section 29 exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, the section 29 exemption tends more strongly towards release of the records. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.

A deliberative process may be described as a process which involves the consideration of various matters with a view to making a decision on a particular issue. The exemption 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...