Ms X and the Arts Council

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 21 August 2015
• Case Outcome: he Senior Investigator varied the Council's decision. She affirmed part of the decision and found that the Council was justified in its refusal of access to parts of some records under sections 26(1)(a), 27(1)(b) and 28(1) of the Act. She annulled its decision in relation to one group of records and directed the release of parts of those records.
• Court: Information Commission
• Record Number: 140258
• Respondent: The Arts Council

Whether the Council was justified in its decision to refuse access to certain records and parts of records concerning DEIS 2013 award scheme, under the provisions of sections 21(1)(b), 26(1)(a), 27(1)(b) and 28(1) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 11 July 2014 the applicant made an FOI request to the Council. The request was a narrowing and clarification of the scope of an earlier, broader request following contact between the applicant and the Council. The applicant sought access to all records relevant and related to conflict of interest management in general and to the Deis Round 2, 2013 in particular. Deis is a scheme through which projects in the traditional arts are funded.

In its original decision of 22 August 2014, the Council granted access in part to some records and refused access to others on the basis of sections 20(1), 21(1)(b), 26(1)(a), 27(1)(b) and 28(1) of the FOI Act. However, following an internal review, the Council released additional records to the applicant. The applicant then wrote to this Office on 24 September 2014 seeking a review of the Council's decision.

During the course of this review, this Office found that the decision schedule forwarded to the applicant was not the same as the schedule which the Council had given to this Office. A total of 40 records were scheduled - many containing multiple pages. Consequently, at the Investigator's request, the Council gave the applicant a copy of the more detailed schedule. In so doing, it also decided to release additional parts of some records to the applicant, such that it no longer relied on the provisions of section 20(1).

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting my review, I have had regard to the Council's decision in this matter, to correspondence between this Office and the Council, to correspondence between the applicant and the Council and to correspondence between the applicant and this Office. I have also had regard to the records in question and the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the remaining withheld records and parts of records under sections 21(1)(b), 26(1)(a), 27(1)(b) and 28(1) of the FOI Act. The remaining records to which the Council applied the exemptions are records 2, 3, 6, 7, 9, 12-16, 18, 19, 21-26 and 31-35. In some cases, only a small amount of the record has been redacted with the remainder having been released.

As regards records 5 and 39, the Council stated that the redacted parts of those records related to matters outside of the scope of the request. Having examined the redacted material, I agree that it relates to matters other than the conflict of interest issue, or the Deis scheme and I will not consider those records any further.

Preliminary Matters

Before setting out my findings, it is important to note that section 34(12) of the FOI Act provides that a decision to refuse a request shall be presumed not to be justified unless the public body shows to the Commissioner's satisfaction that its decision as justified. I should point out also that while I am required by section 34(10) to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. I also wish to make it clear that this review does not extend to an investigation into the procedures of the Council or how it conducts its business; neither can I consider separate requests made by the applicant.

Analysis and Findings

Section 26(1)(a)

Record 2 was withheld under section 26(1)(a) of the FOI Act on the basis that it contains information given to the Council in confidence. It comprises the 24 completed applications received for Round 2 of the 2013 Deis awards.

Section 26(1)(a) provides for the mandatory refusal of a record containing information:

• given to a public body in confidence and,
• on the understanding that it would be treated by it as confidential and,
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

The record contains detailed information, including financial information, about each of the applicants and other persons (third parties) proposed to be involved in the projects. The Council stated that all applicants apply to it on the understanding that information relating to their applications will be dealt with confidentially, particularly given the issue of commercial sensitivity, copyright of original artistic ideas and personal data. The Council also referred to its reputation and stated that artists trust that the Council will maintain a confidential relationship with them. I am satisfied that, at the initial stage of the Deis award process, applications are provided to the Council in confidence. Also, I consider that, at that initial stage, an applicant is entitled to rely on the undertaking of the Council that all information provided will be treated as confidential, notwithstanding the use to which that information may be put following a successful application. The Council describes schemes such as the Deis award as a "core function of the Arts Council". In its submission, the Council stated that "[no] artist would apply to the Arts Council if they didn't feel that the Arts Council dealt confidentially with their personal information and creative ideas." While I do not agree fully with that assertion, I accept that the level of detail supplied might be compromised and that it is important that the Council continues to receive high quality, original and detailed proposals with proper costings, so that a thorough evaluation can be made. Having examined record 2, I find that the four requirements as set out above have been met and that the Council was justified in refusing access to parts it under section 26(1)(a) of the Act.
Section 26(2) does not dis-apply section 26(1) in this case, as the records were not prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" in the course of the performance of his or her functions.

Section 26(3) - the Public...