Ms X and the Arts Council

CourtInformation Commission
JudgeElizabeth Dolan Senior Investigator
Judgment Date21 August 2015
Case Outcomehe 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.
Record Number140258
RespondentThe 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...

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