Sunday, 9 August 2015

A safe space for thinking - the Section 29 exemption

If you've had an FOI request rejected because the information covers the deliberations of public bodies, what does it mean? And is the rejection valid? FOIreland looks at the Section 29 exemption.

Most FOI laws accept that organisations need to be able to discuss their plans in privacy, without being harangued by the public: the concept of a 'safe space'. in the Freedom of Information Act 2014, this exemption is Section 29 - Deliberations of FOI Bodies. (In the 1997 Act, this was Section 20)

When decisions are being made, public bodies need to be able to consider a wide range of options, and be unafraid of including innovative or unpopular options. Arguably, if discussions are carried out in full public view, those involved may be discouraged from speaking freely. The UK equivalent of this exemption, applicable in Northern Ireland, talks of the danger of inhibiting the 'free and frank' provision of advice or exchange of views in 'the conduct of public affairs'. The Irish legislation is narrower, focusing only on the 'deliberative processes' (Section 30 refers to disclosures that might have an adverse effect on 'functions relating to management'), and specifies several kinds of information that are not included. 

(What follows are broad guidelines, not legal advice. It's worth checking the actual legislation if you're not clear.)

If you've had an FOI request rejected as exempt under Section 29, here are the questions you need to consider.

Is a deliberative process happening or going to happen?

There actually has to be a process of deliberation going on: the organisation has to be actively discussing something. It has to be more than just routine administration or procedure (preparation of a hospital's submission to an inquiry, for instance, has been judged not to count). Nor is it enough to merely have the possibility that something may be considered at some stage; there has to be a realistic prospect of it being considered, with a view to a decision being made. Not, "we may want to think about this sometime".

Is the process finished?

The Act refers to a decision the body 'proposes to make'. In other words, it only applies while the process is ongoing. If the decision is made, and finalised, the exemption is unlikely to apply. The only situations where it might is if the discussions are part of a continuing process, carried out on an ongoing basis. Even if the process is still ongoing, though, the exemption may not always apply.

What kinds of record are covered?

Subsection 2 specifies certain kind of record which are not covered: rules, procedures, guidelines, interpretations and precedents used; purely factual information; the reasons a decision has been made; a report on the performance, efficiency or effectiveness of a body (i.e. not just the one making the decision); and a specialist scientific or technical report 'not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme'. 
In the past, minutes of a meeting, even though they are a factual record, are not considered 'factual information', since they include opinions and comments. And school inspector reports have been found not to be scientific or technical reports. 

What harm would result from disclosure?

Just because the records are covered by this section, does not mean they should not be disclosed. Disclosure would have to be contrary to the public interest. In other words, there is a 'harm test' - the body has to be able to show a realistic expectation that publishing the information would cause real, specific, harm to the public interest. Public servants are paid to make tough decisions - has the body argued convincingly that they would be inhibited from doing so if the information was revealed? 

Would disclosure be in the public interest?

This section includes a public interest test: even if the information is covered by this exception, it should still be disclosed if it is in the public interest to do so. In fact this section is unusually forthright: the exemption only applies if it is positively against the public interest to disclose the information. 

The phrase 'public interest' here, as in the rest of the Act, means whatever is in the interests of the public to know: it's not just material the public wants to know about. If the disclosure would reveal incompetence, poor decision-making, or corrupt practices, the information should be revealed, even if the organisation is damaged by it.

What if your FOI has been rejected?

If you've had an FOI request rejected on the grounds of the Section 29 exemption, consider the questions above. Has the body made the case that disclosure would cause real harm, damaging to the public interest? Could the record be disclosed in part, with appropriate redactions? It might be worth your while to ask for an internal review (cost €30, or €10 if you have a medical card), and then (since few internal appeals result in a changed decision) to appeal to the Information Commissioner. Be prepared for a wait, though - the Commissioner can take as long as 3 years to decide! (Oh, and it will cost  you €50, or €15 if you have a medical card)

It may by now have occurred to you that if you're looking for information from a public body, and you expect them to put up a fight, you could get someone with a medical card to ask for you. We couldn't possibly comment.

More information

If you want to find out more about this, Richard Dowling's book Secrets of the State ... and how to get them is a very readable guide to getting information. Unfortunately, it's not up to date (it relates to the 1997-2003 Freedom of Information Act) but it's still worth a look.

For a comprehensive and up to date treatment, look at Maeve McDonagh's Freedom of Information Law (Third Edition). Look in a library though, as it's a law book and the price will make your eyes water. 

The government's FOI website includes some very useful information, including a guide to exemptions - this is aimed mainly at civil servants, which is helpful because this helps illustrate the process that has been gone through to come to your decision. 

You can search through the Information Commissioner's decisions on their website.  (But search for Section 20, because they're still working through decisions on the old Act, apparently) Also, they don't publish all decisions, just the ones they think are interesting. [Update: there's now a useful briefing note by the Commissioner's office - you can download it here.]

Northern Ireland

If the public body you are interested in is in Northern Ireland, your situation will be different. You will have been turned down under Section 36 (Prejudice to the Effective Conduct of Public Affairs). You won't have to pay appeal fees, and the response will probably be quicker, but the public interest test is slightly weaker and there's no assumption that the information will be accessible if the decision has already been made. 

The UK Information Commissioner provides a detailed and useful briefing on this exemption

1 comment:

  1. Thank you Rodney.
    Section 40 could do with a bit of unpicking also. With all the attention focused on the fees it managed to slip by unnoticed.

    FYI, some Local Authority libraries don’t keep academic textbooks. It seems they’re ordered up, borrowed and… eh, not returned.