2.3.6 Section 28(6)
This subsection defines the terms, “decision of the Government", “record", “Government”, “officials” as used in Section 28.
2.4 Central Policy Unit advises in relation to the application of Section 28:
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Review the guidance provided in CPU Notice No. 20.
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The preparation of memoranda, inter-ministerial communications etc. should be done in such a way as to enable access to any factual information underlying published decisions;
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That Departments remember that the entire record could, subject to other FOI exemptions, be accessed five years following the relevant Government decision or date of the inter-ministerial communication;
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That each Department should actively seek out, own and deal with FOI requests relating to memoranda etc. it has sponsored. Notice to this effect setting out particular access arrangements might be given when publicising a particular Government decision.
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That the Cabinet Secretariat or CPU be advised of any issues arising which may have implications for issues of general interpretation of the provisions relating to Cabinet records.
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That consideration be given to the issuing of contextual statements when announcing Government decisions on significant policy issues setting out the detailed pros and cons of the issues considered to be made routinely available outside of FOI. Experience suggests that this approach can work to obviate the need for the public to make FOI requests in relation to Government decisions.
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That arrangements are in place in Departments to ensure that records being refused under section 28 are not released inadvertently in response to particular requests.
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Any Department wishing for further advice as to the status of a record potentially covered by Section 28 of the Act can contact the Cabinet Secretariat (at phone: 6194000) for further guidance.
Chapter 3 – Section 29
Deliberations of
Public Bodies
Text of Section 29
Deliberations of FOI bodies
29. (1) A head may refuse to grant an FOI request—
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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
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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.
(2) Subsection (1) does not apply to a record if and in so far as it contains any or all of the following:
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matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
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factual information;
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the reasons for the making of a decision by an FOI body;
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a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
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(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
3.0 Introduction
Subsection (1) enables a decision maker to consider the refusal of an FOI request where the record contains matter relating to a deliberative process of ‘an FOI body’. There is the requirement to consider this within the public interest, so the record may be refused if it relates to the deliberative process but only where the granting would be contrary to the public interest. The section goes on to provide that consideration should be given as to whether it would be contrary to the public interest because it would make the person aware of a decision that the body is proposing to make.
The exemption has two requirements:
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the record must contain matters relating to the deliberative process, and
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disclosure must be contrary to the public interest.
Both requirements have to be met
Subsection (2) sets out the situations in which the application of subsection (1) does not apply. They can be summarised as, records which show the rules governing the decision making process as opposed to the details of a particular decision, factual information, the reasons for the making of a decision, a report of investigations or analysis regarding the performance of the body in relation to its functions and a report etc. of an expert containing advice which is not being used or was not commissioned for the purposes of deliberations.
3.1 Subsection (1)
Given the nature of the work of most FOI bodies and the type of records that they hold this exemption is frequently considered by FOI bodies. Its essential thrust is towards protecting the deliberative process so that an ongoing activity of formulating, considering, weighing up, advising and deciding on issues is not interfered with. At the same time, the subsection seeks to uphold accountability by facilitating access to reasons for decisions and by requiring consideration of the public interest.
3.1.1 Timing
While records relating to a deliberative process may continue to be protected after the deliberative process is completed, FOI bodies would at that stage need to carefully weigh up the public interest considerations relevant to the record before making a decision to refuse a request. Further guidance on consideration of the public interest is provided below.
FOI Bodies should also consider whether the use of this section is a timing matter and consideration may be given to granting but delaying access to allow for elements of the deliberation process to be concluded.
3.1.2 Material not covered by the exemption
This subsection may not be sought in respect of specified types of material, specifically:
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Matters such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations
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factual information;
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the reasons for the making of a decision by an FOI body,
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a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
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a report , study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
Records which fall within (b), (d) or (e) cannot be withheld under subsection (1), however there may be a timing issue in relation to the release of these and the point at which the deliberative process may be at. An organisation may feel that release at this time would have some effect and therefore, where appropriate, consideration should be given to deferral of access under Section 16(1)(b).
When considering these records other exemptions may also have relevance and should be considered when required.
3.2 When should you consider subsection (1)?
Subsection (1) may be considered where an FOI body wishes to withhold a record relating to the “thinking processes” of a public body. This involves reviewing information from a variety of sources and weighing up carefully all of the facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. It would, for example, include weighing up or evaluating competing options or the consideration of proposals or various courses of action.
In appropriate circumstances this would constitute memoranda, minutes of meetings recording the deliberations and other material concerning:
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policy formulation
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advice and recommendations
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results of consultations, including those with bodies outside Government
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submissions to management
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advice to ministers
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briefing for the purposes of deliberations and decision making
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certain correspondence within and between public bodies
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non-scientific/technical material submitted by consultants
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procurement of services
Once material in a document falls into any of the foregoing areas, the record may be withheld under subsection (1), subject to consideration of the public interest, and assuming that no other exemption is applicable. Guidance in relation to the public interest is set out later in this chapter.
It should be noted that, while the exemption can apply to policy records, it may also apply to deliberations for the purpose of other decision making functions. The exemption does not, however, apply to decision making in respect of routine procedural or narrow administrative functions of an FOI body. In other words, the exemption would not apply to records where the policy or practice is already well established and clear-cut and all the administrator has to do is to establish the facts and apply them to such arrangements. Such material would be expected to already be in the public domain by virtue of the publication scheme.
It should be noted that provided the body which is or was engaged in the deliberations is an FOI body, it does not have to be the FOI body making the decision on the request.
3.2.1 General application of subsection (1)
Subsection (1) broadly seeks:
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to protect against undue intrusion into the advisory and decision making processes of FOI bodies
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to create space for the FOI body to consider significant issues
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to weigh the public interest factors for and against release
Records relating to deliberative process broadly fall into two distinct phases – pre-decision stage and post decision stage.
3.2.2 Deliberative/pre-decisional stage
While the public interest must be considered during this phase, the balance may reasonably be considered to favour protection in the period leading to a decision. Records created during this period are therefore likely to enjoy the protection of subsection (1).
Decision makers looking at these records need to consider the timing of request and the process, it may be possible to advise a requester that decision is imminent and that some information may become available soon and to agree with the requester that the decision will be delayed.
3.2.3 Post-decision stage
Records relating to the deliberative process may continue to be protected after a decision has been made provided the head is satisfied that the balance of public interest does not favour granting the request. The public interest arguments for and against the release of a record after a decision has been made should be carefully considered.
It may of course arise that advice and recommendations are provided for the purposes of an ongoing process, or for events, rather than for the purposes of a single discernible decision. While exemption may be claimed under this subsection for such material it must be emphasised that the decision maker may need to regard each component of an ongoing wider process as distinct. Careful consideration of the public interest arguments favouring the protection of the particular records and their relationship or impact on the wider process is recommended in such cases. A decision maker would need to be able to show how the deliberative process is carried over beyond each distinct point and to show how someone accessing the details of one deliberative issue could impact on another.
3.3 Elements of subsection (1)
“if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations”.
This provision refers to records forming part of a public body’s deliberative processes, i.e. thinking processes. “Deliberative process” has been described as the action of taking counsel, examining the merits of various courses, advising, weighing up or evaluating competing arguments or considerations which may have a bearing on one’s course of action.
“opinions” may be taken as one’s view on something, one’s estimate, a disputable belief.
“advice” has been described as statement of possible outcomes, opinions as to action, outcomes coupled with their relative desirability.
“recommendations” has been described as suggestions or in favour of,
“results of consultations” essentially means the outcome of views or advice sought from third parties
It is clear from the foregoing that, for the purposes of this subsection, a record should relate to an FOI body’s thinking and advisory processes. The record should contain not just information, but also proposals, opinions, options which demonstrate the process that the body engaged in considering a decision.
“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”
This refers to the fact that the documents need to have been used by those mentioned in the process of deliberations, and when applying this exemption the decision maker needs to be able to show that the records were part of the process. Records which do not form part of the process will not secure protection under this exemption.
3.4 Deliberative process records to which this exemption does not apply
Subsection 2 sets out a number of records to which section 29 does not apply:
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“Matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used by an FOI body for the purpose of making decisions, determinations or recommendations
The purpose of subsection (a) is to ensure that publication and access to material specified in the publication scheme is not in any way restricted or inhibited by this section. Detail regarding how an FOI body makes decisions for example in relation to accessing a service should be freely publicly available.
Subsection (b) provides that, insofar as a deliberative record contains factual information, such material cannot be protected by this section.
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“includes information of a statistical, financial, econometric or empirical nature together with any analysis thereof”
actual information is defined in section 2 of the FOI Act as:
and would generally comprehend matters that are known to have occurred in the sense of being tangible facts and figures.
The separation of factual information and analyses thereof from other material, such as advice is not always readily achieved.
3.4.1 Precedent suggests two areas of critical overlap:
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Summaries of factual information which are of such a character as to disclose a process of selection involving opinion, advice or recommendation for the purpose of deliberations,
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Statements of conclusions reached while apparently factually based, may sometimes involve opinions or advice.
Experience also confirms that in some circumstances factual material is “inextricably intertwined” with exempt records. In such cases, where reasonable effort has been made by an FOI body to separate exempt from other material (consistent with section 18), exemption for information described at (i) and (ii) above may be claimed. Alternatively, or in addition, other exemptions, such as section 30 or 32 might fall for consideration.
Where there is information in the record(s) which falls within section 29(2)(b) and the timing of the release of the records is problematic, then the provisions of section 16(1)(b) may be considered by the FOI Body. 16(1)(b) is subject to a strong public interest test – the deferral of access is justified where disclosure on or before a certain date is contrary to the public interest.
(c) the reasons for the making of a decision by an FOI body,
This provision serves two broad purposes.
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Firstly, it ensures that the right to reasons by individuals particularly affected by a decision of an FOI body under section 10, is not diminished by this section. Section 10 of the FOI Act requires an FOI body to provide a person who is affected by an act or decision of the body with a statement of the reasons for the act or decision and of any findings on any material issues of fact made for the purposes of the act or decision.
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Secondly, it provides that access by the public to decisions generally taken by FOI bodies is not impeded by section 29. The provision of records to the public which explains and justifies decisions which affect them has been found to be a key element of access rights.
(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
This subsection excludes reports on the performance, efficiency or effectiveness of an FOI body, or a particular function thereof, from the protection of this exemption. Where an FOI body has such a report to hand and needs time to consider and act upon it, the provisions of section 16(1)(b) (Deferral of access) should be considered.
In some circumstances consideration of section 30(1)(b) may also be appropriate.
(e) a report , study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
This provision excludes scientific and technical reports from the scope of the exemption. However, where such reports arise for the purposes of a decision by an FOI body under a scheme or enactment such material may fall for consideration under this exemption. A decision of an FOI body made pursuant to an enactment or scheme is one where the FOI body is authorised to make that decision under a specific provision (e.g. an Inspector’s report on a proposed motorway scheme).
Where scientific or expert opinion is contributed in the course of, and for the purposes of the deliberative process itself, rather than as technical data, exemption may nevertheless be claimed.
Where there is information in the record(s) which falls within section 29(2)(b) and the timing of the release of the records is problematic, then the provisions of section 16(1)(b) may be considered by the FOI Body. 16(1)(b) is subject to a strong public interest test – the deferral of access is justified where disclosure on or before a certain date is contrary to the public interest.
3.5 The Public Interest
The public interest has been described as a term “embracing matters, among others, of standards of human conduct and of the functions of government and government instrumentalities, tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members”. It cannot be equated with material the public or the media may find interesting. Matters which have, or might, in the daily affairs of a community attract(ed) public attention may not necessarily be ones which are for the benefit (or of serious concern) of the public.
While the public interest will usually reside in more than one person, it is possible that the interests of one person may constitute a valid public interest factor which can be applied at a broader level.
In the context of the FOI Act, the public interest requires bodies handling requests to balance factors for and against disclosure in deciding whether a record should be disclosed. Learning to identify public interest factors for and against disclosure of a record, or part thereof, and properly weigh those interests is therefore essential.
Public interest claims both for and against disclosure of deliberative documents may include some or all of the following:-
3.5.1 Public interest claims for non-disclosure
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need to preserve confidentiality having regard to the subject matter and the circumstances of the communications,
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release of records would impair a future decision,
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premature release could contaminate the decision making process
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premature release of records would impair the integrity and viability of the decision making process to a significant or substantial degree without countervailing benefit to the public,
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broader community interests must be considered, as distinct from those of the applicant and the subject of the record,
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disclosure of records which do not fairly disclose the reasons for a decision may be unfair to the public body and prejudice the integrity of the decision making process,
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the need to avoid serious damage to the proper working of government at the highest level.
When invoking these arguments, the FOI body should set out a reasoned argument as to why they apply and what precisely the effect of disclosure would be. The foregoing list, which is merely indicative, does not include the public interest in non-disclosure of information explicitly protected by other exemptions e.g. security, defence etc.
Experience suggests that a public interest claim against disclosure of records, on the grounds that their release would inhibit frankness and candour in future pre-decisional communications, is only likely to succeed on a particular factual basis, and probably when supported by other arguments.
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