Whether the Board was justified in refusing access to records relating to a specified pre-application consultation (PAC) with a local authority and a third party company (the Company) on the basis of section 29 of the FOI Act (deliberative process)

3 December 2020

Background

Since July 2017, Strategic Housing Development (SHD) planning applications in relation to certain housing developments can be made directly to the Board. A PAC is a mandatory part of the process. The Board issues an opinion on plans submitted during the PAC stage and prospective applicants whose documents are found to form a reasonable basis for a SHD application can proceed to make a planning application to the Board. The PAC stage may be repeated a number of times before a SHD application is made.

In a request dated 24 July 2019, the applicant sought access to the following records concerning a PAC requested by a named Company:

1. The PAC request form
2. Minutes of the Section 247 meeting with the Council
3. The opinion submitted by the Council
4. Minutes of the pre-consultation meeting with the Board
5. The Board’s opinion
6. Any additional reports in the file

In a decision dated 19 August 2019, the Board refused the applicant’s request, citing section 11(7)(b) of the FOI Act. It stated that in its weighing of the public interest, the factors in favour of refusal of the request outweighed those in favour of release. The applicant requested an internal review on 11 September 2019, and the Board’s decision on 2 October 2019 affirmed the earlier decision on the same grounds. On 9 October 2019, the applicant applied to this Office for a review of the Board’s decision.

As noted above, the Board refused the applicant’s decision on the basis of section 11(7)(b) of the FOI Act. That section does not provide a basis for the refusal of a request. For a record to be exempt from release, one or more of the provisions of Part 4 and/or Part 5 of the Act must apply.

Section 11(7)(b) provides that the right of access afforded by section 11(1) does not apply to an exempt record where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest.

An Investigator of this Office wrote to the Board on 20 November 2019, setting out the above and noting that the Board had not relied upon an exemption in the FOI Act in its decisions to refuse access to the records sought. He indicated that this Office intended to annul and remit the Board’s decision on that basis, and allowed it an opportunity to respond. On 3 December 2019, the Board responded, stating that it was relying on section 29(1) (deliberative process) to refuse to grant access to the records sought. This Office decided to proceed with the review on that basis.

On 9 April 2020, the Investigator assigned to the case contacted the Company’s representative and informed it of this review. She invited the representative to make a submission if his client objected to the release of the records. The representative confirmed that he would make a substantive response before 20 May 2020, but no response has been received to date.

In the course of the review, this Office’s Investigator also informed the applicant of the Board’s reliance on section 29 and outlined the Board’s arguments against release. The investigator also outlined her view that the Board had not adequately demonstrated how release of the records sought would be contrary to the public interest. On 7 July 2020, the applicant made a submission in response. The Investigator subsequently contacted the Board to inform it of material arguments in the applicant’s later submission and asked it to clarify some matters. The Board’s response on 28 July 2020 confirmed that its position remained unchanged.

Following further consideration of the matters at hand, this Office’s Investigator contacted the applicant on 18 November 2020 and outlined what she considered to be similarities between the facts in this case and those of a case decided by the Office of the Commissioner for Environmental Information (OCEI). This case was relied upon by the Board in support of its decision to refuse access to the records at issue. On 22 November 2020 the applicant responded indicating that she did not agree with the investigator’s view that the cases were similar. 

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the various submissions made by the applicant and by the Board as set out above. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review 

The Board provided copies of 14 records to this Office for the purposes of this review. Records 1-5 comprise correspondence about the applicant’s FOI request, record 12 is a receipt issued to the applicant in respect of her internal review payment and records 13-14 are internal Board records concerning the search for relevant records. None of these records will form part of this review. In response to a request for clarification from the Office, it also provided a copy of the original PAC application (which I shall refer to as record 15). My understanding is that the Board also considers this record to be exempt under section 29(1). Record 15 will be considered as part of this review.

Therefore, this review is concerned solely with whether the Board was justified in refusing access to records 6-11 and 15 under section 29(1) of the FOI Act.

Analysis and Findings

Section 29 (Deliberative Process)

Section 29(1) provides for the refusal of a request where (a) the record sought contains matter relating to the deliberative processes of an FOI body and (b) the body considers that granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show that both requirements have been met.

A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

It is important to note that the public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release.

To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.

Therefore, public bodies must show that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the records, become aware of a significant decision that an FOI body proposes to make.

The records at issue comprise the Board’s opinion on the PAC, the minutes of its meeting with the Company, the Board’s direction to issue an opinion, the Board Inspector’s report, the Council’s opinion, the minutes of a meeting attended by the Company and the Council, and the original PAC application documents.

The Board stated that the deliberative matter at issue in this case was an application for planning permission under the Planning and Development (Housing) Residential Tenancies Act 2016 (the 2016 Planning Act). The Board has confirmed to this Office that no planning application has been made to date by the Company relating to the PAC in question. It also said that if or when a SHD planning application is lodged, it will take the PAC opinion into account in arriving at a decision. The applicant stated that the Board’s consideration of the PAC has concluded, and I agree, insofar as the initial part of the process has been completed. However, the Board’s position seems to be that it considers the PAC to be part of the overall planning process, the next stage of which will be engaged when (or if) a planning application is received.

Having regard to the contents of the records concerned, and the Board’s description of the various stages of the SHD planning process, I am willing to accept that the records contain information relating to the Board’s deliberative process concerning the PAC. I therefore find that the records at issue meet the requirements of section 29(1)(a) of the Act.

This is not the end of the matter, however, as I must also consider whether these records meet the requirements of section 29(1)(b) of the Act.

Contrary to the public interest

The Board’s Submissions

The Board cited two recent OCEI decisions under the European Communities (Access to Information on the Environment) (Amendment) Regulations 2007 to 2018 (the AIE Regulations) in support of its decision to refuse access to the records at issue. While Case CEI/17/0031 and Case CEI/19/0004 both relate to mandatory PACs in relation to Strategic Infrastructure Developments (SIDs) rather than SHDs, and were decided under different legislation, the circumstances and arguments were generally similar to those arising in this case.

In all three cases, the Board refused to grant access to PAC records relating to proposed developments. In all instances, no related planning applications had been made and it remained open to the individual developers to request one or more additional PACs before proceeding to making an application. The Board’s view was that as no development could proceed at this stage of the process, there could be no negative impact on the public interest arising from a refusal to release the records.

The Board stated that public participation is provided for by planning legislation at a later stage of the process. Its position appears to be that the release of PAC documents would comprise third party participation, which is not provided for by planning legislation at this stage in the SHD process. During the course of the review, the Board also said that its decision to refuse the applicant’s request was “in line with planning legislation”.

The Board was also of the view that the release of PAC records in circumstances where any subsequent planning application would be likely to differ (perhaps significantly) from the plans considered at the PAC stage would be confusing to the public. It stated that the public could form arguments on the basis of factors which were no longer relevant, which could lead to their submissions being disregarded. The Board said that it was quite difficult to resubmit observations due to the provisions of planning legislation.

The Board also stated that submissions or observations to the Board based on incorrect information could negatively impact its own decision making.

The Applicant’s Submissions

The applicant also cited Case CEI/17/0031 in her internal review request, as well as a recent High Court decision in Heather Hill Management Company CLG v An Bord Pleanála 2019 No. 20 JR (the Heather Hill case). The decision in the Heather Hill case refers to a SHD where the Board had granted planning permission. The High Court held that grant of permission was a material contravention of the local development plan. The applicant referred to paragraph 54 of that judgment in particular, which stated that such was the scale of the breach of the local population allocation involved in the proposed development that it was “likely to excite local opposition”. I take this to mean that she considers the same to apply in this case.

In submissions to this Office, the applicant indicated that she did not agree with the Board’s position that release of the records sought would cause confusion. She stated that the PAC file was closed and that any SHD application would generate a new file and file number. The applicant also stated that when SHD applications are made, the relevant developer sets up a website to which the Board directs interested parties. Essentially, the applicant considered it to be unlikely that that someone would make a submission in respect of a SHD application based on out of date information, when the final application and details would be clear from the developer’s website.

The applicant stated that the SID and SHD processes, while similar, are based on different legislative provisions and are quite different. She said that while the SID PAC files were in abeyance in the two OCEI cases cited above, the SHD PAC file in this case is complete. She was also of the view that SID PACs can effectively “languish” while the SHD process provided for a “fast track” process, with strict timelines. In this regard, I note that the Board’s website states that SID PAC files “will be available for inspection and purchase when the consultations have concluded”. The Board’s applicant’s guide on its website states that SHD Pac records will be “made available… to the public when the application documents are received.”

Analysis

As I understand it, the applicant in SID PAC proceedings drives the closure of the file him or herself, at which point the file is made available for inspection. The two OCEI cases referred to above relate to requests for access made at a time when the PAC process had not formally concluded and the files had not yet been made available for inspection. In the current case, the PAC has concluded and there is no provision for the file to be made publically available unless and until a related planning application is made. I note the applicant’s view that there is a “grey area” between a decision on a SHD PAC and a subsequent planning application which would allow for its publication.

The relative age or historic nature of a record may have a bearing on whether its release would be contrary to the public interest. The Board confirmed that there was no deadline or cut off point for the submission of a related SHD application. It also stated that, generally speaking, it does not publish documents relating to SHD PACs until such time as an application is made. The Board said that its position in relation to the publication or release of SID PACs changed in January 2019, following the decision in Case CEI/17/0031. The Commissioner directed the Board to release the record in that case, in part because the most recent activity on the SID in question had occurred four years previously and the file itself had been open for six years. I also understand that there is no provision for PAC files relating to SID projects to be made public in planning legislation, even when the case had been in abeyance for a number of years.

In contrast, the Commissioner’s decision in Case CEI/19/0004 affirmed the Board’s decision to refuse access. In his decision in that case, the Commissioner accepted that the Board’s proceedings, including the SID PAC process, are normally kept confidential until such time when (if ever) the information must be made public under planning legislation. I note that at the time of the decision in Case CEI/19/004, as in this case, that point had not yet been reached.

In Case CEI/19/004, the Commissioner accepted that the confidentiality of the Board’s proceedings in relation to SID PACs, until such time as the right to such confidentiality is lost, was implicitly provided for in the Planning and Development Act 2000. He further accepted that the process was designed by the Oireachtas to be private until concluded. However, while the SID Pac process was still open in Case CEI/19/004, the Board has issued its decision on the SHD PAC in this case and I understand that the file is closed.

It seems to me that while the SHD and SID processes are similar, there are differences in how both matters are progressed.

While the Board’s decision may be in line with planning legislation, which does not provide for the publication of the records sought at this point, I note that the Board has not cited any provision of planning legislation that prohibits the publication of PACs or their release under FOI.   

I note that while the Board stated that release of the records sought would prejudice its own decision making, it did not explain how this would occur. It seems to me that the Board would be in a position to disregard submissions made on the basis of an incorrect understanding of the final application. Furthermore, I am of the view that arguments that the release of records could lead to confusion are not sufficient to withhold records that would otherwise be released in response to an FOI request. 

I also note that during this review, this Office’s Investigator put the applicant’s arguments to the Board noting that, in her view, when a SHD application was made, “it would be very clear to objectors what they were objecting to”. In its response, the Board did not comment other than to state that the correct term was “observers” rather than “objectors”. I note that the Board did not disagree that the PAC file was closed in this case.

I have carefully considered the facts and circumstances in this case and the arguments of both parties, as set out above. I also note that the Company has not made any submission in support of the Board’s decision, on its own behalf, or argued that there would be any harm from release of the records concerned.

I take the view that it was open to the Oireachtas to design the pre-planning process so as to make it open to the public at all stages, but it chose for these type of records to remain private until parts of the process had concluded. However, it seems to me that there may be an argument to be made for transparency in relation to both infrastructure and housing developments which are considered to be strategic and therefore subject to particular procedures for submission and approval. I am satisfied that the Board has taken previous OCEI decisions and the public interest in openness and transparency in such matters into account when arriving at its recently adopted policy of releasing SID PAC records in response to statutory requests once 18 months have elapsed without any activity on the file.

However, I consider that the same rationale should apply to SHD PAC files. In the circumstances of this case, I do not consider that the Board has demonstrated that the disclosure of the particular records sought at this stage in the process would be contrary to the public interest. Accordingly, I find that the Board was not justified in refusing to release the records sought under section 29 of the FOI Act. I hereby annul its decision and direct the release of the records sought to the applicant.

Neither party in this case has argued that release of the records concerned would mean that the applicant would become aware of a significant decision the Board proposed to make.

Decision

Having carried out a review under section 22(2) of the FOI Act, I find that while section 29(1)(a) applies to the records, the Board has not shown how the release of the records at issue would be contrary to the public interest. I hereby annul the Board’s decision and direct the release of the records sought.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Deirdre McGoldrick

Senior Investigator