Whether the Department was justified in refusing access to records relating to a review of the retirement age for members of An Garda Síochána on the basis of sections 29(1)(a), 30(1)(a), 30(1)(b), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act

3 April 2023

Background

In a request dated 31 July 2022, the applicant sought access to records relating to the -�review of extending the retirement age for members of An Garda Síochána-�. In a decision dated 1 September 2022, the Department refused the request under sections 29(1)(a), 30(1)(a), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act. On the same day, the applicant sought an internal review of the decision.

On 11 October 2022, the applicant applied to this Office for a review of the Department-�s deemed refusal of his request on the basis that it had not issued an internal review decision within the prescribed statutory timeline. On 14 October 2022, following correspondence with this Office, the Department issued a late internal review decision, in which it varied its original decision. It said that an additional record had been identified and that access to the record in question was being refused on the basis of sections 30(1)(a) and 30(1)(c) of the FOI Act. It did not explicitly reference its original decision to refuse the other records identified.  On 24 October 2022, the applicant confirmed that he wished the review to proceed.

During the course of the review, the Department decided to release certain records. In a letter dated 13 January 2023, it said that -�on further examination of all records that were refused by the original decision makers, the Department has made a decision to grant or part grant the attached records-�. It issued a revised schedule to the applicant. In refusing or part-granting the records in question, the Department relied on sections 29(1)(a), 30(1)(a), 30(1)(b), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act.

Upon receipt of the above correspondence, the applicant posed a number of questions to the Department, copying this Office on the email correspondence. The Department did not provide answers to these questions, referencing the ongoing review before this Office. I have had regard to the questions posed by the applicant where relevant. This Office also engaged with the applicant directly following the release of records. He indicated that he wished the review to proceed and made a short submission in respect of same. He sent a further short submission a number of weeks later.

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 submissions made by the parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Department identified 59 relevant records on the revised schedule it released to the applicant. Of these, it granted access in full to 12 records. It granted partial access to 12 records, with redactions under sections 29(1) and 37(1). It refused access to 35 records under sections 29(1), 30(1)(a), 30(1)(b), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act and on the basis that certain records fall outside the scope of the applicant-�s request.

In its revised schedule, the Department-�s position is that four of the records originally identified fall outside the scope of the request. I will consider this position further below.

During the course of the review, following queries from this Office, the Department identified a further record as falling within the scope of the review. This record is an attachment to record 9 and is not referenced on the revised schedule. The Department-�s position is that sections 29(1)(a), 30(1)(a) and 30(1)(c) apply to exempt the record from release. I will consider the record in the below analysis. 

Accordingly, this review is concerned with whether the Department was justified in its decision to refuse or redact 48 records under sections 29(1)(a), 30(1)(a), 30(1)(b), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act and on the basis that certain records fall outside the scope of the applicant-�s request. In referring to the records at issue, I have adopted the numbering system used by the Department in the revised schedule of records it issued to the applicant during the review.

Preliminary Matters                                                                       

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In his submissions to this Office, the applicant noted that the Department originally refused access to all records identified on the basis of relevant exemptions and subsequently -�set aside-� this position in some cases but not in others. In communications with the Department, the applicant asked that the Department -�consistently apply the new rationale and release all the records sought-�. The fact that the Department withdrew its reliance on exemption provisions and agreed to release certain records does not mean that it cannot continue to rely on the same exemption provisions in respect of other records. It is important to note that a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances, including the exemptions claimed, and the law as they pertain at the time of the decision.  

Finally, during a conversation with an Investigator in this Office, the applicant indicated that he believes the records relate to two separate reviews undertaken by the Department. I do not consider this position to be material to the current review but for the sake of clarity, I note the Department-�s position that there is only one review relating to the retirement age of members of An Garda Síochána. Similarly, the applicant made a submission to this Office in which he drew attention to a statement made by the Taoiseach which he says -�confirms there is ongoing work on the matter-�. I would note that the fact that a review relating to retirement age is in train does not appear to be in question.

Analysis and Findings

Whether certain records fall within the scope of the request

As noted above, in its revised schedule, the Department-�s position is that four of the records fall outside the scope of the request; records 10, 11, 12 and 34. The records in question comprise email correspondence and two documents, one a policy document and one a submission relating to same. Three of the records relate to a subject matter distinct from the subject matter of the original FOI request. However, it appears that the records were shared internally to inform the review which is the subject of the FOI request. This also appears to be the case in respect of the fourth record.

Accordingly, I am not satisfied that the records fall outside the scope of the request, which was broadly phrased to encompass all records -�concerning-� the review. The Office notified the Department of this position. In response, the Department says that it is prepared to release record 11 to the applicant. I trust that this will be actioned as soon as practicable and I will not consider the matter further.

In respect of records 10 and 12, which relate to a subject matter distinct from the subject matter of the original FOI request, the Department-�s position is that both records are exempt from disclosure under sections 30(1)(b) and 30(1)(c) of the FOI Act. However, I note that submissions have not been made in respect of the specific content of the records.

In respect of record 34, which comprises email correspondence, the Department has not made further submissions in respect of whether the record is exempt from disclosure. On foot of queries from this Office, it says that two attachments referenced in the email were not considered as part of its original decision-making.   

In the circumstances, given the subject matter of the records in question and the fact that additional attachments have been identified, I believe that the appropriate approach for me to take is to annul this aspect of the Department-�s decision and remit the matter back to it.

Specifically, I am annulling the refusal of records 10, 12 and 34 on the basis that they are outside scope and I am remitting the matter back to the Department for it to make a fresh decision in respect of whether the records should be released or whether they are exempt under the FOI Act.

Section 37 -� personal information

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individuals, (iii) information relating to the employment or employment history of the individual and (viii) information relating to the age of the individual.

Certain information is excluded from the definition of personal information. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

The Department has granted partial access to 11 records and refused access to two records on the basis of section 37(1). While I am limited in the extent to which I can describe the records, it seems to me that there are three categories of information at issue, namely:

1. Personal information relating to third parties

2. Mobile telephone numbers and certain contact details relating to staff of the Department

3. Personal information relating to members of An Garda Síochána

In respect of category 1, I am satisfied that the withheld information comprises personal information such that section 37(1) applies. The information in question relates to external third parties and includes their contact details.

In respect of category 2, I am satisfied that the withheld information comprises personal information and that section 37(1) applies. I am satisfied that the mobile telephone numbers of staff and certain other contact information is not information captured by the exclusion to the definition of personal information at paragraph (I).

The applicant did not make specific submissions in respect of the application of this exemption. However, in correspondence issued to the Department, and in respect of a Zoom meeting referenced in one of the records, the applicant asked the Department whether any further records exist in respect of the meeting. While he did not make submissions to this Office on that specific point, we raised the matter with the Department. The Department-�s position is that no minutes or notes were kept following the meeting.

In respect of category 3, the information in question comprises statistical information relating to the employment and retirement of particular members of An Garda Síochána. In its submissions to this Office and in respect of the statistical information, the Department says that -�it may be possible to identify individuals from this information-�.

The records in question include a variety of information including the individual-�s rank, date of birth, completed years of service, completed years in their role and retirement date. One record, to which access has been part granted, also includes the name and employment area of individuals. Having considered the submissions received and the content of the relevant records, I accept that release of the withheld records and information would involve the disclosure of personal information relating to identifiable individuals. I am also satisfied that the exclusion in paragraph (I) to the definition of personal information does not apply to the information at issue.

In sum, I am satisfied that section 37(1) applies to all of the withheld information in the records at issue. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).

Sections 37(2) and 37(5)

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to submissions made by the parties, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

Subsection (5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that subsection (5)(b) does not apply in the circumstances of this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

In its submissions to this Office, the Council outlined the public interest factors it considered against release including -�the right of individuals to privacy in their communications with Government Departments-� and that -�the information in the record would only be known to those referenced in the record and to release the record would identify them-�.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the record at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in part-granting records 5, 8, 9, 13, 14, 17, 22, 26, 40, 45 and 48 and in refusing records 33 and 36 on the basis of section 37(1) of the FOI Act.

Section 31(1)(a) -� legally privileged information

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

This Office also accepts that advice privilege may attach to records that form part of a continuum of correspondence that results from the original request for advice.

The Department refused access to five records on the basis of section 31(1)(a). In its submissions, the Department said the exemption is being claimed on the basis of legal advice privilege. It identified the relevant legal advisor and said that the -�communications were confidential in that they would be exempt from production in proceedings in a court on the ground of legal professional privilege-�.

Having examined the records in question, I am satisfied that the information in records 50 to 54 comprises confidential communications between the Department and its professional legal advisors or forms part of a continuum of correspondence resulting from the initial request for advice.

Accordingly, I find that section 31(1)(a) of the FOI Act applies and that the Department was justified in refusing access to the records on that basis.

Section 29(1) -� deliberations of FOI bodies

Section 29(1) provides for the discretionary refusal of a request if (a) 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 for the purpose of those processes, and (b) the body considers that the granting of 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. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.

Section 29(1)(a) -� the deliberative process

In order for section 29(1) to apply, the records must contain matter relating to the -�deliberative process-� of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular records which relates to these processes.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it 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. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.

The Department refused access to 16 records in part and one record in full on the basis of section 29(1). It also refused access to an attachment to record 9 on the same basis. In its submissions, the Department said that -�the information in the review relates to the opinions and recommendations of officials of the Department of Justice which have been prepared for consideration by the Minister-�-�. It said the review has been informed by consultation with An Garda Síochána, legal advisors and other relevant bodies and organisations. It said those bodies are not currently involved in the deliberative process -�which is a matter at this stage for the Minister for Justice-�.

I am satisfied that the review into the retirement age of members of An Garda Síochána is a deliberative process and that the 18 records at issue contain information relating to this deliberative process. I therefore find that the records meet the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the records meet the requirements of section 29(1)(b) of the FOI Act.

Section 29(1)(b) -� the public interest test

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body-�s deliberations -� whether before or, in some cases, after a decision based on those deliberations has been made -� would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

In its submissions, the Department said the decision not to release the records in question was based on a number of public interest factors. It said the issues involved are complex and -�potentially have far-reaching implications-� not only for An Garda Síochána but for other fast accrual pension groups within the public service. It said the Minister -�should be free to consider recommendations without the risk of external pressure-�. It also said that any proposed changes would involve -�a multi-stage process-� and that -�releasing records at this stage is premature-�.

While noting that the review has been submitted to the Minister, the Department said that it is at -�a very early stage in what may be a complex process involving a large number of stakeholders-�. It said that -�any proposal to change the retirement age of any cohort of public servants will be brought forward in the public arena and involve consultation with all stakeholders-�. It also said that -�any proposal not to change the current retirement age will also be made public and will be the subject of consultation and discussion-�.  Finally, it said that -�given that any discussion that impacts retirement and pension ages has political, financial, legal and industrial relations implications which require careful consideration, the view of the Department is that granting the request at this time is contrary to the public interest-�.

Having carefully considered the matter, I accept that it would be contrary to the public interest to release the relevant records at this time. In my view, it is important that the Department and the Minister be in a position to fully consider recommendations in respect of substantive policy positions, particularly in instances where any changes to same would require considerable consultation and legislative amendment. It seems to me to be in the public interest that decision-makers are granted the space to deliberate accordingly. I accept the Department-�s submissions and I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has been met in this case.

Section 29(2)

Having found section 29(1) to apply to the records at issue, I must now consider whether any other provisions of section 29 serve to disapply this finding. Section 29(2) provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) 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; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (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; (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.

In respect of section 29(2)(b), the Department says that certain records contain statistical information which forms the context for the relevant opinions and recommendations. Its position is that section 29(1) applies to each record as a whole. Having carefully considered the matter, I am satisfied that the release of what might be regarded as factual information contained in the records would be contrary to the provisions of section 18 of the FOI Act. Section 18(1) of the FOI Act provides for the release of non-exempt material from an otherwise exempt record -�if it is practicable to do so-�. I am of the view that it would not be practicable to attempt to extract any factual information from the records while at the same time ensuring that no exempt information is released. It seems to me that the release of such factual information in this particular case would, of itself, serve to undermine the protection afforded to the confidentiality of the deliberative process by section 29(1). I am satisfied that none of the other exceptions in section 29(2) arise in this case.

In conclusion, therefore, I find that the Department was justified in refusing access to records 1, 3, 4, 7, the attachment to record 9, records 28, 29, 30, 31, 32, 39, 42, 44, 49, 55, 58 and 59 and in part-granting access to record 15 on the basis of section 29(1) of the FOI Act.

Section 30(1) -� functions and negotiations of FOI bodies

Section 30(1)(a)

Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged.

Section 30(2) provides that subsection (1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.

The Department relied on section 30(1)(a) to refuse access to nine records. Of these, I have already found that five are exempt from release by virtue of other exemptions. Accordingly, I must consider the applicability of section 30(1)(a) to the remaining relevant records; 37, 47, 56 and 57.

In its submissions, the Department said that the records concerned -�relate to the collection, analysis and interpretation of data carried out as part of an examination of the retirement age patterns of Garda members-�. It said that releasing the records at this stage -�would harm the Department-�s ability to carry out future examinations of personnel-related data, free of external influences and pressures.

The Department also said that granting access to the records -�would expose assumptions and conclusions in the examination process to external pressure and criticism prior to the decision making process being completed-�. It said that an examination of issues relating to retirement age has potential political, financial, legal and industrial relations implications and that release at this stage -�would expose the positions being considered by the Minister to interest groups, impacting on the ability to examine the records objectively-�.

The first question which I must consider is whether the review which is the subject of the request constitutes a test, examination, investigation, inquiry or audit. These terms are not defined in the FOI Act and this Office has found that different functions can fall within the scope of subsection (a). The Oxford English Dictionary defines an investigation as -�the action or process or investigating; systemic examination; careful research-�. I am satisfied that the review process described by the Department can be described as an investigation as it involves systemic examination and research.

The question then arises as to whether release of the records in question would prejudice the effectiveness of this function. -�Effectiveness-� in this context is interpreted as the ability of a test, investigation or audit to produce or lead to a result of some kind. I believe that the stage of the process and the time at which the records are being considered for release is relevant in this case. The Department said that the review in this case has been submitted for the consideration of the Minister. As noted above, it says that the process is at -�a very early stage in what may be a complex process involving a large number of stakeholders-�.

Having considered the contents of the specific records and the submissions made by the Department, I am satisfied that release of the records at this stage could reasonably be expected to prejudice the effectiveness of the review. I find that the Department was justified in refusing access to the records on the basis of section 30(1)(a).

Section 30(1)(c)

Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

The Department relied on section 30(1)(c) to refuse access to 12 records. Of these, I have already found that eight are exempt from release by virtue of other exemptions. Accordingly, I must consider the applicability of section 30(1)(c) to the remaining relevant records; 23, 24, 27 and 38.

In its submissions, the Department said the negotiations in question involve the Department, An Garda Síochána management and staff representative organisations and relate to the compulsory retirement age for members of An Garda Síochána. It said negotiations have been ongoing for some time. It said negotiations and discussions are also taking place at inter-departmental level. It said that -�engagement with all stakeholders will continue following the conclusion of the decision-making process-�.

The Department said the records relate to the -�analysis, interpretation and presentation of information-� as to whether the compulsory retirement age of Garda members should be maintained at its current level, increased or decreased-�. It said that granting access to the records at this time -�would directly disclose positions taken in relation to these issues, or allude to positions to be taken and matters being considered-�.

Having considered the Department-�s submissions and the content of the records, I am satisfied that relevant negotiations are at issue. The question then is whether disclosure of the records could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions for the purpose of any negotiations.

As noted above, I am limited in the extent to which I can describe the contents of the records in question. Having considered the records, I am satisfied that records 24, 27 and 38 could reasonably be expected to disclose positions taken or to be taken in respect of negotiations. In respect of record 23, I am satisfied that disclosure could reasonably be expected to disclose criteria used or followed, or to be used or followed, for the purpose of negotiations.

Accordingly, I find that section 30(1)(c) applies to the relevant records and I find that the Department was justified in refusing release on that basis.

As I have already found that the relevant records are exempt under other provisions of the FOI Act, I do not need to consider section 30(1)(b).

Section 30(2)

As I have found sections 30(1)(a) and 30(1)(c) to apply to certain records, I am required to consider section 30(2). Section 30(2) of the FOI Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

The Department-�s position is that while there is a public interest in releasing records generally under FOI, the public interest in this case would be best served by not releasing the records concerned at this time. It said the issues involved are complex and have potentially far-reaching implications. It said the Minister should be free to conduct such examinations and consider recommendations without the risk of external pressure. It further said that issues relating to the retirement age -�are appropriate to industrial relations discussions-� prior to being made public-�.

Noting the submissions made and the content of the records, I am of the view that it is in the public interest that the Department and the Minister be able to effectively undertake review processes such as that at issue in the current case. This includes granting them the space to fully consider recommendations and engage in negotiations as appropriate. I find that the public interest would not, on balance, be better served by the granting of access to the relevant records at this time.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that the Department was justified in refusing access to relevant records on the basis of sections 29(1)(a), 30(1)(a), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act. I find that the Department was not justified in refusing access to three records on the basis that they fall outside the scope of the original request and I remit this matter back to the Department for fresh consideration.

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.

Stephen Rafferty
Senior Investigator