Info boss foils secrecy attempt

(CNS): The information commissioner has found against another public body attempting to deny public access to information without genuine cause. In her ninth hearing under the FOI law Jennifer Dilbert has instructed the country’s health insurance board to release previously redacted parts of minutes of a meeting. A section of the minutes from a September CINICO board meeting had been labelled “private and confidential executive session” and the part was denied to the applicant while the rest were revealed, but the FOI boss found there was no lawful reason for any of the minutes to be withheld. In the hearing Dilbert once again found a number of procedural irregularities by the PA during the request process.

The board had claimed that under section 20(1)(b) of the FOI Law the disclosure of the information “would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation”, but Dilbert noted that for this section of the law to apply the document would have to contain evidence of free and frank discussion but she said the withheld paragraphs did not.

While the board had fought the FOI on the grounds that it must have the freedom and protection to determine the best course of action for the organisation without harmful interference, which could occur if certain information is made public, the applicant had questioned whether the board could have anything to discuss that would “override the general public interest in openness and transparency”.

Dilbert said in her ruling that she recognized the legitimate need, expressed in the FOI Law, for public authorities to “conduct candid and robust discussions, make hard choices, and conduct business in the secure knowledge that an exemption to disclosure is available where applicable”. However, quoting findings of the UK Information Commissioner in a similar case, she concluded that “for a record to have any prospect of protection under this exemption it is a prerequisite that the record must actually document a free and frank deliberation in the first place.”

She went on to point out that since the withheld “executive session” did not contain a “free and frank deliberation” such as different views, opinions, positions, arguments or recommendations of individual Board members”, but only consisted of general statements of fact and decisions, the exemption does not apply to it, and the record must be released.

While there will be times when a public authority may need to use section 20(1)(b) of the FOI Law to protect opinions and frank discussion, Dilbert noted in the report that public authorities are not at liberty to cordon off, a priori, a section of its activities or records, and post a “private and confidential” label on information in the name of protecting free and frank deliberation, effectively placing those activities or records beyond the reach of the law.

“I find that disclosure of the 'Private and confidential Executive session' part of the minutes of the CINICO Board meeting of 7 September 2010 would not inhibit the free and frank exchange of view for the purposes of deliberation, and that the exemption in section 20(1)(b) does not apply,” she revealed in the decision.

Deputy Information Commissioner Jan Liebaers emphasized that although the law provides a clear legal imperative towards openness, transparency and accountability for the sake of good governance not everything discussed by a board or other public authority will always need to be disclosed, but in this case the exemption does not apply.

As appears to be the case with many FOI requests, the information commissioner once again uncovered procedural weaknesses during the application process. In particular, the fact that the chief officer who would conduct an internal review was involved in the original refusal but the applicant was not informed until the Information Commissioner’s Office had been asked to hold a hearing -- delaying and frustrating the requester’s access to the information.

In the first instance the information manger (IM) was the one who told the applicant they could not have access to all the minutes because of section 20 of the FOI law but the IM was acting under the instructions of CINICO’s board and its chair. According to the law this exemption is limited to the minister or chief officer concerned. When the applicant applied for an internal review the original involvement of the chief officer, who sits on the board, was not revealed until the ICO began examining the case then the procedural break downs were revealed.

Dilbert referred to another of her decisions where she had to address problems regarding the involvement of senior officials in refusals who then go on to unlawfully conduct internal reviews.

In her decision 7-01010 regarding a request by CNS to the Public Service Pension Board Dilbert had said: “It is critical that each public authority identify and designate the person who will conduct internal reviews in accordance with section 34(1) of the Law. In the interest of fairness and expediency, wherever possible, this should not be a floating responsibility that is transferred to another person if and when the designated person has already been involved in the original decision. Instead, in these circumstances applicants should be informed of their right to appeal directly to the Information Commissioner.”

She also noted that after the hearing was opened the PA raised two further exemptions in its submission, hypothetically stating that these “could” also apply. The commissioner pointed out, however, that there is no provision in the law allowing a public authority to raise potential exemptions in what she described as “a piecemeal manner, or in a hypothetical manner without any supporting evidence”, as was the case in this hearing.

“I do not encourage or condone the application of exemptions so late in the appeals process, since doing so would undermine the timeliness, credibility and fairness of the process, and would risk delaying the applicant’s fundamental right to access as established by the FOI Law,” Dilbert added.

Following the commissioner’s decision, the public authority now has 45 days to apply to the court for a judicial review otherwise it must release the minutes in full.

See the Information Commissioner's full decision below.