Rather missing the point of an FOI Act, the Department of Education has refused to release documents relating to the Primary Online Database- which the Data Protection Commissioner’s Office has confirmed is operating without proper legal basis.
Tellingly, they argue that to release the documents would reveal the Department’s true position on POD- which, if you think about it, tells us more about their acceptance of citizens’ rights to know about their government’s decisions than any amount of FOI Manuals.
text below
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Dear Mr McGarr
I refer to the appeal which you made under the Freedom of Information Acts 2014 and the Department’s acknowledgement letter dated 27th July 2015.
I, XXXX Statistician, am a more senior member of the staff of this body than the person making the first decision and I have decided on 14th August 2015 to affirm the original decision on your request. This decision on review is an entirely new and separate decision on your request, and is explained as such below.
Your original request, sought access to the records listed below, in arriving at this decision I have had regard to the original request the records which were located as part of that request and the appeal letter which you submitted in this regard.
I enclose for your attention a schedule of these records, this schedule summarizes to you my findings.
I have kept the numbering scheme as provided to you in the original schedule of records.
Record No. 1: Emails and attachments withheld.
Having reviewed these documents I deem records have been refused under Section 30 of the FOI Act 2014, Functions and Negotiations of FOI Bodies
30. (1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to—
(c) 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.
As release of the documents in question would disclose positions taken by the Department during negotiations in relation to POD, I consider that the public interest is best served by refusing to grant this part of the request. Also note that in relation to your point
“In addition, it was never the case that the records from 2013, involving a Circular promulgated in January 2014 were part of any deliberative process for a circular which was not even contemplated until parental complaints were made about the POD project in 2015.”
that the documents in question relate to the period February to April 2015.
Record No. 2: Notes of Meeting.
Having reviewed this document I deem the record has been refused under Section 30 of the FOI Act 2014, Functions and Negotiations of FOI Bodies
30. (1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to—
(c) 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.
As release of the document in question would disclose positions taken by the Department during negotiations in relation to POD, I consider that the public interest is best served by refusing to grant this part of the request. Also note that in relation to your point
“In addition, it was never the case that the records from 2013, involving a Circular promulgated in January 2014 were part of any deliberative process for a circular which was not even contemplated until parental complaints were made about the POD project in 2015.”
that this document relates to February 2015.
Record Number 3: Room document
Having reviewed this document I deem the record has been refused under Section 30 of the FOI Act 2014, Functions and Negotiations of FOI Bodies
30. (1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to—
(c) 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.As release of the document in question would disclose positions taken by the Department during negotiations in relation to POD, I consider that the public interest is best served by refusing to grant this part of the request.
Record Number 4: Letter from DPC to DES
Having reviewed this document I deem the record has been refused under Section 31 of the FOI Act 2014, Functions and Negotiations of FOI Bodies
31. (1) A head shall refuse to grant an FOI request if the record concerned—
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege
As the release of this record would disclose the substance of communications from external legal advisers to the office of the Data Protection Commissioner, of which the Department of Education and Skills was informed of in-confidence, access to this record must be denied.
I enclose for your attention a schedule of these records, this schedule summarizes to you my findings.
Having regard to the aforementioned I have decided to affirm the decision made by the original decision maker in relation to your request and I have enclosed again for your attention a copy of the relevant sections of the Act which this decision relies on.
You may appeal this decision by writing to the Information Commissioner at 18 Lower Leeson Street, Dublin 2. There is a fee of €50 for such appeals, other than appeals against a decision to impose a fee. If you wish to appeal, you must usually do so not later than 6 months from the date of this notification. Should you write to the Information Commissioner making an appeal, please refer to this letter.
If an appeal is made by you and accepted, the Information Commissioner will fully investigate and consider the matter and issue a fresh decision.
Yours sincerely,
etc
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