Whether HRI was justified in refusing access, under section 28(1)(c) of the Act, to its pre-budget 2023 submissions

27 March 2023

Background

In a request dated 31 October 2022, the applicant sought access to copies of any correspondence between HRI and its parent department with regard to its budget allocation in Budget 2023 along with a copy of any pre-budget submission prepared by HRI for use or submission ahead of Budget 2023.  In a decision dated 13 December 2022, HRI refused the request under section 28 of the FOI Act. The applicant sought an internal review of that decision on 14 December 2022, following which HRI affirmed its refusal of the request, citing section 28(1)(c) as the ground for refusal. On 6 January 2023, the applicant applied to this Office for a review of HRI-�s decision.

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 applicant-�s comments in his application for review and to the submissions made by HRI in support of its decision.  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

This review is concerned solely with whether HRI was justified in refusing access, under section 28(1)(c) of the FOI Act, to the records it identified as relevant to the applicant-�s request.

Analysis and Findings

Section 28(1)(c) of the provides for the refusal of a request if the record sought contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.

HRI identified four records as coming within the scope of the request, namely a letter dated 8 July 2022 addressed to the Minister for Agriculture, Food and the Marine (the Minister) comprising HRI-�s 2023 pre-budget submission, a letter dated 1 September 2022 addressed to the Minister comprising a supplementary pre-budget submission, and two brief covering emails.

In its submissions to this Office, HRI said the purpose of the records was to brief the Minister in relation to HRI-�s budget allocation at the meetings of the Government to determine the budget allocation for HRI. It added that -�The concerns outlined within the September letter to the Minister -� were intended for the Minister and associated officials only-�. In its internal review decision, it said the records were prepared for the Minister for use by him -�to assist with the deliberations and considerations with respect to the 2023 Department of Agriculture, Food and the Marine budget allocation and associated recommendations to Government-�. It said the sole reason for the submission of pre-budget information to the Minister and his team is to assist the Government in the conduct of its pre-budget meetings and deliberations and that, as such, the records are exempt in accordance with section 28(1)(c).

In his application to this Office, the applicant argued that the records in question were not created solely for the purpose of the transaction of business at a Cabinet meeting. Instead, he contended that they are standard pre-budget submission materials which would be submitted by every public body on an annual basis and should not be exempt under section 28(1)(c). He argued that if HRI-�s interpretation of the Act was correct, any record that a Minister ever looked at or considered in advance of a meeting of government would be exempt under this section.

For section 28(1)(c) to apply, the record at issue must contain information for the Minister for use by himsolelyfor the purpose of the transaction of any business of the Government at a meeting of the Government. The category of records covered by this exemption would include departmental briefing notes for individual ministers attending a Government meeting. The sole reason for the creation of such records is to assist the Government in the conduct of one or more of its meetings and the record ceases to have a purposeful existence after the conclusion of the meeting.

I am satisfied that the covering emails to the submission letters are administrative in nature and do not contain information for the Minister for use by him solely for the purpose of the transaction of any business of the Government at a meeting of the Government not captured by section 28(1). I find that section 28(1)(c) does not apply to those records.

In relation to the letters of 8 July 2022 and 1 September 2022, I am not satisfied that they are captured by section 28(1)(c). It seems to me that the purpose of the letters is allow the Minister and his Department to consider HRI-�s proposals in the course of the preparation of budgetary estimates. Indeed, the pre-budget submissions contain HRI-�s proposals that may or may not be accepted, either in whole or in part. While they may well serve to shape the final proposals to be put to the Government for approval, this does not mean that the records in question can be said to contain information for the Minister for use by himsolelyfor the purpose of the transaction of any business of the Government at a meeting of the Government. Accordingly, I find that section 28(1)(c) does not apply.

I would add that in it submissions to this Office, HRI said that the letter of 1 September 2022 to the Minister was intended for the Minister and associated officials only and not for general release to the public, or within the horse racing industry at this time. It said the information was provided in confidence to the Minister and includes matters that are commercially sensitive within its industry. However, it also said that it was the currency of the records that was causing concern and that it may be possible to release them in the future. I should point out that under section 22(12)(b) of the FOI Act, a decision to refuse a request is presumed not to have been justified unless the FOI body can satisfy the Commissioner that the refusal was justified. HRI has not cited any other exemptions in support of its refusal of the request in this case. Accordingly, given my finding that section 28(1)(c) does not apply, I find that HRI has not justified its decision to refuse the request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul HRI-�s decision. I find that HRI was not justified in refusing the request under section 28(1)(c) and I direct the release of the four records at issue.

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