ICO releases Hearing Decision #46 involving Ministry of Education, Employment and Gender Affairs

On 23 May 2014 an applicant made a request under the Freedom of Information Law 2007 (FOI Law) to the Ministry of Education, Employment and Gender Affairs (the Ministry)  for records relating to the revision of the National Pension Law (Investment Regulations). 

The Ministry initially located only a single responsive record, but upon the urging of the applicant and the ICO several more were found. A number of records were released, but no agreement could be reached on various records including a consultant’s report and diverse communications. After a series of delays, the matter was appealed to the Information Commissioner’s Office (ICO), and the issue was ultimately decided in a formal hearing.

In this Hearing Decision, the Acting Information Commissioner Mr. Jan Liebaers found that the exemption in section 19(a)(1) does not apply to the responsive records as they were not prepared for proceedings of the Cabinet. However, section 20(1)(b) (free and frank exchange of views) applies to communications between the Ministry and consultants, as well as to feedback received from the National Pensions Board. In addition, section 20(1)(d)(effective conduct of public affairs) applies to other communications about the draft regulations. Both exemptions are subject to a public interest test, but the Acting Information Commissioner found that the public interest did not require the disclosure of the exempted records. An additional responsive record, the consultant’s report, was found not to be exempted and was ordered disclosed. 

Although several records were located and disclosed, the Acting Information Commissioner found that the Ministry did not meet its obligations to make reasonable efforts to locate responsive records, and required the Ministry to conduct a new search for additional records that may be held by members of the National Pensions Board.  Mr. Liebaers also criticized the way the Ministry handled the request and its communications with the Applicant and the ICO, which he considered lacking and counterproductive.