Case number: OIC-117408-G6V7B5
8 April 2022
This review arises from a decision made by the Department to grant a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that was obtained in confidence, is commercially sensitive, or is personal information relating to third parties, respectively) but that the records should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.
A request was made to the Department on 7 November 2021 for all submissions on the public consultation on the potential capping of the cost of licensed moneylenders and a copy of any report compiled for the Minister as a result of the consultation process.
On 12 November 2021, the Department informed the applicant organisation (the Organisation), that it was considering the release of its submission on the ground that the public interest would, on balance, be better served by granting rather than refusing the request.
On 25 November 2021, the Organisation wrote to the Department objecting to the release of the record. On 3 December 2021, the Department notified the Organisation of its decision to release the record. On 16 December 2021, the Organisation sought a review by this Office of the Department’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 submissions made by the Organisation and by the Department. I have also had regard to the contents of the record concerned. The original requester was invited to make a submission if he wished but he has not done so. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified in its decision to grant access to the Organisation’s submission to the public consultation process on the potential capping of the cost of licensed moneylenders.
It is important to note that decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified. This means that in this case, the onus rests with the Organisation of satisfying this Office that the Department’s decision to release its submission was not justified.
In its application for review to this Office, the Organisation stated that the requester refused to be identified and it argued that this supported its view that the information in the submission should remain confidential. It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Moreover, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard a requester’s reasons for an FOI request and any belief or opinion of the FOI body as to what are the reasons of the requester for the request. This means that the question of the original requester’s identity and any beliefs as to his/her motives for seeking the records at issue can play no role in my decision making, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.
Section 35 - Information obtained in confidence
Both the Department and the Organisation have indicated that they consider the record at issue to have been submitted in confidence. Section 35(1)(a) of the FOI Act provides for the protection of certain information given to FOI bodies in confidence.
In order for the section to apply, it is necessary to show the following:
All four of these requirements must be satisfied for section 35(1)(a) to apply. Even then, the section is subject a public interest balancing test set out in section 35(3).
The Organisation’s submissions
It is the Organisation’s position that its submission was marked as ‘confidential’ as it said that previous information it had submitted had been used in an unfair and negative way against the industry it represents. It said that it had also been used to support the vested interests of certain (unnamed) third parties. It said that it did not want that to happen again and that the information contained in the submission should remain confidential and not be allowed to be misquoted or used out of context.
The Department’s submissions
The Department pointed to page 3 of the record at issue and acknowledged that the Organisation had asked that its submission be kept confidential and not released onto a government or Central Bank website. The Department quoted from its call for submissions to the public consultation process which said:
Responses to this consultation are subject to the provisions of the Freedom of Information Acts. Parties should also note that responses to the consultation may be published on the website of the Department of Finance. Parties should clearly indicate where their responses contain personal information, commercially sensitive information or confidential information which they would not wish to be released under FOI or published.
It said that, as such, the consultation process did provide for the possibility of confidential information being received. The Department noted the Organisation’s position that its submission contained information of a sensitive nature and that previous information provided by it had been used negatively against it in the past and said that, in this context, the Organisation might consider whether to provide such information again in the future. However, it also noted that as a stakeholder it was in the Organisation’s interests to contribute to future public consultations regarding its industry. The Department said that it was important that it continued to receive honest feedback in public consultations from all stakeholders, including from those in the industry subject to regulation.
Analysis and findings
It is the circumstances in which the information was imparted and received that are important in determining whether the first two requirements of section 35(1)(a) are met. In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, a number of factors may be relevant. These include: the expectations of the person giving the information to the FOI body; any assurances sought or given regarding the information; the purpose for which the information was sought or provided; the practice, procedure or policy of the FOI body with regard to such information; any action which the FOI body may be expected to take in relation to the information; and the nature of the relationship between the provider of the information and the FOI body receiving it. The understanding of confidentiality may be express or implied.
The purpose of the public consultation process which ran from 31 May to 31 July 2019 was to gather views from stakeholders on whether the Government should introduce a statutory interest rate cap on licensed moneylenders in Ireland and to seek views on other related matters. This fed into a report prepared by the Department’s Banking Division entitled ‘Moneylending – Policy Proposals’ which included various policy recommendations.
I note that, at page three of its submission to the consultation process, the Organisation said that because of the sensitive nature of the comments made in its response, including its commentary on a particular piece of research conducted by a third party, it wished the submission to be kept confidential and not published online.
I find it difficult to accept that the Organisation can reasonably argue that it understood that it was providing the entirety of its submission in confidence and on the understanding that it would be treated by the Department in confidence, in circumstances where the Department’s invitation to stakeholders to make submissions clearly communicated at the outset that responses would be subject to the FOI Act and that that there was a possibility that they would be published on the Department of Finance website. While stakeholders were asked to highlight any particular parts of their submission which contained personal information, commercially sensitive information, or confidential information that they would not wish to be released, it is unreasonable, in my view, to interpret this provision as potentially applying to the entirety of the submission made. I understand this provision as the Department forewarning parties in advance that any particular parts of a submission that they deem to be sensitive should be highlighted and that the Department would take the concerns of the parties into account when considering release of the submissions under the FOI Act, or otherwise.
It also seems to me that the purpose of the Organisation’s submission was to seek to influence the Department’s decision making on the particular matters that were the subject of the consultation process and I find it difficult to accept that any party engaging in such a consultation with those aims could reasonably expect that it should be entitled to do so in confidence. Accordingly, I am not satisfied that the first two requirements of section 35(1)(a) are met.
In order to show that the third requirement of section 35(1)(a) has been met, it should be shown that disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons. It is not necessary that disclosure would definitely prejudice the supply of information; rather what is required is that disclosure would be likely to prejudice the supply of similar information. A number of factors may be relevant in determining whether the giving of further similar information is likely to be prejudiced. For example, it may be in the interests of the supplier of the information to continue to give further similar information as they may stand to benefit in some way from providing the information. The actual contents of the record(s) at issue and the particular circumstances of the case are also relevant.
In the record at issue in this case, the Organisation set out its position, on behalf of its members, on the proposed interest cap on licensed moneylenders in Ireland as well as answering the other specific questions set out by the Department, and providing further comment on related issues. It also included a critique of a research report completed by a third party which had recommended the introduction of a cap on interest rates. As with any respondent to a public consultation process, the Organisation was seeking to have its views taken into consideration by the Department and to influence its policy recommendations. While the Organisation has expressed concern that the release of its submission might lead to parts of it being quoted in a negative or misleading way, the FOI Act places no restrictions on how records released are subsequently used. It seems to me that in any area where there are opposing positions on how policy should be formulated, there is the possibility that those with differing opinions will be critical of positions taken. I am not satisfied that the release of the Organisation’s submission is likely to prejudice the supply of information by the Organisation in the future, when it is in its own interests to continue to seek to influence policy on behalf of its members. Neither does it seem likely to me that release of the record at issue would prejudice the supply of similar information by other persons or organisations.
As I am not satisfied that the four requirements which must be fulfilled for section 35(1)(a) of the FOI Act to apply have been met in this case, I find, therefore, that section 35(1)(a) does not apply. As I have found section 35(1)(a) not to apply, there is no requirement for me to consider the public interest test under section 35(3).
In conclusion, therefore, I find that the Department was justified in its decision to grant access to the record at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to grant access to the submission in question.
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.