Case number: OIC-138626-D4S9N7, OIC-138633-W4L0L1
13 July 2023
This composite review arises from a decision made by the Department to part-grant access to certain records pursuant to two FOI requests to which section 38 of the FOI Act applies. Section 38 applies where, at some stage in the decision making process, the FOI body has formed the view that the records at issue qualify for exemption under one or more of the relevant exemptions in the FOI Act (ie. sections 35, 36, 37 – relating to information that is confidential, commercially sensitive, or third party personal information, respectively) but that the records should be released in the public interest. Where section 38 applies, the FOI body is required to notify an affected third party before making a final decision on whether or not the exemptions, 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 FOI body, may apply directly to this Office for a review of that decision. This case concerns an application for review made by an affected third party (the applicant).
The Department received two requests for records relating to correspondence between the Department or the Minister for Transport (the Minister) and the applicant, which is an independent company. Both requesters specified the time period of their requests and one specified that he was seeking correspondence regarding disruption caused by drones operating in the vicinity of Dublin airport. That requester also named another third party company in his request.
The Department formed the opinion that the requests were such that section 38 of the FOI Act applied. On 4 April 2023, the Department notified the applicant of the requests and invited it to make submissions. The Department outlined its preliminary view that the public interest would, on balance, be better served by granting the requests, with personal information redacted, than by refusing them.
On 25 April 2023, the applicant made submissions to the Department. It said that access to the records should be refused on the basis of sections 35(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act. On 10 May 2023, the Department notified the applicant of its decision to part-grant access to the records in question. On 23 May 2023, the applicant sought a review by this Office of the Department’s decision.
In light of the overlapping nature of the requests and the records at issue, I have decided to issue a composite decision in respect of both cases. 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 correspondence between the Department and the applicant referenced above. I have also had regard to submissions made by the applicant as part of its application to this Office and to submissions made by the Department during the review. The applicant was provided with a further opportunity to make submissions to this Office but no further submissions were received. Both original requesters were notified of the review and invited to make submissions. To date, submissions have not been received though I note that both requesters engaged with this Office in respect of a matter relating to the scope of the review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Department identified two records as coming within the scope of the original requests. Record 1 is a copy of email correspondence from the applicant to the Minister attaching record 2, which is a copy of written correspondence from the applicant to the Minister. Both records have been part-granted on the basis of sections 36(1) and 37(1) of the FOI Act. The information in the records which the Department has decided to withhold on the basis of the above provisions is outside the scope of this review.
During the course of the review, this Office identified further information in the records which relates to identifiable third party individuals (namely staff of the applicant company) and which the Department had proposed to release. However, both original requesters have confirmed that they are happy to remove from the scope of their requests personal information relating to identifiable individuals that would be exempt under section 37, which protects such personal information. As such, and on the understanding that the Department will redact this information, I will not consider it within the scope of this review.
Accordingly, this review is concerned solely with whether the Department was justified in its decision to grant access to the remaining information in the records which the applicant contends is exempt under sections 35(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. Firstly, it is important to note that under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant to satisfy this Office that the Department’s decision to grant access to the records at issue was not justified.
Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is limited.
Finally, it is important to note that a review by this Office under section 22 of the FOI Act is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
As noted above, record 1 is a short email to the Minister attaching correspondence. Record 2 is a letter from the applicant company to the Minister in respect of drone activity over Dublin airport.
In its submissions to the Department, the applicant argued that the relevant records contain information provided in confidence and commercially sensitive information which is exempt under sections 35(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act.
Section 35(1)(a) – information obtained 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 in order for section 35(1)(a) to apply. Section 35(1)(a) is subject to a public interest balancing test, at section 35(3).
In its application to this Office, the applicant said that it wished to reiterate the grounds contained in its submission to the Department as part of the section 38 consultation process. In that submission, it said that the records contain information given to the Department in confidence and that disclosure would be likely to prejudice the giving of similar information. It said that the information was provided in strict confidence and on the understanding that it would be treated as confidential. It said that the communication is clearly of a nature that was intended to remain confidential. It said that if such information was disclosed it would likely prejudice further similar communications between itself and the Department and would dissuade it from openly sharing its views with the Department. It then proceeded to make submissions in respect of the public interest test at section 35(3).
In its submission to this Office, the applicant said that the Department acknowledged that the information was obtained in confidence. It referenced the email disclaimer which it said clearly states that the email is confidential and that communication was made with the Department in confidence and on the understanding it would be treated as confidential. It said that the specific confidential information contained in the records is not already publically known. It further said that “there is no ‘previous criticism’ exception in the Act”.
The Department’s position is that neither records 1 nor 2 contain confidential information as the third party applicant has expressed similar views publicly. It included a hyperlinked media article in its decision to the applicant. In its submissions to this Office, the Department said that it determined that record 1 was obtained in confidence as the email contains a disclaimer which references its confidential nature. It said that while it does not believe this constitutes “a mutual confidential agreement being in place” or that a “covenant of confidentiality” was entered into, it appreciates that the views of the applicant may differ. It said that it therefore applied the public interest test. It said that it is of importance to the Department that similar information should continue to be given but it said that it does not believe that release of the record would prejudice the giving of similar information in the future as the applicant’s position regarding the Minister and “drone incursions at Dublin airport” is in the public domain.
In respect of record 2, the Department said that it considered there was no evidence that a “mutual confidential agreement was in place” or that a “covenant of confidentiality” had been entered into. It said that the correspondence in question was not marked as “private and confidential”, which it said is normal practice for the relevant third party. It said that as the applicant’s position is that record 2 is exempt under section 35(1)(a), it stated that the public interest would still favour release.
I would note at the outset of my analysis that the marking of correspondence as confidential does not automatically render it exempt under section 35. While I note that the Department appeared to accept the application of section 35(1)(a) to record 1 in its decision letter to the applicant, it also stated that the record did not contain commercially sensitive information. Notwithstanding the Department’s somewhat unclear wording, I would again note that a review by this Office is “de novo” and this necessitates an assessment of whether section 35(1)(a) applies before any consideration of the public interest is appropriate.
I have carefully considered the contents of the records at issue. It is the circumstances in which the information was imparted and received that is important in determining whether these first two requirements of section 35(1)(a) are met. I note that the Department has decided to withhold certain information from the records which it considers to be commercially sensitive. I am not satisfied that the applicant can reasonably consider that the remaining information was provided in confidence and on the understanding that it would be treated as confidential, in circumstances where it was essentially attempting to secure action which aligned with its own interests.
Moreover, I do not accept that the release of the records would prejudice the future supply of such information by the applicant or other parties. Given the content of the records, it seems to me that it was very much in the interests of the applicant company to engage in such communications. I am not satisfied that disclosure of the remaining information would prejudice the giving of similar information. While I note the applicant’s statement that specific information in the records is not publically known, the applicant has not identified any such information and it appears to me that much of the information is, indeed, in the public domain.
In the circumstances, I find that section 35(1)(a) does not apply. Accordingly, there is no need for me to consider the public interest balancing test contained in section 35(3).
Section 36(1)(b) – commercially sensitive information
Section 36(1)(c) – information which could prejudice negotiations
Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the records concerned contain financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm that might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the records at issue should be shown by an FOI body or a third party relying on this provision.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. While the degree of harm required to meet the harm test in the second part of this provision (“could prejudice”) is lower than that required to meet the test in the first part, the Commissioner takes the view that, in invoking the phrase "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner  IEHC 375, Cross J made it clear that it is not sufficient for the party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. The FOI body or the third party opposing release should explain why disclosure of the particular records could prejudice the competitive position of the third party concerned.
When considering the application of section 36(1)(b) in other cases, factors that have been taken into account by the Commissioner and that may be relevant include: the availability otherwise of the information and whether it is in the public domain; the passage of time; and the broader context in the relevant industry.
Section 36(1)(c) of the FOI Act provides for the refusal of a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain exactly how the disclosure could prejudice the conduct or the outcome of such negotiations.
Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
In its application to this Office, the applicant again said that it wished to reiterate the grounds contained in its submission to the Department as part of the section 38 consultation process. In that submission, the applicant said that the records contain commercial information of a highly sensitive nature, including operational information. It said that disclosure could result in a material financial loss to the company, impacting sales, investor confidence and share price. It said that release could prejudice the company in the conduct of its business. It also said that disclosure could prejudice the company in current and ongoing contractual or other negotiations with third parties including suppliers and authorities.
In the applicant’s submission to this Office, it said that the information contained in the records includes commercial information of a sensitive nature. It said that disclosure could reasonably be expected to result in the above harms and that this is evidenced by the fact that its sales are directly and immediately impacted by press coverage. It said that this impact on sales can reasonably be expected to cause financial loss to the company.
In its submissions, the Department referenced the submission it received from the applicant and said that it redacted the information from the records which it believed to be commercially sensitive.
The applicant has not identified any further information in the records which it regards as commercially sensitive. Neither has it explained how the release of the limited information remaining at issue could prejudice the conduct or outcome of negotiations.
I have considered the content of the records carefully. I do not accept that the requirements of sections 36(1)(b) or (c) have been met. The remaining information contains high level reference to the impacts of drone disruption and requests for action. I fail to see how same could be considered commercially sensitive. Nor can I see how the release of the information could prejudice the conduct or outcome of negotiations. While the applicant said that the records contain commercial information of a sensitive nature, I have not been able to identify any such information in the remaining sections of the records. In its submissions, the applicant referenced “commercial and operational information”. However, I am satisfied that any such information contained in the records has been redacted by the FOI body. It is also relevant that much of the information contained therein is already in the public domain. I note that the applicant itself has released press statements which echo the content of the records in question.
I am not satisfied that the applicant has demonstrated that the relevant harms could be expected to flow from release of the limited information remaining in the records at issue. I find that sections 36(1)(b) and 36(1)(c) do not apply. As a result, there is no need for me to consider the public interest.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to part-grant access to records 1 and 2.
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.