Case number: OIC-116077-G4W0G5
21 June 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 is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) 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.
The original request of 25 May 2021 sought access to correspondence between the applicant and Minister Ryan in 2021. In summary, the Department formed the opinion that the request was one to which section 38 of the FOI Act applied and its ultimate decision on the matter was appealed to this Office by the applicant. However, this Office found that the Department had not complied with certain requirements of section 38. This Office annulled the Department’s decision on the request and directed it to carry out a fresh decision making process.
Arising from this direction, and in light of its opinion that the request was one to which section 38 of the FOI Act applied, the Department wrote to the applicant on 30 September 2021, inviting a submission on the possible release of 17 records. The applicant made a submission to the Department on 8 October 2021. On 5 November 2021, the Department notified the applicant of its decision to grant the request in part. The applicant sought a review by this Office of that decision on 19 November 2021.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department, the applicant and the original requester. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
Of the 17 records the subject of its consultation with the applicant, the Department ultimately decided to withhold the following details under sections 36 and 37 of the FOI Act: one sentence in record 5; one complete and two partial paragraphs in record 14; all details under heading 1 of, and in the appendix to, record 15; and emails and phone numbers in records 4, 6, 8, 10, 13, 16 and 17. These details are outside the scope of this review. Also outside the scope of the review are the parts of records 2, 7, 11 and 12 that the Department had previously provided to the original requester.
Accordingly, the review is confined to whether the Department’s decision to fully release records 1, 3 and 9 and to partially release records 4, 5, 6, 8, 10, 13, 14, 15, 16 and 17 was justified. References to specific records in the remainder of this decision should be read accordingly.
Section 22(12)(a) of the FOI Act places the onus on the applicant, as the third party under section 38 of the FOI Act, to satisfy the Commissioner that the Department’s decision to release the above records and parts of records was not justified. The applicant is aware that failure to justify the argument that the records should not be released may lead to a decision by the Commissioner to direct release.
A review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in my analysis and reasoning is limited.
Finally, the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.
The third party says 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/or 36(1)(c) of the FOI Act.
Section 35(1)(a) – confidential information
Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. In order for section 35(1)(a) to apply, it is necessary to show the following:
All four requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act. Section 35(1)(a) is subject to the public interest test at section 35(3).
Furthermore, section 35(2) must be considered in relation to those records in this case that were created by the Department. Section 35(2) provides that section 35(1)(a) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
Access may be granted to a record that is exempt under section 35(1)(a) further to section 35(3) (public interest).
The Department’s submissions
The Department says that the marking of correspondence as confidential or commercially sensitive does not automatically render it exempt under sections 35 or 36.
The Department says that it considers record 1 to contain information of a kind that is publicly available. It gave the applicant a relevant link. It says that record 17 only contains views expressed by the Minister in public.
The Department acknowledges that the other correspondence was obtained or exchanged in confidence. However, it does not believe that the third test of section 35(1)(a) has been met. Essentially, it says that disclosure of the records would not place new information into the public domain. It says that, accordingly, it does not believe that the applicant would refuse to engage in open dialogue with it in future because of the disclosure of records that confirm its existing publicly known stance towards government policy (details of which it provided to the applicant), whilst the applicant’s lobbying of ministers is evident from the Lobbying Returns Register. It notes that record 5 also contains items on the agenda of a particular steering committee.
The applicant’s submissions
In inviting its submission, this Office’s Investigator noted that relevant details appeared to her to be similar to various public statements made by the applicant. She also noted, and said she agreed with, the Department’s view that records 4, 6, 8, 10, 13 and 16 simply record the sending and receipt of correspondences. The investigator stated that record 1 seemed to her to reflect the contents of a more detailed submission that the applicant had made to a particular body, and which the latter body had published on its website. She said that record 17 appeared to her to contain views publicly expressed by the Minister, and that it does not appear to reflect any comments made by the applicant.
The investigator also said that the records contain the applicant’s views on certain, now-historic, decisions taken by FOI bodies and Government, and on particular Government strategy and policy, and suggestions that seem to be in the applicant’s interests to make. In addition, she said that while it was not apparent to her that the Department intended to release any financial, commercial or operational information from the records, the applicant was welcome to identify the relevant details. She said that, in the circumstances, it is difficult to see how release of the relevant details would likely prejudice the applicant from making similar comments to the Department in future (or how release could prejudice its current commercial position, or the conduct or outcome of any negotiations in which it is currently engaged). In addition, she invited the applicant to provide any other information that it considers relevant to the Commissioner’s review.
The applicant says that the fact that the information was given in confidence is demonstrated by the communications being marked as “Strictly Private & Confidential”. It says that their content demonstrates that the communications were intended to be confidential. It says that the Department accepts that the information in the records was obtained in confidence and that its confidential nature is not disputed. It says that the records contain commercial information of a highly sensitive nature, including financial, commercial and operational information.
The applicant says that the Department is not entitled to disclose any details to which section 35 applies because similar information is publicly available, which it says is an extremely broad term. It says that the specific information in the records is not in the public domain and that section 35 does not contain any exceptions requiring consideration of such a matter, or of whether the information relates to affairs of government. It says that release of the details would be likely to prejudice the giving of similar information to the Department by it or others, and that such information is of use to the Department in its consideration of policy, legislative developments and unexpected events. It says that it is important for open dialogue to continue between it and the Department on such matters and for to continue to share further similar information with the Department.
I agree with the Department that the marking of correspondence as confidential or commercially sensitive does not automatically render it exempt under section 35 (or section 36, as appropriate).
I accept the applicant’s position that the precise content of the records at issue is not in the public domain, and also that section 35 does not provide for any exceptions to its application. However, the extent to which the records at issue reflect other publicly known or publicly available material is relevant to my consideration of their sensitivity. This, in turn, is a factor in considering any argument that disclosure would likely prejudice the giving to the Department of further similar information from the applicant or others.
Record 1 reflects the contents of the applicant’s more detailed and now-published submission to a particular body. Relevant parts of records 4, 6, 8, 10, 16 and 17, and the entirety of record 13, comprise covering emails sent by the applicant to the Department/Minister or acknowledgments sent to the Department, none of which contain information of any substance. The contents of the other records appear similar to various public statements that the applicant has made.
I agree with the Investigator’s view that the records contain the applicant’s views, at a specific point in time, on particular decisions taken by FOI bodies and Government, and on particular Government strategy and policy, and suggestions that seem to be in the applicant’s interests to make. Although the applicant objects to the release of its financial, commercial or operational information, it has not identified the specific such information about which it has concerns. Furthermore, while the applicant makes a general claim that disclosure of the records will impact on its willingness to engage with the Department in future, it did not elaborate on this in light of the Investigator’s specific observations in relation to the records. Neither did it dispute her observations.
In the overall circumstances, I do not accept that the various details concerned are of any particular sensitivity such that their disclosure at this time would likely prejudice the giving to the Department of further similar information by the applicant or others. I find that the third test of section 35(1)(a) is not met in relation to the above details.
The remaining parts of records 4, 6, 8, 10, 16 and 17 were created by the Department. The remainder of record 17 comprises details of comments made by the Minister at a particular meeting and at a press conference, and which, although relating broadly to the applicant, do not comprise the applicant’s financial, commercial or operational information. The other records created by the Department are either simple acknowledgements or forward Departmental correspondence to the applicant, and do not contain any information of substance. I do not consider that disclosure of these various records would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to the applicant. I find that section 35(2) applies to these details.
In light of the above, I find that section 35(1)(a) does not apply in this case. As a result, there is no need for me to consider the public interest.
Section 36(1)(b) – commercially sensitive information
Section 36(1)(c) –information concerning third party negotiations
Section 36(1)(b) protects financial, commercial, scientific, 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 which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The Commissioner takes the view that the test to be applied in this regard 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 record(s) 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 subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person in the conduct of his or her profession or business or otherwise in his or her occupation. 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 as a result of disclosure of the information must be specified with a reasonable degree of clarity. The High Court decision in Westwood Club makes 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.
Factors that have been taken into account by the Commissioner and that may be relevant in considering the application of section 36(1)(b) include, for example: the availability otherwise of the information and whether it is in the public domain; the passage of time; and the broader context and rate of change in the relevant industry.
Pursuant to section 36(1)(c), access to a record must be refused where the disclosure of information contained in the record 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 this exemption 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 how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. The conduct and the outcome of negotiations are separate matters.
Records that are exempt under section 36(1) also require consideration of sections 36(2) (exceptions) and 36(3) (public interest).
My analysis of the applicant’s and the Department’s various arguments, and of the content of the records, as set out above, is also relevant to my consideration of section 36 in this case.
In addition to those points already outlined, the Department says that certain information in record 3 may have been commercially sensitive at the time the record was created, but that passage of time means that it is no longer sensitive such that its disclosure now could cause the harms set out in sections 36(1)(b) or (c).
The applicant says that the records contain commercial information of a highly sensitive nature, including financial, commercial and operational information, the disclosure of which can affect its sales and share prices, prejudice its competitive position and prejudice ongoing commercial, contractual negotiations and litigation.
As I have set out, it seems to me that the records relate to particular matters that are now historic. In my view, the passage of time has eliminated any sensitivity that may have once attached to the records. Furthermore, the applicant does not identify the specific information therein which it says is highly sensitive. Neither does it describe the negotiations or litigation to which it refers, or explain how release of the details at issue could impact either on those matters or on its commercial position in relation to its competitors.
In the overall circumstances, I do not accept that the various records meet the requirements of sections 36(1)(b) or (c) of the FOI Act. I find that these provisions do not apply to the records. In light of this finding, it is not necessary for me to consider the public interest.
The applicant (in both its correspondence to the Department of 8 October 2021 and its contacts with this Office) says that the outcome and fairness of an ongoing investigation into a sensitive public safety matter may be prejudiced by the release of one particular record, which relates to that investigation. The applicant says that this has potential to impact upon relevant safety requirements.
In my view, these arguments give me no reason to direct that the relevant record should be withheld. Generally speaking, the section 38 procedure is intended to ensure that a third party can seek to protect its own interests. Arguments about possible prejudice to investigations are not relevant in considering whether sections 35, 36 or 37 of the FOI Act apply to information affecting the interests of a third party. It also seems to me that the Department does not share the applicant’s concerns. It did not seek to apply any other exemptions to the records, such as the discretionary provisions that are concerned with preventing prejudice to investigations.
Although this case is concerned with a request to which section 38 of the FOI Act applies, I should also say that I see no basis to find that the relevant record is exempt under any mandatory exemption provision contained in the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision of 5 November 2021 to fully release records 1, 3 and 9 and to partially release records 4, 5, 6, 8, 10, 13, 14, 15, 16 and 17.
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.