Case number: OIC-123085-W8W6M3
23 August 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 on 17 November 2021 to the Department of Transport for correspondence between the Minister, the Minister of State, the Secretary General or an Assistant Secretary, and the Chief Executive, the chairman and/or the board of various named companies about policy issues relating to Covid-19 restrictions and the industry in which the companies operate. In summary, the Department formed the opinion that the request was one to which section 38 applied. The Department decided to grant access to certain records, following which the applicant, one of the companies named in the request, sought a review by this Office of that decision. However, as we found that the Department had not complied with certain requirements of section 38, we annulled its decision on the request on 4 March 2022 and directed it to carry out a fresh decision making process on the request.
Arising from this direction, the Department wrote to the applicant on 7 March 2022, inviting a submission on the possible partial release of six records that might affect its interests. The applicant made a submission on 25 March 2022, objecting to the release of all the records identified by the Department, on the basis of sections 35(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act. The applicant argued that no public interest had been identified by the Department to justify the release of any of the records.
On 5 April 2022, the Department wrote to the applicant stating that it had decided to part-release all six records at issue. On 15 April 2022, the applicant sought a review by this Office of that decision.
I have now completed my review in this case. 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 also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the Department informed the Investigator that five out of the six records at issue in this case had been considered by this Office in the course of a separate review and that pursuant to the decision in that review ( Case OIC- 116077), those five records were directed for release. I have therefore excluded those five records (records 2 – 6 in the Schedule of Records prepared in relation to the request at issue in this case) from the scope of this current review. Accordingly, this review is concerned solely with the question of whether the Department was justified in deciding to partially release record number 1. The parts of the record that the Department withheld on the grounds that they contained commercially sensitive information are outside the scope of this review.
It is important to note that in section 38 cases, section 22(12)(a) of the FOI Act shifts the burden of proof, which generally lies with the FOI body, onto the person who is objecting to the release of the record. This is not to say that only the arguments raised by the third party will be considered. The Commissioner takes the view that it would contravene the purposes of the FOI Act and be inconsistent with the public interest and/or the right of privacy if he were to direct the release of sensitive information in records simply because a third party failed to raise substantial arguments to justify the setting aside of the FOI body's public interest decision. Nonetheless, this provision does serve to reinforce the statutory position that, apart from section 38, the request would have fallen to be granted.
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.
The record at issue is a letter from the applicant to an Assistant Secretary in the Department dated 4 January 2021. The letter has a brief email exchange between the Department and the applicant from December 2020 attached to it.
Section 35 – 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. Both the Department and the applicant indicated that they consider the record at issue to have been submitted 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 Department’s submissions
The Department said that all correspondence submitted by the applicant was marked “strictly private and confidential” so it can be assumed that the information was given in confidence. However, it said that this marking alone does not render a record to contain confidential information or become, by default, “refusable”. It said that the applicant had repeatedly objected to the release of all correspondence marked as such and that it appeared to have an understanding or expectation that this would result in the records being refused for release under the FOI Act. It said that the applicant had indicated, both in the past and in this current case, that the release of records would prejudice the giving of further information to the Department in the future. It said that it, and the applicant, were of the shared opinion that information given by the applicant is of importance to the Department.
Specifically, in relation to record 1, the Department said that it accepted that the four elements of section 35(1)(a) seemed to apply, however it said that certain information contained within the record was already publicly known, although not to the detail expressed in the record. It said that it was in the public interest that the applicant’s requests to the Department were released on the grounds of transparency and accountability of public officials. It said that the other public interest factors considered were: the right of the public to have access to information, in particular to allow them to make fully informed decisions as consumers; the public interest in knowing how COVID-19 has been responded to by public bodies and that the information will make a valuable contribution to the public debate on the issues at hand.
The applicant’s submissions
The applicant said that the Department had acknowledged that the records were obtained in confidence and that there is no provision stated in the FOI Act that provides an exemption to the protections enshrined under section 35(1)(a) where the disclosing body considers that an opinion is “publicly known”. It said that the information was shared with the Department in strict confidence and on the understanding that the information would be treated as confidential. The applicant said that if such information was disclosed, it would likely prejudice further similar meetings between it and the Department, and dissuade it from openly sharing its views with the Department.
The applicant went on to say that the test for releasing information that is obtained in confidence under Section 35(1)(a) of the Act, is to establish that there is an overriding public interest in releasing the specific record that prevails over the protections enshrined in Section 35(1)(a). It said that a generic reference to “transparency and accountability of public officials” does not satisfy this test because (i) it is not clear how disclosing the applicant’s opinions will create transparency and accountability of public officials, and (ii) this reference is not specific to the circumstances and it appears that this is generically said of all communications effectively rendering the protections in the Act meaningless. Its position was that the public interest would be actively served by encouraging open dialogue between the applicant and the Department in relation to supporting the recovery of its particular industry.
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.
I agree with the Department that the marking of correspondence as private and confidential does not automatically render it exempt under section 35. I also accept the applicant’s position that section 35 does not include an exception for information contained in a record that is already in the public domain. However, I am satisfied that the extent to which the record at issue reflects other publicly known or publicly available material is relevant to my consideration of its sensitivity particularly in considering any argument that disclosure would likely prejudice the giving to the Department of further similar information from the applicant, or others, in the future.
The record at issue is concerned with Covid-19 and the industry in which the applicant operates and sets out the applicant’s views, at a specific point in time, as to what approaches should be taken in terms of Government policy relevant to the sector in which it operates. The applicant also sets out its position, as it was at the time, in respect of customer refunds and highlights the potential difficulties for consumers who have made use of third party resellers rather than transacting their purchases directly. The relevant part of the email attached to the letter contains a query from the Department about the number of essential staff working for the applicant.
In my view, it is not reasonable for a third party to expect that its correspondence with a government department would remain confidential indefinitely, regardless of whether the subject matter may have lost its sensitivity and may have become publicly available in the meantime. The record at issue is one piece of a continuum of correspondence that took place between the applicant and the Department concerning matters relating to the Covid-19 pandemic. The situation in the relevant sector today is very different to that which prevailed at the time the record was created and the issues and challenges the industry faced, including the applicant, have been well publicised since, as have details of the efforts made by the various other companies operating in the sector to deal with those issues and challenges. Accordingly, given its contents, I find it difficult to accept that the release of the record at issue would be likely to prejudice the giving to the Department of further similar information from the applicant or other similar organisations.
In any event, it seems to me that the purpose of the records, at least in part, was to seek to influence the Department’s approach as it worked towards the recovery of the sector, further to the various Covid-19 restrictions that were put in place. In my view, the disclosure of the record at issue would not prejudice the applicant giving further similar information to the Department in the future, in circumstances where it was essentially seeking to protect and further its own interests in ensuring a speedy re-opening of its sector.
As all four requirements must be fulfilled for section 35(1)(a) to apply, I find that section 35(1)(a) does not apply to the record at issue. 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).
Section 36 – Commercially sensitive information
Section 36(1) provides that an FOI body shall refuse to grant a request if the record concerned contains:
a. trade secrets of a person other than the requester concerned,
b. 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, or
c. information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
Section 36(3) provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request. The applicant argued that section 36(1)(b) and 36(1)(c) applied to the record at issue. The Department did not accept that section 36 applied to the information in the record that it decided to release.
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 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 standard of proof in relation to the second limb of section 36(1)(b) is low; all that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned.
The Supreme Court in University College Cork v The Information Commissioner  IESC 58 confirmed that the standard of proof in relation to the second limb of section 36(1)(b) is “very low”. Nevertheless, it is not sufficient for a 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. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position.
The applicant said the records contained commercial information of a highly sensitive nature, including its potential future operational plans and safety requirements which, if disclosed, could result in a material financial loss to it, potentially impacting sales, investor confidence and ultimately share prices, and which, if disclosed, could prejudice it in the conduct of its business.
Having carefully examined the record at issue, I do not accept that it contains a level of detail about the applicant’s future operational plans, safety requirements, or indeed anything else, that could be useful to its competitors. While the applicant set out the harms it envisages from the release of the records, it has not explained how these harms could arise as a result of the specific information contained in the record, nor can I see how such harms might arise. I find that section 36(1)(b) does not apply.
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 applicant simply said that disclosure of the records could prejudice the applicant in current and ongoing contractual or other negotiations with third parties including suppliers and other authorities. It did not specify which contractual or other negotiations were in train and might be affected, or explain how disclosure could have an impact on such negotiations. Having regard to the content of the record, it seems to me that the applicant may have been referring to negotiations with the Department on the reopening of the sector. Reviews by this Officer are de novo and carried out in light of the facts and circumstances at this time. The record is over 18 months old and the reopening of the sector has evolved significantly since then. I cannot see how its release could prejudice the conduct or outcome of contractual or other negotiations of the applicant. I find that section 36(1)(c) does not apply.
As I have found neither section 36(1)(b) nor 36(1)(c) to apply, there is no requirement for me to consider the public interest under section 36(3).
In conclusion, therefore, I find that the Department was justified in its decision to grant access to the record at issue (record 1).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to grant partial access to the record at issue, on the basis that it is not exempt from release under section 35 or section 36 of the FOI Act.
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.