Case number: OIC-114904-G7R8Y4
7 December 2022
This review arises from a decision made by the Department to part-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 records 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 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.
On 20 August 2021, the Department received a request for all correspondence between the Minister for Transport/Department of Transport from Assistant Secretary level and above and three named organisations on the issue of Covid restrictions during the period 1 January 2021 to 30 June 2021. The Department formed the opinion that the request was one to which section 38 of the FOI Act applied and wrote to Company X (the applicant) on 3 September 2021, inviting a submission on the possible release of certain records. The applicant made a submission to the Department on 23 September 2021, following which, by correspondence dated 8 October 2021, the Department notified the applicant of its decision to part-grant the request. The applicant sought a review by this Office of that decision on 22 October 2021.
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 relevant parties who made submissions and to the submissions made by the Department in support of its decision. I have also had regard to the contents of 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 drew this Office’s attention to the fact that some of the records at issue in this review had been the subject of another review by this Office (Case no: OIC-116077 refers) in which this Office affirmed the Department’s decision to release information in the records. The Investigator contacted the applicant to advise it of this and invited it to exclude the same information in the records relevant to this review from the scope of the review. The applicant confirmed that the information which had been released further to the decision in Case No: OIC-116077 could be excluded from this review.
Of the 16 records the Department identified in its correspondence with the applicant, it ultimately decided to withhold the following information under sections 36 and 37 of the FOI Act: two paragraphs and details in an appendix in record 1; a partial paragraph in record 4; one complete and two partial paragraphs in record 9; all details in the appendix to record 11 under heading 1; one bullet point in record 13; and email addresses and phone numbers in records 2, 5, 6, 8, 10, 13, 14, 15 and 16. These details are outside the scope of this review as the Department has not decided to grant access to that information. As noted above, the applicant also agreed to exclude the information which was released further to the OIC decision in Case No: OIC-116077. Therefore, the remaining information in records 2, 3, 4, 6, 7, 8, 9, 10 and 11 is also excluded from the scope of this review.
Accordingly, this review is concerned solely with whether the Department’s decision to fully release record 12 and to partially release records 1, 5, 13, 14, 15 and 16 was justified.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 22(12)(a) of the FOI Act provides that a 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 the onus on the applicant to satisfy this Office that the Department’s decision to release the above records, in whole or in part, was not justified.
Secondly, it is important to note that a review by this Office under section 22 of the FOI Act is considered “de novo” in that it is based on the circumstances and the law as they apply on the date of the decision. Thirdly, 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 contents of the records in my analysis and reasoning is somewhat 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 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/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 a public interest balancing 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.
The Department’s submissions
The Department said the records contain information given in confidence on the understanding that they would be treated as confidential, noting that all emails from the company as marked as confidential and certain letters are marked ‘Strictly Private & Confidential’. It said, however, it does not believe that the third test of section 35(1)(a) has been met. In essence, it considers that disclosure of the records would not place new information into the public domain. It said it does not believe 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, whilst the applicant’s lobbying of ministers and Department officials is evident from the Lobbying Returns Register.
The Department also noted that the marking of correspondence as confidential or commercially sensitive does not automatically render it exempt under sections 35 or 36. It said the applicant is aware of this.
The Department said it considers the records to contain information of the kind that is publicly available, in that it is included in the lobbying register or reflects the position of the company, evidenced by weblinks of media activity provided to the applicant in its decision. Some of the records are administrative in nature, regarding arrangements for meetings or are covering emails sending and confirming receipt of correspondence.
The applicant’s submissions
In inviting its submission, the Investigator asked the applicant to show how the requirements for section 35(1)(a) to apply were met and to explain why the applicant was of the view that public interest would not be better served by the release of the information. She invited the applicant to identify any financial, commercial or operational information from the records. In addition, she invited the applicant to provide any other information that it considered relevant to the Commissioner’s review.
The applicant argued that the fact that the information was given in confidence is demonstrated by the communications being marked as “Strictly Private & Confidential”. It said their content demonstrates that the communications were intended to be confidential. It said the Department accepts that the information in the records was obtained in confidence and that its confidential nature is not disputed. It said the records contain commercial information of a highly sensitive nature, including financial, commercial and operational information.
The applicant further argued that the Department is not entitled to disclose any details to which section 35 applies on the ground that similar information is publicly available which, it said, is an extremely broad term. It said 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. It said it is important for open dialogue to continue between it and the Department on important matters where the applicant is in a position to offer suggestions on improvements to safety and the recovery of its industry sector following Covid-19 or on legislative developments. It also noted that it has sought to work with the Department to encourage the recovery of its industry sector.
The Records at Issue
All of the records at issue relate to the re-opening of Irish aviation within the context of the Covid-19 pandemic, a matter in which the applicant had a clear and specific interest. Record 1 comprises a letter the applicant sent to the Department. The information at issue concerns measures the applicant wishes to be implemented and its position on the matter of customer refunds. Records 5 and 14 comprise emails that are essentially administrative in nature.
Record 13 comprises an email from a third party airline to the Department purporting to make recommendations jointly on its behalf and on behalf of the applicant in relation to the re-opening of Irish aviation. Record 15 comprises another email from the third party airline that was copied to the applicant, relating to digital covid certificates. I understand the Department also consulted with that third party on the release of the relevant parts of both records and it had no objections to their release. Record 16 comprises an email from the applicant wherein it was seeking to have certain items included on the agenda of a forthcoming meeting, concerning digital covid certificates. Record 12 comprises a letter to the Department wherein the applicant suggested items for inclusion on the next meeting of a subset of the National Air Transport Facilitation Committee which was convened to discuss the re-opening of Irish aviation.
I should say at the outset 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 am satisfied that the applicant is aware of this views of this Office on this matter.
Having considered the contents of the records at issue, I am not satisfied that the applicant can reasonably consider that that it provided the information at issue to the Department on the understanding that it would be treated by the FOI body as confidential, in circumstances where it was essentially attempting to secure an outcome which aligned with its own best interests. Moreover, given its aims, I do not accept that the release of the records would prejudice the future supply of such information by the applicant. I would add, in any event, that the information at issue in now historic and much of it 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 concerning third party negotiations
Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record(s) 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 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 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, which 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.
My description of the records and my analysis of the positions of the parties, as set out above, is also relevant to my consideration of section 36 in this case.
The Department ’s position is that the information at issue in records 1, 5, 12, 13 and 16 do not contain any commercially sensitive information. It said the meetings under discussion in records 14 and 15 may have involved technical information which was considered commercially sensitive at the time. However, the records themselves do not, in my view, contain any such technical information. It also said that it could not identify any material financial loss or gain that could be expected to result to the Company, or that the competitive position of the company could be prejudiced by the release of the information in the records.
The applicant said that the records contain commercial information of a highly sensitive nature regarding its operations, 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. It also noted that release of such information would make it available to its competitors which, it said, could prejudice its competitive position. However, it has not identified any particular information in the records which it regards as highly sensitive. Neither has it identified or described any particular negotiations or litigation to which it referred, or explained how release of the information in the records could give rise to the relevant harms.
Having considered the matter, I do not accept that the requirements for section 36(1)(b) and (c) of the FOI Act to apply to these records have been met. It is again relevant that much of the information is already in the public domain and/or has lost any particular sensitivity it might have had due to the passage of time. I find that that sections 36(1)(b) and (c) do not apply to the records. 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 release record 12 in full and to grant partial access to records 1, 5, 13, 14, 15 and 16.
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.