Case number: OIC-132625-N8S6Z2
14 February 2023
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 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.
An FOI request was made on 27 September 2022 for a letter sent by Company X (the applicant) to Minister Ryan in July 2022 that was referenced in the Register of Lobbying and that concerned the competitiveness of the applicant’s industry. The Department formed the opinion that the request was one to which section 38 of the FOI Act applied and wrote to the applicant on 11 October 2022, inviting a submission on the possible release of the record. The applicant made a submission to the Department on 28 October 2022, in which it objected to the record being released on the grounds that it contained information given to the Department in confidence. On 11 November 2022, the Department notified the applicant of its decision to part-grant the request, redacting any personal information from the record before its release. It said that although it accepted that the record contained information given in confidence pursuant to section 35(1)(a), it considered it to be in the public interest to grant access to the correspondence, which it noted was registered on www.lobbying.ie .The requester was also notified of this decision. The applicant sought a review by this Office of the Department’s decision on 24 November 2022.
In the course of this review, the Department advised this Office that the record at issue in this case had been released in November 2022 to another requester further to a separate FOI request. It said that the applicant had been similarly notified of this other FOI request under the section 38 process and that the applicant had not made any submissions on the possible release of the records sought in that request. I wrote to the applicant in relation to this on 16 January 2023 and invited it to comment. I have received no response to date and therefore have decided to conclude this review by way of a formal, binding decision.
In carrying out my review, I have had regard to the submissions made by the applicant and by the Department, and to the correspondence set out above. I have also examined the record at issue.
This review is concerned solely with the question of whether the Department was justified in deciding to partially release the record at issue. Any parts of the record that the Department decided to withhold on the grounds that they contained personal information are outside the scope of this review.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, 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.
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 record 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 record at issue is a letter sent by the CEO of Company X to the Minister and Minister of State at the Department of Transport on 11 July 2022, in response to a letter sent by the Ministers the previous week. The letter sets out some of the challenges being experienced by the industry in which the applicant operates, and includes a list of issues that it said it wished to meet with the Ministers to discuss.
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
Looking at the four requirements under section 35(1)(a), the Department said firstly that the majority of correspondence submitted by the applicant to the Minister is marked as ‘Private and Confidential’ so while the record in question was not specifically marked as such, it assumed that, in the view of the applicant, it was given in confidence. On the second requirement, it said that the applicant has repeatedly rejected to the release of correspondence marked as ‘Private and Confidential’ and that it must have an understanding or expectation that this will render records refusable under the provisions of the FOI Act. Thirdly, it said that the applicant has indicated in the past, as well as in this case, that release of records would prejudice the giving of further information to the Department in future. On the fourth point, it said that it was the shared opinion of both the Department and the applicant that the information given by the applicant is of considerable importance and that it provides valuable opinions, information and experience in relation to the industry in which it operates.
The Applicant’s submissions
The applicant said that the record at issue contained information provided to the Department in strict confidence and on the understanding that the information would be treated as confidential. It said that this communication was clearly of a nature that was intended to remain confidential. It went on to say that if such information obtained in confidence was disclosed, this would likely prejudice further similar communications between the applicant and the Department and would likely dissuade it from openly sharing its views with the Department.
Having considered the contents of the records at issue, I am not satisfied that the applicant can reasonably consider 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 outcomes which align with its own best interests. Furthermore, 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 much of the information contained within the record has already been discussed publicly by representatives of the applicant, including in the media and at a relevant Oireachtas Committee meeting in autumn 2022. I also note that the record itself has already been released to another requester.
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) and I find that the Department was justified in its decision to grant partial access to the letter.
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.
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.