Case number: OIC-132620-R8F6B2
14 March 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 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 23 September 2022, the Department received a request for copies of emails between Company X and Department officials and/or Minister Ryan and/or Minister Naughton between 30 May and 30 July 2022 and copies of minutes of meetings between these parties held on 30 May 2022 and 13 July 2022. 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 7 October 2022, inviting a submission on the possible release of certain records. The applicant made a submission to the Department on 27 October 2022, following which, by correspondence dated 11 November 2022, 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 24 November 2022.
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 comments made by the applicant in its application for a review and to the submissions made by the Department in support of its decision. Submissions were sought from the applicant and no response was received. 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.
Of the 9 records the Department identified in its correspondence with the applicant, it ultimately decided to withhold part of one paragraph in record 2 under sections 35(1)(a) and 36(1), one paragraph in record 4 under section 36(1) of the FOI Act, and some information in all nine records under section 37 of the FOI Act. It also withheld some information in record 4 under section 33 of the FOI Act, to which section 38 does not apply. These details are outside the scope of this review as the Department has not decided to grant access to that information.
Accordingly, this review is concerned solely with whether the Department’s decision to partially release all nine records 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. As noted above, the applicant did not make a submission to this Office in support of its application.
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.
In its submission 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/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 set out the factors it considered in arriving at its decision. It said that most correspondence to the Minister from the Company is marked “Private and Confidential” and that it appears that the company expect such a marking to exempt such records from release under FOI. It also said that the Company has indicated that release of the records would likely prejudice the provision of future information by the Company to the Department. The Department said that such provision of information is important given the size of the Company’s and its significant experience within the aviation industry.
It also said that the Company has openly shared its views on Government policy and its implementation. The Department said that records 1, 3, 5, 6, 7 and 9 do not contain information to which section 35 or 36 applies. It also noted that record 8 has been the subject of another OIC review in which the Department’s decision to release the record was affirmed.
The applicant’s submissions
The applicant was invited to make submissions to this Office. In inviting its submission, the I 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. I invited the applicant to identify any financial, commercial or operational information from the records. In addition, I invited the applicant to provide any other information that it considered relevant to the Commissioner’s review. No submissions were received. However, I have considered the submission made by the applicant to the Department as part of the decision making process and the application to this Office.
The applicant argued that the fact that the information was given in confidence is demonstrated by the communications being marked as “Private & Confidential”. It said their content demonstrates that the communications were intended to be confidential as they contain highly sensitive information. It said that disclosure of the information would likely prejudice further similar communication between the Company and the Department. It went on to raise issues with the Department’s consideration of the public interest.
The Records at Issue
All of the records at issue relate to operations at Dublin Airport and other aviation matters in which the applicant had a clear and specific interest.
Records 1, 3, 5, and 7 are cover emails to correspondence and are purely administrative in nature. Records 2, 4 and 8 are correspondence from senior Company officers to the Minister(s). Records 6 is a letter from Ministers Ryan and Naughton to all airlines. Record 9 is a letter from Minister Ryan to the Company.
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 the views of this Office on this matter.
Records 4 and 8 have been the subject of other reviews by this Office (Case No: OIC-132625-N8S6Z2 and OIC-132433-Q1C6S4) in which this Office affirmed the decision of the Department to grant access to the record.
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. It is also relevant to note that the Department has redacted small amounts of information in records 2 and 4 of the FOI Act which are outside the scope of this review.
The Department ’s position is that the information at issue in records does not contain commercially sensitive information. It noted that much of the information is already in the public domain and identified relevant media releases and reports. It noted the market position of the Company in the aviation industry.
The applicant said that the records contain commercial information of a highly sensitive nature regarding its operations, including potential future operational plans, the disclosure of which can affect its sales and share prices, prejudice its competitive position and prejudice ongoing contractual or other negotiations. 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 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 and examined the records, 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 grant partial access to records all nine records.
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.