Case number: 020644
Case 020644. Request for records of an application in respect of grant aid under an afforestation scheme - records of application sought by third party - application of section 28 - whether records constituted personal information - application of section 26 - whether a duty of confidence is owed - application of section 27 - whether disclosure would disclose commercially sensitive information related to an affected third party.
The requester sought access to all documentation held by the Forest Service relating to the planting of lands by a third party. Records which came within the scope of the request related to an application to the Department for grant aid under an afforestation scheme for the reconstitution of woodland. The third party received grant aid from the Department in excess of fifty thousand pounds. The Department refused access to the records, relying on section 28(1) in its decision letters. In a second submission, the Department invoked section 26 and section 27 also. Two third parties were consulted in the course of the review. One submitted that section 27 applied to certain records. The party to whom the information related primarily did not make a submission.
The Commissioner found that section 26 did not apply to the records as they related to an application for grant aid for a business, did not relate to private or secret matters, and did not have the necessary quality of confidence. He reiterated his view stated in Case Numbers 99591, 99594, 99596, 99598 and 99606, that any recipient of public funds should have a diminished expectation of privacy or confidentiality in relation to those funds. The Commissioner found that in circumstances where the FOI Acts were commenced, and the records related to the expenditure of public funds, the Department's view that it held the information in confidence was neither reasonable nor appropriate. He found that, regardless of the views of the Department at this time, there was no mutual understanding as the supplier of the information could not reasonably have expected when he submitted the information that the Department would treat it as confidential.
The Commissioner found that section 28 did not apply to the records. He stated that while records related to an application by an individual for grant aid from the state in the area of agriculture or forestry may contain personal information, such as an individual's private address, he did not consider that they constituted a class of records that constitute personal information. The Commissioner went on to state his view that even if he had found that section 26 or section 28 or both applied to the records, they would have been released in the public interest.
Finally, the Commissioner found that, in the circumstances of this particular case, the records in question did not contain information that was commercially sensitive, that is, section 27 did not apply. He stated his belief that this may not be the position in every similar case, saying that he could envisage occasions where information submitted by an applicant, in respect of an application for grant aid from the state, could contain information that is commercially sensitive as it relates to his/her own business or to the business of a third party. However, he found that this was not the case here.
The Commissioner decided that the records should be released with certain personal information deleted.
Our Reference: 020644
Dear Mr. X
I refer to your request, under the Freedom of Information Act 1997 - since 9 April 2003, the Freedom of Information Acts 1997 and 2003, (the FOI Acts) - for a review of a decision of the Department of Communications, Marine and Natural Resources (the Department) on a request for records. You requested all documentation held by the Forest Service relating to the planting of lands at [location of lands] by [name and business name of plantation owner]. Your original request was made on 16 October 2002.
I have now completed my review of that decision. During the course of my review I have examined the records in the scope of the request on the original file, which was provided by the Department, and correspondence between yourself and the Department on your request. I also examined your submission contained in your application to my Office dated 4 December 2002. On 19 December 2002 you were invited to make a further submission to my Office but you chose not to do so. The Department made two submissions to my Office dated 15 January 2003 and 5 February 2003, both of which have been examined. In the course of my review I considered it necessary to consult with two parties - [name of plantation owner], and the company contracted to undertake the development of the lands - who I considered would be affected should my decision be to release the records. The letter of consultation described the records under consideration and invited submissions within 3 weeks. The contracting company made a submission to my Office on 27 March 2003 which was examined. While [name of Estate Manager, plantation] contacted my Office on behalf of [name of plantation owner], and received clarification on the nature of the review underway, as well as an explanation of the consultation letter which issued from my Office, no submission was received from [name of plantation owner].
My review is confined to deciding whether the Department's decision to refuse records, being records that are held by the Department related to the planting of lands at [location] by [name of plantation owner], and which post-date the commencement of the FOI Acts on 21 April 1998, was justified. There are 12 records in the scope of this request. Using the page numbers of the Department's file the records are: p.26-27 (record 1); p.28-29 (record 2), p.34-36 and p.40-41 (record 3); p.42 (record 4); p.43 (record 5); p.44 (record 6); p.45 (record 7); p.46 (record 8); p.47 (record 9); p.48 (record 10); p.49-52 (record 11) and p.53-54 (record 12). The Department holds further records on the planting of the particular lands by [name of plantation owner] but those records pre-date the commencement of the FOI Acts and, accordingly, do not fall within the scope of this review.
In your telephone conversation with Ciara Burns, Investigator, of 11 March 2003, you stated that you did not wish to receive information of a personal financial, banking, or tax nature relating to the requester or any other affected third party. On this basis such information will not be considered in this review.
Processing of your request by the Department
I note that the Department did not provide you with a schedule of records with its decision letters. While scheduling of records on foot of an FOI request is not a requirement of the FOI Acts, there is a requirement under section 8(2)(d) that a public body give an adequate statement of the reasons for refusal of a request, stating which provision of the Acts they are invoking, the findings on any material issues relevant to the decision, and the particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. It is not sufficient for a Department to merely state in its decision letters that a particular section of the FOI Acts applies. I do not consider that the decision letters in this case met the requirement of section 8(2)(d) of the FOI Acts and this was brought to the attention of the Department during the course of this review.
At no stage in this case did the Department decide that either section 26(1), 27(1) or 28(1) of the FOI Acts applied to the records but that release of the records was in the public interest. While the Department notified the third party, i.e. [name of plantation owner], the person to whom the information related, that a request had been made for information related to the planting of lands by him; this notification was not in the form required by section 29. The Department did not state clearly that release of the records was being considered in the public interest, indeed it did not state that release was being contemplated at all. Furthermore, the notification was not made within the 2 week time limit provided for by section 29(2). Accordingly, I find that the case is not one to which section 29 of the FOI Acts applies.
The records in this case all relate to [name of plantation owner]'s application to the Department for a grant in respect of the reconstitution of woodland, and the payment of that grant. I am advised by the Department that this grant applies when damage to a plantation is as a result of natural causes and that, in such cases, the Forest Service grant aids the reconstitution of such a plantation if the plantation has been well managed and maintained up to the time of the damage. I understand from the Department's website that the grant is provided under the Forestry Measure of the Regional Operational Programmes 2000-2006 and that the programme is funded 71% by the state and 29% by the EU. A description of the records in the scope of this review follows:
Record 1, p.26-27, is entitled "Reconstitution Afforestation Mandate", and is a direction to the Minister of the Department to pay an afforestation grant, payable under the Afforestation Grant Scheme, to the contracting company.
Record 2, p.28-29 is an invoice from the contracting company to [name of plantation owner] including a detailed breakdown. This invoice was provided to the Department in support of [name of plantation owner]'s grant application.
Record 3, p.34-36 and p.40-41 represent part of "Form 2" - this is an official form entitled "Application for Payment of Afforestation Grant and First Premium" on which the words "Afforestation Grant and First Premium" have been crossed out and the letters "recon" written above them. The form is in several parts some of which was completed by the applicant, and some of which was completed by the Department following receipt of the application. Pages 37-39 inclusive were created prior to the commencement of the FOI Acts and are signed and dated 10/04/98. Accordingly, they are outside the scope of this review. Page 34 is a map submitted with the application, dated 08/05/98, and pages 35, 36, 40 and 41 post-date the commencement of the FOI Acts.
Record 4, p.42; is a Departmental print-out of grant payment details and Record 5, p.43; is a checklist for computer in-put at the Department. Record 6, p.44; is a letter to the bank of the contracting company advising that a payable order will issue and Record 7, p.45; is a letter to [name of plantation owner] advising him that a payable order will issue to the contracting company. Record 8, p.46; is a copy of record 8 above.
Record 9, p.47; is a Departmental pay direction form authorising payment, while Record 10, p.48; is a Departmental process control document. Record 11, p.49-52 is a letter, in duplicate, to a bank confirming that certain payments had been mandated by the contracting company to them, the letter contains details of grant recipients other than [name of plantation owner]. Record 12, p.53-54 is entitled "Maintenance Mandate" and contains information similar to that contained in Record 1.
The Department, in its decision letters, refused access to the records on the basis that the records were personal information about [name of plantation owner] and that section 28(1) of the FOI Acts applied. In its submission of 15 January 2003, the Department stated its view that release of the records would be an invasion of [name of plantation owner]'s right to privacy, that the payment of the afforestation grant was a matter between the state and the individual, and that it was analogous to a citizen's dealings with the state on taxation or social welfare. Although not mentioned in its decision letters or in its first submission, the Department, in its submission of 5 February 2003, also claimed that it "may be argued" that the records are/ were either commercially sensitive or of a personal nature. In addition, it concluded that [name of plantation owner]'s objection to the release of the records indicated that he expected the information submitted in support of his application to be treated in confidence as per section 26 of the FOI Acts. Apart from stating the section of the FOI Acts which it considered applied, the Department made no argument for the application of the FOI Acts to the particular records. The contracting company, in its submission, began by saying that the information concerning it was personal information and went on to argue that the information was also commercially sensitive and that release would prejudice the competitive position of the company. Apart from stating its belief that this would be the case, the contracting company made no argument for the provisions of section 27 of the FOI Acts to the records in question.
Section 34(12) of the FOI Acts provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the public body concerned shows to my satisfaction that the decision was justified.
As mentioned above, the Department, in its submission dated 5 February 2003, mentioned section 26 of the FOI Acts. It stated that it considered that the information was held by it on the understanding that it would be treated as confidential. The Department assumes that [name of plantation owner]'s expectation was that the data would be treated in confidence, as per section 26 of the FOI Acts, but presents no argument or evidence in support of this claim. Section 26(1) (a) provides for the refusal of requests if the record concerned contains information given to the public body in confidence. For section 26(1)(a) to apply, it is necessary for the Department to show 4 things, viz:
The effect of section 26(2) is that whereas section 26(1)(b) can apply to a record prepared by a member of staff of a public body, provided that the disclosure would result in a breach of a duty of confidence owed to someone other than a member of staff of a public body, or a person providing or who has provided a service for a public body under a contract for services, section 26(1)(a) cannot. Accordingly the records under consideration with respect to section 26(1)(a) are records 1, 2, 3 (with the exception of page 35, completed by a Departmental Inspector), and 12. In Case Number 98179, Mr. Grange and the Department of Enterprise, Trade and Employment, I interpreted the term "confidence" in section 26(1)(a) having regard to its technical, legal meaning. I found that information given in confidence is concerned with private or secret matters, that the communication must be for a restricted purpose, and that there must be an understanding that the information is being communicated for a restricted purpose. I interpreted understanding in the context of section 26(1)(a) as meaning a mutual understanding between the confider and the confidant. I also explained that it is necessary to establish that the information has the necessary quality of confidence and that this can only be judged by reference to the content of the records. Neither the Department nor any third party has made any argument to show that section 26(1)(a) applies to the records. Regarding the first two tests of section 26(1)(a), I find that, as the records relate to an application for grant aid, from public monies, for [name of plantation owner]'s business, they are clearly not concerned with private or secret matters and accordingly do not have the necessary quality of confidence. The Department has claimed that there was an expectation on [name of plantation owner]'s part that the records would be treated as confidential however it has provided no evidence of an express or implied assurance of confidentiality. As [name of plantation owner] has chosen not to make a submission, I have no evidence as to his understanding about how the information was held by the Department. I have considered whether an implied understanding may have existed, i.e. whether the supplier had a reasonable expectation of confidential treatment which was understood and accepted by the recipient. As the Queensland Information Commissioner explained in McCann and Queensland Police Service, (1997) 4 QAR 30, at paragraph 23:
"Where no express assurance of confidentiality is sought by the supplier and given by the recipient, the relevant circumstances attending the communication of the information must be examined to ascertain whether they evidence a need, desire or requirement on the part of the supplier of information, for confidential treatment (of the supplier's identity, or information supplied, or both)which, in all the relevant circumstances, the supplier could reasonably expect of the recipient,and which was understood and accepted by the recipient, thereby giving rise to an implicit mutual understanding that confidentiality would be observed".
An examination of the relevant circumstances necessarily involves consideration of the nature of the information given to the Department and the purpose of the communication. The FOI Act 1997 was enacted on 21 April 1997 (commencing on 21 April 1998). While there may have been an expectation, prior to the commencement of the FOI Acts, that information supplied in support of grant applications, and related to payment of grants awarded, would be treated as confidential, I have stated in previous decisions that one would have to question, having regard to the coming into force of the FOI Acts, how any public body could have an understanding that details of its expenditure of public money would be kept confidential. As stated in my decision in Case Numbers 99591, 99594, 99596, 99598 and 99606, it is my view that any recipient of public funds should have a diminished expectation of privacy or confidentiality in relation to those funds. I also stated in Case Number 98073 that " I do not consider that public bodies can reasonably be expected to treat information relating to the payment of public money to an individual as confidential unless the circumstances show that the information is of an intrinsically private nature". I have already found that the information is not concerned with private or secret matters. Bearing in mind the nature of the information supplied and in the circumstances where the FOI Acts were commenced, I am not convinced that the Department's view that it held the information in confidence was reasonable or appropriate given that the information related to the expenditure of public monies. I find that, regardless of the views of the Department at this time, the supplier of the information could not reasonably have expected when he submitted the information that the Department would treat it as confidential. I find that the first two requirements of section 26(1)(a) are not met.
Furthermore, I do not believe that the release of records in this case would prejudice the giving of similar information in the future where the giving of the information results in a benefit to information provider. It would be in [name of plantation owner]'s interest, as it would be in the interest of any other applicant, to provide the information to the Department in support of a grant application. I find that the fourth requirement of section 26(1)(a) is not met. As all of the tests of section 26(1)(a) must be met for that section to apply, and bearing in mind the provisions of section 34(12) of the FOI Acts, I find that section 26(1)(a) does not apply to the records in this case.
Section 26(1)(b) of the FOI Acts provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law". Such a duty of confidence must be owed by the Department to a person other than to any member of its staff. I am not aware of any agreement or enactment which requires this information to be treated as confidential by the Department. I have, therefore, considered whether or not there appears to have been an equitable duty of confidence (that is a "duty of confidence...provided for...by law") which was owed by the Department. The correct test to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of CoCo v. A.N. Clark (Engineers) Limited F.S.R. 415. In order for an equitable duty of confidence to exist, three conditions must be met, viz;
I am satisfied that the information contained in the records does not have the necessary quality of confidence as it does not relate to private or secret matters. Given the date of the commencement of the FOI Acts, the fact that I am only considering post-commencement records, and the nature of the records, I am not convinced that the information was imparted in circumstances imposing an obligation of confidence. Furthermore, I am aware of no unauthorised use of the information in question which I would consider to be to the detriment of the person who gave the information to the Department. In the circumstances, and bearing in mind the requirements of section 34(12) referred to above, I find that section 26(1)(b) does not apply.
Personal Information - Section 28
Section 28 protects records from disclosure if access to the record concerned would involve the disclosure of personal information about third parties (including personal information relating to a deceased individual) unless the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. Personal information is defined in section 2 of the FOI Acts as being:
" information about an identifiable individual that -(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or(b) information held by the public body on the understanding that it would be treated by it as confidential, "
As well as the definitions at (a) and (b), the FOI Acts go on to list a non-exhaustive list of 12 categories of information that is personal information. This list includes information relating to an individual's financial affairs, medical history, employment history, age, sex, property, tax affairs, etc. These categories of information must also satisfy the requirements of either (a) or (b) above in order to meet the definition of personal information. Section 28 also provides, at subsection 5, for the release of personal information where the public interest that the request be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld.
I note that the records in question relate, broadly speaking, to [name of plantation owner]'s property. However, the information contained in the records concerning ownership of land is not personal information as it is a matter of public record. I consider that applicants for grant aid such as the grant in question, are, as farmers, comparable to sole traders. In Case Number 98073, I examined the question of whether information relating to the business affairs of a sole trader was personal information per se and I found that much information about the business affairs of a sole trader will not constitute personal information about the individual concerned. (I have also found, in previous decisions that, regardless of this view, the private address of an individual is personal information about them which should not be released to third parties (subject to the public interest test at section 28(5)).
In case number 98022 - Mr. Tom Cronin and the Office of the Director of Consumer Affairs - I found that information relating to an individual's actions on behalf of their company is not information relating to personal information about the individual. I do not accept, as claimed by the contracting company in its submission, that the information related to it, being business correspondence between it as contractor and [name of plantation owner] as employer, can constitute personal information about it and I find accordingly.
The Department argued that records related to applications for grant aid are analogous to records related to the tax affairs of an individual or the social welfare affairs of an individual. I do not accept that argument. Both categories of record are specifically mentioned in the definition of personal information and would often concern particularly private aspects of any individual recipient's life. While I accept that records related to an application by an individual for grant aid from the state in the area of agriculture or forestry may contain personal information, such as an individual's private address, I do not consider that they constitute a class of records that constitute personal information. In relation to a similar scheme in Queensland, the Queensland Information Commissioner stated in Pearce and Qld Rural Adjustment Authority; Various Landholders (third parties),  QICmr 8 (4 Nov. 1999):
"The grant of money was provided to each of the third parties for the purposes of assisting and supporting their farming or rural businesses, i.e., for business rather than personal purposes.".
As records relating to the business affairs of [name of plantation owner], I find that the information does not meet part (a) of the definition of personal information above.
The definition of personal information at (b) states that the information must be "held by the public body on the understanding that it would be treated by it as confidential". The technical, legal interpretation of confidence which I applied in dealing with section 26 above also applies here. As I have found that there was no equitable duty of confidence in this case I find that neither (a) nor (b) of the definition of personal information applies and, accordingly section 28 does not apply to the records.
Both sections 26 and 28 provide for the release of information where the public interest would be better served by granting than refusing the request (section 26(3), or where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld (section 28(5)). I wish to state that even if I had found that either section 26 or section 28, or both, applied, my view is that the records in this case would be released in the public interest. Although it is not necessary for me to do so I will set out the public interest arguments below.
In my decision on Case Numbers 99591, 99594, 99596, 99598 and 99606; I dealt with the public interest in releasing information related to the top 10 payments made in 1998 and 1999 under the Arable Area Aid Scheme, the Suckler Cow Premium Scheme, the Special Beef Premium Scheme and the Deseasonalisation Slaughter Scheme - all administered by the Department of Agriculture and Food. A copy of that decision, which can be accessed on the website of my Office at www.oic.ie, was provided to the Department and to the third parties in this case as my staff considered the issues to be similar. In particular, the public interest arguments for the release of the information are similar. The public interest arguments against granting access to the documents in this case would include the public interest in people being able to deal with public bodies with a degree of privacy, and the public interest in protecting an individual's privacy in general terms. As stated above, I do not consider that the information in this case is of an intrinsically private nature. Eligibility for payment under the Department's Afforestation Schemes does not rely on a means test, family circumstances, or any particularly private aspect of an applicant's life, accordingly I am of the view that the information relates to [name of plantation owner]'s business affairs. In addition, while the amount of grant aid received may form part of an applicant's income, it does not represent the total gross or net income from the business and so is not salary information, or analagous to salary information. The release of the information would involve, at most, a minimal intrusion on the privacy of [name of plantation owner].
The public interest arguments in favour of granting access to the records include the accountability of public bodies in the administration of grant schemes, including the payment of state grants on an equitable basis and in accordance with the regulations, and the public interest in ensuring maximum openness in relation to the expenditure of public money. In my decision in Case Numbers 99591, 99594, 99596, 99598 and 99606, mentioned above, I reiterated my view, first stated in case number 98073, that
"the release of information about significant payments by public bodies to business firms, sole traders, or individuals should be the norm unless it would involve the disclosure of personal information and the consequential intrusion on the privacy of the recipients would outweigh the benefits of openness and transparency."
It is my view that there is a need for openness in the administration of schemes such as those run by the Department and other public bodies.
Section 27 (1) of the FOI Acts provides for the refusal of records if the records contain commercially sensitive information, specifically, records which contain: trade secrets (27(1)(a)); financial, commercial, scientific, technical or other information the disclosure of which could result in material financial loss or gain or could prejudice the competitive position of the person (27(1)(b)); or, information whose disclosure could prejudice the outcome or conduct of contractual or other negotiations (27(1)(c)).
The Department stated that "it may be argued that" the records are commercially sensitive, however it did not argue any case for the application of section 27 (1) to the records. A submission was received from the contracting company in which it stated its view that the records were commercially sensitive. It said that the Reconstitution Afforestation Mandate (Record 1) and the Maintenance Mandate (Record 12) would reveal technical information, information on how they dealt with their clients, and how clients paid the company, and that this would prejudice their competitive position. It claimed that to reveal it as the contractor used would reveal confidential information, that the Department's checklist (Record 5), on which the name of the company appeared, was commercially sensitive as was the invoice to [name of plantation owner] (Record 2). The company particularly objected to the release of information concerning its banking arrangements. As you do not require banking information related to any party I need not consider this issue.
The contracting company seems to be of the view that the fact that it was the company contracted to carry out the planting in question is, of itself, commercially sensitive information. It makes no argument in this regard. I see no circumstances in which the fact that a particular company was properly contracted to undertake a piece of work could be commercially sensitive and I reject this argument. Neither the contracting company nor the Department claimed that the records contained trade secrets (27(1)(a)), or that contractual or other negotiations would be prejudiced (27(1)(c)). Having examined the records I find that neither section 27(1)(a) nor section 27(1)(c) applies.
Section 27(1)(b) provides, inter alia, that a head shall refuse access (subject to the public interest test in section 27(3)) if access "could" reasonably be expected to result in a material financial loss to the person to whom the information relates. The contracting company has relied, in its submission, on that subsection. The release of the information concerning the company would result in the following information being available: the payment arrangements made by the recipient of state grant aid to the company contracted to carry out the work in respect of which grant aid was received; the price paid by the recipient of grant aid, including a detailed breakdown contained in an invoice, to the contractor, on the basis of which the level of grant aid was determined; and the amount of money paid to the company in respect of the particular contract.
While the company says that the release of the documentation would damage the company, it has not stated what that damage could be. The essence of the test in section 27(1)(b) is the nature of the harm that might be occasioned by the release of the information, the harm must be "reasonably be expected to" result in loss or to prejudice the competitive position of the person to whom the information relates. It is arguable that the release of the pricing information contained in the invoice could result in a material loss to the company by making such information available to its competitors. However, given that the information is now historic, being almost 5 years old, I find that its release could not give an advantage to competitors of such magnitude as "could reasonably be expected" to result in loss to the company or prejudice its position. Having examined the records in question I find that section 27(1)(b) does not apply.
In the circumstances of this particular case I find that the records in question do not contain information that is commercially sensitive. That is not to say that in every similar case this would be the position. I envisage occasions where information submitted by an applicant, in respect of an application for grant aid from the state, could contain information that is commercially sensitive as it relates to his/her own business or to the business of a third party. However, I find that this is not the case here.
Section 34(12) of the FOI Acts provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to my satisfaction that the decision was justified. I find that the Department has not shown that its decision was justified. I find that the records in this case, as listed in this decision, should be released with the following deletions:
Record 1, p.26-27: delete private address (p.27) and bank details (p.26); Record 2, p.28-29: delete private address (p.28); Record 3, p.34-36 and p.40-41: delete private address (p.34 and page 41), delete home phone number and tax information - District and RSI number - (p.41); Record 6, p.44: delete bank details, including account number; Record 7, p.45: delete private address; Record 8, p.46: delete private address; Record 9, p.47: delete bank details, including account number, Record 11, p.49-52: delete bank details, delete table with the exception of row 38 on pages 51 and 52 related to Mr. Tunney. Record 12, p.53-54: delete private address (p.54), delete bank account details (p.53).
Having carried out a review under section 34 (2) of the FOI Acts 1997 and 2003, I hereby vary the decision of the Department of Communications, Marine and Natural Resources. I decide that the records listed in this decision should be released to you with the deletions described.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.