Case number: 060023

Request to the Department of Transport for records relating to the inspection of a vessel - whether request was frivolous or vexatious - section 10(1)(e) - whether requested records contained commercially sensitive information - section 27 - whether records contain personal information - section 28 - whether records contain information provided in confidence - whether release of information in records could prejudice the effectiveness of examinations conducted by the Department or the procedures or methods employed for the conduct thereof - section 21 - whether they contain information that, if released, could prejudice the prevention, detection or investigation of offences or the effectiveness of lawful methods, systems, plans or procedures for the purposes of the matters aforesaid - section 23(1)(a)(i) - whether they contain information that, if released, could prejudice or impair the enforcement of, compliance with or administration of any law - section 23(1)(a)(ii) - whether they contain information that, if released, could prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property - section 23(1)(a)(iii) - whether they contain information that, if released, could prejudice or impair the fairness of civil or criminal proceedings in a court - section 23(1)(a)(iv) - whether they contained information that could affect adversely the international relations of the State - section 24(1)(c).

Case Summary

Facts

Mr X sought access to various records held by the Department of Transport in relation to a particular vessel (the M.V AB) . While, at the time of the vessel the requester did not own the M.V. AB, he became the owner thereof during the course of this Office's review. The previous owner (Mr Y) consented, during the review, to the release to the requester of any information concerning the M.V. AB before Mr X became its owner, as well as to the release to Mr X of any personal information therein concerning Mr Y.

The Department claimed that the records were exempt from release under a variety of provisions of the FOI Act. Its submissions stated that it has a policy of not providing the actual report of an inspection of a vessel to the owner thereof. Instead, it provides the owner with a brief summary report.

Decision

The Commissioner did not accept, due to the change in circumstances as to the ownership of the M.V AB, that it was appropriate for her to consider the request frivolous or vexatious at this point in time.

She did not accept the Department's argument that section 27 applied to information concerning the M.V AB, particularly given the consent by Mr Y to the release to Mr X of such information. However, she commented that, even if she had found the information to be commercially sensitive, she considered the public interest in the release of the records would outweigh the public interest in withholding them, and that she would have directed their release in any event.

She found references to other vessels not owned by Mr X, as contained in the records, to be outside the scope of the request, and directed that they be withheld.

The Commissioner directed the release of comments about the previous owner, given his consent to the release of such information. She found that specific references to unnamed individuals in the records did not amount to personal information about them for the purposes of section 28 of the FOI Act. In respect of references in the records to identifiable individuals, the Commissioner commented that there was a greater public interest in the release of comments pertaining to the performance of individuals who are in charge of the ship, and on whom the responsibility for safety of the vessel rests, than of comments relating to the performance of other crew on the vessel. However, she found there to be less of a public interest in the release of information concerning the apparent performance of an identifiable individual where there is a dispute over who is actually described in the information (as was the case in relation to a reference to a person named as a proposed Master of the M.V AB).

In relation to the Department's argument that its Surveyors provided information to the Chief Surveyor in confidence, she did not accept that section 26(2) contemplates a scenario whereby members of staff of a public body can owe each other any duty of confidence in respect of information they have provided to each other. She did not find that section 26 applied to information supplied by individual crew members (mainly due to the quality of such information).

The Commissioner did not accept the Department's arguments that section 21 applies to the records. The Department said it does not provide inspection reports to the owner of a vessel, as it considers that this could adversely affect the crew's employment prospects. It said that the master and crew are often very nervous of the Departmental Surveyors during the drills, and are fearful of losing their jobs if they perform poorly for the Surveyors and if the owners find out. The Department cited its greatest concern as being a potential loss of trust in the Surveyors by the release of the information at issue, as well as a concern that crews would "clam-up" and be defensive in their relationship with the Surveyors.

The Commissioner commented that, if the crew is sufficiently trained, that should be evident to the inspectors, and if crew members are not trained or are unwilling to show the Department the extent of their knowledge, the main concern of the surveyors should be in respect of the safety of other crew or passengers on board the vessel who would be affected by the lack of required skills. In such an event, the Commissioner considered that the Surveyors could simply refuse to certify the vessel. She said she considered that ensuring the safety of public transportation systems to be of greater concern than the employment prospects of a ship's master and crew who may not be up to the required standard that would ensure such safety. The Commissioner also commented that, as the Department suggests, if a sufficiently trained crew member is unable to demonstrate what he or she has learnt due to the stressful nature of an examination by the Department's inspectors, one would have to question how that crew member would cope in a real-life emergency situation on which lives are ultimately dependant.

For similar reasons, the Commissioner did not accept that section 23 applied to the records.

Finally, the Commissioner found that no argument had been made to support the contention that section 24 applied to the records.

Date of Decision: 16.11.2007

Our Reference: 060023

16.11.2007

Mr X

Dear Mr X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision on your request, dated 29 November 2005.

I apologise for the delay that has arisen in dealing with your application. As you are aware, the delays have arisen from the work, and thus time, involved in conducting reviews of those applications that pre-date your own.

Background

On 29 November 2005, you sought access under the FOI Act to the following records as held by the Department of Communications, Marine and Natural Resources:

"With reference to "statement of opposition" issued on behalf of Minister for Communications, Marine and Natural Resources (High Court Record Number 2005/802 JR),

(a) Copies of reports by Capt. Tom O'Callaghan (MSO) on his survey of M/V AB at [location] on 25 July 2005;

(b) Copy of report by Capt. Neil Forde (MSO) of docking trials carried out at [location] on board M/V AB;

(c) Copy of report to Commission as required by Article 7(5) of EU Directive 98/18/EC regarding the prevention of operating the "AB" into [location];

(d) Copies of all applications made by DCMNR under Article 7 of EU Directive 98/18/EC."

The Department of Communications, Marine and Natural Resources refused your request, on 20 December 2005, under section 10(1)(e) of the FOI Act, of which you sought an internal review on 22 December 2005. As responsibility for matters encompassed by your request had been subsequently transferred to the Department of Transport, the latter issued its internal review decision on 26 January 2006. On 30 January 2006, you made your application to this Office.

In conducting my review, I have had regard to the above correspondence; to details of contacts between Ms Anne Moran, Investigator in this Office, and the Department of Transport (and to which I refer in this letter as "the Department"); and to details of correspondence between Ms Moran and yourself. As you will note, there has been a variety of correspondence between Ms Moran and the Department, which you might consider to be at odds with the FOI Act's requirement that the Department justify its refusal of the records at issue. It is always open to me to make a decision, finding against the refusal by a public body of requested records, where I consider that the public body has not justified its refusal to me. However, Ms Moran took the view that it was necessary to probe the Department's refusal in detail, and thus sought comment from it on more than one occasion. I accept that this was a reasonable approach for her to take.

However, in the Department's last submission to this Office, it sought a meeting so that it could "explain fully the issues involved". Ms Moran replied that she considered a meeting to be unnecessary, as she felt that any arguable case that the Department might have should be evident from its submissions. I concur with Ms Moran; in the circumstances of this case, I do not see what information could be provided in a face to face meeting that could not have been provided in a written submission. Accordingly, I consider that the Department has been given adequate opportunity to convince me of the merits of its arguments.

I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended.

Scope of Review

This review is conducted de novo, which means that I must take account of all relevant facts and circumstances as at the date of my decision.

Relevant Facts

The Department's original view, a view which it appears to maintain, was that your request should be refused on the grounds that it was frivolous or vexatious. Although Ms Moran did not accept the Department's view on this (I will deal with the Department's application of this provision later in my letter), the Department subsequently relied on other provisions within the FOI Act. In support of its position, it provided various information to this Office concerning the circumstances in which you applied to it, on 8 June 2005, for a change of plying limits for the vessel M.V. AB to operate into [location]. It would appear that, at the time of that application to the Department of 8 June 2005, you were not the registered owner of the vessel confirmed, which was Y Shipping Ltd (Mr Y). (I understand that, subsequent to the refusal of your application, Mr Y sought a change of plying limits, that the vessel was inspected, and the application refused).

However, having examined the attachments to the Department's submission of 28 August 2007, particularly page 4 of "Tab B" thereof (described as "... a summary background to the case and judgement in chronological order"), Ms Moran noted that, in September 2006, it had come to the Department's attention "that Y Shipping Ltd had in fact been taken over by Mr Z and Mr X during the summer months." A further "Tab D" to the submission states that, in January 2007, "... the Department became aware that the ownership of the M.V. AB had transferred from Y Shipping Ltd to DEF Limited. The Registrar of Ships in Galway confirmed that Mr X is the designated manager of the vessel."

The Department confirmed, in its submission of 10 September 2007, that a Bill of Sale dated 28 June 2006 was registered in the Mercantile Marine Office of the Department on 7 November 2006, which details the transfer of the ownership of the vessel M.V. AB to DEF Limited from that of Y Shipping Ltd. It also stated that the Registrar of Ships in Galway had informed the Mercantile Marine Office that you were the designated manager of the vessel. It also confirmed that a Companies Registration Office search specifies that you are a director of DEF Limited. You have separately provided copies of various materials, which support these comments, to this Office.

A further relevant fact is that, on 5 September 2007, Ms Moran received a fax from Mr Y, in which he stated that he had no objection to you obtaining information about the ship M.V. AB. In turn, Ms Moran faxed the consent to the Department for its consideration. Mr Y sent a further letter to Ms Moran, dated 12 October 2007, in which he consented to the release to you of any personal information about him that may be in the records at issue; Ms Moran sent a copy of the letter concerned to the Department on 23 October 2007.

While the Department has made much of the circumstances in which you made your application to it for a change of plying limits for the vessel M.V. AB on 8 June 2005, and of other events that took place subsequent to that application, it is important to note that my de novo review cannot take account of such circumstances. Accordingly, my decision must be arrived in the light of the fact that you are, at this point in time, the registered owner of the vessel M.V. AB; and that the owner of the vessel at the time that you made your application for a change of plying limits, Mr Y of Y Shipping Ltd, has no objections to the release to you of information concerning himself or concerning the M.V. AB, which would include information pertaining to the vessel as at 8 June 2005.

A final relevant fact is that, according to the Department, it "acts in accordance with Merchant Shipping Act 1992 Section 8".. From an examination of the Merchant Shipping Act, 1992, I note that Part II thereof is concerned with "Passenger Ships", that section 6 thereof provides that "[a] vessel being used as a passenger ship shall be surveyed at least once in each year in accordance with this Part"; and that section 8 is concerned with the issuing of a certificate in relation to the surveyed vessels, which also outlines the limits (if any) beyond which the vessel shall not ply, and the maximum number of passengers that the vessel shall carry (specifying, if necessary, the numbers to be carried in different parts of the vessel) and any conditions and variations to which the number is subject.

The Records

It is not evident from the correspondence on file that the Department ever told you of the extent to which it holds records of relevance to your request. Although Ms Moran's letter to the Department of 3 September 2007 asked it to inform you of the grounds other than section 10(1)(e) on which your request was being withheld, she assumed that a body that has been subject to FOI for ten years would also inform you of the extent to which it holds relevant records, without being prompted. However, I note that its letter to you of 10 September 2007, which advised you of its reliance on provisions of the FOI Act other than section 10(1)(e), did not include such details. Ms Moran's letter to you of 10 October 2007 explained that the Department had supplied this Office with records relevant to parts a) and b) of your request, and that it claimed to hold no records relevant to parts c) and d) thereof.

As you know, the Department supplied this Office (on 28 August 2007) with one record relevant to part a) of your request (a report by Capt. Tom O'Callaghan, dated 28 July 2005, which I have designated as Record 1), and with three records it appears to consider relevant to part b) of your request (an undated note by Capt. Neil Forde which I have designated as Record 2; a report by Capt. Forde concerning a fire drill conducted on the M.V. AB on 14 July 2005 which I have designated as Record 3; and Capt. Forde's report of a docking trial, dated 13 June 2005, which I have designated as Record 4). I will consider the Department's refusal to release these records to you in the order of the provisions relied on by it, which I consider to be potentially most appropriate to the records at issue.

The Department's submission to this Office of 28 August 2007 said that there were no records relevant to parts (c) and (d) of your request as "Article 7(5) of EU Directive 98/18/EC is not applicable in this case, no records exist in this regard and no applications under Article 7 have been made by this Department."

Your letter of 11 October 2007 stated that you were satisfied with this explanation, and thus I see no reason to include parts c) and d) of your request in my review. Accordingly, my review is concerned with the sole issue of whether the Department's refusal of records relevant to items a) and b) of your request is in accordance with the terms of the FOI Act.

Findings

Apart from section 10(1)(e) of the FOI Act, the Department contends that your request should be refused on the provisions of sections 21, 23, 24, 26, 27 and 28 of the FOI Act.

Section 10(1)(e)

The Department contends that your request should be refused on the grounds that it is frivolous or vexatious, specifically (according to its internal review decision) that it was "vexatious". In support of this view, the Department sent a submission to this Office (dated 28 February 2006) that quoted extracts from the Merchant Shipping Act, 1992, and which stated that the Marine Survey Office (MSO) is required under this law to deal with the registered owners of a vessel, as defined in the Mercantile Marine Act 1955. It stated that "[c]urrent information shows that the M.V. AB is registered to Y Shipping Ltd. In addition Company Registration Office records confirm that there are four directors of this company, there are no references to Mr X in CRO records relating to Y Shipping Ltd."

The Department's subsequent submission, dated 31 March 2006, referred to the rationale behind its internal review decision in this case. In essence, it said that you had made numerous and varied requests in relation to the work of the MSO over the years, and that it furthermore had a policy of dealing with the registered owner of a vessel where appropriate to do so, "not with any proposed manager or charterer which is what [you] described [yourself] to be."

Pressure of other work meant that Ms Moran was unable to progress your case until July 2007. Having considered its comments to date, Ms Moran told the Department (on 18 July 2007) that particularly in the light of her understanding at that time that you had at least chartered the vessel concerned, she did not consider section 10(1)(e) to be appropriate to the request at hand. She put it to the Department that its policy of dealing with the owner of a vessel was not a legitimate reason to consider an attempt to seek records under FOI as being vexatious. Ms Moran also noted the comments of the internal reviewer to the effect that it is possible that there may be a genuine request caught up amongst others that are considered to be frivolous or vexatious, but disagreed with his view that this is a risk that must be borne by the generator of such requests. She told the Department that it must consider each request on its merits, and also sought those records of relevance to the review, at this point.

Subsequent submissions from the Department argued that, in any event, your request should be refused under the other provisions of the FOI Act discussed later in this letter, but continued to maintain that section 10(1)(e) applies. It said, in its submission of 28 August 2007, that "[t]he reason why this Department considered this request from Mr X vexatious was on the basis that he had made so many FOI requests, the majority of which related to vessels for which he had no legitimate interest and for which he is a third party. This FOI request from Mr X in relation to the "M.V. AB" was another such request for information on a vessel where he was not the registered owner and had no registered interest at that time." (As set out already, the Department was, at the time of this submission, aware that you were then the owner of the vessel.)

The Department's submission of 10 September 2007 said that the request "formed part of a series of requests that were deemed to be vexatious". Thus, the Department would also appear to contend that the request in this case is one in a series of manifestly unreasonable requests made by you.

In conducting this review, I have been mindful of section 8(4) of the Act, as amended, which in my view, allows a head of a public body to take into account the motive of a requester when considering if a request is frivolous or vexatious. I must also emphasise the de novo nature of my review.

A brief examination of the Department's website indicates that from March to October 2004, you made 11 various FOI requests to the Department, while from July 2005 until the point you made your request the subject of this review (29 November 2005), you made a further 21 such requests. I wish to make it clear that I have not examined the nature of those requests, nor is it part of the present review to either do so or make any finding as to whether they are frivolous or vexatious.

While I feel it true to say that there has been a substantial number of FOI requests made by you, the fact that a requester has submitted "so many" FOI requests does not necessarily indicate that any of these requests is frivolous or vexatious. Apart from any other consideration, the question of what constitutes "so many" requests is so subjective as to be of little value, in practice, in determining whether section 10(1)(e) might apply. In other words, the number of requests received by a public body, both generally and from any one requester, must depend in part on that body's attitude to the release of information.

I agree with Ms Moran's view that it is the responsibility of the Department to ensure, even if it considers a request or requests to be frivolous or vexatious, or to be part of a series of manifestly unreasonable requests, that a "genuine request" is not actually caught up amongst them. In the Department's internal review decision, it is apparent that it had regard to the nature of the other requests made by you in deciding whether the one at hand was vexatious, presumably in the context of deciding whether the present request was one of a series of manifestly unreasonable requests. In its defence, at the time of its decision and internal review decision, you were not the registered owner of the vessel "M.V. AB".

On the other hand, it is clear from submissions made to this Office in 2007 that the Department does not consider this change in circumstances in the ownership of the vessel to be relevant to how it should treat this particular request at this point in time. It is not for me to say, if you had not purchased the vessel concerned, whether I would find the particular request the subject of the present review to warrant refusal under section 10(1)(e). Equally, it is not for me to say whether I would find the Department to be justified if it were to refuse any other request you have made for records, relating to vessels that you do not own or relating to other maritime matters, on the grounds of this provision of the FOI Act.

However, the fact is that, at this point in time, the review centres on records pertaining to a vessel that you now own (through DEF Ltd). I am not aware of any request that you made before 29 November 2005 seeking access to such records. Accordingly, I have no reason to accept that the Department's continued view, that section 10(1)(e) should still apply regardless of the changed circumstances in this case, would be in keeping with the terms of the FOI Act. Given that I have no reason to doubt the bona fides of this particular request, I have no grounds to find that it is one of a series of other manifestly unreasonable requests. Accordingly, I find that section 10(1)(e) does not apply in the present circumstances of this case.

Section 27

Section 27(1) of the FOI Act provides that, subject to subsection (2), a head shall refuse to grant a request for a record 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 27(2) of the FOI Act provides that a request to which section 27(1) of the FOI Act relates shall be granted in certain circumstances, none of which are, in my view, relevant to this decision. Section 27(3) of the FOI Act provides that a record found to be exempt under section 27(1) may still be released where the public interest would be better served by granting rather than by refusing to grant the request for the record.

The Department's submission of 28 August 2007 stated that all of the records at issue in this case "are commercially sensitive in accordance with the FOI Act Section 27(1)(a), (b) & (c) and they should not be released to a third party". In that submission, the Department referred to Mr Y as the vessel owner and said that it "may not" release any the information in the records which could "prejudice [his] commercial position to charter his vessels to other third parties." Given that the attachments to that submission made it clear that the Department was aware of the change of ownership of the M.V AB, I can only presume that its comment was in the context of Mr Y being the vessel owner at the time of the inspections in 2005, and that any negative comments in the records that pertained to his ownership of the vessel at time could impact on his commercial standing in 2007.

However, on 6 September 2007, Ms Moran sent the Department a copy of a fax she had received from Mr Y that stated he had "no objection to Mr X obtaining information about the ship M.V. AB". This followed a telephone conversation Ms Moran had with the FOI Officer of the Department, to whom she suggested that the Department consider its position in the light of this consent.

However, in its submission of 10 September 2007, the Department did not comment on Mr Y's consent. It confirmed various details, set out earlier in this letter in respect of the transfer of ownership of the M.V. AB, and then referred to information in the reports which "relates to the commercial activities of other vessel operators". It said that " to release this information could potentially undermine their commercial interests." The Department said that "[t]he public is informed when the vessel passes the required surveys or tests, by means of, when and if a safety certificate is issued to this ship. These safety certificates are available to the public and they must be posted up in a public area of the ship. We also maintain a list of certified ships on our Department's website."

On 11 September 2007, Ms Moran again asked the Department for its views as to why it contended that section 27 applies to details concerning the M.V. AB. Its only reference to section 27 in its subsequent reply of 14 September 2007 was where it said that "[s]ection 27 of the FOI Act prohibits the release of information generated within Departments where there is another legal obligation not to release. Such legal obligations prohibiting the release are in the Data Protection Act." (I do not see the relevance of this argument to the consideration of section 27 and I do not propose to deal with it further.)

I find that there is information in the records pertaining to the M.V. AB, as well as information concerning other vessels.

Information Concerning the M.V. AB

I see no reason to find information concerning the vessel at a time before you had purchased it to be exempt from release to you under section 27 of the FOI Act, particularly given the consent by Mr Y to the release to you of such information. The Department has not taken issue with the consent concerned, nor has it made any argument as to why material concerning the M.V. AB should be exempt under section 27, even in the light of that consent.

Accordingly, I find any references to the M.V. AB as contained in the records at issue not to be exempt under section 27 of the FOI Act. However, in the event that I had found the information to be exempt under this provision, I would be required to consider the public interest in the release of the records to you. I would have found, for reasons set out briefly below, that the public interest warranted the release of the information concerned.

Public Interest

Firstly, there is a public interest in the Department being as open as possible as to how it certifies vessels for the purposes of the Merchant Shipping Act, 1992. As already noted, the Department is obliged by this Act to conduct inspections for such certifications, ultimately to ensure maritime safety. When a person is travelling on a ferry or other maritime vessel, they assume that the vessel is seaworthy and that its crew is fully trained and competent in all aspects of safety and other matters. While the Department seems to think that its issuing of a certificate in relation to an inspected vessel satisfies the public interest in transparency as to how it conducts such inspections, I do not agree. I consider that there is a significant public interest in the general public knowing exactly what the Department's inspections revealed, rather than making assumptions as to the precise outcome thereof.

At the same time, I must bear in mind that the FOI Act was designed to increase openness and transparency in the way in which public bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. However, what is ultimately at issue here is the safety of those members of the public, and crew, that use ferries and similar vessels. I consider that, in the event that an inspection report reveals deficiencies in the standards of training required of a crew, or deficiencies in the safety of a vessel for example, it is in the public interest that such information be released. Should the crew or vessel meet or exceed standards, it is equally in the public interest that such information be in the public domain. One way or another, the public is in an informed position as to whether or not it wishes to use the vessels concerned.

To the extent that any enterprise may consider that its commercial interests would be harmed by the release of the particular records, I am of the view that any reduction in its business, that might arise from the public being aware of deficiencies in either the quality of a vessel or standards amongst crew, would be justified. It may be that, in order to ensure that customers do not use an alternative means of transport, operators of such vessels are required to spend money, whether in respect of training, the remedying of defects, or even the replacement of a vessel. However, in so far as an entity might claim that such expenditure might force it out of business, I see no public interest in an enterprise, that would otherwise be willing to jeopardise the safety of the public, being allowed to continue in business.

Thus, if I had been required to consider the public interest, I would have found that the public interest in release of information concerning the M.V AB by far outweighed the public interest in withholding it from you.

Information Concerning Other Vessels

I also accept that there are references to other vessels, of a general, observational nature contained within the reports at issue. You have said that you are seeking access to any such references where such vessels are owned, operated or part owned by you. You provided the names of a number of vessels, only one of which (the M.V GH) is referred to in the records. On foot of contact from Ms Moran, the Department told this Office that on 14 September 2004, the ownership of this vessel was transferred to yourself and three others. In the light of this, I see no reason to withhold from you the references to the M.V GH as contained in the records.

As those other vessels named by you in your letter of 12 October 2007 are not referred to in the records, I have no reason to find that the references to vessels other than the M.V GH (or the M.V. AB) are covered by the scope of your request. Accordingly, I find such references to be outside the scope of your request and thus of this review.

Having considered the above, I find as follows:

Record 1:
  • Fifth bullet point (prefaced with the words "I have the following observations") - to be withheld in full, in so far as it is concerned with identifiable vessels other than the M.V GH or M.V. AB. Thus, the reference to the M.V GH, and the second sentence of this bullet point, fall to be released;
  • Seventh Bullet point under the heading of "Observations": the references to two vessels other than the M.V. AB to be withheld;
  • Two attachments comprising of photographs of vessels other than the M.V. AB to be withheld.
Record 4:
  • Third paragraph (comprising of one sentence): Name of vessel other than the M.V. AB to be withheld;
  • Fourth Paragraph (comprising of two sentences): Name of vessel in first sentence to be withheld.

I find, as a matter of fact, that the remaining two records do not refer to vessels other than the M.V. AB. As discussed, I do not consider section 27 to be relevant to information concerning that vessel (and even if I had, I would have found the public interest warranted its release).

Section 28

The Department contends that the release of the requested records would result in the release of the personal information of individual crew members; that they relate to the "personal business" of the previous owner of the vessel; and, thus, are exempt under section 28. In this regard, it appears to attach great significance to the fact that release of personal data is prohibited by the Data Protection Act.

Firstly, I am disappointed to note that the Department does not appear to have considered the possibility of resolving this issue by partially releasing the records, as contemplated by section 13 of the FOI Act. This provision allows for the release of information in a record that is not exempt whilst at the same time protecting the information therein that should be withheld. Having examined the records at issue, I am not satisfied that the personal information therein (which is quite limited) is of a nature that could not be excised from the records without rendering the remainder meaningless.

Section 28(1) of the FOI Act provides for the refusal of a request where to grant it would involve the disclosure of personal information about an identifiable individual other than the requester.

Information of Previous Owner

Firstly, it is not clear to me whether the Department's reference to the "personal business" of the previous owner is intended to convey that it is personal information about him that should be exempt under section 28, or that it is information about his business interests that warrants protection under section 27. However, in considering section 28, I consider it a close question as to whether the references to the previous owner of the vessel (Mr Y), as contained in the records, amount to his personal information rather than information about him in his capacity as a businessman. In any event, Mr Y has consented to the release to you of information concerning him personally, and to information concerning the M.V. AB. Accordingly, I have no grounds to withhold any elements of the records that refer to or pertain to Mr Y.

Information of Other Crew Members/Other Individuals

I am of the view that neither records 1 or 2 contain any references the release of which would reveal personal information about identifiable crew members or other individuals.

I am of the view that Record 3 contains limited references to individual crew members:

  • In the section on the second page, prefaced with the words "[t]he following points were noted": first bullet point in full and first ten words of last bullet point in this section;
  • The last two sentences on the second page;
  • The first two words of the second sentence under the heading "General Comments" on the third page.

I accept that it is possible that other comments in the record could be argued to be implicit references to those in charge of the vessel on the day concerned.

I note the following limited references to individual crew members, contained in Record 4:

  • A reference to an individual (a business associate of yours), contained in the fourth last and sixth last paragraphs of the first page;
  • A reference to an unnamed crew member on page two of the record (fourth paragraph, which like the three preceding paragraphs, is one sentence long);
  • A reference to an individual, contained in the last paragraph of the "Conclusions" section on page two of the record, and the further reference to that individual on the third page of the record.

Firstly, I find that any references to business associates of yours is in the context of that business relationship, and so is not personal information about those persons. I consider that there is no need to consider section 28 in relation to those associates, accordingly.

Ms Moran considered that there was a public interest in the release of the references to certain crew as contained in the records, and asked the Department to provide contact details for all persons referred to therein. It provided contact details for a number of staff of the Department, for business associates of yours, as well as contact details for a person it had described as the "Ships Master/Skipper" and a person referred to as having "pilotage duties". No other details were provided.

Firstly, I do not accept that specific references to unnamed individuals in the records amounts to personal information about them for the purposes of section 28 of the FOI Act (the FOI Act provides that the term "personal information" is concerned with information about identifiable individuals). In particular, the Department's explanation that "given the nature of the industry we do not always have the names and addresses of all of the crew as they move a lot between ships, companies and countries" weakens significantly any contention that one might be able, from a reading of the records, to determine who exactly are the unnamed crew that are referred to in the records.

At this stage, all that remains is for me to consider the references (both specific and implicit) to the operators of the vessel, as contained in the records. In general terms, I consider that there is a greater public interest in the release of comments pertaining to the performance of individuals who are in charge of the ship, and on whom the responsibility for safety of the vessel rests, than of comments relating to the performance of other crew on the vessel. I have in mind here such persons as the Master of the vessel. However, it is not immediately clear, from my reading of record 3, who actually was the Master of the vessel on the day of the inspection concerned, 14 July 2005. It refers to a particular crew member who it says was proposed to be the Master of the vessel, and also comments on an exercise conducted with the new proposed Master at the helm. The Department had provided contact details for that person, with whom Ms Moran consulted in relation to the potential release of information pertaining to his apparent performance as Ship's Master.

The person concerned objected to the release of his personal information and denied that he was the Master of the ship at the time of the inspections concerned. He said that it was another person, whose contact details I am satisfied are not amongst those provided by the Department and thus, whom it is not possible to contact.

While there is a clear reference to a proposed Master of the vessel in record 4 (that dated 13 June 2005), that record also notes that he and the owners of the vessel had "parted company" at the time of writing up the note concerned. I think it reasonable to say that one would not necessarily consider the reference to the Master as contained in record 3 to be a reference to the same person referred to in record 4. I also do not consider the proposed Master referred to in record 4 to be the person, suggested by the crew member consulted with by Ms Moran, to have been the Master on 14 July 2005. (In so far as it may have been Mr Y, as noted he has consented to the release to you of information concerning him or the vessel M.V AB.)

While a person objecting to the release of his personal information does not, under the FOI Act, have a right of veto over the release of that information, I must take account of the apparent dispute over who was the Master of the vessel on the day concerned. I consider there to be less of a public interest in the release of information concerning the apparent performance of an identifiable individual, where there is a dispute over who is actually described in the information.

I do not propose to conduct any exercise to establish beyond doubt who was the Master concerned (and I do not consider it my role to do so) and I consider that the most equitable way to proceed is to withhold the identity of the person who is referred to as the proposed Master in record 3. Accordingly, I find that the references to that person, as contained in the last two sentences of the second page of record 3, should be released, subject to the deletion of his name. I consider that this adequately serves the public interest in the openness and accountability as to the Department's views on the ability of the operators of the vessel, in the circumstances of this case.

In so far as record 4 is concerned, there is only one reference to an individual crew member (the then proposed Master). Given the context of the information concerned, I see no public interest in the release of the name of the person concerned, and I direct that the reference be released subject to the withholding of the name of the crew member concerned.

Given that the actual identity of the crew members referred to (whether specifically or implicitly) in both records 3 and 4 have been withheld; given that other crew members cannot be identified from a reading of the records; and given that other personal information has been released with the consent of the person concerned, the concerns that the Department appears to have in respect of the application of the Data Protection Act are moot.

Section 26

Section 26(1)(a) of the FOI Act provides that a request for access to a record shall be refused where four cumulative requirements are met, namely:

  • that the information was given in confidence and
  • that the information was given on the understanding that it would be treated as confidential and
  • that the disclosure of the information would be likely to prejudice the giving to the public body of further similar information from the same person or other persons in the future, and
  • that it is of importance to the body that such further similar information should continue to be given to the body.

To successfully invoke section 26(1)(b) of the FOI Act, it is necessary to show that disclosure would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. I am not aware of any agreement or enactment on foot of which a duty of confidence might exist in this case (nor have any been suggested). Thus, the only way in which a duty of confidence might exist in this case is "otherwise by law": in other words, if an equitable duty of confidence exists.

In order for an equitable duty of confidence to exist, this Office considers that three conditions must be met, viz.

  • the information contained in the record must have the necessary quality of confidence about it and
  • that information must have been imparted in circumstances imposing an obligation of confidence and
  • there must be an unauthorised use of that information to the detriment of the party communicating it.

The Office has adopted the following definition of "confidence" taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, (p.111):

"A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." (please see case No. 98179 - Mr Michael Grange and the Department of Enterprise, Trade and Employment).

Section 26(3) requires the consideration of the public interest in respect of a record to which section 26(1)(a) applies.

Finally, section 26(3) provides that where a record has been found to be exempt under section 26(1)(a), it may still be released where the public interest would be better served by granting rather than by refusing to grant the request for the record.

The Department's initial arguments (set out in its submission of 28 August 2007) in relation to this provision were that "they [the files] were also obtained (sic) in confidence in accordance with Section 26 and may not be released to a third party". It also said, in that submission, that the reports from its surveyors to the Chief Surveyor are "confidential in accordance with the FOI Act Section 26(1)(a)" and that their release "would undermine the candid reporting of surveyors to the Chief Surveyor, which would be detrimental to the safety of the public and not in the public interest".

Ms Moran referred the Department, on 3 September 2007, to the provisions of section 26(2) of the FOI Act, which provides that section 26(1)(a) shall not apply to a record which is prepared by a member of the staff of a public body 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 a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services". She told the Department that its argument, that section 26(1)(a) applies to information given to the Chief Surveyor by the Department's surveyors in the course of their duties, cannot stand in the light of this.

Nonetheless, the Department's submission of 10 September 2007 reiterated that "[i]t is essential for Surveyors to be able to report openly to the Chief Surveyor. If this is not allowed to stand than (sic) this will undermine maritime safety and not be in the public interest. This section is related to the functioning of the MSO and the necessity due to the dispersed nature of the work of the MSO for Surveyors to send in reports to the Chief Surveyor. There is a lawful obligation on the Department not to disclose these reports, as there is a requirement to keep investigations such as this confidential. This obligation is in many forms and we refer to our obligations under the Data Protection Act, as the reports from the Surveyors to the Chief Surveyor contain information, which is confidential within the meaning of the Data Protection Act and may not be released under its provisions."

The submission then says that the release of the information would cause Ireland to be out of step with international best practice in this regard. It went on to submit that "... much of the information in the requested records was provided to the Surveyors by the master and crew members on the understanding that it is custom and practice of the MSO to treat information provided during test and drills in confidence. The release of such information is likely to jeopardise the relationship between Surveyors and seafarers in similar situations in future and prevent information being giving (sic) in an open manner. It is important in the interest of public safety that the MSO continues to receive this class of information." The author of the letter went on to outline his belief that "... on balance, the public interest would not be best served by the release of this information due to the implications it could have on the employment status and prospects of the seafarers and the implications it could have on the ability of the MSO in performing it (sic) public safety remit." The Department's final submission did not add to this.

I will deal firstly with the Department's continued arguments that information provided by the Surveyors to the Chief Surveyor is exempt under section 26. As set out on the previous page of this decision, section 26(2) of the FOI Act clearly provides that section 26(1) cannot apply to information in a record that is prepared by a member of the staff of a public body in the course of the performance of his or her functions (as is the case where a surveyor is preparing a report of a survey or inspection he or she has conducted) "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 a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services". Section 26(2) does not contemplate a scenario, as would appear to be suggested by the Department, whereby members of staff of a public body can owe each other any duty of confidence in respect of information they have provided to each other.

Accordingly, I do not find that section 26(1) applies to information that was provided by the Surveyors to the Chief Surveyor. Indeed, I find it alarming that the Department made such an argument in the first place, given that this is not a new concept and also given the length of time in which the FOI Act has been in operation. I am also very concerned that it has maintained its view even though Ms Moran brought the provisions of section 26(2) to its attention.

In considering section 26(1), I find as follows:

  • Record 1 contains the "observations" and conclusions of Capt. O'Callaghan. As set out above, information provided by one member of staff of a public body to another is not exempt under section 26(1). Furthermore, I do not consider that the details of the observations of a surveyor can be the subject of a duty of confidence, if for no other reason than these opinions and observations were not 'imparted' to that surveyor by anyone. The report concerned does not refer to information being passed on to Capt. O'Callaghan by any crew member or any other person, other than comments made by Mr Y in respect of the M.V. AB. Given that Mr Y has consented to the release to you of information pertaining to the vessel, I have no grounds to find that section 26(1)(a) or (b) applies to this information.
  • Record 2 also largely contains the observations of its author, Capt. Forde. However, it also refers to a comment made by an unidentified person. I am of the view that it is not possible to identify the person concerned, in which case the third requirement of section 26(1)(a) cannot apply. I also find that the inability to identify the person who made the comment means that there can be no detriment to the party concerned. I find that neither section 26(1)(a) nor 26(1)(b) can apply to the comment.
  • Record 3 does not contain any information that one would accept is of a confidential nature. While there is a two-sentence reference to one individual at the end of the second page, which could be argued to have been provided in confidence, I have already directed that the name of the person concerned be withheld under section 28 of the FOI Act. In the light of this, I do not accept that the third requirement of section 26(1)(a) can apply to the remainder of the two sentences concerned, nor do I accept that there can be any detriment to the party who communicated it, in which case I find that neither sections 26(1)(a) nor (b) apply.
  • Record 4 (first page) refers to a conversation between Capt. Forde and a third party. I am not of the view that the information concerned, being of a general nature, has the necessary quality of confidence about it that would require me to consider it to be exempt under section 26(1)(a) or (b).

It could be argued that a further comment, attributed to a particular unnamed member of the crew on page two of this record, was expressed in confidence. Given the purpose of the inspection, and the nature of the comment concerned, I am not satisfied that the comment is of nature that could be said to have been imparted in circumstances imposing an obligation of confidence or that it has the necessary quality of confidence about it. It is in the interests of that crew member (and in the interests of other crew) to participate in the inspection to the best of their ability, in order to ensure that an adverse finding is not made against them or the vessel on which they are working. Thus, it is debatable that the information in the records is of a nature that, if released, would be likely to prejudice the giving to the public body of further similar information from the same person or other persons in the future. In this case, the Department was unable to provide me with contact details for the person concerned. I have already found that this reference to the crew member, as it is contained in the record, could not be said to be personal information for the purposes of section 28.

Accordingly, given that the person concerned cannot be identified by the release of the comment at issue, I see no reason to accept that such a person or other persons would be reluctant to provide such information in future to Departmental surveyors. It also follows that I do not accept that there can be any detriment to the party who made the comment. I find that neither sections 26(1)(a) nor (b) apply.

Finally, there is a comment on page 3 of this record, which could be said to have been imparted in confidence. However, I have already found the identity of the person referred to therein to be exempt under section 28 of the FOI Act and I see no reason to find that section 26 applies to the remainder thereof, for similar reasons to my finding in respect of the two-sentence reference to an individual on page 2 of Record 3.

Section 21

Section 21(1)(a) provides for the refusal of a record where its release could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof".

The harm test in section 21(1)(a) that must be considered is whether release of the record could reasonably be expected to "prejudice" the effectiveness of inquiries etc. conducted by the Department in respect of candidates for employment. A public body must firstly identify the potential harm that it considers might arise from disclosure of the records at issue to the inquiries, etc. that it conducts. Having identified that harm, it must then consider the reasonableness of any expectation that the harm will occur. Furthermore, in claiming that section 21(1)(a) applies, there must be a reasonable exception of the anticipated harm arising from release.

The Department's submission of 28 August 2007 merely said that the reports "had been obtained as part of the functions and procedures of the Department in its investigations to determine the suitability and safety of the passenger vessel to change its plying limits. These records must not be released in accordance with Section 21 of the FOI Act; as to do so would prejudice the effectiveness of the Department's procedures with regard to ensuring public safety on passenger vessels."

The Department's submission of 10 September 2007, in citing section 21(1)(a) of the FOI Act, outlined its view that the release of the records would "prejudice the effectiveness of tests, examinations, investigations, inquiries and audits conducted by Departmental Surveyors to assess the safety of public transportation systems. "

It stressed that the surveyors "are public employees acting on behalf of the Minister and the public, carrying out independent safety assessments the results of which will determine whether a ship may carry passengers." It said that "[t]he records sought are the results of safety drills carried out by Departmental surveyors", which are "examinations/investigations of the capability of the ship's crew to perform essential safety functions." The Department says that, in these cases, it is "essential to have an open process"; that the surveyor "is in effect the examiner, with the master and crew being the candidates", and that "the tests are to see if the ship and crew are fit to enter into service." In an argument that appears to be more relevant to section 26, it says that that "[t]hus the records contain confidential information and it is clearly understood that everything is confidential, the data protection act is relevant here as well."

The Department's submission goes on to say that:

"[d]isclosure of this information would most definitely prejudice the giving of information to Surveyors in the future, as during drills it is essential that there is a no-blame culture as the aim is to identify weaknesses in the performance of the crew with the aim to highlight the deficiencies and to rectify them. It is our policy that the owner is not informed of this information as it could adversely affect the crew's employment prospects. It is very important to realise that during drills the master and crew are often very nervous of the Departmental Surveyors as the crew see the Surveyors as examiners and that they are being tested, the crews may be fearful of losing their jobs if they perform poorly for the Surveyors and if the owners find out. The Surveyors are well aware are of this and do their best to bring out the best performance required of the crew. The Surveyors endeavour to put the crews at their ease and will not divulge to the owner their comments on the crew's performance. If this information was released to the owner, then the crews would not be open in the future and they may cover up weaknesses hoping they would not be noticed. Of most concern is the loss of trust in the Surveyors and the crews would "clam-up" and be defensive in their relationship with the Surveyors. This would be very detrimental to our ability to conduct fair assessments of crew and would lead to situations where problems were hidden and not addressed in a mutually trusting atmosphere. This would have a severe effect on maritime safety; and this would assuredly not be in the public interest."

It also submits that "[i]n addition, the records contain information, which if released to the owner could then be circulated wider, and undermine the reputation of the master and crew, with the possibility of adversely affecting their future employment prospects. " The Department then states that the results of the assessments are made known to the owner and to the public through the ship's safety certificate and the issuing of plying limits.

Ms Moran's letter of 11 September 2007 rejected these arguments. She said that, if the crew is sufficiently trained, that should be evident to the inspectors, and if crew members are not trained or are unwilling to show the Department the extent of their knowledge, the main concern of the surveyors should be in respect of the safety of other crew or passengers on board the vessel who would be affected by the lack of required skills. I agree with her view. In such a situation, I see no reason why the surveyors could not simply refuse to certify the vessel.

Ms Moran also put her views to the Department that it could not justify keeping information from the owner of a vessel, such as the inability of a crew member to use fire fighting equipment, merely to preserve the employment prospects of the crew member concerned; that as in any employment situation, if a crew member is not up to a required standard then it is up to the crew member concerned to ensure that they attain the standards and ensure their own employment prospects. She said she was of the view that the owner of a vessel needs to be aware of deficiencies as displayed by the crew in order to ensure that relevant training is provided, or indeed to ensure a better trained crew is employed, in order to ensure the safety of the vessel, other crew and passengers. She said she considered that ensuring the safety of public transportation systems to be of greater concern than the employment prospects of a ship's master and crew who may not be up to the required standard that would ensure such safety.

The Department responded that the Surveyors issued a survey report to the owner "advising him of the deficiencies" that they had observed, and provided my Office with a copy of that report. The submission said, in respect of one particular requirement of which the owner was advised, that "the owner carried out the required training". It also said that the crew are "in possession of statutory certificates of competency and that they are legally competent to carry out their designated duties, their right to earn a living must be respected". It contends that the public was protected by it not allowing the ship to enter service at [location], and by it advising the owner of the deficiencies. It says that "all objectives were achieved: protection of the public, all deficiencies discovered by a full assessment of the crew, respect for the crew's employment and personal rights and informing the owner of the deficiencies to be rectified."

The Department would appear to contend that both the effectiveness of its tests, as well as the procedures or methods by which it conducts those tests, would be prejudiced by the release of the information at issue. This would appear to be partially based on its concern that the release of the records would impact on the employment prospects of the crew, leading to their reluctance to take part in the assessments concerned, and thus prejudicing the ability of the Department to conduct its investigations. However, I am not satisfied that directing the release of records under FOI, particularly in this case, in the absence of material that would identify those particular crew who have not consented to the release of their personal information, could have any such effect on their employment prospects. I also find the Department's explanation as to why it was unable to provide my Office with the names and addresses of all of the crew on the M.V AB (i.e. that "we do not always have the names and addresses of all of the crew as they move a lot between ships, companies and countries") to be at odds with its claim that the job prospects of such crew would be jeopardised by the release of the records at issue.

In any event, I agree with Ms Moran's view that, if the crew have the requisite skills, they would be in a position to demonstrate them to the surveyors, in which case they presumably "pass" the "examination". If they do not have the skills, or refuse to show them, the surveyors will not be in a position to "pass" the crew, and certify the vessel. It seems to me that the latter situation does not mean that the surveyors cannot do their job; I consider that their job requires them to make negative findings where the relevant requirements have not been met or demonstrated. I would also add that, if one accepts the premise that, if a sufficiently trained crew member is unable to demonstrate what he or she has learnt due to the stressful nature of an examination by the Department's inspectors, one would have to question how that crew member would cope in a real-life emergency situation on which lives are ultimately dependant.

In the circumstances, I find that section 21(1)(a) does not apply. Even if I were to accept that section 21(1)(a) did apply I would find that the public interest warrants the release of the records for reasons set out earlier.

Section 23

The Department has argued that the release of the records would impede the Department's procedures for ensuring the safety of the public and for enforcing maritime safety and possible prosecutions and thus that the records are exempt under sections 23(1)(a)(i), (ii) (iii) and (vii) of the FOI Act.

Section 23(1)(a) is designed to protect information that, if released, could reasonably be expected to :

(i) prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans, procedures employed for the purposes of the matters aforesaid;

(ii) the enforcement of, compliance with or administration of any law;

(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property; or

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

Except in limited circumstances, section 23 does not require the consideration of the public interest.

In its submission of 28 August 2007, the Department stated that it is "very important to remember the misrepresentation on ownership as it is important under section 23 of the Freedom of Information Act that the Department does not release information, which could prejudice or impair the enforcement or administration of any law and especially as the Department is charged with protecting the safety of the traveling (sic) public."

The Department went on to say that incidents and accidents involving passenger safety on maritime vessels are of grave concern to it, and that it is anxious to ensure that the trust built up with the industry over recent years is not undermined. It said that "[t]o release the information requested by a third party and in this case where one of the parties had misrepresented their involvement with this vessel would undermine maritime safety administration and this is clearly not in the public interest. It is important for the good administration of maritime safety and law enforcement that information, obtained by this Department in exercising its role as the maritime safety regulator, should not be released. The enforcement of maritime safety is a function of this Department and to release any information would, in the Department's opinion, be detrimental to any enforcement actions, which the Department may choose to take. "

Ms Moran questioned the Department's reliance on this provision in her letter to it of 3 September 2007. In its reply of 10 September, it said that:

"[i]t is essential that any reports produced to the Chief Surveyor as a result of any investigations remain confidential in order to allow the lawful procedures in ensuring public safety is maintained. The Department did make the owner well aware of the result of the assessments. ... Other elements in the decision were based on verbal reports from other surveyors and the experience and expertise of the MSO. It is essential that under these sections of the Act that the Surveyors and seafarers onboard the ship are enabled to carry out the required safety drills in an open and trusting environment where it is agreed that the reports are not public documents as they are assessments of the competency of individuals and their release could damage the employment prospects of seafarers on future ships (sic)."

It went on to say that:

"From this Department's perspective these investigations and assessment reports are confidential and essential to the enforcement of maritime safety. If such reports were to be made public then it is possible that they may cease to contain vital safety information relating to individual performances as well as limiting the input of the decision making of the Chief Surveyor. This would be very detrimental to Maritime Safety and not in the public interest nor in the interest of seafarers. It is important to note that the Department makes the outcome of the assessments available and the result in this case was made known to Mr Y. "(emphasis added by the Department).

Ms Moran responded to the Department that she could not see how the comments in the records could be said to be information that should be exempted under the provisions cited by the Department. She referred it to her comments in respect of section 21(1)(a) and outlined why she felt the provisions at section 23 did not apply. The Department's submission of 14 September 2007 did not comment directly on this view.

In short, I agree with Ms Moran's view that concealing deficiencies observed (or the corollary, good or even excellence practice) as to the skills of a crew is unlikely to promote the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans, procedures employed for the purposes of such matters. Thus, I do not see how the release of the records at issue could impinge on the Department's ability to conduct its work of preventing, detecting or investigating offences, or of apprehending or prosecuting offenders.

It is important to note that the information is largely of a nature that has been observed by the Department's staff. Any information in the records that has been imparted by crew members has been found not to be of a quality that is exempt from release under section 26(1)(a), and furthermore in this case, the names of identifiable crew members have been withheld (bar that of Mr Y who provided his consent to such release). Accordingly, any argument that the release of the records in this case would lead to a situation, where a crew member on board a vessel being inspected would not provide relevant information to a surveyor, and thus impinge on the effectiveness of lawful methods, systems, plans, procedures etc employed by the Department for the purposes of such matters cannot be sustained. I find that section 23(1)(a)(i) does not apply, accordingly.

I also consider that if the requisite skills are not demonstrated, to the extent that a breach of the law may be considered, the Department would still be able to take the necessary action to ensure that the law is enforced. Presumably surveyors should not issue the relevant certificates where the required skills had not been demonstrated to them. Should a vessel sail without the relevant certificates, it would be open to the relevant authorities to take the appropriate action. Thus, I do not accept that the Department's ability to ensure the enforcement of, compliance with, or the administration of the relevant maritime safety laws could be compromised, even if one were to accept that the release of the information at issue could lead to the inability of the crew to perform its duties. I find that section 23(1)(a)(ii) does not apply, accordingly.

I find the same considerations apply to section 23(1)(a)(iii), and agree with Ms Moran's view in respect of this provision that the onus is on the Department to ensure the safety of the public, not to ensure the employment prospects of a crew that is untrained or unwilling or unable to demonstrate the necessary skills. I am of the view that a sufficiently trained crew member will be able to demonstrate their skills, and that it is in their interests to do so. It is my view that the fact that the Department can make this known to the vessel's owner is hardly likely to deter crew from displaying their knowledge. In the event that such an outcome would materialise, I consider that the Department can still ensure the safety of the public etc, by simply refusing to certify the vessel. I would also reiterate my previous comment that, if one accepts the premise that, a sufficiently trained crew member might be unable to demonstrate what he or she has learnt due to the stressful nature of an examination by the Department's inspectors, one would question how that crew member would cope in a real-life emergency situation on which lives are ultimately dependant.

In respect of section 23(1)(a)(iv), I would expect the Department, in claiming such an exemption, to be able to refer to proceedings that are either underway or that might reasonably be contemplated. Ms Moran told the Department that she considered it unable to rely on this provision in the light of the fact that there are no civil or criminal proceedings pending as a result of the investigations the subject of the reports. The Department did not dispute this view and so I find section 23(1)(a)(iv) does not apply.

Section 24

The Department's submission of 28 August 2007 did not refer to this provision. It relied on it for the first time, in its submission of 10 September, when it claimed that the release of the records at issue would "set a precedent that would affect adversely the international relations of the State, under the provisions of Section 24(1)(a)."

Section 24(1)(a) provides that a record may be refused (a discretionary exemption) where its release could reasonably be expected to affect adversely "the security of the State." I presume that this was a typographical error on the Department's part; for the sake of completeness, I do not accept that the release of information concerning a vessel operating out of [location] could have any affect on the security of the State.

I presume that it was section 24(1)(c) to which the Department intended to refer in its submission. Section 24(1)(c) provides that a record may be refused (again, importantly, a discretionary exemption) where its release could reasonably be expected to affect adversely "the international relations of the State".

The Department's submission of 10 September 2007 said that:

"Ireland follows best practice internationally in relation to the status of such reports from Surveyors to their Department. If these records are released in this case then it will set a precedent whereby all such reports could also be released for other ships and assessments. Ireland acts as a responsible member of the international community, shipping is perhaps the most international of all industries and Surveyors from this Department carry out such drills on foreign registered ships calling to Irish ports."

The submission continued:

"The Department are prohibited by international requirements from releasing such information as it relates to citizens and companies flying the flag and governed by legislation of different jurisdictions. We would refer here amongst other examples to EU Directive 1995/35 and the European Maritime Safety Agency, EMSA, database where the reports from surveyors following assessments on ro-ro ferries are stored. These reports may not be released to the public, but the public are assured, because, if there are safety concerns then the ships are taken out of service. If we were to release this information then the precedent would be set for the release of all such information and Ireland would be out of step with international best practice and the State's international relations adversely affected."

Ms Moran's letter of 11 September 2007 pointed out to the Department that its submission did not give the full title of EU Directive 1995/35, nor did it refer to any article therein that would weigh against the release of the records at issue in this case, nor did it appear to her that EU Directive 1995/35 had any bearing to the inspection of maritime vessels. She also told the Department that it had not explained how the release of records, showing whether inspected vessels or crews of such vessels meet required standards, could possibly impact on international relations.

The Department replied that it had made a typographical error and had intended to refer to "Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high speed passenger craft services". It said that Ireland's international relations "will be damaged if information is released in Ireland which may not be released in other countries", which would be "a serious problem for Ireland's international relations."

Firstly, I have not been able to identify any article within Council Directive 1999/35/EC that prohibits the release of inspection reports, whether those at issue in this case or any other variety of such report. Neither have I been able to identify any relevant provision in the enabling Regulations (S.I. No. 405 of 2001 - to which the Department did not refer me). In any event, it is for the Department to bring such articles or provisions to my attention.

Accordingly, I have no reason to believe that there is a mandatory prohibition on the release of records of the sort at issue, or on the release of any information gathered on foot of inspections of this nature. Whether or not similar reports are released in other countries is irrelevant to my decision. This is a request for record under the terms of the FOI Act, and unless it is exempt from release under one of the provisions in the Act, then the records fall to be released. The Department has not told me of any EU requirement that such reports not be released; it has referred in a very general manner to an EMSA database and not explained the significance of its comment; and it has referred to what it claims is international best practice that such reports not be released. Crucially, it has not set out, as one would expect it to do, why release of the records would be "a serious problem for Ireland's international relations." I consider that if this were the case, the Department would be able to set out in clear detail how this scenario would arise.

In short, I find that none of the arguments made by the Department are sufficient to satisfy me that section 24(1)(c) of the FOI Act applies to the records at issue.

***

Summary

I do not intend to consider every scenario under which the possible release of the inspection report of a vessel such as the M.V. AB could arise. In this case, the consent by the then owner of the vessel to the release of the records at issue negates (as discussed earlier) any arguments that the release to you of the requested information could disclose commercially sensitive material. A scenario that could arise, however, is that a person about whom there is no dispute as to ownership at the time of an inspection, seeks access to the reports thereof. It would seem that the Department would be unwilling to release the records to such a requester, by virtue of the policy it has adopted of not releasing inspection reports to the owners of the vessels so as to preserve the employment rights of crew.

I have compared the report of the drills conducted on 14 July 2005 (record 3) to the report that I understand was provided to Mr Y, the then owner of the M.V. AB. The latter report states the types of drill that were undertaken, sets out the outcome thereof in minimal detail, and makes a recommendation, in very general and loose terms. Record 3, however, goes into much more detail as to the particular deficiencies noted by the Surveyors, which (having regard to the report that the Department says was provided to the owner of the vessel) do not appear to have been made known to the owner.

I am bound by the FOI Act not to reveal the content of a record that it is claimed to be exempt under the FOI Act so as not to prejudice the right of appeal of the public body concerned. However, I would have great concerns if the precise details of the inspection, particularly in this case the section of the report headed "General Comments", were not made known to the owner of a vessel so that he could take whatever steps must be taken to ensure the safety of the vessel, its crew and passengers.

Another scenario that could arise is where an interested member of the public, with no ties whatsoever to an inspected vessel, could seek access to its inspection reports. I would consider that the public interest should warrant the release of the records at issue, even if the owner's consent to release such information was not forthcoming. Similar to views I have expressed in reviews concerning inspection reports conducted by other public bodies, I consider that inspection reports of the type at issue here should be in the public domain, so that the public is in as informed a position possible before deciding on whether to sail on such a vessel.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended), I hereby annul the position of the Department in this case and direct that the records you have sought at points a) and b) of your request be released to you, subject to the withholding of any information as directed in the "Findings" section of this decision.

Right of Appeal

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.

Yours sincerely




Emily O'Reilly
Information Commissioner