Case number: 130033

Note: "This decision was appealed to the High Court by the applicant. The matter was heard on 13 and 14 October 2015. The judgment of Noonan J in favour of the Commissioner was given on 19 January 2016. Neutral Citation [2016] IEHC 27.

"This judgement was appealed to the Court of Appeal by the appellant. (Court of Appeal 2016 57). Prior to hearing, it was struck out be agreement between the parties"


Whether the Department was justified in its refusal of access to records relating to the applicant or his personal or business loans by reference to various exemptions under the FOI Act including sections 24, 26, 27, 28 and 46

Conducted in accordance with section 34(2) of the FOI Act

Background

The applicant made an FOI request to the Department on 21 August 2012 for records relating to him or his personal or business loans. In its original decision of 21 December 2012, the Department identified 19 records as relevant to the request. Access was refused in full to 13 records and in part to the remaining six records on the basis of various sections of the FOI Act. The applicant sought an internal review of the Department's decision on 3 January 2013. In its internal review decision of 23 January 2013, the Department released a small amount of additional information in the records to which access had previously been partially granted. The applicant submitted an application for review to this Office on 5 February 2013. During the course of the review, the Department revised its position and released additional parts of some records to the applicant.

Ms. Brenda Lynch, Investigator, of this Office, advised the applicant of her views on the issues relevant to the review on 28 March 2014. In response, the applicant informed this Office that he required a formal decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the provisions of the FOI Acts, and to the content of the records at issue. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of the review relates solely to whether the decision of the Department to refuse access to the remaining withheld records or parts of records was justified. Any records or parts of records which were released during the course of the review are no longer within the scope. For the avoidance of doubt, the records remaining under review are parts of records 1-5, 7, 8 and 11 and all of records 6, 9, 10, and 12 - 19.

Analysis and Findings

Records 1 and 2

These records comprise a letter to the then Minister from a third party making representations on behalf of a commercial entity, relating to engagement between that entity and the National Asset Management Agency (NAMA) together with the Minister's reply to this letter. The Department refused access to the name and contact details of the third party and to some other information in the letter received, on the basis that Sections 26(1)(a), 27(1)(b), 27(1)(c) and 28(1) of the FOI Act apply to parts of these records.

Section 26(1)(a) of the FOI Act provides for the refusal of a record containing information:

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

The approach adopted by this Office is that all four of these tests must be satisfied in order for a record to be considered exempt from release under this section of the FOI Act. This Office's previous understanding of the first two requirements of section 26(1)(a) has been superseded by the July 2011 judgments of the Supreme Court, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 (more commonly referred to as "the Rotunda Hospital case"), available on www.oic.gov.ie. In particular, Justice Macken said that what is protected under section 26(1)(a) "stems from the circumstances in which the material is given, and not from the nature of the material itself"; and that the information need not be " 'confidential information' or 'private and secret' or subject to a 'duty of confidence' ... or to have any so-called necessary 'quality of confidence', as defined, other than as to the circumstances in which it was imparted and received.". Macken J. referred to the importance of considering the "circumstances in which [the information] was imparted and received".

The Department stated that this record was communicated on the basis that its contents would be treated sensitively and confidentially and that Record 1 is marked "Strictly Private and Confidential". However, it is well settled that such labelling is not sufficient to impose an obligation of confidence. Record 1 has been released with some details redacted. It is clear from what has been released that the representation made to the Minister related to engagement between the NAMA and a commercial entity. It is evident that the Department took the view that NAMA is an independent body and that the Department did not have a role in relation to the matter raised in record 1. Therefore, I cannot see how it could be of importance to the Department that it continue to receive such unsolicited communications, seeking the intervention of the Minister in a matter which is appropriate to another body - in this case NAMA. On this basis, I do not consider that the fourth test is satisfied and therefore, Section 26(1)(a) cannot apply to record 1. I find accordingly.

Section 27(1)(b) protects 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.

Section 27(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, I would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.

In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified.

The information in record 1 to which access was refused on the basis of Section 27(1)(b) and 27(1)(c) refers to the borrowing position of a commercial entity, the identity, the commercial interests, current and potential ownership stakes, levels of borrowing and financing arrangements for a proposed financial arrangement which was not completed. The Department stated that release of the information could prejudice the commercial entity's strategy, competitive position and commercial and legal standing in relation to the matters to which the letter refers. It further said that revealing information such as a party's level of indebtedness, willingness to pay, financing partners, among other factors could provide an insight into the party's level of interest in the proposed arrangement, as well as its strategic approach, financial position and flexibility. It contended that release of the information could provide a significant insight into the commercial interests of the organisation and that this could influence the entity's position in future similar situations. It argued that it could also be the case that revealing a particular party's interest in an asset and the nature of a proposal in relation to that asset could have a material impact on either the asset value or the financial return to the interested party in both current and future situations. The Department said that access to such information has the potential to alter the competitive landscape and strengthen or weaken a strategic or negotiating position at a cost to the party whose information has been revealed. While certain negotiating processes related to the contents of there records have concluded, according to the Department , it is not unreasonable to expect that further negotiations may be ongoing or take place in the future and release of the information in the records could prejudice any such negotiations.

In the particular circumstances of this case, the matter the subject of the letter (record 1) has been the subject of litigation in Ireland and in the United Kingdom. The High Court of England and Wales judgment of the Honorable Mr. Justice David Richards of 10 August 2012 in the matter of Coroin Limited and in the matter of the [UK] Companies Act 2006 , [2012] EWHC 2343(Ch), (available at http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/mckillen-judgment.pdf) sets out what I consider to be matters of fact, by way of Introduction and Background. Included in these matters of fact is the information for which the Department has claimed that Section 27(1)(b) and 27(1)(c) apply. Given that this information has been publicly available since before the original FOI request was made, I cannot see how the harm envisaged can arise from the release of the information under FOI at this time. Therefore, I am satisfied that Sections 27(1)(b) and 27(1)(c) do not apply to any of the withheld information in Record 1 and 2. I find accordingly.

Section 28(1) of the FOI Act provides:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

Personal information, in turn, is defined in section 2 of the FOI Act as "information about an identifiable individual". That section details twelve specific categories of information which are included in the definition, including (ii) information relating to the financial affairs of the individual and (vi) a number, letter, symbol, word, mark or other thing assigned to the individual by a public body for the purpose of identification or any mark or other thing used for that purpose. The Department claimed that Section 28 applies to the name and contact details of the sender/recipient of records 1 and 2. It stated that the sender of the letter (record 1) is closely related to the commercial entities represented. It contended that release of the information could lead to the identification of the commercial entities and reveal information about the financial affairs of the individual concerned.

Having examined the record at issue, it is clear that it was written on behalf of a commercial entity, rather than on behalf of the sender themselves or any other identifiable individual. Given that the commercial entities who would be identified by the release of the record in full and the matters the subject of the letter are already in the public domain, including in the judgment of Mr. Justice Richards, referred to above, I cannot not see how the release of this information would reveal "information relating to the financial affairs of the individual" who sent the letter, so that it could be considered to be personal information of that individual. I am satisfied, therefore, that Section 28(1) does not apply to the name and address of the sender of the letter (record 1) and the same information in record 2. I find accordingly.

I do accept however that the signature and private fax number in record 1 is the personal information of an individual and I find that Section 28(1) applies to this information.
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) do not apply. Having examined the information at issue, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 28(2) does not apply to the withheld records.

Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. Having reviewed the record, I am not satisfied that the public interest served by the disclosure of other parties' personal information would, in this instance, be of sufficient weight as to displace the public interest served by respecting the right to privacy of the individuals concerned. I find that Section 28(1) applies to the signature and private fax number of the individual and direct that this information be withheld.

Records 3 and 4

These comprise a representation to the then Minister and reply to same. The name and contact details of the person making the representation have been redacted on the basis that Section 28(1) applies to them. These records are unrelated to Records 1, 2, and 5. I am satisfied that the redacted information is personal information and I find that Section 28(1) applies to it. For similar reasons to those set out above in relation to Records 1 and 2, I am also satisfied that the public interest in granting the request is not sufficiently strong to outweigh the public interest in protecting the right to privacy. I find that Section 28(1) applies to the withheld information.

Record 5

This record comprises a series of external and internal emails regarding a potential interest in an asset. The Department claimed that Section 27(1)(b) applies to the information redacted from this record, which includes detailed amounts and percentages and would identify the source of the proposals. The issues which arise here are similar to those set out above in relation to Records 1 and 2. However, unlike records 1 and 2, there is no information available to me to suggest that the identity of the source or details of the proposal in this record are already in the public domain. I am satisfied that disclosure of the withheld information could reasonably be expected to result in a material financial loss or gain or could prejudice the competitive position of that person in the conduct of his or her business and I find that Section 27(1)(b) applies to the withheld information.

Having found that Section 27(1)(b) applies, Section 27(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. However, section 27 of the Act also recognises a public interest in safeguarding an operation's ability to carry on its business without inappropriate interference from competition, which could arise by disclosing its commercially sensitive information to the world at large. There is a public interest in the ability of private companies to submit commercially sensitive information to public bodies in the knowledge that it will be treated as such. There is also a public interest in supporting an environment that is conducive to the conduct of business.

The Department stated that it is accepted practice to maintain the confidentiality of both the identity of interested parties and the details of proposals. In so doing, consideration is given to both the particular circumstances at a point in time and potential future opportunities. The Department also identified the importance of Irish officials being able to communicate with the market the steps being taken toward economic recovery and that such communications include both broad communications and bi-lateral communications. It also mentioned the role of the Department in fostering investor interest in Ireland and the importance of connecting interested parties with the relevant State authority. The Department put forward the view that the advantages in terms of openness and transparency are not sufficient to outweigh the possible harm that might arise from the release of the information. It also stated its opinion that the release of the redacted details would not meaningfully advance the public interest considerations of openness and transparency.

The applicant argued that there is a public interest in seeing how public servants and state agencies interacted with particular individuals and/or businesses. He also stated that he contributes significantly to the Irish economy though employment and business.

Having considered the submissions on this point from both the applicant and the Department, I am satisfied that the public interest is served to some extent by the release of the record in redacted form. In my view, this satisfied the public interest in openness and accountability on the part of the Department. I conclude that, on balance, the public interest would not be better served by the release of the redacted information to which Section 27(1)(b) applies to the extent that overriding the commercial sensitivity of that information, as set out above, would be justified and I find accordingly.

As I have found that Section 27(1)(b) applies to the withheld information in record 5, it is not necessary for me to consider the other exemptions claimed by the Department.
Records 6-16

These records or parts of records to which access has been refused are emails to, from and within the Department. The Department initially claimed that various exemptions applied to these records. However, during the course of the review, it emerged that the applicant had sought and been granted an order for discovery in the Courts against parties including the Department. The Department informed this Office that these records (6-16) had been provided by it to the applicant pursuant to this order for discovery.

As reviews conducted by the Commissioner are de novo, this Office must take account of the circumstances at the time of the making of a decision by the Commissioner rather than at the time that the public body made its decision. Therefore, I must take account of the fact that the order for discovery exists and that records have been provided pursuant to that order.

Section 22(1)(b) of the FOI Act is a mandatory exemption that applies where the public body knows or ought reasonably to have known that disclosure of the record concerned would constitute contempt of court. The provision does not require any consideration of the public interest.

It is an accepted rule of law that a party obtaining the production of documents by discovery in an action gives an implicit undertaking to the Court that he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action. This rule of law does not apply in circumstances where the Court has given leave for further use of the documents or where the consent of the party, providing such discovery, has been obtained. In EH and EPH v. the Information Commissioner [2001] 2 I.R. 463 (available on www.oic.ie), Mr. Justice O'Neill in the High Court stated that where the head of a body, or the Commissioner, "is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b)."

It seems to me that without the leave of the Court, or the consent of the party providing discovery, any breach of an expressed or implied undertaking regarding discovered records would be in contempt of Court. I am not aware that in this case the Court has given leave for further use or that the Department, which provided the records under discovery, has consented to any further use of the documents.

As I am aware of the order for discovery and that these records were provided pursuant to that order, I am satisfied that access to these records must be refused on the basis of Section 22(1)(b) of the FOI Act. I find accordingly.

Records 17-19

These records can be described as replies to parliamentary questions to which access was refused on the basis that Section 46(2) of the FOI applied. Section 46(2) provides that the FOI Act does not apply to a record which is available to the public for purchase or free of charge. As replies to parliamentary questions are available freely on the website of the Houses of the Oireachtas www.oireachtas.ie, I am satisfied that these records are available to the public free of charge and that Section 46(2) applies. I find accordingly.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the Department and I find that the FOI Act does not apply to records 17-19 under Section 46(2). I further find that Section 22(1)(b) applies to records 6-16; that Section 27(1)(b) applies to the withheld information in record 5 and that Section 28(1) applies to some information in record 1 and to the withheld information in records 3 and 4. I direct the release of record 1, apart from the exempt information identified in this decision, and record 2.

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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator