Case number: 140074
This review arises from a decision made by the Department to refuse access to records, following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has considered at some stage in the decision making process that the record in question qualifies for an exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), considered to apply, should be overridden in the public interest. The applicant or affected parties, on receiving notice of the final decision of the public body, may apply for a review of that decision to the Office of the Information Commissioner directly.
On 10 February 2014, the applicant submitted a request under the FOI Act for access to records relating to "the names and registration details of vessels belonging to/represented by each Fish Producers' Organisation in 2013". There are four fish producer organisations in Ireland, of which membership is voluntary, and to whom the information requested relates. Three of the fish producer organisations; namely, the Killybegs Fishermen's Organisation Ltd, the Irish South and West Fish Producers Organisation Ltd and the Irish Fish Producers Organisation Ltd, were represented at the time by an umbrella organisation known as the Federation of Irish Fishermen (FIF). The fourth affected party is the Irish South and East Fish Producers Ltd.
The Department identified four records comprising lists of Irish Fish Producers' Organisations' membership. It notified the organisations that it was considering the release of the information in the public interest. Having considered the submissions received, the Department made its decision on 25 March 2014 refusing the request for the names and registration details of the vessels under the provisions of section 26(1)(a) of the FOI Act. It gave the applicant access to some information by way of a statement of the total number of fishing boats represented by the Producers' Organisations (POs) in 2013 and an indication of their size, range and type. On 31 March 2014 the applicant made an application to this Office for a review of the Department's decision.
The applicant made several submissions including responses to preliminary views put to him by Edmund McDaid, Investigator of this Office. I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions of the Department, the applicant and the third parties and to correspondence between the applicant and the Department and the third parties and the Department. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. While I do not address each and every one of the parties' submissions in this decision, all of them have been considered. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 and 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.
This review is concerned solely with whether the Department was justified in deciding to refuse access to the records.
It is important to note that section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.
The Department refused access to the records under section 26(1)(a) of the FOI Act, which provides for the mandatory refusal of a record containing information:
Section 26(2) does not dis-apply section 26(1) in this case as the records were not prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" in the course of the performance of his or her functions.
In relation to the context within which the information was given to and held by the Department, I must have regard to 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 ("the Rotunda case") -  1 I.R. 729,  IESC26. In particular, Macken J. 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."
I note that the Department's decision did not examine the question of whether the four tests in section 26(1)(a) as set out above were met in relation to the withheld records. Although invited by the Investigator to make submissions in the context of the four tests, the Department's response was more general and focussed on consideration of the public interest factors involved. The Department provided useful background regarding the role of POs recognised by the European Commission (EC). It is obliged to deal with the POs in the context of the Common Fisheries Policy. It stressed that significant information had been released in its decision and that the notion of the information being given in confidence is implied or assumed rather than specified. The Department's submissions to my Office identified as a core issue the question of whether it holds the records as "a third party data collector" rather than as a "data holder". It argued that the information is supplied by the POs for the specific purposes of validating annual production and marketing plans and that members are not advised in advance that such information could come into the public domain. The information is then transmitted to the EC. As such, the Department contended that there are data protection issues involved. I do not agree with this position for the simple reason that Data Protection is an entirely separate legislative framework to FOI. Section 1(5)(a) of the Data Protection (Amendment) Act 2003, provides that :
"[a] right conferred by this Act shall not prejudice the exercise of a right conferred by the FOI Act."
Further, section 8(e) of the Data Protection Act 1988 sets out an exception to the prohibition on disclosure of personal data required by an enactment or rule of law. I consider that release of records under FOI amounts to disclosure required by an enactment.
The representative organisation of three of the POs (FIF) argued that the information was exempt under sections 26, 27 and 28 of the FOI Act. As regards section 26 and confidentiality, its position was that the information had been given to the Department in confidence on the basis that it would be treated as confidential. It said that the PO membership lists were not made public at any time and that the Department would have to get "explicit consent of member vessels under the Data Protection Acts even to communicate with the Producer Organisation in relation to its member vessels". It also said that the various POs have no access to the membership lists of the other POs. FIF said that the express purposes of submitting the membership information to the Department were to allow each PO to establish that it satisfied the criteria for recognition under the relevant EU Regulation and to authorise the Department to deal with the POs in relation to individual member vessels. FIF also argued that it should be given the "justification" for the request and the identity of the requester. In response, my Office advised that neither the identity of the requester nor any reasons or motivation stated or implied, are relevant to the review.
A representative of the fourth PO, when contacted by my Office and invited to make a submission, replied that it would rather the information "not be released into the public domain at this time".
In considering the first and second tests in section 26(1)(a), in the context of Macken J.'s emphasis upon the circumstances in which the information was imparted by and received by the public body in the Rotunda case referred to above, I have had regard to the following circumstances in this case:
that the nature of the relationship between the POs and the Department falls within the business/commercial field as opposed to, for example, that existing between a patient and a hospital;
that when the records were created, the POs were required to supply details of the membership to the Department for onward transmission to the EC as part of the annual production and marketing process;
that the Department appears to accept that under Regulation (EU) No. 1379/2013 of the European Parliament and of the Council, POs shall be eligible for financial support on the establishment of the conditions for financial support for maritime and fisheries policy 2014-2020. Under Regulation (EU) 508/2014, one of the conditions stipulates that POs are to be given priority access to such financial support;
that Regulation 1379/2013 provides that Member States may recognise as POs groups which apply for recognition provided, inter alia, that they provide details of their membership, governance and sources of funding;
that the membership of POs in Northern Ireland is published online;
that the Department's submissions asserting that the records were received and held in confidence appear to set out the position more from the point of view of the POs than from its own.
While no one of the above factors on its own proves conclusively that the information in the records was not given and received in circumstances in which confidentiality was understood between the parties, I am not convinced that the circumstances as a whole support the assertions made. In any case, I do not consider that it is necessary for me to make a finding on the first two tests in section 26(1)(a), given that the third test cannot, in my view, be met. I fail to see how disclosure of the 2013 membership lists would be likely to prejudice the giving to the Department of similar information from the POs since, as outlined above, the POs are under an obligation to supply this if they wish to be recognised by the EC and to avail of the representation and various other rights that such status affords them in their dealings with the Department. Furthermore, according to the Department, it is likely that publication of membership may be a condition in relation to allocation of funding to POs. In addition, the POs have not, in their correspondence with the Department and with my Office, given any indication that release of these records would prejudice the giving of further similar information to the Department. The Department has not said that it is of importance to it that further similar information should continue to be given to it but I take it that this situation would not arise unless the POs withdrew altogether from the current statutory arrangements. The Department's position is that it is legally obliged to deal officially with any grouping recognised by the EC.
Having carefully considered the circumstances as outlined above and the requirements of section 34(12) of the FOI Act referred to earlier in this decision, I find that the third test necessary for section 26(1)(a) of the FOI Act to apply has not been met, so that the withheld records are not exempt under that provision.
Section 26(3) - the Public Interest
Arguments as to what may or may not be in the public interest are relevant only when it is accepted that a record is exempt from release in the first place, which is not the case in this instance. Therefore, it is not necessary for me to consider whether under section 26(3), the public interest would, on balance, be better served by granting than by refusing to grant the request. However, I make some observations below on the public interest in the context of section 28 and personal information.
Although the Department relied on the confidentiality provisions of section 26(1)(a) in its refusal of the request, its decision made reference to the protection of privacy in its consideration of the public interest. I note that a third party submission to this Office also referred to the personal information exemption. Accordingly, I will now consider whether section 28 applies in the circumstances of this case.
Section 28(1) provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by a public body on the understanding that it would be treated by it as confidential.
Some of the information comprises the names of companies and therefore cannot be held to be "about an identifiable individual". Therefore, this part of my decision concerns only those parts of the records that identify individual vessel owners.
I cannot accept that the fact that a vessel owner was a member of a PO would, in the ordinary course of events, be known only to the individual owners and their families or friends. Apart from anything else, their membership details are known to the POs, to the Department and to the relevant authorities at EC level.
In his submission, the applicant stated that he had not requested personal information but in fact had asked for information on "vessel details". I considered whether it would be possible to partially release the lists as suggested by the applicant by redacting the owners' names so that only the vessel and fishing details would be released. I note that the Irish Fleet Register (a publicly available document) links each vessel name to the owner, so the fact that an individual was a member of a particular PO would be disclosed in any case, even if part of the relevant record was to be redacted.
Having considered in some detail as set out earlier in this decision the circumstances in which it was imparted and received, I do not accept that the information in the records was provided to the Department on the understanding that it would be treated as confidential. I further note that the fact that individuals are members of an organisation representing them in the course of their activities as part of the Irish fishing fleet, does not fall within any of the (i)-(xii) categories of information included in the definition of personal information for FOI purposes.
Given my conclusion that the information at issue does not come within the definition of personal information, my finding is that section 28(1) of the Act does not apply to exempt the records.
Section 28(5)(a) - The Public Interest
Even if I am incorrect in my finding that the names of the members is not personal information, section 28(5)(a) provides that the exemption can be set aside if, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual, to whom the information relates, should be upheld. On the matter of where the balance of the public interest lies, I note that the FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The Supreme Court, in the Rotunda case mentioned above, outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Thus, in considering section 28(5)(a), it is important to distinguish private interests from true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. The applicant contended that his request does not serve any private interest and set out the motive for the request as being in the interests of transparency of the operation of the Common Fisheries Policy and its implementation in Ireland. The terms of section 8(4) of the FOI Act make it clear that, subject to the provisions of the Act, the reasons that a requester gives for a request shall be disregarded. However, it is appropriate to consider whether a "true public interest" can be identified which would be strong enough to outweigh the public interest in protecting the privacy of individual members.
The applicant, in several submissions, dealt with the public interest and the status of the POs in the context of what he termed "their privileged position, access to public funds and their influence in policy formation." He drew attention to Regulation (EU) 1379/2013 on the Common Organisation of the Markets in Fishery and Aquaculture Products and stated that POs enjoy significant privileges associated with the Common Fisheries Policy and the Common Organisation of the Markets. The Department stated that it is obliged under EU legislation to consult and liaise with POs. Furthermore, the Department stated that fish quotas are not managed by POs; they are a state asset, allocated by the Minister and in which POs have no direct role in allocation. The Department also said that membership confers neither privilege nor special status on a PO. I accept that I have no basis for finding that any disbursement of public funds at this time is dependent upon the lists of the 2013 membership. It is also the case that the promotion of openness and accountability has been served to some extent by the Department's release of information about the vessels represented and by the publication of the Fleet Register as discussed above. However, the reality is that each PO is made up of its members and it seems to me that the members of POs are facilitated in having significant input into public policy in relation to the fishing industry in Ireland. While this may well arise as a direct result of the EC's policies on representation and funding, the fact remains that the POs have access and influence which other stakeholders (including vessel owners who are not members of POs) do not have.
I consider that there is a public interest in the promotion of openness and accountability at issue here in relation to how the Department manages its relationship with the Irish fishing industry. I consider that even if membership details are personal information within the definition discussed above - and I have found above that they are not - privacy rights are not particularly strong since they arise in a commercial context. I note that the Courts have given some consideration to the relevance of the constitutional right to privacy in relation to business dealings. Hanna J stated in Caldwell v. Mahon  3 I.R. 542 that such a right operates at the "outer reaches of and at the furthest remove from the core personal right to privacy". McGovern J in Slattery v. Friends First Life Assurance Company  IEHC 136 interpreted this statement as entailing that such a right "may readily be qualified by countervailing considerations."
On balance, I consider that the public interest in granting access to the records outweighs the public interest in upholding the right to privacy of those individuals to whom the information relates. This is relevant only to those parts of records which provide individuals' details, as opposed to those of companies or other entities which cannot be held to be personal information in the first place.
I find therefore that the Department has not justified its decision to refuse access to the records on the basis that section 28(1) applies.
Section 27(1) of the FOI Act provides for the mandatory refusal of three different classes of commercially sensitive information. Section 27(1)(a) provides for the refusal of trade secrets of a person other than the requester concerned, and has no relevance to the case at hand. Section 27(1)(b) provides for the refusal of 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. Section 27(1)(c) provides for the refusal of information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The third party submissions made reference to section 27 and commercial sensitivity; however, the Department did not rely on this exemption in refusing the request. For the sake of completeness I should say here that I have no basis to make a finding that disclosure of the membership details at issue could reasonably be expected to result in any loss or gain to the owners involved, could prejudice their competitive position, prejudice contractual or other negotiations such that the section 27 exemption would apply.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's decision and direct the release of the records.
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 on which notice of the decision was given to the person bringing the appeal.