Case number: 160081
This review arises from a decision made by QQI to grant access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the FOI body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) should be released in the public interest.
Where section 38 applies, the FOI body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the FOI body, may apply directly for a review of that decision to this Office.
The case has a complicated background which is quite difficult to set out clearly owing to the various errors and uncertainty around the handling of the request. This application for review arose as a result of the Commissioner's decision on Case No. 150347 (available at www.oic.ie), which found that the section 38 requirements had not been applied correctly. The Commissioner annulled the decision of QQI and directed it to undertake a fresh decision making process in accordance with the requirements of section 38.
QQI received an FOI request from the original requester on 26 November 2014, for access to "copies of inspection/recognition site visits and reporting you may have" on the accreditation and co-ordination of English language services. In dealing with the earlier review before this Office, QQI indicated that the original request had been received on a different date. Documentary evidence has now been provided which shows that the date of 26 November 2014 is the correct date. QQI indicated that it made a decision on the original request in March 2015, to refuse the request on the basis that section 15(1)(c) of the FOI Act applied.
Further to that, the original requester submitted an email to QQI on 25 March 2015, in which he sought access to "Copies of inspections carried out by your organisation in the last year, announced and unannounced". I note that QQI explained to this Office that it was dealing with several FOI requests involving the original requester. The sequence of events is confusing and the timelines are in conflict. I do not think any purpose would be served by setting out here all the various contacts. On the basis of the evidence now available to me, I am satisfied that this email of 25 March 2015 should be regarded as a new FOI request.
The FOI Act provides for a right of access to records held by an FOI body at the date on which the request is made, and an inspection report (the report) in relation to the applicant was one of those identified as relevant to the FOI request. Further to the Commissioner's decision referred to above, QQI wrote to the applicant in December 2015 and advised it of QQI's view that the report, which contained commercially sensitive and personal information relating to the applicant and some of its employees, should be released in the public interest. The applicant objected to this and made a submission to QQI. QQI issued its decision on 8 February 2016, informing the applicant that it had formally decided to grant access to the report.
The applicant wrote to the Commissioner on 22 February 2016 seeking a review of the decision of QQI, in accordance with the provisions of section 38 of the FOI Act.
In conducting this review, I have had regard to the submissions of the applicant, to the submissions of QQI, to the content of the records, and to the provisions of the FOI Acts. The original requester was invited to but did not make a submission. I have decided to conclude the review by making a formal, binding decision.
The scope of this review is to determine whether QQI's decision to release, in the public interest, information to which sections 36 and 37 of the Act applied, was justified. I must consider whether the report is exempt from release on the basis that section 36 and/or 37 applies, and, if so, whether the public interest would be better served by release of that information.
I appreciate that the operation of section 38 of the FOI Act can be complex and that it places heavy demands on FOI bodies as regards time limits. However, the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform publishes useful guidance and sample letters in relation to the operation of the FOI Act (including section 38) and it is difficult to understand why an FOI body would not have regard to such guidance or use the templates where relevant.
I note that the report at issue in this review refers to third parties, other than the applicant, who might be affected by the release of the report. There is no indication that QQI notified these parties of the request or of its decision on the matter, as it should have done in accordance with section 38. If this is the case, that proposed release of information in the public interest would truly affect their interests, these potentially affected third parties have not been afforded the right to seek a review of the QQI decision in accordance with section 38. In view of my decision as set out below, I did not consider it necessary to seek the views of these third parties.
Section 22(12)(a) of the FOI Act provides that where a decision to grant a request to which section 38 applies is being reviewed by the Commissioner, there is a presumption that the granting of the requested access is justified unless the person (to whom the information relates) shows to the satisfaction of the Commissioner that the decision was not justified. Thus, in this case, the onus is on the third party to satisfy me that QQI's decision was not justified.
Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extraction of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Section 18 shall not apply if the copy of the record provided would be misleading.
The Accreditation and Coordination of English Language Services (ACELS) is a voluntary scheme, set up in 1969, which is now operated by QQI. The scheme provides for recognition and inspection of English language teaching organisations. I note the outcome of proceedings in the High Court in National Employee Development Training Centre Ltd and Minister for Justice and Equality and QQI  IEHC 140, which found that the ACELS is not a statutory scheme.
In its decision, QQI found that the report relating to the applicant contained information to which sections 36 and 37 applied, but that the report should be released in the public interest in accordance with the provisions of section 38 of the FOI Act.
Section 36 Commercially sensitive information
Neither QQI nor the applicant clearly indicated which provision of section 36(1) was being relied on in taking the view that information in the report was commercially sensitive. Therefore, I have decided to consider all the provisions of section 36(1) in this review.
Section 36(1)(a) protects a record containing trade secrets of someone other than the requester. No argument has been put forward by the applicant that the report contains trade secrets. Having reviewed the report, I am satisfied that it does not contain any information which would be considered to be the trade secrets of any person. I find that section 36(1)(a) does not apply.
Section 36(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. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. 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 standard of proof required in the second part of the sub-section is relatively low in the sense that the test is not whether prejudice is certain to materialise but whether it could do so.
According to the applicant, the report contains information, the release of which, could result in reputational damage to the applicant and impact its future operations. It identifies the potential for competitors to use sensitive commercial information contained in the report to their advantage, and to the detriment of the applicant. It has identified this as a potential unfair disadvantage to those who participate in the ACELS scheme, when not required to do so. Having examined the information at issue, I am satisfied that report does contain information, the release of which could prejudice the competitive position of the applicant by revealing information which would not otherwise be known to competitors, and particularly where similar information is not potentially available about all competitors. I find that section 36(1)(b) applies to information in the report, including the identity of the applicant.
Section 36(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 could 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. No negotiations were identified by the applicant or QQI and there is no indication in the records of any relevant negotiations. I find that section 36(1)(c) does not apply.
Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.
The Public Interest
Having found that section 36(1)(b) applies to the information, section 36(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 FOI bodies as to how they conduct their business. However, section 36(1) itself reflects a public interest in the protection of commercially sensitive information. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, was not designed as a means by which the operation of private enterprise would be opened up to scrutiny. In considering the question of where the public interest lies under section 36(3), I must be mindful of the opinion of Macken J. in the judgment 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 IESC 26 [more commonly referred to as "the Rotunda Hospital case"], that the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
As noted above, the ACELS is a voluntary scheme and participants are subject to inspection, both announced and unannounced, for various reasons. There is no equivalent statutory registration or inspection scheme in place in this sector. Providers who do not participate in ACELS are not subject to inspection. There is no potential right of access to any information, such as that contained in the report, on non-ACELS providers, other than what they choose to make available/publish to potential students. In May 2015, QQI issued a statement regarding English language provider closures, available on the QQI website. It noted that, since April 2014, the sudden closure of colleges providing English language and other courses had featured in the media on a number of occasions. QQI referred to the financial and academic impact of these closures on students, in particular non-EEA students. QQI provided a summary of the ACELS status of the 16 colleges that had closed between April 2014 and May 2015. Only two had ACELS recognition at the time of the closure and the position relating to them is set out in the QQI statement. The applicant indicated that release of the information in the report would cause it to consider withdrawal from the ACELS scheme, given its voluntary nature.
My Office has made findings in other cases that led to the release of inspection reports of food premises, creches and private nursing homes. Those entities, however, are obliged by law to meet particular standards, which in turn are subject to enforcement by the relevant statutory agencies. In this instance, the ACELS providers are not providing a service on behalf of a public body. At this point in time, the Oireachtas has not legislated for mandatory regulation and inspection in the sector. I note that the release of the report would not serve the public interest in openness and transparency in how QQI conducts its business; neither would it cast any light on how public monies are spent.
Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how QQI carries out its functions is served to some extent by information which is already available. While it is clear that there are valid concerns about the operation of some providers in the sector, it is also the case that the ACELS scheme is not a statutory scheme. Therefore, in the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the information to which section 36(1)(b) applies to the extent that overriding the commercial sensitivity of that information would be justified.
Section 37 - Personal Information
Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information including information relating to the employment or employment history of the individual.
In this case the QQI refused access to some information, including names and details relating to qualifications of some staff, on the basis that this was personal information. Having examined the report, I am satisfied that it does contain some personal information and I find that section 37(1) applies.
Section 37(2) provides for the release of information to which section 37(1) applies in certain circumstances. I am satisfied that none of the circumstances identified at section 37(2) arise in this case.
I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.
Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. The FOI Act itself recognises a public interest in ensuring the openness and accountability of FOI bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 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"). It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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.
I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the report outweighs the public interest in granting the request. I find therefore that section 37(5)(a) does not apply in this case.
In its submission, the applicant also claimed that section 35 of the FOI Act applied. I note that QQI did not refer to section 35, either in consultation with the applicant or in its decision. Having considered the matter, I am satisfied that any information to which section 35 might apply is also information to which section 36 and/or section 37 has been found to apply and it is not necessary for me to deal with section 35 in this decision.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of QQI and find that the information in the report to which section 36(1)(b) and section 37(1) apply should not be released in the public interest.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.