Case number: 99368
Case 99368. Appeal in respect of Department's decision to grant access to a record containing commercially sensitive information in the public interest of accountability of European funds - section 27(3)
ABC Organisation objected to the Department's decision to grant access to a record listing the quantity of fish withdrawals and carryover claims for a certain period. The Department found that the information was commercially sensitive but should be released in the public interest.
The Commissioner agreed with the Department finding that there was a strong public interest in enhancing the accountability for the expenditure of European funds. He also accepted that release of the record would not unduly impede the organisation's members from pursuing their business.
Our Reference: 99368
Dear Mr X
I refer to your application for a review of the decision of the Department of Marine & Natural Resources to grant access to a record relating to ABC Organisation. I apologise for the delay in dealing with your application.
I have now completed my review of the Department's decision. In carrying out that review I have had regard to your correspondence with my Office, the submission of the Department and the information the Department has decided to release.
My review is concerned solely with the question of whether the decision of the Department to grant access to a record listing the quantity of fish withdrawals and carryover claims from May 1998 to July 1999 is correct.
The Department's decision in this case was that the information is commercially sensitive but should be released in the public interest. I note that Mr Brian Fee, Investigator, wrote to you on the 27 September 1999 enclosing a copy of section 27 of the Freedom of Information Act, which relates to commercially sensitive information. Section 27(3) provides for the release of such information if "....in the opinion of the head concerned the public interest would, on balance, be better served by granting than by refusing to grant the request....".
I should also point out that section 34(12)(a) of the Act provides that in any review by me the Department's decision shall be presumed to be justified unless the person to whom the information relates "shows to the satisfaction of the Commissioner that the decision was not justified". In other words the onus is on the ABC as the person objecting to release of the information to show that, on balance, the public interest would not be better served by granting access to the record concerned.
In its submission to me the Department has listed the following factors which it took into account when deciding to release the record in the public interest :
I agree with the Department that these are significant factors favouring release of the record in the public interest.
In your correspondence with my Office you have contended that the "public monies" expended are European (FEOGA) monies as opposed to national exchequer funds. I do not see that there is less of a public interest in enhancing the accountability for the expenditure of European funds as compared with national funds. I believe that there is a very strong public interest in ensuring that such funds are allocated in an open and transparent way.
You have stated that "no meaningful analysis is to be derived from these figures" and you have also questioned the status of the requester, XYZ. In his letter of 27 September, Mr Fee drew your attention to section 8(4) of the Act which provides that the motivation of the requester in making a request may not be taken into account in deciding on the request. In other words, in cases like this one, it is irrelevant who has made the request.
Having regard to your arguments as set out above I find that you have not shown that the decision of the Department to release the record in the public interest was not justified as required by section 34(12)(a) .
Having completed my review under section 34(2) of the Freedom of Information Act, I have decided to affirm the decision of the Department of Marine & Natural Resources.
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 that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.