Case number: 180165
26 September 2018
By email dated 14 August 2017 the applicant requested access to the following records, dating from 1 January 2012:
The Department granted the request in part on 11 September 2017. While it released a number of records, it refused access to others under sections 29(1), 33(1), 33(3), 35(1), 36(1) and 37(1) of the FOI Act. The Department also refused access to parts of certain records on the basis that the redacted information was outside the scope of the request.
The applicant sought an internal review of that decision on 6 October 2017. The Department varied its original decision on 27 October 2017. It released certain documents previously withheld under section 29(1), as well as three further documents identified as coming within the scope of the request. It affirmed the decision to refuse access to certain records, in whole or in part, under sections 29(1), 33(1), 33(3), 35(1), 36(1) and on the basis that the relevant information was outside the scope of the request.
By letter dated 24 April 2018, the applicant sought a review by this Office of the Department's decision in respect of records 3, 7, 8, 10 (the part comprising a five page email dated 19 December 2016 from a named third party), 12, 13 and 21, as listed in the schedule of records the Department provided with its internal review decision.
During the course of the review, the Department indicated that the release of records remaining at issue would constitute a breach of a duty of confidence owed to a named individual. Mr Flood of this Office subsequently informed the applicant of his view that the records at issue were exempt under section 35(1)(b) of the Act. The applicant was invited to submit his views in support of his position but, to date, he has not done so. I have therefore decided to bring this review to a close by way of a formal, binding decision. In conducting the review I have had regard to the communications between the parties, as above, and those between this Office and both the applicant and the Department on the matter. I have also had regard to the full contents of the records at issue.
Records 3, 8, 12, 13, and 21 were redacted on the basis that the relevant information was outside the scope of the applicant's request, as was part of record 10 (mid page 3 to end of page 4). The redacted information is concerned with matters other than the Hallmarking Amendment Bill and I am satisfied that it is, indeed, outside the scope of the request. Accordingly, I have excluded records 3, 8, 12, 13, and 21, and the relevant part of record 10 from the scope of this review. Accordingly, this review is concerned solely with whether the Department was justified in refusing access to record 7 and to the remainder of record 10 (hereafter "record 10").
I wish to make a number of comments before I address the substantive issues arising. First, while I am required by section 22(10) of the FOI Act to give reasons for my decision, I am also subject to the requirement of section 25(3) of the Act that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Therefore, the description that I can give of the records at issue, and the level of detail I can provide regarding the reasons for my decision, are limited.
Second, it is important to note that the courts have recognised that a decision by this Office is by way of a hearing de novo in light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date. It is appropriate, therefore, for me to consider the application of exemptions not explicitly claimed by the Department in its decision.
It should also be noted that section 2 of the Act defines “record” as including “anything that is a part or a copy” of a record. Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This form of access should be granted where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting 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.
In making my findings, I am also cognisant that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large.
Finally, I wish to comment on the Department's handling of the applicant's request in this case. The Department did not provide adequate explanations of the reasons for refusing to grant the applicant's request in full, either in its original decision or in its internal review decision, as is required under the FOI Act. Therefore, in accordance with section 23 of the Act, this Office instructed the Department to provide a fuller statement of reasons for its decisions. The Department subsequently provided the applicant and this Office with a detailed response to that letter. Separately, the Department made focused submissions for the purposes of the review.
Records 7 and 10 comprise e-mails between the Department and a named individual, whose identity has been disclosed to the applicant in the course of the processing of his request. The exchanges in question concern this individual’s views on the proposed hallmarking legislation. Given the nature of the correspondence it seems to me that section 35(1)(b) is of most relevance to the records. As such, I will consider that exemption first.
Section 35(1)(b) provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by agreement, enactment or otherwise by law. Section 35(2) provides that section 35(1) does not apply to a record which is prepared by a member of the staff of an FOI public body or service provider, unless disclosure of the information would constitute a breach of a duty of confidence owed to a person other than an FOI body or a member of the staff of an FOI body or service provider.
The named individual who corresponded with the Department is not a member of the staff of an FOI body or a service provider to the Department. However, parts of the records at issue were created by a staff member of the Department. In accordance with the provisions of section 35(2), therefore, I have considered whether the release of the records would constitute a breach of a duty of confidence owed to the named individual.
A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in Mahon v. Post Publications Ltd.  3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
“1. the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”; 2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it; 3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
This Office has adopted that approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence.
In its submissions to this Office, the Department stated that it initiated contact with the named individual to seek his views on proposed hallmarking legislation, given his status and experience as a specialist in the field and his acknowledged technical expertise in the matter. I note from record 10 that in response to the Department's request, the individual provided what he described as his "private comments".
In my view, the circumstances of this case are distinguishable from, say, an individual making an unsolicited submission in an effort to shape or influence legislative proposals. In such cases, it would generally be difficult for persons making such submissions to expect that their efforts to influence legislative proposals would be kept secret. Indeed, the Regulation of Lobbying Act 2015 obliges lobbyists to register and provide information about their lobbying activities.
In this case, the information at issue imparted comprises opinions and insights of the individual in question based on his technical knowledge and expertise and was submitted at the request of the Department. Having carefully considered the matter, I am satisfied that the Department and the individual understood the relevant exchanges to have been conducted privately, on an understanding of confidence. I accept that the information in question has the necessary quality of confidence about it in the circumstances of this case and that it was imparted in circumstances importing an obligation of confidence.
I am also satisfied that disclosure of the requested information under FOI would result in an unauthorised or wrongful use of the information that would be detrimental to the interests of the individual in question. Accordingly, I find that the requirements for an equitable duty of confidence are met in this case and that section 35(1)(b) therefore applies.
While section 35(1)(b) is not subject to the general public interest balancing test under section 35(3), it is established that the action for breach of confidence is itself subject to a public interest defence. The public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, no such public interest grounds arise in this case. Having considered the public interest defence, I find no basis on which to excuse a duty of confidence owed by the Department.
In summary, I find that records 7 and 10 are exempt from release under section 35(1)(b). Given my findings, I do not consider it necessary to examine any other exemptions claimed.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department. I find that records 7 and 10 are exempt from release under section 35(1)(b) of the FOI Act.
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.