Case number: 180279
28 March 2019
In pertinent parts, the applicant's FOI request to the Department of 3 April 2018, as clarified on 4 April 2018, sought copies of all correspondence between the Department and Apple Inc. (Apple) and Google relating to taxation, lobbying and meetings with officials and/or the Minister from 25 January 2018 to 3 April 2018.
The Department's decision of 1 May 2018 concerned two records relating to Apple. It refused access to these records under sections 30(1)(c) (negotiations of an FOI body), 33(1)(d) (international relations of the State), 35(1)(a) (confidential information), 36(1)(b) (commercially sensitive information), 36(1)(c) (negotiations of a third party), 37 (personal information), 40(1)(a) (national economy or financial interests of the State), 40(1)(b) (undue disturbance of the ordinary course of business in the State) and 40(1)(d) (unwarranted benefit or loss to a person or class of persons). The decision gave brief details as to why the Department considers these provisions to apply.
The Department's decision of 14 May 2018 concerned two records relating to Google. It refused access to them under sections 29 (deliberative process), 30(1)(c), 35(1)(a), 36(1)(b) and 37 but did not explain why it considered the exemptions to apply.
The applicant sought an internal review of the Department's decision on 15 May 2018. The Department's internal review decision of 6 June 2018 affirmed its refusal to grant access to the records. On 17 July 2018, the applicant sought a review by this Office of the Department's decision.
The review has taken longer to conclude than is normally the case. This was due to circumstances that I cannot disclose because this would itself disclose the content of the records. I should make it clear that the delay should not be interpreted as arising from any failure on the Department's part to engage with this Office or this review. To the contrary, the Department was at all times proactive in dealing with both this Office and the matter which arose.
While the Department confirms that it is no longer relying on section 33(1)(d), its submissions may be taken as arguing that section 35(1)(b) (duty of confidence) applies to the records as well as the other FOI provisions referred to above.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
This review is confined to whether the Department's refusal to grant access to the four records was justified.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in my analysis and reasoning is very limited.
The Department relies on sections 36(1)(b) in relation to all four records, and I will consider this provision first.
This Office's approach to section 36(1)(b)
Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner  IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.
While the applicant does not appear to dispute that section 36(1)(b) applies to the records, I will consider its application in any event.
The Department's decision on the two Apple records said that they concern negotiations regarding the recovery of the alleged State aid and contain commercially sensitive information relating to the company. Its decision on the two Google records did not explain why it considers section 36 to apply to them.
The Department's submission to this Office describes its reasons for refusing access to the four records in much more detail but, due to the requirements of section 25(3), I am unable to include such details in my decision. However, I am satisfied that the Department has explained how the terms of section 36(1)(b) are met. I should also say that while there are details in the records that concern the Department rather than the companies, I do not consider it appropriate to direct that partial access be granted to the records. Section 18 provides for the grant of access to parts of records with exempt information removed, provided that it is practicable to do so and that the copy provided is not misleading. However, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.
Exceptions to section 36(1)(b)
A record that is exempt under section 36(1) may be released if certain circumstances apply (section 36(2) refers), or if the public interest in favour of its release outweighs the public interest that it be withheld (section 36(3) refers). I do not consider section 36(2) to be relevant in this case.
In relation to section 36(3) and on the matter of where the public interest lies, I have had regard to the comment by the Supreme Court in the Rotunda case that a public interest is "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Although this comment was made in relation to another provision of the FOI Act, I consider that it is relevant to the consideration of public interest tests generally.
The applicant says that the two corporations have significant operations in Ireland and employ thousands of people. He says that there is a public interest in disclosing details of their interactions with a government department that is involved directly in policy-making that can either benefit or adversely affect the companies. He says that there is a public interest in citizens being able to access records concerning policy making that affects them, in public officials being held accountable and having their decisions scrutinised and in the public being better informed about the extent of interaction between these companies and policy makers.
The FOI Act recognises a public interest in promoting the openness and accountability of FOI bodies. In this case, granting access to the records under FOI (which is equivalent to placing them in the public domain) would disclose the exact nature of the Department's contacts with Apple and Google.
However, section 36(1)(b) itself reflects a public interest in the protection of records containing information that could prejudice a private company's competitive position in the conduct of its business. 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, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny.
Having given the matter careful consideration, in the particular circumstances of this case I find that, on balance, the public interest would be better served by refusing the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant access to the records under section 36(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.