Case number: OIC-135391-V5V5R5
13 June 2023
In a request dated 16 December 2022, the applicant sought access to a copy of a fire safety report prepared by a named contractor (‘the Contractor’) relating to fire detection systems, alarm systems and emergency light systems at the Hospital. In a decision dated 18 January 2023 the Hospital refused access to the applicant’s request on the basis of section 36(1)(b) relating to commercially sensitive information. The decision-maker referred to an upcoming tender process and indicated that the technical nature of the report at issue, allied with the fact that works were due to be undertaken in the near future, would affect the competitive position of third parties.
On 29 January 2023 the applicant sought an internal review of this decision. On 10 February 2023 the internal reviewer affirmed the original decision. The internal reviewer also indicated that, in addition to section 36, she was relying on section 35(1)(a) and (b) to refuse access to the report at issue.
On 13 February 2023, the applicant applied to this Office for a review of the Hospital’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by the Hospital in support of its decision. In light of the nature and contents of the record at issue, I notified the Contractor of the review and invited it to make a submission on the matter. I have had regard to the submission it subsequently made. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review by this Office, the Hospital indicated that it was no longer seeking to rely on section 36(1)(b) in this case, but was maintaining its reliance on section 35 to refuse access to the report in question. However, in its submission to this Office, the Contractor raised arguments which I consider to relate to section 36(1)(a). Therefore, while that provision was not previously relied on by the Hospital, for completeness, I consider it appropriate to consider it as part of my review.
This review is therefore solely concerned with whether the Hospital was justified in refusing access to a fire safety report on the basis of sections 35 and 36(1)(a) of the FOI Act.
The record at issue comprises a 33-page report prepared by a third party Contractor following an inspection of the fire detection systems, alarm systems and emergency light systems at the Hospital. The report highlights areas of non-compliance with relevant statutory requirements and standards for fire detection, alarm systems and emergency lighting and proposes measures which could be taken by the Hospital to address areas of non-compliance and to modernise the technology currently used. In the course of correspondence with this Office, the Hospital said that a tender process has recently concluded to appoint a contractor to install new fire detection and alarm and emergency lighting systems at the Hospital.
In his submission to this Office, the applicant argued that it is impossible to see how the contents of a factual report on fire safety at the Hospital could be commercially sensitive. The applicant also referred to the minutes of a meeting of the Board of the Hospital which took place on 7 July 2022 and which were publically available on the Hospital’s website. The applicant referred to a reference in these minutes stating that it would cost €2.4 million to implement the findings as set out in the Contractor’s report, of which €250,000 was to be provided in 2022 to engage fire consulting contractors.
Section 36(1)(a) provides for the refusal of a request where the record sought contains trade secrets of a person other than the requester. This Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication.
As set out above, in the course of my review, I contacted the Contractor who prepared the report at issue and offered it an opportunity to make submissions in relation to the possible release of the record. In the course of its response, the Contractor referred to what it termed ‘Intellectual Property’ in the template report. It said that over the past twelve years the company has formatted the report template to very specific requirements reflective of end user statutory obligations, service provider contractual obligations and various standards requirements. The Contractor said that the report template is unique to the company and facilitates the electronic gathering of a substantial amount of information in a cost competitive time period. The Contractor further indicated that the commercial value of the report is reflected in the fact that it is only circulated to a limited number of people such as the end user and service providers. I consider these arguments to constitutes arguments relevant to section 36(1)(a).
The Commissioner accepts that an exact definition of a trade secret is not possible and that some factors to be considered in determining whether information is a trade secret are: (1) the extent to which the information is known outside of the business concerned; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information;(4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
In the current case, although the Contractor refers to its intellectual property in the report template, it does not elaborate on this point or identify any particular information within the record which could qualify as a trade secret. Neither is such information apparent to me on my own examination of the record. In the circumstances, there is no basis for me to find that section 36(1)(a) applies.
The Hospital submits that the record at issue contain information provided in confidence and is exempt under sections 35(1)(a) or (b) of the FOI Act.
Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. For the exemption to apply, it is necessary to show the following –
Section 35(1)(b) of the Act provides that an FOI body shall refuse to grant an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law. 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).
Section 35(2) serves to disapply section 35(1). That section provides that subsection (1) does not apply to a record that is prepared by a member of the staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider. Section 2 of the FOI Act defines “service provider” as “a person who, at the time the request was made, was not an FOI body, but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person”.
In its submission to this Office, the Hospital indicated by way of background that the tendering process is now complete and a successful contractor has been appointed. As part of the tendering process the Hospital said that the tender specification was circulated based on the report at issue, however, the report itself was not circulated. It said that it still considered section 35(1) to apply to the report as the Contractor had developed and follows a particular template when conducting such assessments and the company would not wish for the report to be released into the public domain.
In the course of its submission to this Office, the Contractor said that the report reflects the company’s assessment of the life safety systems in a particular location and examines matters such as the age or lifecycle of systems, the condition of equipment and the compliance of systems with relevant Irish standards. As such, the Contractor argued that the report contains information provided in confidence. The Contractor further indicated that following the site inspection, the information gathered is discussed with managers and maintenance staff on the understanding that the information is restricted to the parties involved. The Contractor said that parties would not participate in the process if report findings were publically available as this would have commercial and reputational impact. Finally, the Contractor said that if the report were to be released it would result in the company ending any future engagement to provide similar reports.
As section 35(1) does not apply if the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. The Hospital has not identified an entity other than an FOI body or the Contractor to whom a duty of confidence is owed. Having examined the contents of the record I do not see how disclosing the information contained therein would constitute a breach of a duty of confidence which is owed to a person other than an FOI body or a service provider. I find therefore that section 35(2) disapplies section 35(1).
While it is therefore not necessary for me to examine the applicability of section 35(1) to the record at issue, I consider it appropriate to say that I do not accept that the report prepared by the Contractor can be said to have been given in confidence and on the understanding that it would be treated as confidential. In particular, it would be difficult to accept that an understanding of confidence could reasonably be expected to exist in relation to fire safety issues. In addition, the Hospital itself has indicated that the subsequent tender for works to upgrade the fire detection systems at the Hospital was based on the information set out in the report. Further, I do not consider it reasonable that if the record at issue were to be released that the Contractor would cease its engagement to provide similar reports. Equally, I am not satisfied that disclosure would constitute a breach of a duty of confidence under an agreement or statute or otherwise by law.
Accordingly, I find that the Hospital was not justified in refusing access to the record at issue under sections 35(1)(a) or 35(1)(b) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s decision. I find that the Hospital was not justified in refusing access to the fire safety report prepared by the Contractor and direct its release.
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.