Case number: OIC-127650-W6Q6G9
6 December 2022
The applicant’s FOI request of 31 May 2022 sought access to correspondence sent by the Housing Agency (the Agency) to the CRA regarding regulatory requirements of Approved Housing Bodies (AHBs) from 2017-2019. He also sought particular correspondence between the Agency and the CRA regarding AHBs’ non-compliance with regulatory requirements.
On 28 June 2022, the CRA part-granted the request. It granted access to record 1 and withheld the remaining 19 under section 30(1)(a) (investigations of an FOI body).
The applicant sought an internal review on 25 July 2022. The CRA’s internal review decision of 18 August 2022 granted access to records 2, 7, and 9-11, and affirmed its decision on the remainder.
On 25 August 2022, the applicant applied to this Office for a review of the CRA’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it 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 CRA and the applicant, as well as to the contents of the records at issue and the provisions of the FOI Act.
The scope of this review is confined to whether the CRA’s refusal of access to records 3-6, 8 and 12-20 was justified under the FOI Act.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply if the copy provided for thereby would be misleading (section 18(2) refers).
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.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large.
I have also had regard to the comments of the Supreme Court’s judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors,  IESC 57  (the eNet judgment). The Supreme Court said “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner  IESC 35, Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
The CRA appears to rely solely on section 30(1)(a) of the FOI act. However, in discussing the public interest, its internal review decision refers to the need to protect commercially sensitive information. Its submission to this Office says also that release of the records, before its investigation has concluded, may inadvertently cause reputational damage to an entity under investigation. In the circumstances, and having regard to the content of the records, I will firstly consider the mandatory section 36(1)(b) of the FOI Act (commercial sensitivity).
Section 36 – commercial sensitivity
Section 36(1)(b) – commercial sensitivity
Section 36(1)(b) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other 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 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". This Office takes 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.
Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that access to a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
The parties’ submissions
I invited the applicant to comment on the potential relevance of section 36(1)(b), but I have received no response. His other correspondence says that he also made an FOI request to the Agency. He says that he was granted partial access to records dating back to 2018 that relate to those under review, and that the Agency’s decision did not refer to any ongoing investigation. He says that, in any event, any such investigation would presumably have concluded by now.
The CRA’s submission describes the investigations that it says are still being carried out in relation to the concerns received. It says that those investigations were prolonged due to Covid-19 restrictions and other issues. It says that the investigations are expected to conclude shortly, but that correspondence remains ongoing at this point. The CRA maintains that to release the records before its official findings are made could have an adverse effect on an organisation under investigation and may inadvertently cause reputational damage.
Section 25(3) precludes me from describing the withheld records to any extent other than to say that they set out the issues raised by the Agency with the CRA in relation to an AHB’s activities, and various supporting material.
While the records all date from 2018, I have no reason to dispute the CRA’s position that its investigation into these issues has yet to conclude. It is relevant that, while AHBs are part of the State's response to the delivery of housing, they are also private entities operating in commercial spheres.
I accept that the disclosure, to the world at large, of information about a State body’s ongoing investigation into an entity’s activities could have reputational and other commercial impacts for the entity. I accept that such an outcome could prejudice that entity’s competitive position in the conduct of its business.
I find that section 36(1)(b) applies to records 3, 4, 6 and 13-17 in full, and to the following:
However, that does not conclude the matter. Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that access to a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
Section 36(2) - exceptions to section 36(1)
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. The applicant does not argue that section 36(2) applies. In any event, I am satisfied that none of the circumstances identified at section 36(2) arise.
Section 36(3) - the public interest
In relation to the public interest test contained in section 36(3), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.
However, in the eNet judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests.
As noted above, the applicant contends that any CRA investigation should have concluded by now. The CRA notes the public’s right to have access to information, and also that there may be substantial public interest in relation to a concern raised with it about an AHB. It says that granting the request would enable understanding of the issues involved, and would promote openness and transparency regarding the CRA’s performance of its functions. However, it says that it is not in the public interest to disclose the records before all investigations are finalised due to the reputational harm that this may cause.
I accept that disclosure of the records would reveal the issues raised by the Agency with the CRA, and the nature of the CRA’s investigation. Disclosure would give some insight into the relevant AHB’s capacity to help deliver housing as envisaged by the State. The released records do not contain such information.
On the other hand, I accept that disclosure of the records would place commercially sensitive information in the public domain. The AHB sector’s important role in the provision of housing generally does not of itself give me a basis for directing that the records should be disclosed in the public interest, particularly when the CRA investigation has yet to conclude. Neither is it appropriate to direct release of the records on the basis of any expectation that the CRA investigation should have concluded by now.
Having regard to the nature of the withheld information, I am aware of no public interest factors in favour of its release that, on balance, outweigh those in favour of withholding the information. I find, therefore, that section 36(3) does not apply.
Section 30(1)(a) – prejudice to investigations
I will now consider section 30(1)(a) into the remaining withheld information i.e. the remainder of records 5, 8, 12, 18, 19 and 20.
Section 30(1)(a) provides that head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1)(a) is subject to the public interest test at section 30(2) of the FOI Act.
Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits or prejudice the "procedures or methods employed for the conduct thereof”. It should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. It should then, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report.
In inviting the CRA’s submissions generally, I asked to explain why at least some records could not be released subject to redactions. The CRA says that no records relating to any ongoing investigation should be released until the matter is finalised, in order to prevent prejudice to the investigation.
It is not appropriate to apply section 30(1)(a) for the sole reason that a record relates to an ongoing investigation. The remainder of records 5, 8, 12, 18, 19 and 20 are largely administrative, or refer to the functions of the relevant FOI bodies. While I accept that the remainder of the email of 18 December 2018 (records 19 and 20) refers to the investigation, it does so in high level terms. The CRA’s submission does not explain how release of such details could reasonably be expected to harm either its investigation or its investigation procedures. It is not apparent to me how such outcomes could arise and I find that section 30(1)(a) does not apply. There is no need for me to consider the public interest test at section 30(2) accordingly.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the CRA’s decision. I affirm its refusal of records 3, 4, 6 and 13-17 in full, and the details below, on the basis that section 36(1)(b) of the FOI Act applies:
I annul the CRA’s refusal of the remainder of records 5, 8, 12, 18, 19 and 20, and I direct it to grant access to these excerpts.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.