Case number: OIC-56019-M1S7V1
17 January 2020
According to the website of the CCPC, the Cartel Immunity Programme (the Programme) provides a unique mechanism to help uncover cartels and provide witnesses for the criminal prosecution of cartel members. The Programme means that a member of a cartel may avoid prosecution, including fines and jail time, if they are the first member to come forward and reveal their involvement in illegal cartel activity before the CCPC has completed any investigation and referred the matter to the Office of the Director for Public Prosecutions (the DPP). In Ireland, the CCPC administers the Programme with the DPP.
In a request dated 5 April 2019, the applicant sought access to the following:
(1) The total number of applications for immunity to the Cartel Immunity Programme since 2002 received by the CCPC;
(2) The total number of applications for immunity granted since 2002,
(3) The number of prosecutions initiated on the back of applications to the programme since 2002, (4) The number of convictions achieved on the back of applications to the programme since 2002.
In a decision dated 17 April 2019 the CCPC refused access to the records sought under section 32(1)(a) which is concerned with matters relating to law enforcement. The applicant sought an internal review of that decision, following which the CCPC affirmed its original decision. On 27 August 2019, the applicant sought a review by this Office of the CCPC’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 correspondence between the applicant and the CCPC as set out above and to correspondence between this Office and both the applicant and the CCPC on the matter. I have now decided to conclude this review by way of formal, binding decision.
This review is concerned solely with whether the CCPC was justified in refusing access to the four categories of information sought by the applicant relating to the Cartel Immunity Program.
Before I address the substantive issues arising, I would like to make a number of preliminary points.
Firstly, 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. In light of that requirement, the descriptions I can give of the CCPC’s arguments in support of its refusal of the request and of the reasons for my decision are extremely limited in this case.
Secondly, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I have considered the various exemptions cited by the CCPC in support of its refusal of the request during the course of this review, notwithstanding the fact that it did not originally seek to rely on all such exemptions when it made its decisions on the request.
Finally, it is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
In its submissions to this Office the CCPC relied on sections 15(1)(a), 30(1)(a), 32(1)(a)(i), 32(1)(a)(ii), and 35(1)(a) of the Act in support of its refusal of the request. It also argued that section 42(f) was applicable on the ground it treats information received through the Programme as belonging to the DPP.
In its submissions the CCPC argued that section 15(1)(a) applies to parts three and four of the applicant’s request as it holds no relevant records. That section provides for the refusal of a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The CCPC said that is does not maintain statistical records on the number of prosecutions initiated or criminal convictions achieved by the DPP on the basis of evidence submitted to it through the Programme. It said the information sought concerns the functions of the DPP and/or the criminal courts and that the decision to prosecute is at the sole discretion of the DPP. It said the decision to prosecute is made following the consideration of a number of factors and it cannot infer the weight attached by the DPP to evidence obtained under the Programme. In relation to part four, the CCPC said there was no direct causal link between making an application under the Programme and securing a criminal conviction for the commission of a cartel offence and that it would not, therefore, hold the information sought.
I accept the CCPC’s explanation as to why it does not hold the information sought. I find, therefore, that it was justified in refusing parts 3 and four of the applicant’s request under section 15(1)(a) on the ground that the records sought do not exist.
While the CCPC cited a number of exemptions in support of its refusal of part one and two of the request, I propose to consider the applicability of section 32(1)(a)(i) in the first instance, as the primary exemption upon which the refusal was based. That section provides for the refusal of a request if access to the record sought could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters.
Where an FOI body relies on section 32(1)(a), it should firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how the release of the record concerned could reasonably be expected to cause the harm which it has identified.
Section 32(1)(a) is also subject to a limited public interest test where certain specified circumstances arise.
The applicant argued that as the records sought relate only to statistics there is “no way its release could harm the work of the CCPC or the DPP”. He further argued that there is a significant public interest in the release of material which outweighs any harm to the CPPC. He argued that the granting of immunity to potential offenders is an extraordinary measure and there is a strong public interest in knowing how often it occurs.
The CCPC said its functions are set out in section 10 of the Competition and Consumer Protection Act 2014. Among other things, it is responsible for investigating breaches of Irish and European competition law and the enforcement of the Competition Act 2002. It said cartels are considered “hardcore” competition law infringements, in part because the secret nature of the cartel means that the victims are often unaware that they are being harmed. It said in practice, relevant offences are prosecuted on indictment in the Central Criminal Court where offenders face up to 10 years in prison if convicted.
The CCPC said immunity programmes are a crucial tool for detecting, investigating, and prosecuting cartels. Given the secret nature of cartels, it said the information and evidence obtained via immunity programmes is invaluable to investigating, and ultimately proving, cartel offences.
The CCPC explained that the Programme incentivises cartel participants to self-report their involvement in an illegal cartel. It said that an individual or undertaking who wishes to obtain immunity from prosecution for participation in a cartel may do so if they provide sufficient evidence to it and are the first participant in the alleged cartel to satisfy the requirements for immunity.
The CCPC argued that the disclosure of the information sought, namely the number of applications to the Programme received by the CCPC and the number granted, would undermine the investigation of offences of cartel participation. It argued that such disclosure increases the opportunity for potential applicants to draw more informed conclusions as to the likelihood of their chances of receiving immunity. While I believe that I am constrained by section 25(3) of the FOI Act from giving a more detailed explanation, I accept the CCPC’s argument concerning the drawing of informed conclusions by potential applicants. I also accept that this could reasonably be expected to prejudice both the prevention and detection of alleged cartel offences and the effectiveness of the procedures employed by the CCPC for the investigation of such offences, namely the Programme itself.
I find, therefore, that section 32(1)(a)(i) applies to the information requested at parts one and two of the request. This is not a standard public interest balancing test that can be found in other exemptions within the Act. The balancing test may be carried out only where certain circumstances described in section 32(3) arise. I am satisfied that none of the relevant circumstances arise in this case.
In conclusion, therefore, I find that the CCPC was justified in refusing access to parts one and two of the applicant’s request under section 32(1)(a)(i) of the FOI Act. Having so found, I do not need to consider the applicability of the other exemptions cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CCPC to refuse access to parts one and two of the applicant’s request under section 32(1)((a)(i) of the FOI Act and to refuse access to parts three and four under section 15(1)(a) on the ground that the records sought do not exist.
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.