Case number: OIC-53481-W6M0K7 (190207)
21 October 2019
I will firstly set out some background information in order to give some context for my decision in this case. The grant recipient is a charity whose main responsibility is the distribution to its member organisations of funds provided by the Department via Irish Aid. It was incorporated under the Companies Acts as a company limited by guarantee and not having a share capital. Further to a Strategic Partnership agreement with the Department, the grant recipient receives an annual grant from which it then allocates monies to development projects overseas. Such projects are proposed to it by member organisations and approved by it for funding. The Department performs an oversight role in relation to the grant recipient. In turn, the grant recipient has an oversight role in relation to its member organisations.
The media reported on allegations of child sexual abuse made against an individual in a member organisation (the Organisation) of the grant recipient. The Department says that it sought a full investigation into the matter, further to which the grant recipient commissioned an independent audit of services relevant to overseas projects provided by the Organisation. Generally speaking, the audit concerned the Organisation’s compliance with governance standards and policies for the protection of children and vulnerable adults. The grant recipient also suspended funding to the Organisation.
The Department requested the grant recipient to provide it with the full list of findings and recommendations arising from the audit. The grant recipient provided the Department with a redacted copy of the report.
The applicant’s FOI request to the Department of 21 February 2019 sought a copy of the grant recipient’s report. The Department’s decision of 22 March 2019 refused the request under section 35(1)(a) of the FOI Act (information provided in confidence). The applicant sought an internal review of this decision on 3 April 2019. The Department’s internal review decision of 30 April 2019 affirmed its refusal. On 2 May 2019, the applicant applied to this Office for a review of the Department’s decision. During the review, the Department also sought to rely on sections 32(1)(a)(iv) (prejudice to the fairness of court proceedings) and 32(1)(b) (endanger the life or safety of any person) of the FOI Act.
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 correspondence between this Office, the Department and the applicant. I have also examined the record at issue and I have had regard to the provisions of the FOI Act.
My review is confined to whether the Department’s refusal to grant the applicant’s request was justified under the provisions of the FOI Act.
At the outset, I note that the applicant is of the view that the Department generally tends towards refusing FOI requests and that I should take this into account in making my decision in this case. It would not be appropriate for me to do this. I have made my decision having regard to the particular facts and circumstances of this particular case.
Section 35(1)(a) – confidential information
It is not apparent that section 35(2), which provides for certain circumstances in which section 35(1) cannot apply, is relevant in the circumstances of this case. Section 35(1)(a) must be applied to a record containing information that was:
All of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a). I have considered the third and fourth requirements above in the context of the relationship between the grant recipient and the Department. The Department says that its oversight of the grant recipient involves regular ongoing communication. It holds an annual meeting with the grant recipient’s management and the Chair of its Board. It conducts an Annual Review Appraisal of the grant recipient’s work, which looks at technical aspects and quality and design of projects, budget and finance, risk analysis and organisational performance and capacity. It has carried out a Monitoring Visit to certain projects. At the time of its submission, it says that it plans to conduct an independent external audit in the third quarter of 2019. The Department says that a Memorandum of Understanding (MoU) and an annual contract are in place with the grant recipient. The MoU contains a number of organisational benchmarks that the grant recipient is expected to report against annually. The contract contains a number of provisions whereby the Department can terminate the agreement and seek a refund of monies from the grant recipient if considered appropriate.
The grant recipient is required to provide the Department with an annual financial and narrative report within three months of the end of the contract period. The narrative report concerns annual developments and challenges and also comments on results frameworks, monitoring and evaluation and governance and risk. The financial report concerns budgets, expenditure reports, organisational and financial information and updates on matter such as safeguarding compliance.
The Department says that the grant recipient is not required to provide internal audit reports. It says that it sought the report the subject of this FOI request to assess the grant recipient’s management and oversight of the issues that arose in the particular Organisation, which has wider implications for the grant recipient’s oversight of other partnerships. In this regard, it refers to a provision in the contract with the grant recipient regarding the furnishing of information that the Department may from time to time reasonably require. The Department says that it was satisfied with the grant recipient’s systems approach and that it is for the grant recipient and its Board to determine how it engages with the Organisation in the future on the basis of its own procedures.
The Department says that releasing the requested report will impair its receipt of full and frank information from grant recipients. It says that this in turn will impact on its future decision making on funding and on management issues.
The applicant says that it would have been highly unlikely that the grant recipient would have been permitted to refuse to give the report to the Department. He says that it would have been implicit from the requirements of Irish Aid funding that the Department would have to ensure that the grant recipient and all grant recipients were meeting required standards.
I have no reason to doubt that audit reports such as that at issue in this case are not generally provided by the grant recipient to the Department. However, I agree with the applicant that it was in the grant recipient’s interests to provide the Department with the report in order to ultimately ensure that its own funding arrangements with the Department were not terminated. It is not apparent to me why the grant recipient, or other organisations to which the Department has given funding, would refuse to provide the Department with similar information even if the report in this case was to be released. I am not satisfied that the third test of section 35(1)(a) is met in this case.
I find that section 35(1)(a) does not apply to the report given my findings in relation to the third and fourth requirements of this provision.
Section 32(1)(a)(iv) – fairness of court or other proceedings
Section 32(1)(a)(iv) provides that an FOI body may refuse access to a record if it considers that such access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. Under section 32(1)(a)(iv), the Department should first identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue. The provision also requires consideration of whether such expectation of harm arising is reasonable.
The Department says that it is possible for legal proceedings to be brought in the future and that disclosure of the report could impair the fairness of such proceedings. However, the mere possibility of legal proceedings is not a sufficient reason for me to find that section 32(1)(a)(iv) applies.
I find that section 32(1)(a)(iv) does not apply to the report.
Section 32(1)(b) – endanger life or safety
Section 32(1)(b) provides that an FOI body may refuse access to a record if it considers that such access could reasonably be expected to endanger the life or safety of any person. This exemption is not commonly used and it should not be applied without careful consideration having been given to whether the expectation of endangerment is a reasonable one in all the circumstances. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will definitely occur, but the FOI body must show that there is a reasonable expectation of such harm arising.
The Department says that organisations will be less likely to share confidential and sensitive audit reports such as the one at issue if it is released. It also says that victims of abuse may be less likely to come forward and report their abuse if their anonymity cannot be guaranteed by the organisations. It says that accordingly disclosure of the report could endanger the security and life of potential victims.
As I have already said in relation to section 35(1)(a), it seems to me that it is in the grant recipient’s interests to provide the Department with all information that it requires. In any event, it is not clear to me how any reluctance on the grant recipient’s part to provide the Department with information relevant to the latter’s oversight functions is relevant to my consideration of section 32(1)(b). Furthermore, the Department’s arguments are of a general nature and do not deal with the specific contents of the requested record. It has not referred me to any information in the report that could reasonably be expected to identify any individuals alleged to have been victims of abuse.
I find that section 32(1)(b) does not apply to the report.
Given the particular content of the report and the circumstances of this case, including the potential impact on the interests of third parties, it was considered appropriate to examine whether the mandatory exemptions in sections 36 (commercially sensitive information) and/or 37 (personal information) of the FOI Act apply. This Office told the applicant that these issues arose and invited him to make submissions, which he did.
Section 36(1)(b) – commercially sensitive information
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". 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 applicant says that media reports prompted the independent audit in the first place. He says that the facts of the matter are already in the public domain and that any reputational damage or impact to fundraising has already been incurred. He says that it is not the report itself that would have caused such damage but rather the actions and circumstances that led to the commissioning of the report on foot of media coverage. He also says that the report should not be withheld on the basis that disclosure might lead to negative media reports.
The standard of harm that is required for section 36(1)(b) to apply on the basis that disclosure of the information could prejudice an entity’s competitive position in the conduct of its business is low. Release of records under FOI is equivalent to publishing them to the world at large. I accept that charities compete with each other in raising funds from the general public. In my view, granting the request will place considerably more information into the public domain about the Organisation’s compliance with various standards than is already publicly known. I accept that allegations about a member of the Organisation were reported on by the media. However, I regard the release of information in the audit report as different from and additional to the information reported. I accept that disclosure of the report to the world at large could affect the Organisation’s reputation amongst current and potential donors. In turn, I accept that this could affect the Organisation’s ability to fundraise or otherwise obtain donations and thus could prejudice its competitive position vis a vis other charities.
I find that section 36(1)(b) applies to the report in full.
Exceptions to section 36(1)(b) - sections 36(2) and (3)
I do not consider section 36(2) to be relevant in this case. In relation to section 36(3) and on where the public interest lies, I have had regard to the comment by the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 (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 it to be relevant to consideration of public interest tests generally.
The applicant says that the report is a key element of accountability in respect of the relationship between the Department and the grant recipient. He says that substantial funding is awarded to the grant recipient, which in turn awarded funding to the Organisation, on the basis that various conditions are complied with such as those requiring adherence to policies relating to safeguarding. He says that both the grant recipient and the Organisation are aware that the Department is an FOI body and has increased obligations regarding transparency in matters concerning the payment of public monies. He also says that charities that are in receipt of public funds through State grants or individual donations have an obligation to transparency in their operations.
Some of the applicant’s arguments reflect the public interest that is recognised by the FOI Act in promoting openness and accountability regarding how FOI bodies perform their functions. In this case, this extends to a public interest in revealing information about how the Department decides on applications made to it for grants and about how the Department performs its oversight role in relation to grant recipients.
The fact that the public may donate monies to or otherwise give funding to a charity does not equate to a true public interest in the disclosure under FOI of information concerning that charity on the lines envisaged by the Supreme Court in the Rotunda case. Furthermore, a true public interest in the grant of an FOI request does not exist simply because it may be of interest to the public generally to know what is in a record.
It is important to note that the report does not of itself reveal anything about the Department’s decision making process in relation to grant applications. Clearly, it relates to the Department’s oversight role, in that it is the information that the grant recipient provided to it regarding its own role in relation to the governance issues in the Organisation. However, it does not show what consideration the Department gave to the report. Neither does it provide any insight into how the Department decided that it was satisfied with the steps that the grant recipient had taken in respect of the Organisation. Rather, the report derives from the grant recipient’s performance of its oversight role in relation to the Organisation, and focuses directly on the Organisation. Overall, it seems to me that these factors reduce the weight of the public interest in the report’s disclosure.
On the other hand, section 36(1)(b) itself reflects the public interest in the protection of records containing information that could prejudice an entity, including a charity’s competitive position in the conduct of its business. The Commissioner accepts that there is a legitimate public interest in persons being able to engage with FOI bodies without fear of suffering commercially as a result. He 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.
The Commissioner has also made it clear that third parties should have a diminished expectation of privacy or confidentiality in relation to business arrangements they have entered into with FOI bodies for the provision by them of goods, services, etc., particularly with respect to the payment to them of public monies. Accordingly, the public interest does not necessarily weigh in favour of protecting all information concerning such arrangements. Generally speaking, the Commissioner considers the public interest to weigh in favour of disclosure in the public interest of details that enable scrutiny of the arrangements entered into by the FOI body and for views to be formed on whether contractual requirements have been met and whether value for public money was achieved. Thus, for instance, the public interest generally weighs in favour of disclosing contracts and details of payments made.
While the arrangement between the Department and the grant recipient is not a business arrangement in the normal sense of the term, it nonetheless involves the payment to the grant recipient of public monies on foot of its being a party to a contract and MoU with the Department. Generally speaking, it seems to me that there is a public interest in the disclosure of records relating to this particular relationship. However, as I have already explained, the report derives from the grant recipient’s oversight of the Organisation and contains commercially sensitive information relating to the Organisation.
Having considered the matter carefully, I do not consider that, on balance, the public interest in promoting openness in relation to the Department’s performance of its functions would be sufficiently served by the disclosure of the report to require such disclosure under section 36(3) of the FOI Act.
Although it is not strictly necessary for me to consider the matter further I am also satisfied that section 37 applies to parts of the report which comprise personal information relating to identifiable individuals. I note that the Department says that the version of the report which the grant recipient provided to it does not seem to guarantee anonymity. The applicant accepts that names may be redacted from the report to protect the privacy of the persons concerned. While names have been redacted from the report as held by the Department, I am satisfied that individuals are nonetheless identifiable from the remaining content and context of parts of it. I am satisfied that such parts comprise personal information relating to identifiable individuals and are exempt under section 37(1).
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. I am satisfied that the public interest in favour of granting the request does not outweigh the public interest in protecting against the significant invasion of privacy that would result from placing the personal information concerned in the public domain. In this regard, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the report 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.