Case number: OIC-125045-J3F9W9
29 March 2023
The relevant part of the applicant’s FOI request to TCD on 5 December 2021 sought access to the “[f]unding given to Schools, per School, in 2018-2019 up until 2021-2022” (the request). TCD’s decision of 9 May 2022 refused the request under section 36(1)(b) of the FOI Act (commercially sensitive information).
The applicant sought an internal review on 15 May 2022. On 13 June 2022, TCD’s internal review decision said that it was affirming the refusal of the request under “section 36(1)” and cited sections 36(1)(b) and (c) (prejudice to negotiations).
On 14 June 2022, the applicant applied to this Office for a review of TCD’s decision. During the review, TCD also sought to rely on sections 30(1)(b) (functions relating to management) and 15(1)(d) (information already in public domain) 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, TCD and the applicant, as well as the details at issue and the provisions of the FOI Act.
The scope of this review is confined to whether TCD was justified under the FOI Act in refusing the applicant’s request.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request. Furthermore, my review does not extend to examining, making findings on or taking account of TCD’s budget decisions in general.
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.
Finally, I have 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 ( 2 I.L.R.M. 374,  2 IR 272,  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 exercise his inquisitorial remit to 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.
TCD now seeks to rely on section 15(1)(d), which provides that a head of an FOI body may refuse a request where the information is already in the public domain.
TCD says that it has published its financial statements on its website, containing substantial information relating to its expenditure i.e. the Summary Results/CFO report, the Statement of Comprehensive Income, and associated Notes breaking down staff costs and other operating expenses. It says that these statements provide sufficient insight into its expenditure and operating expenses to satisfy the request, and that no further information requires to be released.
Section 15(1)(d) applies where the particular requested information is in the public domain. This is not the case here. I find that section 15(1)(d) does not apply to the request.
Section 36(1)(b) – commercially sensitive information
Section 36(1)(c) – prejudice the conduct or outcome of negotiations
Some of TCD’s arguments overlap both of the above provisions; so, I will deal with them together.
Sections 36(1)(b) and (c) - general
Section 36(1)(b) must be applied to certain types of information, the disclosure of which 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.
Pursuant to section 36(1)(c), access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low, in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. However, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. The conduct and the outcome of negotiations are separate matters.
While section 36 enables the protection of third party commercially sensitive information, I accept that the provision can also be applied to information concerning an FOI body's financial or other interests.
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.
Positions of the parties
TCD’s original decision says that the disclosure of the requested “commercial and financially sensitive information … could cause a material financial loss to the College, Schools and Faculties.” It refers, in the context of the public interest, to faculties/schools “being able to manage their finances and receive necessary funding.” The decision does not elaborate further.
TCD’s internal review decision says that, “in addition to the reasons provided in the original decision”, disclosure of the requested details, without context to the funding by school, could result in students comparing and choosing alternative universities to TCD on the basis of a simplistic view that higher funded schools/disciplines provide better courses, causing a material financial loss to TCD.
The applicant says that the details are basic and historic, and disputes that they can be deemed to be commercially sensitive. He refers to publicly available quality reviews of TCD’s schools, which he says describe the financial position of the schools and in some cases give details of funding. He maintains that schools can still manage their finances, distributed according to the Baseline Budgeting Model, and that no external parties are involved.
In inviting TCD’s submissions, the Investigator noted that the details concern past expenditure, and budgeted expenditure for a now-concluded academic year. The Investigator said that the records do not, on their face, indicate future funding for any school (or the past or budgeted funding for particular courses within any school). The Investigator also said that she presumed that a school’s funding reflects the overall number and popularity of courses that it offers. She gave some examples of objective factors that students might take into account when selecting a college, and of certain material in the public domain about the financial position of some TCD schools.
The Investigator asked TCD to explain how, in all of the above circumstances, disclosure of the information at issue could influence potential students such that any of the harms set out in sections 36(1)(b) or (c) could result. In inviting TCD’s submissions on section 36(1)(c), the Investigator also noted that it was difficult to identify any relevant negotiations.
TCD’s submission says that disclosure of its commercially and financially sensitive funding model could prejudice its competitive position in the conduct of its business and could cause it a material financial loss, “including for” the following reasons:
Finally, in inviting its submissions generally, the Investigator also referred TCD to the applicant’s argument about each school’s funding being an internal College matter based on the Baseline Budgeting Model. She asked it to explain how disclosure of the requested details could impact on the schools’ ability to manage their finances and/or to receive or negotiate funding and, if relevant, to explain how disclosure could affect TCD’s ability to either receive/negotiate funding or allocate funding internally.
TCD responds by referring to public interest arguments, which reflect its position on both section 36(1)(b) as set out above and section 36(1)(c). TCD says that disclosure would have a “substantially negative impact” on its international partnerships with other universities and third party companies in the future. It says that it has strong partnerships with over 300 universities globally, offering research opportunities, exchange programmes and joint education partnerships to students. It reiterates that the details at issue do not represent a complete picture of the funding and supports received by individual schools and faculties. It says that disclosure could have a prejudicial impact on TCD’s bargaining power in these circumstances, which could lead to the loss of, or other negative impact on, a number of vital partnerships and programmes and also cause significant financial loss for TCD.
TCD appears to suggest that many unspecified harms could arise from disclosure of the details. However, further to the eNet judgment, this does not give me a basis to find any exemption provision to apply. Furthermore, the FOI Act does not provide for the withholding of information because it may be inaccurate, or may represent an incomplete picture of events.
I accept that TCD competes with other third level institutions to attract and retain students. However, it has not given me sufficient explanation to accept its position that disclosure of the withheld details at this point in time could cause students to choose alternative universities to TCD.
In particular, TCD does not dispute that the details at issue are no longer current, and it has not explained how their disclosure could give any insight into TCD’s future funding of schools, or into its past or future funding of particular courses. While I cannot elaborate further due to the requirements of section 25(3), it is not apparent to me from the details themselves how such insight might arise. TCD also acknowledges that students consider factors other than the funding of schools when choosing a third level provider.
Furthermore, TCD has not commented on the examples given to it of financial information already in the public domain, or on any harm that resulted from their publication, or explained how disclosure of the details at issue could cause further, if any, harm. In summary, I have no basis to find that disclosure of the details at this point in time could prejudice TCD’s competitive position, or that disclosure could reasonably be expected to result in material financial loss or gain to TCD.
Neither has TCD given me sufficient argument to be satisfied that disclosure of the details at this point in time could prejudice the conduct or outcome of its contractual or other negotiations. TCD refers here to certain future negotiations but does not describe what they involve. In particular, given that TCD does not explain how the non-current details at issue can give any insight into future funding decisions, I do not see how release of those details could prejudice TCD’s bargaining power in the negotiations concerned (and/or lead to a financial loss to TCD).
I find that sections 36(1)(b) and 36(1)(c) of the FOI Act do not apply. In the circumstances, there is no need for me to set out, or deal with, the various arguments relating to sections 36(2) or 36(3) of the FOI Act.
Section 30(1)(b) – functions relating to management
Section 30(1)(b) provides for the refusal of a request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).
The FOI body should identify the function relating to management concerned and identify the significant adverse effect on the performance of that function which is envisaged. 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.
Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a), for instance. In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a). The FOI body should also consider the reasonableness of the expectation that the harm will occur.
A claim for exemption under section 30(1)(b) 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.
As set out above, the Investigator invited TCD’s response to her queries regarding funding and its management thereof, which I have dealt with under sections 36(1)(b) and (c).
TCD also now claims section 30(1)(b), saying that disclosure of the details to the world at large “could have an adverse impact on the operation of TCD, both in terms of industrial relations and the management of its staff. It is our belief that disclosure could lead to such issues arising as currently individual schools and faculties are not privy to information about other school and faculty budget lines. The release of this information could impact management decisions as each school (and its staff) would be privy to the information about other schools’ budget lines and this could lead to complex internal negotiations in the future.”
I accept that granting the request will result in staff obtaining previously unknown details of the non-current budgets of other schools/faculties. It is possible that this could make the internal budget setting/negotiation process more complex. In order for section 30(1)(b) to apply, I must be satisfied that this could reasonably be expected to happen to such a degree as to have a significant adverse effect on TCD’s ability to make management decisions about school budgets, industrial relations and/or the management of its staff.
However, TCD does not explain how the details could give any insight into its proposed future budget decisions. It does not describe the current budget setting/negotiation processes, or the extent to which these could become more complex as a result of disclosure of the requested details. In the circumstances, I have no basis to accept that granting the request could reasonably be expected to have a significant, adverse effect on any of TCD’s functions relating to management (including industrial relations and management of its staff). I find that section 30(1)(b) does not apply. There is no reason for me to set out the various arguments regarding the public interest in the circumstances.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul TCD’s decision and I direct it to grant the request.
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.