Case number: OIC-127548-D5J7G1

Whether the NBCMSO was justified in refusing access to records relating to inspections of quarries under sections 30, 35, 36 and 37 of the FOI Act 

 

7 March 2023

 

Background

The term “market surveillance” concerns activities carried out by public authorities to ensure that various products comply with the applicable EU legislation and do not endanger the health and safety of the public. The public authorities who carry out these activities are known as Market Surveillance Authorities. Since 2021, the National Building Control and Market Surveillance Office (NBCMSO), a business unit of Dublin City Council, is the Market Surveillance Authority for all construction products in Ireland.

In a request to the NBCMSO dated 4 July 2022, the applicant sought access to “all records of results of inspections of quarries carried out between 2015 – 2021”.  On 7 July 2022, the Council issued a response to the applicant setting out the background and legal context to market surveillance in Ireland. It referred him to the Information and Communication System for Market Surveillance (ICSMS), a mechanism for sharing information on the implementation and enforcement of EU legislation on non-food products, and said that he could search on the ICSMS website for inspections uploaded by the NBCMSO. No records were released and the FOI Act was not referenced.

On 22 July 2022, the applicant sought an internal review of this decision. On 18 August 2022, an internal review decision was issued purporting to affirm the original decision. It released one record to the applicant comprising a list of quarries visited in 2021. It said that it was refusing access to some of the records under section 30 and section 35 of the FOI Act.

The applicant applied to this Office for a review of that decision on 23 August 2022. In submissions made to this Office in the course of the review, the NBCMSO also cited sections 36 and 37 as additional relevant exemptions. The applicant was informed of this and invited to comment which he did.

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 set out above, submissions made by the NBCMSO, the comments made by the applicant in his application for review, as well as further communications between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The NBCMSO provided this Office with an Excel spreadsheet, generated from the Council’s electronic system, containing the details of all inspections of quarries carried out since the NBCMSO was established. In addition to this, there are photographs associated with some of the inspection reports.

The record released to the applicant was an extract of the spreadsheet described above, containing information relating to 2021 inspections from three of the 37 columns in the spreadsheet only: date of initial inspection, economic operator/quarry name, and the relevant local authority. The Council refused to release any of the other information contained in the remaining columns, or any associated photographs.

This review is concerned only with whether the Council was justified in refusing access to the remaining information contained in the spreadsheet, as well as to any corresponding photographs, relating to the 2021 inspections, under sections 30, 35, 36 and 37 of the FOI Act.

Preliminary Matters

Firstly, in his correspondence with this Office, the applicant pointed to the cost to the State of remediating homes damaged by the use of defective concrete blocks as well as the impact on homeowners and their families. He said that in order to plan for the future, the public needed to understand what had happened and he said that the State cannot say with confidence that current blocks being sold by quarries are not defective. He pointed to the Food Safety Authority producing regular reports naming premises that don’t meet the required standards, and Revenue publishing lists of tax defaulters. He said that the same standards needed to be applied to quarries to protect the public, otherwise the public cannot make informed decisions about where they purchase blocks, and the authorities will have failed in their regulatory responsibilities and the taxpayer will continue to pay.

It is important to note at the outset that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot generally have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Furthermore, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Secondly, I wish to point out that the processing of the FOI request in this case fell well short of the requirements of the FOI Act. Pursuant to sections 13 and 21, the decision letters should have contained details of the provisions of the Act pursuant to which the request was refused, findings on material issues of relevance to the decision, and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. I appreciate that the NBCMSO’s role as the Market Surveillance Authority for all construction products in Ireland is relatively recent and that it is under various pressures, and the NBCMSO staff members were courteous and helpful in dealing with the Investigator’s enquiries in the course of this review. However, the NBCMSO is a unit of Dublin City Council which has been subject to the provisions of the FOI Act since 1998. As such, I am sure it is aware of the existence of detailed supporting documentation on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. Such documentation includes a detailed manual for processing requests which contains, amongst other things, a sample schedule of records and guidance on preparing schedules, and sample decision letters. I urge the Council to take appropriate measures to ensure that all of its decision makers are familiar with the CPU guidance materials and that they are used when processing requests, so that all future request are dealt with in compliance with the requirements of the Act.

Thirdly, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the Council to justify its decision to refuse access to the records concerned.

Analysis and Findings

Section 35: Information obtained in confidence

Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. Section 35(1)(b) provides a mandatory exemption for records where disclosure of the information would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. Section 35(1)(a) is subject to a public interest test but section 35(1)(b) is not.

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or 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 that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), the application of section 35(2) to the facts of the case should always be considered at the outset.

As the records at issue, containing details of inspections, were prepared by staff members of the NBCMSO in the course of their functions, section 35(2) is relevant and section 35(1) can only apply if a duty of confidence is owed to a person other than an FOI body or service provider. It is the NBCMSO’s position that a duty of confidence is owed to the economic operators/ manufacturers provided for by article 12(3)(h) of S.I. No. 225/2013 - European Union (Construction Products) Regulations 2013. These Regulations, among other things, set out the powers that authorised officers have to obtain access to the place of manufacture or storage of construction products and to carry out appropriate testing, inspecting etc. to ensure that construction products comply with the various required standards. Article 12(3)(h) provides that an authorised officer shall take reasonable measures to guarantee the confidentiality of the technical documentation and such other information as may be supplied to him under this Regulation.

The NBCMSO did not specify which parts of the records it considered to constitute technical documentation or other such information supplied to it under the 2013 Regulations, nor are such details evident to me from an examination of the records. Much of the information relates to the particulars of the inspections themselves (e.g. the NBCMSO staff members who attended, the documentation requested, samples taken) and observations noted by the inspectors (e.g. the products for sale, products being re-sold, general comments and observations, photos taken by the inspectors), rather than information supplied to the NBCMSO. One of the columns indicates whether the quarry has an EPA licence, information that I note is available on the EPA website. Other columns contain information about how products are placed on the market, whether they import aggregates from other quarries, whether they operate other quarries, whether a concrete batch plant is present, whether they are recycling concrete, and whether they are reusing road planings. It is possible that some of these columns relate to technical documentation or other documentation given in confidence but if so it is not clear to me. It seems that the NBCMSO has instead taken a blanket approach to refusing all of the information within the records on the basis that it was given in confidence without giving due consideration to the actual content of the records. I am not satisfied that it has been established that disclosure would constitute a breach of a duty of confidence owed to the economic operators/ quarry owners, and therefore section 35(1)(a) cannot apply to the records as a whole.

I find that the NBCMSO has not justified its decision to refuse access to the records under section 35.

Section 36: Commercially sensitive information

Section 36(1) provides a mandatory exemption for commercially sensitive information. It is subject to a public interest test.

Section 36(1)(a) provides that a request shall be refused if the record concerned contains trade secrets. Section 36(1)(b) provides that it shall be refused if the records concerned contains financial, commercial, scientific, 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/her profession or business. Section 36(1)(c) provides that a request shall be refused if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

In its submissions to this Office, the NBCMSO made brief arguments in relation to each of the three sub-sections above.

Section 36(1)(a)

The Commissioner has accepted 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 widespread publication. The NBCMSO said that the inspection reports give details of staff (names, emails, phone numbers), details of imported raw materials for the manufacturing process, and details of how the quarries operate which it said they wouldn’t otherwise divulge. I do not consider staff details to be trade secrets and it is unclear to me which information in the records is considered to contain details of how the quarry operates to the extent that it could be considered a trade secret. Similar to my analysis of the arguments made under section 35, it is possible that there is some information in the records relating to some of the quarry operators that could be considered a trade secret but it has not been specified and it is not evident to me. I find that the NBCMSO has not justified its reliance on section 36(1)(a).

Section 36(1)(b)

The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision. The harm test in the second part of subsection (1)(b) is whether disclosure of the information “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 only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b).

The NBCMSO said that information/observations/advice in the NBCMSO notes might be viewed negatively by the public and would have a detrimental impact on the quarries’ business. Having reviewed the records, I do acknowledge that in some instances it appears there are comments made by the inspection team that could be viewed negatively and that could potentially prejudice the competitive position of the quarry concerned. However, I also note that some of the comments made are positive, some are simply factual/neutral and in many instances there are no comments made either way. It seems to me that the NBCSMSO has again made a blanket claim for exemption without having regard to the specific content of the record or showing why particular information meets the criteria for the relevant exemption provision. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. It is not clear to me why consideration appears not to have been given to simply redacting the comments which are considered to be commercially sensitive. 

The NBCMSO also argued that the decision to inspect economic operators is made on a risk basis so the fact that some quarries were inspected while others in the same general area were not, could put them at a disadvantage. I do not accept this argument in circumstances where the record released to the applicant already contains the names of the quarries that were inspected.

I find that the NBCMSO has not justified its reliance on section 36(1)(b).

Section 36(1)(c)

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. Having said that, the Commissioner expects that a person seeking to rely on this exemption 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 NBCMSO made one of the same arguments that it did under section 36(1)(b), i.e. that release of the record would reveal that some quarries had been inspected while others weren’t and that this would put those inspected at a disadvantage. I refer to my previous comment on this argument. I also note that the NBCMSO has not shown that any contractual or other negotiations are in train or are foreseen. I find that it has not justified its reliance on section 36(1)(c).

Section 36(3)

Given that I have found that the NBCMSO has not justified its reliance on section 36(1), there is no need for me to consider the public interest. However, for the purpose of completeness, I wish to note that any FOI body relying on section 36(1) to refuse access to records must then go on to examine the public interest and to decide whether, on balance, the public interest would be better served by granting or by refusing the request. The NBCMSO does not appear to have done this.

Section 37: Personal information

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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, and (xiii) information relating to property of the individual (including the nature of the individual's title to any property).

In its submissions, the NBCMSO said that the inspection reports give the names of the quarry staff present at the inspections, contact details for quarry staff, products for sale at the quarry, products being resold, info on certs, if the quarry was importing aggregates from another quarry, if the quarry was a member of the Irish Concrete Federation (ICF), info on samples of aggregates taken, information on samples of aggregates taken, and if the quarry has an EPA licence. It said that when it conducted the quarry inspections and obtained/ requested information from the quarry staff, it did so with the understanding that all information obtained would be treated as confidential.

While I accept that the names of quarry staff and their contact details constitute personal information, I do not accept that any of the other information listed above is personal information as defined in section 2 of the Act. Again, it is not clear to me why consideration wasn’t given to redacting the small amounts of personal information contained in the record. Section 37(1) is also subject to the other provisions of section 37, including certain circumstances set out in section 37(2) and a public interest test at section 37(5). These do not appear to have been considered by the NBCMSO.

I find that the NBCMSO has not justified its reliance on section 37 as a basis to refuse to release the records at issue.

Section 30: Functions and negotiations of FOI bodies

Section 30 is a discretionary, ‘harm based’ exemption i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. 

Section 30(1)(a) provides that an FOI body may refuse to grant an FOI request if it considers that access to the record concerned could 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)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could 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). Section 30(1)(c) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Where an FOI body relies on section 30(1), it should identify whether it is relying on sub-section (a), (b) or (c) and identify the potential harm in that might arise from disclosure. Having identified that harm, it should then consider the reasonableness of any expectation that the harm will occur. Section 30(1) is also subject to a public interest test under section 30(2).

In its decision letters or submissions to this Office, the NBCMSO did not specify whether it was relying on section 30(1)(a), 30(1)(b) or 30(1)(c). Neither did it make reference to any public interest factors that were considered in favour of, or against, release.

Again, it made the argument that release of the records would put the quarries who were inspected at a disadvantage to the quarries who were not inspected; as stated before, it has already released the names of the quarries inspected in the record granted at internal review stage. I find that it has not established that section 30(1) applies to the records.

Conclusion

While I accept that the records contain small amounts of personal information and commercially sensitive information, I find that the NBCMSO has made blanket claims for exemptions rather than examining the specifics of the information contained in the records and that it has not justified its decision on the applicant’s request. However, I do not believe that it would be appropriate for this Office to simply direct release of the records in their entirety, given the potential impact on third parties. Neither do I believe it would be appropriate for this Office to essentially act as a first instance decision-maker, identifying which specific parts of the records to release and which to refuse, with possible consultation with the third parties. Among other issues, this would require the diversion of considerable time and resources from other reviews.

In these circumstances, the most appropriate decision for me to make is to annul the NBCMSO decision and to direct it to make a fresh decision on the applicant’s request in accordance with the provisions of the FOI Act. I refer to my comments in the analysis above in relation to the various exemptions claimed by the NBCMSO, and suggest that these be taken into account when reviewing the records and making a new decision on them. Consideration should also be given as to whether this request is one to which section 38 applies, and whether consultation with certain third parties is necessary.

While I appreciate that this approach means a further delay for the applicant in reaching a conclusion on his FOI request, if he is not satisfied with the new decision made by the NBCMSO and makes a valid application for review by the Information Commissioner, this Office will endeavour to process that application as quickly as possible.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the NBCMSO’s decision on the applicant’s request. I direct it to carry out a fresh decision-making process in respect of these matters, in accordance with the provisions of the FOI Act.

Right of Appeal

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.

 

Stephen Rafferty
Senior Investigator