Case number: OIC-117870-X3M3K3
23 May 2022
In a request dated 29 September 2021, the applicant sought access to copies of all records held, from 1 October 2020 to the date of the request, referring or relating to the management of serial toll avoiders on the M50. TII failed to issue a decision on the request within the statutory timeframe and on 12 November 2021, the applicant sought an internal review of the deemed refusal of his request. On 2 December 2021, TII issued its internal review decision wherein it part-granted the request. It released six records with redactions and refused access to one record full. It refused the withheld information under sections 30(1)(b), 30(1)(c), 36(1)(b) and 36(1)(c) of the FOI Act.
On 7 January 2021 the applicant applied to this Office for a review of TII’s decision. He said that he did not believe that the level of redactions in the records was justified under section 30 or 36 and that it seemed unlikely that the release of more detailed data would give rise to the harms suggested by TII in it decision letter. He said that it might be the case that non-disclosure of some of the details was justified but he believed TII could release more than it had. He also argued that publication of this type of data was likely to assist TII in pursuing toll evaders as any attention that might be drawn to this type of anti-social activity is likely to help deter it, and that this is why public bodies engaged in such enforcement activity routinely seek to publicise these matters.
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 TII as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In its submissions to this Office, TII said it no longer wished to rely on section 30(1)(b) as a basis for withholding information but that it also wished to rely on section 32(1)(a)(ii). The applicant was informed of this and offered an opportunity to comment which he did. This review is therefore concerned with whether TII was justified in refusing to release record 7 in full, and records 1 to 6 in part, under sections 30(1)(c), 32(1)(a)(ii), 36(1)(a) and 36(1)(c) of the FOI Act.
By way of background, TII is the public authority with overall responsibility for the operation and maintenance of toll roads in Ireland. Under the Roads Act 1993, it has the authority to take civil and criminal enforcement measures in respect of unpaid tolls. In connection with the M50 motorway, which has a barrier-free toll, it has appointed a service provider to operate the toll road and collect tolls from members of the public. It has also appointed service providers to provide enforcement services in connection with the recovery of unpaid tolls. The records at issue in this case all relate to the enforcement activities and strategies of TII and its service providers, including the management of what the applicant referred to as “serial toll avoiders”, on the M50.
As section 36 is a mandatory exemption, I will examine it first.
Section 36 – Commercially sensitive information
Section 36(1) provides that an FOI body shall refuse to grant a request if the record concerned contains:
(a)trade secrets of a person other than the requester concerned,
(b)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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
There are certain situations where, although section 36(1) applies, the request shall still be granted. These situations are specified in section 36(2). Section 36(3) also provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request.
TII argued that sections 36(1)(b) and 36(1)(c) apply to the records at issue.
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 a 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 standard of proof in relation to the second limb of section 36(1)(b) is low; all that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned. It is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. The FOI body opposing release should explain why disclosure of the particular records could prejudice its competitive position.
As a general principle, this Office takes the view that section 36 is primarily aimed at protecting the commercial interests of third parties engaged in commercial activity. Nevertheless, depending on the circumstances of the case, we accept that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to our Office, from relying on the provisions of section 36. In this case, TII argued that the release of the records at issue could cause harm to its own commercial interests rather than the interests of a third party i.e. it could harm its ability to collect tolls and recover unpaid tolls. In the circumstances, I am satisfied that it is reasonable for TII to seek to rely on the provisions of section 36.
Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld information. Equally, I must limit my description of TII’s submission regarding why it considers the records to be exempt from release. However, I do not believe that I am in breach of section 25(3) by providing the following description.
Record 1 is a presentation entitled Bad Debt Review 2020 and Plan 2021. Records 2, 3, and 4 are Bad Debt Review presentations for April 2021, July 2021, and November 2020 respectively. Record 5 is an Enforcement 3 Year Strategy (2021 – 2023). Record 6 is a draft Enforcement Manual, dated June 2021. Record 7 consists of twelve separate monthly reports on Enforcement & Credit Management, from October 2020 to September 2021, 309 pages in total, prepared by the external service providers. Records 1 to 6 were released to the applicant with occasional sentences, paragraphs and sections redacted. Record 7 was refused in full.
In its submissions to this Office, TII said that in order to carry out its statutory function of managing toll roads, collecting tolls and engaging in civil and criminal enforcement activities against toll evaders, it needs to be in a position to consider and, where appropriate, implement, effective enforcement strategies which are designed to foster compliance and to increase the success rate of toll collection activities. It said that the information withheld from the records at issue sets out TII’s current and prospective approach to pursuing unpaid tolls. It said that TII needs to be in a position to consider and discuss strategies with its service providers and to share appropriate information on (i) the success or otherwise of enforcement activities, (ii) any areas where enforcement activities are proving to be more challenging and (iii) any suggestions for specific activities in relation to certain categories of toll evader.
TII added that it has sought to withhold only information that highlights, amongst other things: (i) areas which may be more challenging for toll collection and enforcement, (ii) TII’s enforcement strategy in circumstances where it is not possible to take proceedings against all toll evaders and (iii) the circumstances where TII and its service providers might waive or engage in negotiations in relation to outstanding tolls. It argued that the release of sensitive information in relation to enforcement activities and strategies to the public at large would amount to a de facto “toll evaders’ charter”. It argued that this was likely to make TII’s toll collection and enforcement activities more difficult and to adversely impact on TII’s position in current and future cases relating to toll evaders. It said this would cause a material financial loss to TII, and ultimately the State, as it would prejudice toll collection and enforcement activities.
Having carefully examined the information withheld from parts of records 1- 6, and record 7 in full, I accept that it provides a level of insight into TII’s enforcement activities and identifies circumstances where enforcement activities may be less likely or more challenging for TII, to the extent that it could affect TII’s ability to collect tolls and to pursue unpaid tolls. I am satisfied that TII’s expectation that the disclosure of such information could result in a material loss is reasonable, and that section 36(1)(b) applies to the information at issue.
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. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.
Section 36(3) – the public interest
Under section 36(3), I must also consider whether, on balance, the public interest would be better served by granting than by refusing the information in question. 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 a judgment delivered on 25 September 2020 The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors  IESC 5 (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, it found that section 36(3) recognises that “there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request”.
While acknowledging that without sight of the withheld information he was limited in the arguments he could make, the applicant speculated that the publication of the withheld information was likely to assist TII in pursuing toll evaders as any attention that might be drawn to this type of anti-social activity was likely to help deter it. He suggested that this was why public bodies engaged in such enforcement activity routinely sought to publicise such matters. While I accept the point generally, I am satisfied that in the particular circumstances of this case, the release of the withheld information is more likely to make
TII’s toll collection and enforcement activities more difficult. The release of the information would, in my view, facilitate greater levels of toll evasion.
TII said that it considered a number of public interest factors in favour of release including a public interest in FOI bodies conducting their business in an open and transparent manner, the promotion of openness, transparency and accountability and value for money and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it said it concluded that the public interest factors against the release of the records outweighed those favouring disclosure. It said these included: the need to protect commercially sensitive information of FOI bodies, the importance of service providers and TII being able to discuss commercially sensitive collection and enforcement strategies on a confidential basis, the need to protect the integrity and viability of the confidential and commercial decision-making processes of TII, the potential impact on the efficient and economic performance of TII, which would be impacted if there was a reduction in the level of tolls collected.
It seems to me that TII endeavoured to strike a balance in this case between making as much information as possible available to the applicant while seeking to protect certain commercially sensitive information which it believed would be likely to prejudice its ability to collect payments for toll journeys and recover unpaid tolls through enforcement activities. I am satisfied that it is in the public interest that TII should be in a position to carry out these activities to the greatest extent possible, in terms of the economic interests of the State. I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case.
In conclusion, I find that the public interest would, on balance, be better served by refusing access to the information at issue. I find, therefore, that TII was justified in refusing access to the records at issue, in whole or in part, under section 36(1)(b) of the FOI Act. As I have found section 36(1)(b) to apply, I do not consider it necessary to examine any of the other exemptions relied upon in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TII’s decision to refuse access, under section 36(1)(b) of the FOI Act, to certain records, in whole or in part, coming within the scope of the applicant’s request for records relating to the management of serial toll avoiders on the M50.
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.