Case number: 180088
On 24 August 2017, the applicant sought all records of representations made to the Department concerning measures to increase protections for members of Defined Benefit Occupational Pension schemes under the General Scheme of the Social Welfare and Pensions Bill 2017. On 11 September 2017, the Department identified 16 records as relevant to the request and granted access to all but four of the records. The applicant sought an internal review of the decision to refuse access to one of the records (Record 3). In its internal review decision, the Department affirmed its original decision to refuse access to the record. On 6 March 2018, the applicant sought a review by this Office of the Department's decision.
During the course of the review, the Department revised its position and released a redacted version of the record to the applicant. It withheld certain information from the record under sections 36 and 37 of the FOI Act. Subsequently, Ms Lynch of this Office invited the applicant to treat the review as settled or to submit any further comments he might wish to make on the matter. As I have heard nothing further from the applicant, I have decided to conclude this review by issuing a binding decision.
In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above and to the communications between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the record at issue.
This review is concerned solely with whether the Department was justified in refusing access to the withheld information in record 3.
Section 36(1)(b) - Commercial Sensitivity
The Department withheld information in the body of the record under section 36(1)(b). That sub-section protects 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.
The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, the FOI body must identify the harm and consider the reasonableness of its expectation that the harm could arise as a result of the release of the information at issue. The standard of proof required in the second part of the sub-section (could prejudice the competitive position etc.) 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), in the sense that the test is simply whether prejudice could occur.
The record at issue comprises a note of a conference call between officials of the Department and officials of the Electricity Supply Board (the ESB). The record contains details of concerns expressed by the ESB relating to certain provisions of the Social Welfare and Pensions Bill 2017. It also contains details of the ESB's pension scheme, as provided by the Pensions Authority. The redacted information concerns the financial implications of the Bill for the ESB and details of the schemes liabilities. The Department's position is that release of the withheld information could have a negative effect on the organisation's credit rating and on its financial position. I am informed that the Pensions Authority does not publish individual scheme information and that it is not publicly available.
Having considered the information at issue and the arguments of the Department, I accept that the release of the information could reasonably be expected to result in a material financial loss or gain to the ESB. I find that section 36(1)(b) applies to the information at issue.
Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case. 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.
It is important to note at the outset that the FOI Act is concerned with the promotion of transparency and accountability of public bodies. As such the public interest in release of the information at issue is relevant in so far as it serves to further enhance the transparency and accountability of the Department in its engagements with the ESB. However, it is also important to note that the ESB is not subject to the provisions of the Act. Indeed, it is specifically listed in Schedule 1, Part 2 of the Act as an exempt agency.
Having examined the withheld information, it seems to me that the public interest in enhancing the openness and accountability of the Department in relation its engagements with the ESB has been served to some extent by the information already released. I fail to see how the release of the information at issue would further serve that public interest to the extent that it would outweigh the public interest in protecting the commercially sensitive information of the ESB. I find, therefore, that section 36(1)(b) applies to the withheld information for which that exemption has been claimed.
As I have found the information for which section 35 was also claimed by the Department to be exempt under section 36, it is not necessary for me to deal with the application of section 35 to that information.
The Department claimed that section 37 applied to the names of two officials of the ESB who took part in the conference call. Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information relating to individuals other than the requester.
The FOI Act defines the term "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 the body as confidential. The definition also contains a list of 14 specific types of information including (ii) information relating to the financial affairs of the individual and (iii) information relating to the employment or employment history of the individual.
I am satisfied that the names of these individuals comprises their personal information, to which section 37(1) applies.
There are some circumstances, provided for at sections 37(2) and 37(5), in which the exemption at section 37(1) does not apply, including circumstances where, on balance, the public interest in granting the request outweighs the right to privacy of the individual to whom the information relates. I am satisfied that the public interest in releasing the names of the individuals in question does not, on balance, outweigh their right to privacy. I find that none of the provisions that serve to disapply section 37(1) are applicable in this case.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to grant only partial access to the record at issue, under sections 36(1)(b) and 37(1).
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.