Case number: OIC-110739-B9Z8N3

Whether the IDA was justified in refusing access to parts of a record concerning a particular marketing campaign

16 March 2022

Background

The IDA entered into a media partnership with the Financial Times (FT) regarding St Patrick’s Day 2021. It encompassed the production, print and distribution of full page advertisements in the print edition, home page takeovers across the FT’s digital products and, in what the IDA describes as a media first, a cover wrap with embedded seeds that readers could plant, further details of which are available at https://marketing.ie/ida-campaign-plants-seeds-in-ft-cover-wrap. In a request dated 28 May 2021, the applicant sought access to a record breaking down the expenditure associated with the campaign.

The IDA’s decision of 28 June 2021 granted full access to five records and partial access to another. It relied on sections 36(1)(b) (commercially sensitive), 36(1)(c) (prejudicial to negotiations), 40(1)(a) (national economy), 40(1)(c) (industrial development strategy of the State) and 40(1)(d) (unwarranted benefit or loss to a class of persons) of the FOI Act in relation to the withheld details. The applicant sought an internal review of that decision on 28 June 2021. On 21 July 2021, the IDA affirmed its decision on the request. On 22 July 2021, the applicant sought a review by this Office of the IDA’s decision.

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 IDA and the applicant. I have also examined the withheld information and had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the IDA’s refusal to release the above mentioned record in full was justified under the provisions of the FOI Act.

Findings

The withheld details concern the rate, volume, client cost and total market spend of the campaign. Having considered the information and the IDA’s submissions, in my view section 36(1)(b) is the most appropriate exemption to consider at the outset. It is relevant that disclosure under FOI is accepted as equivalent to publication to the world at large.

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.

I should say that while section 36 enables the protection of third party commercially sensitive information, previous decisions from this Office have accepted 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.

Section 36(1)(b)

The applicant says that the information is not commercially sensitive but does not explain why he disagrees with the IDA’s reasons for applying section 36(1)(b). The IDA’s position is that the withheld details comprise commercially sensitive information relating to it, the FT and the IDA’s media contractor, such that they are exempt under section 36(1)(b) of the FOI Act.

The IDA’s main objective is encouraging foreign-owned companies to invest into Ireland. It notes that Ireland’s performance as a hub for Foreign Direct Investment (FDI) is unrivalled. It says that each year, and particularly over the crucial St Patrick’s Day, it carries out a number of marketing initiatives to promote Ireland as an ideal location for multinational companies to invest. It says that it spends considerable time devising innovative and impactful marketing campaigns that capture attention. Because of Covid-19 travel restrictions, it had to cancel its traditional face-to-face engagement and promotional activity. Instead, it developed a series of virtual events and digital campaigns, of which the FT wrap proved to be one of the more prominent.

The IDA says that the St Patrick’s Day campaign is part of an ongoing advertising and marketing campaign in Europe. It says that the FT media partnership was intended to increase engagement and awareness with the paper’s C-suite readership (a strategically important target group for the IDA) around the St Patrick’s Day period. It says that its brand, global marketing campaigns and communications to its target global audience of key decision makers are vital in attracting and sustaining FDI. It stresses the very competitive nature of the international market for FDI, including the larger marketing spends of agencies in other jurisdictions. It says that release of the information would adversely impact the IDA’s competitive position vis a vis those other agencies who could exclude the IDA from accessing key marketing portals.

The IDA says that the advertising market is very competitive and that the information is current. It says that the FT is one of a very small number of suitable publications for its marketing campaigns, given its reputation as the premier publication for business targeting the C-Suite audience, and that releasing the information would severely damage its relationship with the publication. It also says that release could prejudice the conduct or outcome of other similar negotiations in which it may engage, in that other advertisers will be reluctant to do business with the IDA over concerns that negotiated terms and prices will become public knowledge. It says that such an outcome could reduce the level and quality of its marketing activities, affect its prudent expenditure of public monies, and reduce the number of FDI projects it wins in its role as the marketing arm of the State.

The IDA says that disclosing the withheld information could adversely impact the FT’s competitive position with its customers, competitors and suppliers. In particular, it says that other advertisers would seek terms reflective of the deal, which could also prejudice the outcome of contractual or other negotiations of the publication.

Finally, the IDA is also of the view that disclosure of the pricing strategy as negotiated by its media contractor to the contractor’s clients or direct competitors could prejudice the contractor’s competitive position by impacting on its competitive advantage and adversely affecting its competitiveness.

I accept that the details at issue here are current. In general, current information is more sensitive from the perspective of the parties to which it relates than historic information. I am of the view that the individual elements of the deal i.e. rate, volume and client cost are inextricably linked to and dependant on each other. Furthermore, I accept that the total market spend for this campaign could in its own right be informative to others with marketing and advertising expertise.

From the perspective of how the details’ release could prejudice the IDA’s competitive position in relation to marketing campaigns in which it engages generally, I note the IDA’s positions regarding the competitive nature of the advertising market and that the FT is one of a small number of suitable publications for its marketing campaigns. Particularly having regard to their current nature, I accept that disclosure to the world at large of the terms at issue here could cause the FT, and other publications that the IDA considers suitable for its needs, to become reluctant to do business with the IDA in future or to offer more inferior terms than might otherwise have been the case. It follows that such an outcome could affect the IDA’s prudent expenditure of public monies and the nature and impact of its marketing activities.

I accept that disclosure could prejudice the competitive position of the FT in the conduct of its business. While this campaign was of an unusual nature, other agencies similar to the IDA could seek to replicate it to some extent. It seems to me that disclosure now of the terms agreed by the FT in this case could be of use to such parties. For instance, disclosure could enable other prospective clients to seek more advantageous terms than might otherwise have been the case. Alternatively, the FT’s competitors might offer more advantageous terms than they might otherwise have done, so as to attract business that might otherwise engage with the FT.

However, the withheld details and the arguments provided by the IDA give me no basis to accept that disclosure would give the IDA’s competitors for FDI any further insight into the focus of an ongoing marketing campaign than is already evident from the actual FT campaign carried out. Neither is it apparent to me, how release could impact on the IDA’s media contractor’s competitive position. I accept that the details represent the ultimate outcome of the contractor’s work. However, they do not disclose for instance, the contractor’s own fees or its plans for approaching its work or negotiating positions or processes it has adopted.

For reasons set out above, I find that section 36(1)(b) applies on the basis that release of the withheld details could prejudice the competitive position of both the IDA and the FT in the conduct of their respective businesses.

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

Having found that section 36(1)(b) of the FOI Act applies, I shall now consider section 36(3) of the FOI Act.

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, the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5 (the ENet judgment) 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, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. I should also say that I consider the Court’s comments in the above judgments relevant to the consideration of public interest tests generally.

Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.

The applicant does not make any arguments regarding the public interest. The IDA refers to the public interest in achieving greater openness and accountability in the activities of FOI bodies and their expenditure of public monies, improving the quality of FOI body decision making, and informing scrutiny of the activities of FOI bodies. On the other hand, it says that it is not in the public interest for the harms described in its submission to happen. It says that its annual report contains details of monies expended by it and that it is not in the public interest to disclose the line by line breakouts of a commercially sensitive contract.

Release of the details in full will enable an assessment of the value for public monies represented by the terms of the deal agreed with the FT. Release of the total market spend without the other details will enable such an assessment to a certain extent. I am not aware of any information in the public domain that achieves this purpose. On the other hand, disclosure will reveal current information about the FT and the IDA, which I have accepted could prejudice the commercial interests of both parties and that could, in particular, affect the IDA’s prudent expenditure of public monies. Having considered the matter carefully, I believe that the public interest weighs in favour of protecting all of the withheld details at this point in time.

In the circumstances, there is no need for me to consider the other exemptions relied on by the IDA in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IDA’s decision on the basis that the withheld details are exempt under section 36(1)(b) 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.

Deirdre McGoldrick

Senior Investigator