Whether IDA Ireland (the IDA) was justified in refusing access to parts of three records relating to the Special Assignee Relief Programme (SARP) and proposals for its reform or change
20 December 2019
In an FOI request to the IDA dated 20 March 2019, the applicant sought access to records relating to the Special Assignee Relief Programme (SARP) and proposals for its reform or change from 1 January 2018 to the date of receipt of the request. SARP concerns income tax relief for certain employees who come to Ireland from abroad to take up employment. The IDA’s decision of 13 May 2019 covered nine records. It released records 2 and 5 to 9 in full. It granted partial access to records 1, 3 and 4. Records 1 and 3 are email threads between the IDA and certain organisations. Record 4 is the IDA’s 2019 pre-Budget submission to the Department of Finance. Generally speaking, the details released from these records concern the comments made by the organisations to the IDA in relation to SARP and those parts of the IDA’s pre-Budget submission that relate to this matter. The IDA said that most of the information it was withholding from these records was outside the scope of the request. It said that the rest comprised personal information that is exempt under section 37(1) of the FOI Act. The applicant then queried whether the IDA would release the company name(s) from the records. The IDA responded that communications between it and its clients are confidential and are carried out in pursuance of its statutory functions.
On 15 May 2019, the applicant sought an internal review of the IDA’s decision. On 6 June 2019, the IDA issued its internal review decision in which it affirmed the refusal to fully release records 1, 3 and 4. It relied on sections 35(1) (confidential information), 36(1) (commercially sensitive information and 40(1) (financial and economic interests of the State) in relation to the withheld details. On 16 July 2019, the applicant applied to this Office for a review of the IDA’s decision. During the review, the IDA clarified that it is relying on sections 35(1)(a) (information given in confidence), 35(1)(b) (information subject to a duty of confidence), 36(1)(b) (commercially sensitive information), 36(1)(c) (information prejudicial to negotiations), 40(1)(a) (effect on the national economy), 40(1)(b) (undue disturbance of the ordinary course of business in the State) and 40(1)(c) (negative impact on investment decisions) of the FOI Act. It also accepted that a further part of record 1 was covered by the request, which it released.
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 contacts between this Office, the IDA and the applicant. I have also had regard to the contents of the records concerned and the provisions of the FOI Act.
Scope of the Review
My review is confined to whether the IDA’s decision to withhold parts of records 1, 3 and 4 was justified under the FOI Act. I understand that the applicant is not seeking information that may identify particular individuals and I have not considered such details further.
The applicant questions whether further records exist. He did not raise this issue at internal review stage and I do not propose to include it in this review. It is open to him to make a fresh FOI request for any additional records that he believes may exist.
The applicant also takes issue with the quality of the IDA’s decision and in particular its decision to extend the time for considering his original request. A review under section 22 of the FOI Act such as this is a review of the decision made to grant or refuse the FOI request and generally does not examine or make findings on how an FOI body otherwise processed the request. It is not clear on the face of it why the IDA needed to extend the timeframe for considering the applicant’s request when only nine records are covered by it. The IDA should note that section 13 requires FOI bodies to give a decision on an FOI request to the requester no later than four weeks after the request was received and that section 14 enables them to extend that timeframe in very limited circumstances, such as because of the volume of records covered by the request.
Parts of records not covered by the request
The IDA says that all of the details withheld from record 4 and some of the details withheld from records 1 and 3 concern matters other than the SARP. Having examined the records concerned, I accept that this is the case. I find that the details of matters outside of SARP that happen to be included in the email threads and in the pre-budget submission are not within the scope of the request and I will not consider them further.
In the circumstances of this case, I consider that section 35(1)(b) is the most appropriate provision to consider first in relation to the remainder of record 1 and record 3. Essentially, they disclose the identity of the organisations that were communicating with the IDA in the emails concerned. The IDA says that it owes the organisations an equitable duty of confidence in relation to the details concerned. It is relevant that the release of a record under the FOI Act is equivalent to its release to the world at large.
Section 35(2) dis-applies section 35(1) in certain circumstances. 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 staff member 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 staff of an FOI body or of such a service provider." Some of the withheld details are contained in internal IDA emails that are within the email strings. I accept that the organisations to which the details relate are not service providers within the meaning of the FOI Act. Accordingly, it is possible for section 35(1) to apply to such parts of the records.
Section 35(1)(b) must be applied to a record where granting it would constitute a breach of a duty of confidence provided for in various ways including otherwise by law (i.e. an equitable duty of confidence). In considering whether or not an equitable duty of confidence (a duty of confidence provided for "otherwise by law") exists, this Office has regard to the three elements of what are generally known as the Coco tests (Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41):
"First, the information itself … must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
The applicant argues that the companies were engaged in lobbying and that, in that context, the communications are not confidential or subject to any duty of confidence. In particular, he refers to record 3, which he says appears to have come from an accountancy firm and which asks whether the IDA would discuss SARP with the sender’s income tax team, particularly “what might be usefully done about this”. The applicant is aware of that content in record 3 because it was released to him by the IDA.
The IDA says that it approached various organisations for their views in relation to a number of matters relevant to fulfilling its statutory remit in relation to developing strategies and initiatives to promote and maintain Foreign Direct Investment (FDI) and industrial development in the State, to assess how such measures are working in practice and to determine how they may be improved. It says that the communications should not be seen as lobbying activities, in which regard it also notes that it is not subject to the Regulation of Lobbying Act 2015 (the 2015 Act). The IDA says that says that while it may be assumed which organisations in general avail of SARP, releasing the records will confirm particular organisations that do so. It says that this will make it easier for competitors to target employees (generally senior employees) of those organisations. The IDA also says that, in the overall circumstances, it owes an equitable duty of confidence to the organisations.
I accept that the information at issue is not in the public domain and has the necessary quality of confidence about it. I find that the first test for an equitable duty of confidence to exist is met.
The 2015 Act requires the publication of certain information concerning lobbying activities. The fact that the IDA is not subject to the 2015 Act does not, of itself, mean that any attempts by third parties to lobby it should not be disclosed under the FOI Act. While it would not be appropriate for me to make a finding on whether or not any particular contacts constitute lobbying, I accept that the IDA needs to seek information and views in order to develop and improve strategies and initiatives that promote and maintain FDI and industrial development in the State and, as part of this process, to make submissions to the Department of Finance in relation to the budgetary process.
I accept that the IDA sought and received information from the organisations for the purpose of carrying out its statutory functions. I also accept that those organisations would not have communicated in the way that they did with the IDA about such matters unless their communications, and information that would identify them, were treated confidentially. Thus, while the second test for an equitable duty of confidence to exist is concerned with "information imparted", I do not consider it appropriate to focus on the identities of the companies in isolation. I find that the second test is met in this case.
The final test required to be considered is whether release under FOI of the relevant details would amount to an unauthorised use of that information to the detriment of the party communicating it. I understand that release of information without consent is enough for detriment to arise. I therefore consider the final test for an equitable duty of confidence to exist to have been met.
Public Interest Defence
It is well established that an action for a breach of confidence is subject to a public interest defence. This Office notes that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow. Such grounds which the Courts have had regard to include the exposure or avoidance of wrongdoing or danger to the public; ensuring the maintenance of the principles of justice; the release of what could generally be described as "government" information; and because information concerns matters of very significant public importance. In my view, there is no basis for setting aside the requirements of section 35(1)(b) in this case. I find that the remaining withheld information in records 1 and 3 is exempt under section 35(1)(b) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the IDA’s decision on the applicant’s request. I find that the remainder of record 4 and some parts of records 1 and 3 are not covered by the request. I find that section 35(1)(b) applies to the remainder of records 1 and 3.
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.