Decision
Mr. X and Coimisiún na Meán
From Office of the Information Commissioner (OIC)
Case number: OIC-154291-B1P9F7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154291-B1P9F7
Published on
Whether An Coimisiún was justified in refusing access to information contained in applications for funding for certain programmes under sections 30(1)(b), 36(1)(a)/(b) and 37(1) of the FOI Act
8 August 2025
In a request dated 11 September 2024, the applicant sought access to the application documents for funding related to the following programmes:
• Sound and Vision Round 37: "Songs of the Open Road"
• Droichid na hÉireann Round 40: "Lady Gregory - Ireland's First Social Influencer"
• Round 42: "Iománaíocht Hollywood - Cluichí Gaelacha ar Scannán"
• Round 43: "Francis Bacon, The Outsider"
• "Hidden Treasures"
• "Pass It On"
• Round 51: "Am Abú"
• "The A Talks"
In its decision dated 9 October 2024, An Coimisiún refused access to 8 records it identified as falling within the scope of the applicant’s request under sections 36 and 37 of the FOI Act. On 9 October 2024, the applicant sought an internal review of An Coimisiún’s decision. On 5 December 2024, An Coimisiún affirmed its decision to refuse access to the records and it relied on an additional exemption provision, section 30(1)(b), in support of its decision. On 6 December 2024, the applicant applied to this Office for a review of An Coimisiún’s decision.
Following the application for review, An Coimisiún informed this Office that while its original decision letter notes 8 records as having been located and scheduled for the requester, an additional record number 9 was located when putting the records together for review. It said it was withholding record 9 from release on the same grounds as records 1-8. I understand that the second bullet point on the applicant’s request refers to two programmes and record 9 in the funding application for the first of those “Droichid na hÉireann”.
During the course of the review, this Office wrote to the applicant and An Coimisiún and provided both parties with an opportunity to make submissions and both parties have provided submissions.
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 submissions made to date. 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 his internal review request, the applicant said he had agreed with An Coimisiún to limit his request specifically to the Programme Content Section of the funding applications. The scope of this review is therefore confined to whether An Coimisiún was justified in refusing access to the the Programme Content Sections contained in records 1-9 under sections 30(1)(b), 36(1)(a) or (b) or 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Thirdly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in my analysis is limited.
While I am limited in the description that I can give of the records, I can say that the information at issue in this review consists of the Programme Content sections within nine application forms from broadcasters and independent producers submitted under different rounds of the Sound and Vision Funding Scheme over the period 2020 to 2023. An Coimisiún says the Sound and Vision Funding Scheme was established under the Broadcasting Funding Act 2003 for the purpose of funding the production of difficult-to make, high-quality programmes about Irish culture, heritage, and experience and programmes to improve adult literacy. An Coimisiún says it manages and administers the scheme which it says facilitates the production of culturally relevant content for Irish audiences that would not otherwise be made, including programmes in the Irish language. It says the scheme is a fundamental part of the funding infrastructure for the independent production sector.
Having regard to the content of the records concerned, it seems to me that section 36 of the FOI Act is the most appropriate exemption provision to consider first. An Coimisiún relied on section 36(1)(a)/(b) of the FOI Act in refusing access to the Programme Content sections in the nine application forms at issue.
Section 36(1)(a) provides for the refusal of a request where the record sought contains trade secrets of a person other than the requester concerned. This Office accepts 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 wide-spread publication.
The Commissioner accepts that an exact definition of a trade secret is not possible and that some factors to be considered in determining whether information is a trade secret are: (1) the extent to which the information is known outside of the business concerned; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
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.
The applicant says applicants for funding are explicitly informed that applications are subject to FOI requests and are required to identify commercially sensitive information. He says older records from previous funding rounds are unlikely to contain commercial information that is relevant to the current market. The applicant says it is unclear why the Programme Content Sections, redacted of personal or commercially sensitive material could not be released in a form that is usable and non-misleading particularly given the core narrative and creative descriptions are not inherently sensitive under Intellectual Property or personal information grounds. He says as most of these programmes have been publicly broadcast, the material he is seeking should not contain Intellectual Property that is not already available in the public domain.
An Coimisiún says the information contained in these records consist of treatment proposals, creative works relating to the project, the production strategy and information regarding access to potential contributors. It says such information is the intellectual property of the programme maker, which is in effect their trade secret by which they operate their business. It says the exploitation of intellectual property, creative content, and related materials is fundamental to these companies’ commercial viability. It says applicants for funding can reuse or repackage this content to facilitate other business opportunities. It says examples would include the audiovisual producer making a different version of the project for another broadcaster or entity and using the information to resubmit the application to Sound and Vision or another funding source. It says another example would be developing a format for international sales in other territories based on the success of one made here in Ireland. It says the information contained in the applications is, in effect, a proposal based on a creative approach, production strategy and business plan and it can and does change between the application stage and the final product being broadcast due to the creative nature of the programme production process, financial, business and editorial decisions.
An Coimisiún says the material financial loss expected to occur if this information is released into the public domain is loss of exclusivity of commercial assets (in the form of IP and creative content) and therefore opening this up to appropriation or duplication from other competitors. It says exploitation of intellectual property and its related materials is the cornerstone of all of these companies, it is what they trade on and generate their income from, and pay their costs, wages, and wages of those employed for the productions. It says disclosure of this information into the public domain could allow these companies competitors to use it for their own competitive advantage. An Coimisiún says the industry that these companies operate within is highly competitive both nationally and internationally. It says the quality of the ideas and creative content and the manner in which they are pitched and presented gives the company its competitive edge financially and commercially. It says it is on this basis that they win funding or financing which enables them to produce the project and function commercially and creatively.
I understand that the Sound and Vision Guidance provides the following information to applicants:
“An Coimisiún undertakes to use its best endeavours to hold confidential any material provided in response to this process, subject to An Coimisiún’s obligations under law, including the Freedom of Information Act 2014 (“FOI Act”). Applicants and Contractors are asked to consider if any of the information supplied to An Coimisiún in an application or during subsequent contracting should not be disclosed because of its information content, to identify same and to specify reasons for its sensitivity. An Coimisiún will consult with applicants about confidential, personal, or commercially sensitive information before deciding on any request received under the FOI Act. Such information may be released in response to an FOI request if information is not deemed to be commercially sensitive.”
An Coimisiún has not provided details of applicant’s identifying particular information as being commercially sensitive. It has however provided details of consultations with the relevant applicants following receipt of the FOI request, including the following details of feedback it received:
“Not only are the ideas we create and develop highly commercially sensitive - the way that we pitch and apply for funding also sets us apart and is also a trade secret that we have developed through years of hard work, trial and error and learning from experience ...”
“…we think that information gained from what turned out to be a successful application would be advantageous for competitors aiming to improve their own applications…”
“I cannot see what release of the programme treatment could be for, other than to glean commercially sensitive information… The section outlined also includes our commercially sensitive reasons as to why we believe the project deserves funding.”
“Our very strongly held opinion is that the information requested is very much the intellectual property of our company and copyright in it is held by us. To release that information out into the public is like asking a software company to reveal the contents of their research and development to the general public”
It is clear that most of the parties who applied for the for funding at issue in this case do view the information at issue to be commercially sensitive and to be information which could be advantageous to their competitors.
I have considered whether information contained in applications for previous funding rounds has relevance in the current market. I accept that the applications for funding are part of a funding process that ends with the broadcast of a programme. However, I also accept that in the programme content section, the applicants set out their thinking, their ideas and their approach. I accept that these creative ideas may also inform current or future projects and they may therefore be relevant to the current market. How the ideas are pitched is also relevant to future applications for funding.
As outlined above the harm test in the second part of section 36(1)(b) is a considerably lower standard of proof. What must be demonstrated for this test to be met is that the release of the record “could prejudice the competitive position” of the relevant party. I accept that the programme commissioning market operated by commissioning entities is a competitive business. The information at issue contains the ideas of the parties and also crucially how they pitched these ideas. I accept that releasing this information into the public domain could prejudice the competitive positions of the parties concerned by revealing their approach to applications for funding which they have developed through experience in terms of what works and what doesn't. It seems to me that if this information is released into the public domain, the benefits of this hard-earned experience would be made available to the parties competitors which they could use in their own applications for funding. This could prejudice the competitive position of the parties concerned.
I have considered section 18 of the Act and whether it would be practical for exempt information to be removed from the records and for the remainder of the records to be released. In this case, the programme content sections contain information on proposals, creative works relating to the project and information regarding programme production strategy. There is also information on potential guests or contributors who may or may not be part of the subsequent programme production. I accept that given the nature and content of the programme content sections; it is not practical to extract parts of the information at issue. I find therefore that the programme content sections of records 1-9 are commercially sensitive and are exempt under section 36(1)(b) of the FOI Act.
Section 36(2) provides that information to which section 36(1) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; (c) the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment.
It seems to me that section 36(2)(d) falls for consideration in this case. As outlined above, the applicant says applicants for funding were explicitly informed that applications are subject to FOI requests and were required to identify commercially sensitive information. In essence, the applicant argues that if applicants for funding have not identified such information, they have consented to release of their applications by default. The Sound and Vision Guidance says applicants are asked to consider if any of the information supplied should not be disclosed because of its content, to identify same and to specify reasons for its sensitivity. It goes on to say An Coimisiún will consult with applicants about commercially sensitive information before deciding on any FOI request and such information may be released if it is not deemed to be commercially sensitive.
I do not consider it appropriate to interpret this guidance as the applicant has done. The excerpt seems to me to have the aim of ensuring that An Coimisiún would have as many relevant considerations before it as possible when deciding on an FOI request for relevant records. It could not possibly mean that all information provided by a private sector company to the An Coimisiún, in the hope of winning funding, would fall to be released to the world at large unless properly identified as commercially sensitive. Furthermore, section 36 is mandatory. It is not the case that an FOI body is only permitted to classify information as commercially sensitive when the party to which the information relates requests that the information be treated as such.
Accordingly, I do not consider section 36(2)(d) to apply in this case. Neither do I consider any of the other exceptions in section 36(2) to apply in the case at hand.
Having found that section 36(1)(b) of the FOI Act applies to the information set out above, I shall now consider section 36(3) of the FOI Act. Section 36(3) 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.
The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must carry out that balancing exercise, by weighing the competing interests at play in the particular circumstances of a request, and then explain the basis on which it has decided where the balance of the public interest lies.
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. To summarise, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, with particular regard to the activities and decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. It also found that section 36(1) 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. It stated that “… the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.”
The Supreme Court went on to state that the public interest test involves a “weighing of the respective private and public interests in the analysis of the records at issue”. In this regard, it did not disturb the guidance the Court had previously given inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26, in which it noted that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law ") should be distinguished from a private interest.
In the context of determining whether to grant a request in the public interest, the reasons given for the request may be considered only insofar as they reflect a true public interest found in the contents of the documents themselves, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. It is possible, however, that a private interest in making a request could be accompanied by a public interest in disclosure.
In his application to this Office, the applicant says the FOI Act recognises the importance of promoting openness and accountability in public administration. He says his PhD research, which examines the processes underlying funding allocations within Ireland’s arts and creative sector, directly engages with these principles. He says access to these specific applications is critical for understanding:
• Systemic Trends: Do certain themes or genres disproportionately receive funding?
• Barriers to Entry: Are smaller production houses or underrepresented voices disadvantaged?
• Alignment with Objectives: How effectively does the Sound & Vision scheme achieve its goals of diversity, innovation, and accessibility?
The applicant says without these records, it is impossible to evaluate how public funds shape Ireland’s cultural landscape. He says his research has broader implications for improving the transparency, equity, and inclusivity of public funding processes, aligning with EU governance standards.
In its submissions to this Office, An Coimisiún says in considering the public interest factors in favour of release it had regard to:
• The need for FOI bodies to be open and transparent in their operations
• Accountability and objectivity in the decision-making processes
• Ensuring FOI bodies make decisions appropriately and in accordance with policies/procedures and legislation.
It says it also considered the requester’s stated intent for requesting access and the potential public interest in the stated research. It considered that generally most research and its outputs, where published, can certainly be considered to be in the public interest by way of contributing to a body of fact-based knowledge and evidence in relation to the subject matter being examined.
An Coimisiún says in considering the public interest factors against release it had regard to:
• Not impeding a company from the effective pursuit of their legitimate business;
• Protecting the vital interests of the business community;
• Allowing companies provide it with confidential information without fear of release;
• Ensuring and safeguarding the quality of competitive submissions to public bodies and therefore ensuring best value for money and disbursement of public funds.
An Coimisiún says it concluded, on balance, that the public interest would not be better served by granting this request as it believes commercial harm could arise for applicants by release of information considered to be their trade secrets and commercial property.
I consider that there is a significant public interest in openness, transparency and accountability in public bodies, particularly where the use of public funds is concerned. In certain circumstances, disclosure serves as a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money and to prevent the waste of public funds. I accept that release of the programme content sections at issue would serve the public interest in openness and transparency to an extent in circumstances where public funding was provided for these programmes.
However, it seems to me that there is already a high level of transparency for public interest purposes in how this funding scheme operates. I note from An Coimisiún’s website that it publishes information about each round following ratification of the funding recommendations. This includes publishing a media release that provides a general commentary about the round, including the number of applications received and the amount of funding offered to projects. I also note that a separate report is attached to each media release which provides an overview of the projects being offered funding in the round. It includes the name of the contractor, the project name, the funding recommended, the percentage of the total budget that the funding represents, the channel on which the programme will be broadcast, and details about the programme's format, theme, target audience and programme language.
There is also a legitimate public interest in persons being able to engage in commercial transactions with public bodies without fear of commercial harm. As a general principle, this Office does not consider that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny.
Having carefully considered the matter, I am not satisfied that any sufficiently specific, cogent and fact-based reason exists in this case to tip the balance in favour of release of the information at issue. I find, therefore, that section 36(3) does not apply. In conclusion, therefore, I find that An Coimisiún was justified in refusing access to the information at issue under section 36(1)(b) of the Act. In light of this finding, it is not necessary to consider whether or not An Coimisiún was justified in refusing access to the information at issue under sections 30(1)(b) or 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm An Coimisiún’s decision. I find that An Coimisiún was justified in refusing access to the information at issue under section 36(1)(b) of the FOI Act.
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.
Jim Stokes
Investigator