Cinneadh
Mr. X and the St. Joseph's Foundation
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152201-L2C0D4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152201-L2C0D4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Foundation was justified in refusing access to certain payment information under section 36(1)(b) or (c) of the FOI Act
1 July 2025
In a request dated 21 August 2024, the applicant sought access to:
1) The annual amount of payments made to [a named company] for the last six years;
2) A list of any payments made to [a named individual] for services provided, including expenses covering the last 6 years;
3) On an annual basis, covering the last 6 years, the number of hours/days worked by employees of [a named company] and the hourly/day rate paid for the services;
4) A copy of the contract for services that covers the services commissioned by the Foundation and supplied by [a named company];
5) The status of [a named company’s] current engagement for providing services.
In a decision dated 29 August 2024, the Foundation stated that “under GDP regulations we are not able to facilitate your request .” In his internal review request of 9 September 2024, the applicant stated that it is his understanding that the Foundation falls under the FOI Act. On 18 September 2024, the Foundation issued its internal review decision in which it refused access to parts 1-4 of the request under section 36 of the FOI Act. In relation to part 5 of the request, the Foundation stated that the named company does not currently provide services to the Foundation and has not done so since January 2024. On 20 September 2024, the applicant applied to this Office for a review of the Foundation’s decision.
During the course of the review, this Office sought a schedule and copies of the requested records. The Foundation provided it with a schedule and with one record which it said is relevant to the applicant’s request. It said that further records relevant to the request do not exist and it confirmed that the current engagement status of the named company is inactive. This Office updated the applicant in relation to the Foundation’s position and advised him that the record provided contains a list of payments covering 2017 to 2023 made to the named company showing the invoice date, dates, total hours, number of employees, hourly rate and invoice amount. It informed the applicant that the Foundation contends that this record is exempt under sections 36(1)(b)/(c) of the Act. The applicant confirmed that was happy to proceed to a decision on the issue of whether or not the foundation was justified in refusing access to this record on the basis of sections 36(1)(b)/(c) of the Act.
This Office provided the applicant and the Foundation with an opportunity to make submissions and the Foundation provided submissions. In light of the nature and contents of the record at issue, this Office notified the Director of the named company of the review. The Director contacted this Office to object to release of the information.
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 record concerned. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is confined to whether the Board was justified in refusing access to the record as described above under sections 36(1)(b) or (c) of the FOI Act.
Section 36 - Commercially Sensitive Information
The Foundation sought to rely on sections 36(1)(b) and (c) of the Act in refusing access to the record at issue. Section 36(1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:
(b) financial, commercial, scientific, or technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person, or
(c) information the disclosure of which could prejudice the conduct or outcome of negotiations of that person.
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) 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 essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information “could reasonably be expected to result in a material financial loss or gain .” The test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, the Commissioner takes the view that, in invoking "prejudice ", the damage which could occur must be specified with a reasonable degree of clarity.
Under section 36(1)(c), access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
The applicant says he does not agree with the Foundation’s justification for not providing the requested information. He says their position appears to rely on their stated context, that they are in the process of seeking to appoint a new service provider and that the release of the information would prejudice their and third parties’ competitive position and prejudice their ability to conduct negotiations as other parties would be aware of their previous cost structure. He says the information that he has requested will not prejudice any competitive position nor give away any cost structure as it does not include the amount or type of services that were provided by the company, nor the day/hourly rates that were paid. He says all that has been requested is the annual amount that has been paid to the company in question. He states that it is standard practice for public bodies to disclose the annual amounts paid to third parties, especially as payments are made using public money. He says it is noteworthy that the payments made to the named company are historic and not current, as the Foundation has stated the company has not provided services to them since January 2024.
The Foundation says it is currently in the process of seeking expressions of interest and hopefully appointing a new service provider on a contract. It says the release of information under the FOI Act is, in essence, a release to the world at large. It says that if the information sought was released, it is reasonable to expect that this would prejudice the ability of the foundation to conduct negotiations in respect of their requirement for third party service provision in the future as other parties would be aware of their previous cost structure. It states that it may also prejudice the competitive position of the third party in the conduct of their business. It says that the placing of these cost structures into the public domain could also be expected to give a competitive advantage to other third-party service providers involved in similar undertakings.
The Director of the third party says she had a previous relationship with the applicant who informed her that he had made the FOI request. She said that the Foundation had also informed her of the FOI request. She said she was concerned that records would be released to the applicant as the information about dates, total hours, number of employees, hourly rate and invoice amount concerned her as she has provided the services at issue to the Foundation.
The applicant submits that the information that he has requested will not prejudice any competitive position nor give away any cost structure as it does not include the amount or type of services that were provided by the company, nor the day/hourly rates that were paid. The applicant has however specifically sought hourly/day rate paid for the services in his FOI request. The record located by the Foundation contains dates, total hours, number of employees, hourly rate and invoice number. The hourly rate covers a period of time up to and including 2023 and I do not accept that this is historic information. The type of therapy services provided by the individual referred to in the applicant’s FOI request is referenced online and the Foundation has referred to the type of services at issue in its communications with the applicant. I accept that there is competitive market for the provision of these therapy services. In my view, if details of the third party’s business such as the total hours it worked for the Foundation, the number of employees who provided services to the Foundation, the hourly rate for those services and invoice amounts were released into the public domain, this type of granular information could be used by competitors to undercut the third party in future competitions for the provision of these services. This could result in prejudice to their competitive position or could prejudice the conduct or outcome of negotiations involving the third party. I find, therefore, that the record at issue is exempt under section 36(1)(b) and (c) of the FOI Act.
Section 36(2)
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)/(c) of the FOI Act applies in respect of the record at issue, I shall now consider section 36(3) of the FOI Act. The public interest balancing test in section 36(3) expressly acknowledges the potential for harm arising from the release of a record. Therefore, while release of the record might give rise to one or more of the harms identified in section 36(1) of the FOI Act, this alone does not provide a sufficient basis for concluding that the public interest would be better served 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 in The 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.
Where records relate to the expenditure of public money, the Commissioner takes the view that there is a strong public interest in openness and accountability in the use of public funds. The Commissioner has however distinguished between the public interest in disclosing information which relates purely to the financial business of the third party and information which relates to the activities of the FOI body, e.g. the exercise of its functions. The Commissioner takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Thus, the Commissioner distinguishes between the public interest in disclosing information which relates to a third party and information which relates to an FOI Body. It seems to me that the information at issue primarily relates to the financial business of the company rather than the way in which the Foundation carries out its functions.
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 record at issue. I find, therefore, that section 36(3) does not apply. In conclusion, therefore, I find that the Foundation was justified in refusing access, under section 36(1)(b) and (c) of the Act, to the record at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Foundation’s decision. I find that the Foundation was justified in refusing access to the record at issue under section 36(1)(b) and (c) 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