Case number: 180288

Whether the Authority was justified in granting partial access to records submitted to it by a named company on a request to which section 38 of the FOI Act applies

 

31/10/2018

 

Background


This review arises from a decision made by the Authority to grant partial access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information about third parties) but that the record(s) should be released in the public interest. 

Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

On 9 May 2018, the requester submitted an FOI request to the Authority for access to certain records. Among other records, which are not relevant to this review, the requestor sought access to: "... the submission made by [a named company] following the recent investment by vehicles controlled by [Mr. X]. A submission was submitted and considered in the February meeting of the BAI. Can I please have a copy of the submission, any follow-up material and any briefing notes or other material held by the BAI in relation to Mr. X."

Having formed the view that the request was one to which section 38 of the FOI Act applied, the Authority undertook a process of consultation with the company. On 7 June 2018, it notified the company of the request and stated that it was considering the release of certain information in the public interest. The Authority provided the company with a copy of six records which relate to the company, with its proposed redactions marked in red. It also provided the company with a draft document schedule containing an overview of its proposed decision in relation to each record. The company was invited to review the records and the proposed redactions and to submit any concerns or views about the possible release of the remaining information contained in the records. 

On 27 June 2018, the company wrote to the Authority and said that it agreed with the majority of the suggested redactions. It said that in some cases, information which the Authority proposed redacting is already in the public domain and it does not object to release of this information. The company highlighted this information in green. The company said that it objected to the release of certain information which the Authority proposed releasing and it highlighted this information in pink.  

On 11 July 2018, the Authority issued its decision granting partial access to the records. It found that, on balance, the public interest required release of certain otherwise exempt information. It refused to grant access to certain information which it found was confidential, commercially sensitive or personal information of third parties. The Authority's decision was to release the additional information which the company had not objected to and to refuse access to some, but not all, of the information which the company had objected to releasing.

On 23 July 2018, the company (the applicant) applied to this Office for a review of the Authority's decision. The applicant, the Authority and the requester made submissions during the course of this review.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties and to the provisions of the FOI Act 2014. 

 

Scope of Review


During the course of the review, this Office wrote to the applicant and asked whether it would be willing to limit the scope of its application for review to the information contained in record 6 which it had objected to being released and which the Authority decided should be released. The applicant helpfully confirmed that it was prepared to limit the scope of its application to the disputed information in record 6. However, it stated that it also wished to include within the scope of the review certain information contained in record 2. 

The applicant argued that certain shareholder information contained in record 2 which the Authority's decision was to release is commercially sensitive; for example, the information contained in paragraph 1.5 of its submission to the Authority. It states that the Authority has redacted similar information on page 3 of the note to the Authority. 

When the Authority provided the applicant with a copy of the records with its proposed redactions marked in red, it proposed redacting paragraph 1.5 of the applicant’s submission to the Authority. When the applicant submitted its views to the Authority about the proposed redactions, it highlighted paragraph 1.5 of its submission to the Authority in green. The applicant stated that the information highlighted in green is already in the public domain and it does not object to its release as the public interest would not be served by withholding such information. The Authority's decision was to release paragraph 1.5. It seems to me that the applicant cannot now argue that this information is commercially sensitive and ought to be included in the scope of the review since section 38(4) envisages that the public body shall consider submissions made by persons notified before deciding to grant or refuse the request. The applicant has not identified any other commercially sensitive information contained in record 2 which it wishes to include in the narrowed scope of this review. 

The scope of this review is confined to whether the applicant has shown that the Authority's decision to partially release record 6 was not justified having regard to sections 35, 36 and 37 of the FOI Act.

 

Preliminary Matters 


At the outset, it is relevant to note a number of preliminary matters. Section 22(12)(a) of the FOI Act provides that where a decision to grant a request to which section 38 applies is being reviewed by the Commissioner, there is a presumption that the granting of the requested access is justified unless the person (to whom the information relates) shows to the satisfaction of the Commissioner that the decision was not justified. Thus, in this case, the onus is on the applicant to satisfy me that the Authority's decision was not justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the record at issue and the material that I can refer to in the analysis is limited. 

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. 

 

Analysis and Findings


Background 


It is helpful here to set out the background to the material involved in this review. The Authority is empowered under the Broadcasting Act 2009 to approve changes to the ownership and control of broadcasters that it issues licences to. In early 2018, an application was made to the Authority to approve the acquisition of the applicant (a BAI licensee) by investment vehicles controlled by Mr. X. 

The Authority considered this request for approval at a meeting on 26 February 2018 and published the minutes of this meeting on its website (with certain redactions). The Authority noted that, under its Ownership and Control Policy (2012), it is required it to have regard to the character of the proposed new owner. The Authority noted that Mr. X was the subject of a conviction a number of years ago. It noted the applicant's submission that the conviction was historic and now spent. However, the Authority was not satisfied that the issue of Mr. X's character was sufficiently addressed in the submission and requested further detail regarding the nature of the offence that led to Mr X's conviction.

Record 6 contains the further information submitted in response to the Authority's request. It includes a covering letter dated 1 March 2018, enclosing a detailed letter from a company director who is a business associate of Mr. X. This letter addresses Mr. X's previous conviction, his character and his business career. It includes certain enclosures. Record 6 also includes a note to the Authority from a staff member which summarises the additional information provided by the applicant. 

The applicant argues that the additional information in record 6, and the summary of this information in the note to the Authority contains confidential, commercially sensitive and personal information of both Mr. X and identified third parties. It argues that this information is exempt under sections 35, 36 and 37 of the Act. The Authority accepts that the company director's letter contains personal information held by it on the understanding that it would be treated as confidential. However, it argues that the public interest favours disclosure of this information. Having examined the information at issue, I am satisfied that it is appropriate to consider section 37 of the FOI Act first.  

 

Section 37 - Personal Information


Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. Section 2 of the Act defines "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 that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (ii) information relating to the financial affairs of the individual; (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by the individual and (xiv) the views or opinions of another person about the individual.

I have examined record 6 closely and I find, with one exception, that the parts of record 6 to which the applicant objects to release, contain personal information in relation to Mr. X and identifiable third parties and are exempt from release on the basis of section 37(1) subject to the consideration of sections 37(2) and section 37(5) which I examine below. 

Page 3/6 of record 6 contains two long paragraphs. The first three lines contain personal information which is exempt under section 37 of the Act. However, the remainder of the two long paragraphs contains a summary of the legal situation. I find, with the exception of the first three lines, that the two long paragraphs on page 3/6 of record 6 are not exempt under section 37 of the Act. This finding does not extend to footnotes 3 and 4 on page 3/6 which do contain personal information.

 

Section 37(2) 


There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case.

 

Section 37(5)


Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the parties to whom the information relates, as envisaged by section 37(5)(b) of the FOI Act. 

 

The Public Interest


On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting access to the information of which I have found section 37(1) to apply outweighs, on balance, the public interest in protecting the privacy rights of the third parties to whom the information relates.

In considering the public interest test in section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In that case Macken J. stated that in her view, a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." 

In its submissions to this Office, the applicant states that the letter provided by the company director and the enclosures were provided to the Authority on the understanding that they would be treated as confidential. It argues that the purpose of the letter and enclosures was to give the background of Mr. X's conviction, the fact that it was spent and to provide a character reference for Mr. X. The applicant argues that these records contain information which is not publically available and the public interest does not favour release of this information.

In its submissions to this Office, the Authority states that Broadcasters have the power to significantly influence the cultures in which they operate so it is appropriate that the owners of these services act responsibly. The Authority states that it exercises its character tests openly and in the public interest to ensure that individuals who own and control broadcasters are of suitable character. It states that Mr X's former conviction and the fact that it assessed it are matters of public knowledge. According to the Authority, the only personal information that would be made newly available to the public concerning Mr. X by disclosure of the information at issue relates to the context of how the Authority arrived at its decision. It argues that if this information is removed from the records, the public will not be able to properly scrutinise the decision made by the Authority.

In her submissions to this Office, the requester argues that the redactions proposed by the applicant should not be allowed. She argues that it is insufficient for the applicant to claim that the redactions are necessary on the grounds that the information was provided in confidence. The requester states that the public must have confidence that the Authority's decision making is conducted fairly and transparently and this can only be achieved when the public can scrutinise the decision making process.

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Authority carried out its functions when it approved the change in the ownership of the applicant company.   

On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The question I must consider is whether the public interest in the release of the personal information of Mr. X and the third parties outweighs, on balance, the significant public interest in protecting the privacy rights of these parties. In my view, it does not.

In my view, the public interest in openness and accountability as to the manner in which the Authority carried out its functions in approving the change of ownership, is met to a significant extent in this case by the release of information contained elsewhere in record 6 and contained in the minutes of the Authority's meeting in March 2018, which are published online. In this regard, I am satisfied that the rationale for the Authority's decision to approve the change in ownership is already available and allows the public to scrutinise its decision. 

The information at issue contains detailed personal information in relation to Mr. X which goes beyond the information that is publically available. The information at issue also contains character references provided by third parties that the Authority accepts were provided on the understanding that they would be treated as confidential. It is important to note that release under FOI is regarded, in effect, as release to the world at large. I am not satisfied that the significant invasion of the privacy rights of  Mr. X and the third parties which would be the consequence of releasing the information at issue here, is warranted. Having carefully considered the matter, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. 

Given my findings regarding section 37 of the FOI Act, there is no need for me to consider the section 35 and 36 exemptions in this review except in relation to the two paragraphs of record 6 which I have found not to be exempt under section 37 above. Given that the record was created by a member of staff of the Authority, I find that section 35(1)(a) (information given in confidence) cannot apply. The summary of the legal situation as it appears in the record has no relevance to the section 36 exemption (commercial sensitivity) and I find therefore that this exemption does not apply either. 

 

Decision


Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby vary the decision of the Authority in relation to record 6. I find, with one exception, that the information in record 6 to which the applicant has objected to release of is exempt under section 37(1) of the Act. Page 3/6 of record 6 contains two long paragraphs, the first three lines contain personal information; however, the remainder of the two long paragraphs is not exempt under section 37 of the Act or other exemptions cited and I direct release of this information to the requester. 

 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.



Elizabeth Dolan
Senior Investigator