Case 98198. Objection to the release of records relating to two companies involved in poultry processing - whether disclosure of information in records prepared by staff members of the Department would amount to a breach of a duty of confidence - section 26(2) - whether information in records sent by the companies to the Department was given in confidence - section 26(1)(a) - whether the records contained commercially sensitive information - section 27(1)

Case Summary

Facts

The Department decided to grant access to certain records which related to the two poultry processors. The two companies applied to the Commissioner for a review of that decision.

Decision

The Commissioner found that section 26(2) applied to certain records of correspondence from the Department to the companies and thus section 26(1) could not apply.

The Commissioner also found, in any event, that the requirements of section 26(1)(a) were not met. Even if those requirements had been met, he considered that there is a significant public interest in the public knowing how the Department carries out its regulatory functions in the area of hygiene and food safety and the control of disease. He considered that the public, as the ultimate consumers of food products, has a legitimate interest in knowing information of the nature that was contained in the records. He found that the public interest would on balance be better served by granting than by refusing to grant the request for the records. In considering the application of section 27, he also found that these public interest factors outweighed any public interest in protecting the commercial operation of the companies in question.

Date of Decision: 15.09.2000

Our Reference: 98198

15.09.2000

Mr X

Dear Mr X

I refer to the application made by your firm under the Freedom of Information Act, 1997 for a review of the decision of the Department of Agriculture and Food (the Department) made on 4 November 1998 to grant access to certain records relating to your clients, ABC Limited and DEF Limited.

Background

I have now completed my review of the decision of the Department. I note that you were given the opportunity to make submissions to me in relation to this matter, and have not done so. However, I have taken into account the contents of your letter to the Department dated 30 November 1998.

I have examined the records which the Department had decided to release to the requester in this matter.

I note that Ms Connolly, Investigator in my Office, wrote to you on 15 August 2000 setting out her preliminary views in relation to this case and offering you the opportunity of accepting those views or offering you a period of three weeks within which to make comments or suggestions to me in the matter. As this period has now expired and as I have not heard from you, I have decided to conclude my review by issuing a formal decision.

In summary, I have decided to vary the Department's decision to grant access to the records in this case.

Scope of Review

During the course of this review the requester confirmed that the names or other identifying information about suppliers to ABC Limited or DEF Limited may be deleted from any records that may be released. Therefore, my review is concerned solely with the question of whether the decision of the Department to grant access to the records, described in Ms Connolly's letter as Bundle A1 records 1-35, Bundle A2 records 1-13 and Bundle B records 1-18, with these names or other identifying information deleted, was correct.

Findings

Ms Connolly indicated to you in her letter that the sections of the Act which were relevant to this review were section 34(12)(a), section 26, section 27 and 28 and explained briefly the effect of these sections. In the circumstances, I do not intend to repeat that explanation in this decision, although I shall refer to it for the purpose of explaining my decision in relation to the records. For the purpose of giving her preliminary view Ms Connolly divided the records into three groups numbered 1 to 3. I have adopted the same approach for the purposes of this decision.

As Ms Connolly has pointed out, since this review concerns a decision to grant a request to which section 29 applies, the decision to release shall be presumed to have been justified unless ABC Limited or DEF Limited show to my satisfaction that the decision was not justified.

Records in Group 1

I am satisfied that records 7 and 8 in Bundle A1 do not relate to ABC Limited or DEF Limited. I am satisfied that access was not sought to these records and they do not fall within the terms of the request.

I am satisfied that records 33, 34, 35 in Bundle A1 were created after the date of the request and therefore do not fall within the terms of the request.

I am satisfied that access does not fall to be granted to the records in Bundle A1, numbered 7, 8, 33, 34 and 35.

Records in Group 2

The records in this group are specified in Ms Connolly's letter of 15 August last.

I am satisfied that record 9 in Bundle B was created on 6 April 1998 i.e. prior to the commencement of the FOI Act. Under section 6(5) of the Act, a right of access only arises to this record if access is necessary or expedient in order to understand records created after the commencement of the Act or if the record relates to personal information about the requester. I am satisfied that, at this time, access to this record is not necessary or expedient to understand a record or records created after the commencement of the Act. I am also satisfied that the record does not relate to personal information about the requester. I have decided that a right of access to this record does not exist under section 6 of the FOI Act.

The remainder of the records in Group 2 comprises correspondence from the Department to ABC Limited or DEF Limited, enclosures in such correspondence and related internal communications within the Department. I am satisfied that these records were prepared by members of staff of the Department in the course of the performance of their functions. I am not satisfied that it has been established that disclosure of the information contained in these records would constitute a breach of a duty of confidence that is provided for by an agreement or statute of otherwise by law within the meaning of section 26(2). I am satisfied that section 26(2) applies to these records and that, therefore, section 26(1) cannot apply to these records.

Even if I were to accept that section 26(2) does not apply or that information in these records contained, or was based on, information given to the Department by your clients and that thus section 26(1)(a) might apply, I am not satisfied that the requirements of section 26(1)(a) have been met in relation to these records. As Ms Connolly stated in her letter, there are four requirements in section 26(1)(a). In my view, the reference to an "understanding" in section 26(1)(a) is a reference to an understanding which is mutual. I note that the Department, in its letter to you of 4 December 1998 rejected any suggestion that there was an express understanding of confidentiality. In the circumstances, I am not satisfied that there was an understanding that information which was given to the Department would be treated as confidential in this case. I have fully considered your letter of 30 November 1998 to the Department. However in the light of the powers of the Department, the obligations on poultry plant operators under the relevant Regulations and the fact that compliance with the Regulations is necessary if poultry plant operators wish to remain in operation, I am not satisfied that disclosure of the records would be likely to prejudice the giving to the Department of further similar information from your clients or others. I find that the requirements of section 26(1)(a) have not been met in relation to the records in Group 2.

Even if I had been satisfied that the requirements of section 26(1)(a) had been met, I consider that there is a significant public interest in the public knowing how the Department carries out its regulatory functions in the area of hygiene and food safety and the control of disease. I consider that the public, as the ultimate consumers of food products, has a legitimate interest in knowing information of the nature that is contained in these records. I, therefore, find that the public interest would, on balance, be better served by granting than by refusing to grant the request for access to the records in Group 2.

In her letter of 15 August 2000, Ms Connolly addressed the issue of section 26(1)(b) of the Act. I find that the various Regulations, Directive, Code of Conduct and Monitoring Programme referred to by Ms Connolly do not impose an obligation of confidentiality on the Department. I am not satisfied that it has been established that disclosure of the information in these records constitutes a breach of a duty of confidence within the meaning of that section. I find that section 26(1)(b) does not apply in this case.

Ms Connolly also considered the possible application of section 27 to these records. It has not been argued to me that the records contain trade secrets of ABC Limited or DEF Limited and I am not satisfied that they contain trade secrets of those companies. I accept that the records contain information which, if disclosed, might result in adverse publicity for the companies concerned. As I have said above, I consider that there is a significant public interest in the public knowing how the Department carries out its regulatory functions in the area of hygiene and food safety and the control of disease. I consider that the public, as the ultimate consumers of food products, has a legitimate interest in knowing information of this nature. I, therefore, find that the public interest would, on balance, be better served by granting than by refusing to grant the request for access to these records.

Records in Group 3

The records in Group 3 comprise correspondence from ABC Limited or DEF Limited to the Department. The records in this Group are specified by Ms Connolly in her letter of 15 August last. I accept that the records in Group 3 contain information given by ABC Limited or DEF Limited to the Department and were not prepared by members of staff of the Department. Therefore, section 26(2) does not apply to these records.

I have noted the contents of these records and that there is no indication on the face of the records that the information was given in confidence. For reasons already given in relation to the records in Group 2, I am not satisfied that there was an understanding that the information in the records in Group 3 which was given to the Department would be treated by it as confidential. Further, in light of the powers of the Department, the obligations on poultry plant operators under the relevant Regulations and the fact that compliance with the Regulations is necessary if poultry plant operators wish to remain in operation, I am not satisfied that disclosure of the records would be likely to prejudice the giving to the Department of further similar information from your clients or others. I find that the requirements of section 26(1)(a) have not been met in relation to the records in Group 3. I also find, for the reasons given above in relation to the records in Group 2, that the public interest would, on balance, be better served by granting than by refusing to grant the request for access to the records in Group 3.

In considering the possible application of section 27 to the records in Group 3, it has not been argued that the records contain trade secrets of ABC Limited or DEF Limited and I am not satisfied that they contain trade secrets of the companies. I accept that the records contain information which, if disclosed, might result in adverse publicity for the companies concerned. I recognise that an argument could be made that disclosure could reasonably be expected to result in a material financial loss or gain to the two companies or could prejudice their competitive positions or could prejudice the conduct or outcome of negotiations between the companies and others. I note that no such argument has been made in this case. If it had been made and even if I accepted it, I consider that the significant public interest in the public knowing how the Department carries out its regulatory functions in the area of hygiene and food safety and the control of disease outweighs any public interest in protecting the commercial operation of the companies. I consider that the public, as the ultimate consumers of food products, has a legitimate interest in knowing information of this nature. I, therefore, find that the public interest would, on balance, be better served by granting than by refusing to grant the request for access to records in Group 3.

Personal information

Ms Connolly referred to the application of section 28 of the Act to the names of individuals who work for DEF Limited or ABC Limited. I accept that this is personal information about these individuals and I find that the public interest that this information should be released does not outweigh the public interest that the right to privacy of the individuals should be upheld. I have decided that the names of individuals working for ABC Limited or DEF Limited should be deleted from the records to be released.

Decision

Having completed my review under section 34(2) of the Freedom of Information Act, 1997 I have decided to vary the decision of the Department as it applies to the records within the scope of this review. I have decided that access should not be granted to the following records: Bundle A1, records 7, 8, 33, 34, 35. Bundle B, record 9.

I have decided that access should be granted to all the remaining records provided however that the name or any identifying information relating to the suppliers to ABC Limited or DEF Limited is deleted. I have also decided that the names of individuals who work for ABC Limited or DEF Limited should be deleted.

I would like to draw your attention to the fact that a party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than 4 weeks from today's date.

A copy of this letter setting out my decision in this case is being furnished to the ABC Limited and DEF Limited, the Department and the requester.

Yours sincerely

Information Commissioner