Request for a report relating to the charitable organisation, GOAL - whether the information contained therein was provided by GOAL to the Department in confidence - section 26(1)(a) - whether there was an equitable duty of confidence owed by the Department to GOAL - section 26(1)(b) - whether release of the report could result in a material financial loss to GOAL - section 27(1)(b) - public interest

Case Summary

Facts

The requester sought access to a report, commissioned by the Department, which reviewed a progress report, submitted to the Department by GOAL, in response to recommendations for changes to GOAL procedures. The Department refused access to the report. In the course of the Commissioner's review, the Department indicated that did not object to release of the report, but that working relations between GOAL and the Department could be adversely affected by its release.

Decision

The Commissioner considered GOAL's claim that there was an implicit understanding of confidence between it and the Department. He found that the nature of the relationship between the Department and GOAL was such that GOAL, in accepting public monies to pursue its own objectives, is subject to certain restrictions, not only in relation to the objectives in respect of which such funds are disbursed, but also in relation to the manner in which the disbursements are recorded and accounted for. He commented that the Department's obligations in relation to ensuring propriety in the use of funds allocated by it to charities, and its own accountability to Dáil Éireann, would render any understanding of confidentiality, whether explicit or implicit, inappropriate. He found that section 26(1)(a) did not apply. He also found that section 26(1)(b) was not applicable, as GOAL did not provide any evidence in support of its argument that release would result in a breach of confidence, owed by the Department to GOAL.

As regards section 27(1)(b), the Commissioner noted that the submissions made by GOAL revealed that the harm it envisaged was founded in the fear that losses to its income and reputation (which, it claimed, occurred following adverse publicity in 1997) will be repeated, and that its subsequent financial recovery will be reversed. He commented that GOAL was not so much concerned with the release of the information in report, as with the possibility that any further airing of the GOAL/Department of Foreign Affairs relationship will have an adverse effect on its funding. He did not accept that the information in report, if disclosed, could be reasonably expected to result in a material, financial loss to GOAL and that section 27(1)(b) or (c) did not apply.

The Commissioner also commented that, even if he found that any of the provisions at sections 26(1)(a), 26(1)(b), 27(1)(b) or 27(1)(c) applied, he would have attached a more significant weight to the public interests in ensuring that the objectives in respect of which public funds are allocated are met, and in ensuring that there is accountability in relation to the manner in which such funds are applied, than he would have attached to the public interest in ensuring that the efforts of charitable organisations are not disrupted. He directed that the report be released.

Date of Decision: 15.11.2000

Our Reference: 99309

15.11.2000

Mr. X

Dear Mr. X

I refer to your application for a review of the decision of the Department of Foreign Affairs (the Department) to refuse to release a copy of a specific report prepared by Precept Consultants in relation to the charitable organisation, GOAL. The report in question is dated 27 October 1998 and was referred to in Parliamentary Question 8694/99. An earlier report by Precept Consultants, in relation to GOAL, is not covered by this request.

I have now completed my review of the Department's decision. I have decided to annul the decision of the Department and direct that the requester be granted access to the report. My findings and decision are set out below.

Background

The Precept report, which was commissioned by the Department of Foreign Affairs from Precept Consulting Ltd., is a review of a progress report submitted by GOAL to the Department in response to recommendations for changes to GOAL procedures made in earlier reports commissioned from a different firm of consultants.

As the Department had consulted with GOAL prior to its decision to refuse access to the record I decided, in accordance with the provisions of section 34(6) of the Act, to notify GOAL of my review of the Department's decision and to give them the opportunity to put their view to me. This GOAL did by way of written submissions and a meeting with my staff.

During the course of my review the Department indicated in a letter dated 21 October 1999 that it would be prepared to withdraw its objection to the release of the record; but it also mentioned it was aware that GOAL would have difficulties with this and that working relations between GOAL and the Department could be adversely affected by the release of the report. Subsequently, on 18 October 2000, the Secretary General of the Department wrote to my Office in the following terms: "I would like to state our view, as outlined previously, that the release of the Report may cause difficulties for GOAL. It could also put some strains on the good relationship between GOAL and the Department."

In arriving at my decision in this case I have had regard to the following matters :

• the correspondence between you and the Department in relation to your request
• the consultation which the Department undertook with GOAL in relation to your request
• your letter of application seeking a review of the Department's decision
• correspondence from the Department to my office indicating that it would be prepared to withdraw its objection to release
• correspondence from the Department indicating that release of the report might cause difficulties for GOAL or might put some strains on the good relationship between GOAL and the Department
• a number of written submissions from GOAL and an oral submission made at a meeting with members of my staff

Submissions

GOAL made a number of submissions to this office setting out the reasons why, in its view, the Precept report should not be released. Its arguments can be summarised as follows :

• The Precept report is an integral part of earlier reports in relation to GOAL and must be considered in the context of understandings of confidence which existed between the Department and GOAL in relation to those reports.
• The record contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential; disclosure would prejudice the giving to the Department of further similar information from GOAL or other persons and it is important that the Department should continue to be given such further information in the interest of ensuring good relations between the respective organisations.
• On the basis of these understandings of confidentiality and of other considerations, section 26(1)(a) of the Freedom of Information (FOI) Act therefore applies.
• Section 26(1)(b) of the Act applies on the grounds that the Department owes GOAL a duty of confidence in relation to the content of the report.
• Section 27(1)(b) of the Act applies in that the release of the report could reasonably be expected to result in a material financial loss to GOAL by once again bringing issues into the public domain which might have an adverse effect on GOAL's fund-raising.
• As a result, the release of the Precept report would have the very effect that section 27(2)(e) seeks to avoid, i.e. a serious and imminent danger to the life or health of an individual. The individual(s) concerned are the poor of the Third World whom GOAL helps in its charitable work.
• Section 27(1)(c) of the Act applies in that GOAL's negotiations with the Department could be prejudiced if the good working relationship it now has with the Department were jeopardised.
• The public interest would not be served by the release of the Precept report since it would damage an important charity and damage the people it was set up to help.

Scope of Review

The only matter upon which I am required to decide in this case is whether or not the decision made by the Department of Foreign Affairs to refuse to release a copy of the Precept report was correct in accordance with the provisions of the Freedom of Information Act, 1997.

Findings

The FOI Act confers a right of access on every person to records held by public bodies and the definition of a "record" in the Act includes not only documents but also parts of documents. Even if I were to take the view that the Precept report is an integral part of earlier reports commissioned by the Department in relation to GOAL I would, for the purposes of my review in this case, be required to consider the Precept report as a separate record in its own right.

In relation to section 26(1)(a) of the Act, while GOAL accepts that no explicit understanding of confidentiality existed, it argues that its discussions with the Department rendered such understandings implicit. In the light of this I consider it legitimate to look at the nature of the relationship between GOAL and the Department, the content of the information contained in the Precept report and the practice of the Department in relation to reports of this nature.

In pursuit of its charitable objectives GOAL has sought and received public funding from the Department of Foreign Affairs. The Department has a legitimate right to expect that public funding provided to such a charity is disbursed in a manner which will, in part at least, accord with its own objectives for Third World development. It seems to me, therefore, that the nature of the relationship between GOAL and the Department is such that GOAL, in accepting public moneys to pursue its own objectives, is subject to certain restrictions not only in relation to the objectives in respect of which such funds are disbursed but also in relation to the manner in which the disbursements are recorded and accounted for.

An examination of the Precept report shows, and GOAL has accepted this, that its contents are, in the main, favourable to GOAL. The report is essentially a catalogue of the progress being made by GOAL in implementing changes in financial and other procedures. The practice of the Department in relation to reports of this nature is not entirely clear. It is clear, however, that the Department's obligations in relation to ensuring propriety in the use of the funds allocated by it to charities, and its own accountability to Dáil Éireann, would render any understanding of confidentiality, whether explicit or implicit, inappropriate. This is especially so in the context of the existence of the FOI Act. I therefore find that the provisions of section 26(1)(a) do not apply.

GOAL has argued that section 26(1)(b) of the Act applies on the grounds that the Department owes GOAL a duty of confidence in relation to the content of the report. The provisions of section 26(1)(b) can, however, only apply where it can be shown to my satisfaction that disclosure would result in a breach of confidence provided for by a provision of an agreement or enactment or otherwise by law. Notwithstanding its claim, GOAL has failed to provide any evidence as to how such a breach would occur. I have, in a number of other decisions [see, for example, Case Number 98049 - Henry Ford & Others and the Office of Public Works (OIC Decisions Vol. 2, pp. 144 - 170)], elaborated on the requirements of confidence provided for "otherwise by law" and I do not need to revisit that aspect in this case. I find that the provisions of section 26(1)(b) do not apply.

In arguing its claim for exemption under section 27(1)(b) of the Act, GOAL has claimed that the report contains information which could reasonably be expected to result in a material financial loss to GOAL. It went on to argue that such a result would have the very effect that section 27(2)(e) seeks to avoid, i.e. a serious and imminent danger to the life or health of individuals in the Third World. An examination of the submissions made to me by GOAL in relation to this claim reveals that the harm envisaged by GOAL is founded in the fear that the losses to its income and reputation, which it claims occurred following adverse publicity in 1997, will be repeated and that its subsequent financial recovery will be reversed. I consider that GOAL are not so much concerned with the release of the actual information in the report as with the possibility that any further airing in public of the GOAL/Department of Foreign Affairs relationship will have an adverse effect on their funding. I would certainly be disappointed if that were to be the outcome of the release of this report. However, having carefully perused the contents of the report, I cannot accept that the information which would be disclosed could reasonably be expected to result in a material financial loss to GOAL. I have no function in restricting or controlling the way in which information, once released, is subsequently used. I have arrived at the conclusion, therefore, that the provisions of section 27(1)(b) do not apply. I find for the same reasons that the provisions of section 27(1)(c) do not apply.

Although it is not strictly necessary for me to do so, I should say here that even if I were to have found that any of the provisions at section 26(1)(a), 26(1)(b), 27(1)(b) or 27(1)(c) did apply, I would have been obliged to consider whether, on balance, the public interest would be better served by granting rather than refusing to grant the request for access to the Precept report. Notwithstanding the fact that GOAL is of the view that further public debate on this matter will be harmful to its efforts in the Third World, I would find it difficult, in public interest terms, to draw a distinction between the disbursement of public funds by GOAL and by other grant-aided bodies, based on the objects for which a body is established. While there is a public interest in ensuring that the efforts of charitable organisations are not disrupted, there is also a clear public interest in ensuring that the objectives in respect of which public funds are allocated are met and that there is accountability in relation to the manner in which such funds are applied. I attach a significant weight to the latter.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the decision of the Department of Foreign Affairs to refuse to grant access to the Precept report. Mindful of the fact that the Department of Foreign Affairs had, in any event, offered to withdraw its objections to the release of the report, I hereby decide, in the interests of clarity and for the avoidance of doubt, that the requester be granted access to the report.

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 that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely