Case 020245. Records of correspondence between An Post and the Department - whether disclosure could prejudice the conduct or outcome of contractual or other negotiations of An Post - section 27(1)(c) - whether disclosure could reasonably be expected to prejudice or impair the fairness of pending civil proceedings - 23(1)(a)(iv)

Case Summary

Facts

A request was made to the Department for records relating to the Draft Communications Regulation Bill. Following notification of the affected parties under section 29, the Department decided to grant access to, inter alia, a number of items of correspondence between An Post and the Department. An Post applied for a review of the decision in respect of two of the records in question.

Decision

An Post objected to the release of one record on the ground that disclosure of its contents would prejudice the outcome of negotiations with local authorities. An Post considered that the record disclosed that its legal position concerning the erection and location of post boxes is unclear and that the disclosure of this information would make it easier for local authorities to impose onerous conditions and financial cost on An Post in return for permission to erect post boxes. The Commissioner did not accept this argument. He considered that local authorities can only have regard to the relevant legislative provisions in considering the question of the erection and/or location of post boxes and that they would not impose onerous conditions or financial cost on An Post if they were not authorised to do so. He found that section 27(1)(c) did not apply.

The second record at issue contained details of An Post's submission to the Department in respect of various provisions of the then Draft Communications Regulation Bill. An Post argued that the record related, in part, to a matter which was the subject of legal proceedings in the High Court and that release of that part of the record could prejudice or impair those civil proceedings. The High Court proceedings referred to were civil proceedings taken by An Post against the Office of the Director of Telecommunications Regulation (the ODTR) and the Department and one of the matters at issue in those proceedings was the question of whether there was a legal basis for the decision of the ODTR to impose a levy on An Post. The record at issue contained details of An Post's proposals for amendment of the Communications Regulation Bill to allow for the controlling and limiting of the amount of levy which could be imposed on it by the newly formed Commission for Communications Regulation. An Post considered that the record indicated the basis on which the matter relating to the ODTR's decision to impose a levy might be settled by the parties. The Commissioner considered that An Post's submission in respect of proposed future legislation did not indicate a basis on which it might be willing to settle the High Court proceedings. He found that even if he were to accept such an argument, An Post had not shown how disclosure of the record could reasonably be expected to prejudice or impair the fairness of the High Court proceedings.

The Commissioner also found that the provision of section 26(1)(a) did not apply to the second record as there was no mutual understanding between An Post and the Department that the information contained in the record would be treated by the Department as confidential.

Date of Decision: 09.06.2002

Our Reference: 020245

09.06.2002

Mr X

Dear Mr X

I refer to your application under the Freedom of Information act 1997 ("the FOI Act") for a review of the decision of the Department of Public Enterprise ("the Department") to release records which could affect the interests of An Post.

Background

I have now completed my review of the Department's decision. In carrying out that review, I have had regard to your correspondence with the Department, to your letters of 8 May 2002 and 10 June 2002 to my Office, to the Department's letter of 23 May 2002 to my Office and to the provisions of the FOI Act generally. I have also examined the records at issue.

Scope of Review

The Department decided to grant access to a number of records including (i) a letter dated 24 April 2001 from An Post to the Department (record No. 112) and (ii) your memo dated 13 February 2002 to Department (record No. 131). You applied for a review of the Department's decision to grant access to these two records. Accordingly, my review is concerned solely with the question of whether the Department is justified in deciding to grant access to the two records.

Findings

Preliminary Matters

Section 29 of the FOI Act requires a public body to notify a relevant third party where it considers that the exemption contained in section 26 (information obtained in confidence), section 27 (commercially sensitive information) or section 28 (personal information) applies to a record and, in the case of section 26 and 27, that the public interest would, on balance, be better served by disclosure or, in the case of section 28, that the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. Furthermore, section 34(12)(a) of the Act provides that a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the third party concerned satisfies me that the decision was not justified. This means that the onus rests with An Post of satisfying me that the decision by the Department to release the two records at issue in this case is not justified.

Record No. 112

You objected to the release of this record on the ground that the provisions of section 27(1)(c) of the FOI Act apply. Section 27(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. I note that record 112 explains that section 34 of the Post Office Act 1908, which empowered the Minister for Posts and Telegraphs to erect post boxes, was repealed by the Postal and Telecommunications Services Act, 1983 and was not replaced. I also note that An Post considers that the legal position concerning the erection of post boxes is now unclear. Your argument is that disclosure of the contents of this record would disclose the weakness of An Post's legal position concerning the erection and location of post boxes which could, in turn, prejudice the outcome of negotiations with local authorities.

The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether harm is certain to materialise but whether it might do so. Having said that, I would expect 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 to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.

It seems to me that the negotiations you are referring to are negotiations with local authorities concerning permission to erect post boxes and the location of those post boxes. You argue the local authorities control what goes on or near the public roads under a variety of pieces of legislation and that if the weakness of An Post's legal position in relation to the erection of post boxes is known then it will be easier for local authorities to impose onerous conditions and financial cost on An Post in return for permission to erect post boxes. I do not accept this argument. While you have not identified any specific pieces of legislation, it seems to me that local authorities can only have regard to the relevant legislative provisions in considering the question of the erection and/or location of post boxes and that the weakness, or otherwise, of An Post's legal position in this matter is not a relevant consideration. Furthermore, even if section 34 of the Post Office Act 1908 had never been repealed, local authorities would still be bound by the relevant legislative provisions. I do not accept that local authorities might impose onerous conditions and financial cost on An Post in return for permission to erect post boxes if they are not authorised to do so, regardless of An Post's legal position. In the circumstances, I find that the provisions of section 27(1)(c) do not apply to this record.

I should add that even if I were to find that the provisions of section 27(1)(c) apply, I would still be required to consider the application of the public interest test contained in section 27(3) which provides that the exemptions contained in section 27(1) do not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. If the authority of An Post to erect post boxes is in question, it seems to me that there is a significant public interest in disclosing this information, if only to allow for the taking of measures to remedy the matter as it is clearly necessary for An Post to be in a position to erect post boxes when required. In my view, the public interest would be better served by the release of this record.

Record No. 131

This record contains details of An Post's submission to the Department in respect of the various provisions of the [then] Draft Communications Regulation Bill. You objected to the release of the record on the ground that the provisions of section 23(1)(a)(iv), 26(1)(a) and 27(1)(c) of the FOI Act apply to certain parts of the record. Your claim for exemption in accordance with the provisions of section 27(1)(c) relates to the part of the record which contains the same information as that contained in record No 112 and I find, for precisely the same reasons as set out above, that section 27(1)(c) does not apply. I have set out below my findings in respect of the other exemptions cited.

Section 23(1)(a)(iv)

Section 23(1)(a)(iv) provides that a public body may refuse a request where access to the record concerned could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. Your argument is that the record relates, in part, to a matter which is the subject of legal proceedings in the High Court and that release of that part of the record could prejudice or impair those civil proceedings. For such an argument to succeed, I have to be satisfied that granting access to the record in respect of which the exemption is claimed could reasonably be expected to have the adverse effect so identified. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for An Post to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

The High Court proceedings you refer to in this case are civil proceedings taken by An Post against the Office of the Director of Telecommunications Regulation ("the ODTR") and the Department and I note from your recent letter that one of the matters at issue in those proceedings is the question of whether there is a legal basis for the decision of the ODTR to impose a levy on An Post. You say that the record indicates the basis on which this matter might be settled by the parties. Presumably your argument is that disclosure of this information could affect the fairness of the current proceedings as it provides an indication of what An Post is prepared to accept by way of settlement in those proceedings

As I have indicated above, the record contains details of An Post's submission to the Department in respect of the [then] Draft Communications Regulation Bill. One of the main purposes of the Bill was to transfer the functions of the Director of Telecommunications Regulation to a newly formed "Commission for Communications Regulation". Having examined the record at issue in this case, it is clear to me that An Post's aim in submitting its proposals for amendment of the Bill was to attempt to persuade the Department that there should, for the future, be some form of control and limitation placed on the amount of levy which could be imposed on An Post by the Commission in specified circumstances. It is clear also that the proposals were formulated "without prejudice to [An Post's] legal proceedings in the High Court regarding the levy" and were seen as providing a statutory basis to deal with some of the issues raised in those proceedings. This, if anything, would serve to underline An Post's position in those proceedings.

It is also my view that, regardless of An Post's views concerning the authority, or otherwise, of the ODTR's decision to impose a levy based on current legislation, it would be reasonable and prudent for An Post to avail of the opportunity to make representations in respect of proposed future legislation relating to the imposition of a levy in an effort to ensure that the best interests of An Post are served. I do not consider that An Post's submission in respect of proposed future legislation suggests that it might be willing to settle the current proceedings which question the authority of the ODTR to impose a levy based on current legislation. I do not, therefore, accept that the record indicates the basis on which the current civil proceedings might be settled. Even if I were to accept such an argument, it would still be necessary for An Post to show how the fairness of the current proceedings could reasonably be expected to be prejudiced or impaired by the release of the information. As you have not shown how such harm might arise, I find, having regard to the provisions of section 34(12)(a) of the FOI Act, that section 23(1)(a)(iv) does not apply.

Section 26(1)(a)

Section 26 of the FOI Act provides for the protection of certain information given to a public body in confidence. For section 26(1)(a) to apply, it is necessary for the public body to show four things, namely

• that the information was given in confidence,
• that the information was given on the understanding that it would be treated by it as confidential,
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

The Department says that the record in question was one of a number of submissions made by An Post to it in relation to the drafting of the Communications Regulation Bill and that An Post's representations as set out in the record were volunteered as opposed to having been sought by the Department. I found, in case number 98049, Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works, that it is not sufficient for the provider of the information to assume or to "understand" that it would be treated as confidential and that a mutual understanding of confidence must exist. It is clear that the Department does not consider that such a mutual understanding exists in respect of this record. Furthermore, it seems to me that the release of this record would not be likely to result in An Post refusing to make submissions in the future in respect of new legislation in an effort to ensure that the best interests of An Post are served. In the circumstances, I find that the provisions of section 26(1)(a) do not apply to this record.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Department of Public Enterprise in this case.

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 four weeks from the date of this letter.

Yours sincerely

Information Commissioner