Case 040334. Whether disclosure of a record would constitute contempt of court where the court refused to order discovery because it did not consider an entitlement to discovery to have been demonstrated - section 22(1)(b)

Case Summary

Facts

Mr. X sought access to confidential records held by the BCI related to a third party. The records had been through a discovery process in the High Court where discovery had been refused. That decision was upheld by the Supreme Court. The significant fact was that the decision to refuse discovery was on the grounds that the records, which refer to the possible future staffing of the third party's enterprise, were not relevant to the judicial review then under consideration. That being the case, the records were liable for consideration under the FOI Act in the normal way without risking contempt of court.

Decision

The Commissioner decided that the records were exempt under section 26(1)(a) on the grounds that they had been supplied in confidence and that the BCI needed to continue to obtain such information from its clients.

Date of Decision: 18.01.2006

Our Reference: 040334

18.01.2006

Mr. X

Dear Mr. X

I refer to your application for a review under the Freedom of Information Act, 1997 ("the FOI Act"), of the decisions of the Broadcasting Commission of Ireland ("the BCI ") to withhold certain records relating to the award of a broadcasting licence to (name of awardee deleted) and to your letter of 20 September, 2005 seeking a meeting with me to discuss those decisions. With regard to your requested meeting, as I have set out the reasoning behind my decision in this letter, I do not see what additional benefit a meeting on the issue would achieve. Therefore, I regret that I do not think a meeting on the issue would be appropriate.

Background

In support of its original decision the BCI quoted the following exemptions:-

• section 22(1)(b), which refers to the issue of contempt of court,
• section 26(1)(b), which refers to a duty of confidence,
• section 27(1)(b), which refers to commercial sensitivity,
• section 28(1), which refers to personal information.

This decision was upheld in its internal review decision.

In my review I will consider whether these decisions were correct and whether the exemptions quoted were properly applied.

Scope of Review

In your FOI request of 23 June, 2004, you sought from the BCI a copy of the bid by (name deleted) including the confidential annex to that bid. The BCI in its decision of 19 July, 2004, refused access to the annex and quoted the exemptions provided for by sections 22, 26, 27 and 28 of the FOI Act. This decision was upheld in its internal review dated 31 August, 2004.

Following your request for a review by me a preliminary view of the issues involved was issued by Mr. Colin Stokes of this Office on 1 June, 2005. I understand that on 23 September, 2005, Mr. Liam Kelly, also of this Office, further advised you that legal advice on one particular aspect of the case was awaited before a final submission would be made to me for decision. This legal advice has now been accepted and incorporated into the submission on which I have made my decision.

This review is concerned solely with the question as to whether or not the BCI is justified in its decision to refuse your request and is carried out in accordance with the provisions of the Freedom of Information Acts, 1997, as amended.

In this review I will be taking account of the submissions and arguments advanced both by yourself and by the BCI, including your response dated 25 June, 2005, to the preliminary view issued by Mr. Stokes.

Findings

Section 26(1)(a)

Section 26(1)(a) provides for the refusal of requests if the record concerned contains information given to the public body in confidence. For section 26(1)(a) to apply, it is necessary to establish four things:-

• that the information was given to the public body concerned in confidence,
• that the information was given on the understanding that it would be treated 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 person in the future, and
• that it is of importance to the body that such further similar information continue to be given to the body.

The BCI clearly contends that - - expectation was that the data would be treated as confidential, as per section 26(1)(a) of the FOI Act.

The first question which arises here is whether the information given to the BCI was in fact given in confidence and on the understanding that it would be treated as confidential. In case number 98049 (Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works), the former Commissioner held, 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. He also explained in case number 98058 (Mr Phelim McAleer and the Department of Justice, ) that where an understanding of confidence is asserted by both parties, then in the absence of any independent evidence, he considered it appropriate to examine the contents of the records with a view to establishing whether the nature of the contents is consistent with the existence of an understanding of confidence.

As stated, the record at issue is the confidential annex. I note that in the BCI's Guide to Submissions, specific and detailed provision has been made for the inclusion of confidential material with licence applications and I am satisfied that (name deleted) application, including the confidential annex, was submitted on that basis. I am therefore satisfied that the first two conditions are met. I am also satisfied, given the nature of the confidential information, that if the assurance of confidentiality were removed that it would be "likely to prejudice the giving to the body of further similar information" and that "it is of importance to the body that such further information continue to be given to the body". I therefore find that the third and fourth conditions are also met and I am satisfied that the BCI is justified in holding that the record in question must be withheld in accordance with section 26(1)(a).

Having found that section 26 applies I do not need to consider the other exemptions that have been invoked. However, for the sake of completeness I will refer to them.

Section 22

Section 22(1)(b) provides that a head shall refuse to grant a request under section 7 if the record concerned:-

"is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court".

It is important to note that this is a mandatory exemption and that there is no public interest test.

Justice J. O'Neill in E.H. and E.P.H. -v- the Information Commissioner (Nos. 96 and 107 M.C.A./1999) held, that in considering the application of section 22(1)(a), the provisions of Article 34 of the constitution are relevant. Article 34(1) provides that -

"Justice shall be administered in Courts established by law by Judges appointed in the manner provided by this constitution and save and such special and limited case as may be prescribed by law shall be administered in the public."

Justice O'Neill went on to state that:-

"I have come to the conclusion that notwithstanding the entirely laudable and separate philosophy of disclosure which underpins the Act, that the Act construed in a manner consistent with the constitution could not be used, so that access to documents under the Act would have the result of robbing an order of a Court or an undertaking given to a Court of the force and effect which the Court in question intended these to have.

In my view, section 22(1)(b) is there to ensure that this does not happen, and must operate accordingly."

As you are aware the record in question is contained in a confidential annex to (name deleted) submission to the BCI and was subject to a High Court ruling that it should not be released to you through discovery. This finding was upheld by the Supreme Court. In both their decisions to you and in their submission to my office the BCI assert that the rulings of the Courts mean that the confidential annex cannot be released to you unless you successfully apply to the Court to have the ruling set aside. However, having accepted legal advice on the matter, I do not agree with this view. The Courts ruled that the record in question should not be released to you on the grounds that it was not relevant to the judicial review you had initiated. In effect this record was left outside discovery and, if there were no other impediments under the FOI Acts, could safely be released without causing a contempt of court. I therefore find that section 22(1)(b) does not apply to the confidential annex.

Section 27(1)(b)

Section 27(1)(b) provides that a head shall refuse to grant a request under section 7 if the record concerned contains

"(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation".

As the licensing process has been completed and (name deleted) has been on the air for over a year, I find that the implied arguments, re material financial loss or gain or possible prejudice to competitive positions, are not convincing and I accordingly consider that section 27(1)(b) does not apply.

Section 28(1)

Section 28(1) provides that:-

"... a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information .."

In relation to the BCI's claim for exemption under section 28(1) of the FOI Act, I note that "personal information" is defined at section 2 as information about an identifiable individual that would ordinarily be known only to:-

(a)....... the individual or members of the family, or friends, of the individual, or

(b)....... is held by a public body on the understanding that it would be treated as by it as confidential.

The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition.

The fact that a person is referred to by name in a record does not necessarily constitute personal information about that person within the meaning of section 2. In this case, none of the information in the annex can be considered to be information that would, in the ordinary course of events, be known only to the individuals concerned or members of their family or friends and with the passage of time, this information has become common knowledge. However, as already discussed above, I am satisfied that the information is held by the public body on the basis that it would be treated as confidential and I am therefore satisfied that section 28(1) applies to the record in question.

Having held that the information constitutes personal information I must now examine the public interest aspect of the case. Section 28(5)(a) provides that notwithstanding the fact that relevant information is personal and relates to a third party it may be released if, on balance:-

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,

In this case there are two areas of public interest which could be argued in favour of release of the records. The first relates to transparency in the proper conduct by a public body of its regulatory functions while the second relates to the importance of individuals being given maximum access to information in accordance with the FOI Acts. The question is whether, in this instance, these factors outweigh the right to privacy of the individuals to whom the information relates.

I am satisfied that in this case there is little additional advantage to be gained in the release of the third party information and that whatever public interest there might be does not outweigh that party's right to privacy or the BCI's need to obtain such information in confidence to enable it to continue to carry out its regulatory functions effectively. Accordingly, I affirm the BCI's decision that these records should be withheld.

In view of the foregoing, I consider that the BCI has made a sufficiently sound case to justify upholding its decision.

Decision

In accordance with section 34(2) of the FOI Act, I hereby affirm the decision of the Broadcasting Commission of Ireland.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner