Whether the Department was justified in its decision to refuse access to records sought in relation to (i) Ryanair's shareholding in Aer Lingus and (ii) the UK Office of Fair Trading investigation of Ryanair's minority stake in Aer Lingus.

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background

On 6 January 2011, the applicant made a request to the Department of Transport for access to records held by the Department from 1 October 2006 to 6 January 2011 relating to:

1. "Any communication or interaction between: a) the Department of Transport and/or the Minister for Transport and Aer Lingus, b) the Department of Transport and/or the Minister for Transport and the UK Office of Fair Trading, and c) the Department of Transport and/or the Minister for Transport and Mr John Fingleton, in relation to Ryanair's shareholding in Aer Lingus.

2. The UK Office of Fair Trading's investigation of Ryanair's minority stake in Aer Lingus."

In its original decision of 1 March 2011, the Department identified five records as relevant to the request and granted access to the relevant parts of record 1, partial access to records 2, 3, & 4 and full access to record 5. On 28 March 2011, the applicant sought an internal review of the decision in relation to records 1 to 4 and also identified additional records which, in his view, should exist which would be relevant to the request. The Department's internal review decision of 20 April 2011 affirmed its original decision and no further records were identified as relevant. The applicant then submitted an application for review to this Office on 2 June 2011.

In her letter of 2 November 2012, Ms. Brenda Lynch, Investigator, informed the Department of her preliminary view that the exemptions claimed by the Department were not justified and the records should be released. She also advised the UK Office of Fair Trading(OFT) of her view in the matter. The Department's response was that it had no further comments at this time. The OFT response expressed its concerns at the release of the records and is dealt with below. Accordingly, I have decided to conclude this review by issuing a binding decision.

In conducting this review, I have had regard to the correspondence between the applicant and the Department, to the submissions of the Department, to the submissions of the applicant, to the submission of the OFT and to the provisions of the FOI Acts. In dealing with this review, I must also have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information to which a public body has claimed an exemption and which may be found to be exempt.

Preliminary Matters

In its submission to this Office, the OFT suggested that the exemptions provided for in Sections 23, 24 and 32 of the FOI Act be considered. Section 34(12)(b) of the FOI Act provides that a decision to refuse a request "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Sections 23 and 24(1) provide for exemptions that are discretionary to the Department and do not concern the interests of third parties. Therefore, as the Department does not seek to rely on any of the exemptions provided for under section 23 or 24(1), I find that these provisions are not relevant to this review. Section 24(2) provides for a mandatory exemption. I am satisfied that the records in question do not meet the relevant criteria for Section 24(2) to apply. Section 32 provides for a mandatory exemption where another statutory provision applies to prevent disclosure of a record. The Department has not drawn my attention to any enactment to which Section 32 would be relevant. I have, nevertheless, commented upon the applicability of other exemptions at the end of this decision in light of the arguments presented by the Department for withholding the information at issue.

Scope of the Review

The scope of this review is concerned with whether the Department was justified in deciding that (i) the redacted parts of record 1 do not come within the scope of the original request, (ii) the redacted parts of records 2, 3, and 4 are exempt from release, and (iii) no further relevant records exist or can be found. The applicant indicated in correspondence with this Office that the Department had not, as suggested, released record 5 in full as an attachment stated to be included was not released and that this review should include a consideration of that record. However, I note that the applicant excluded record 5 from his request for internal review. Accordingly, as no internal review was sought in respect of record 5, it will not be included in this review. Nevertheless, it is clear that the attachment referred to is, in fact, the attachment included with record 4 which is captured by the scope of this review.

Analysis and Findings

Other relevant records which may exist
In his internal review request to the Department and in his application for review to this Office, the applicant identified records which in his view should exist and which, if they did exist, would be relevant to the request. The Department claims that no further relevant records exist. This, in effect, is a claim that section 10(1)(a) of the FOI Act applies. Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

I should also explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

In his letter of 28 March 2011 to the Department, the applicant provided details of other relevant records that, in his view, should exist. In particular, he sought access to records relating to meetings held on 11 November 2010 and 2 December 2010. He also referred to the Department's failure to release a submission to which references are made in the records released; however, the Department explained in its internal review that it was refusing access to the submission in question on the ground that it is exempt from release.

During the course of the review, the Department explained that it had located only one record coming within the scope of part 1(a) of the FOI request as outlined above, no records relating to parts 1(b) or 1(c), and 4 relevant records coming within the scope of part 2 of the request. In a submission dated 28 September 2012, the Department provided further details of the steps taken to search for and identify both electronic and hard copy records which might be relevant to the request. In relation to part 1 of the request, it explained that all relevant hard copy files and the relevant Division's electronic record were examined, discussions were undertaken with the relevant staff in aviation area as to the existence of records, and an electronic search for records containing references to "Fingleton", "Office of Fair Trading", "OFT", and "Ryanair shareholding" was carried out.

On the matter of the meetings identified by the applicant, the Department stated that its booking system for meeting rooms in the Department's Head Office shows a booking for a meeting on 11 November 2010 between two Department officials and two Aer Lingus representatives. According to the Department, its two officials confirmed that the meeting, which was also attended by an official from the Department of Finance, took place. Their recollection of the meeting is that its purpose was for Aer Lingus to inform the Government as shareholder of the investigation initiated by the OFT, that it was a short meeting and that notes were not taken by Department officials. The Department has also stated that there is no record of a meeting having taken place on 2 December 2010.

Having regard to the explanation provided by the Department of the searches undertaken in an effort to locate relevant records, I am satisfied that the Department has taken all reasonable steps to locate all relevant records coming within the scope of the applicant's request and I find, therefore, that section 10(1)(a) of the FOI Act applies.

Record 1:
This record is described as a "report of a meeting". It is clear from those parts of the record 1 which have already been released that the meeting related to Ryanair's takeover bid of Aer Lingus. The information released also indicates that the Minister wanted to discuss some additional matters which were "not referable to the take over". Part 1(a) of the applicant's request was for records relating to "Ryanair's shareholding in Aer Lingus". Having examined the entire record, I am satisfied that the withheld material in the record is outside the scope of this review. I am satisfied that all relevant parts of the record have been considered for release.

Records 2, 3, and 4:
Record 2 is an email from the UK's Office of Fair Trading (OFT) to the Department, two paragraphs of which have been redacted under Section 26(1)(a) of the FOI Act. The released part of the email indicates that the OFT was, at the time, considering whether a relevant merger situation has been created as a result of the acquisition of a minority interest by Ryanair in Aer Lingus and if so, whether the creation of that relevant merger situation has resulted or may be expected to result in a substantial lessening of competition in the UK. It further indicates that the OFT would like a response to certain questions regarding the shareholding. The Department describes the withheld text as "the text of the query made by the OFT to the Department". It argues that the information in question was obtained from the OFT in confidence and that section 26(1)(a) therefore applies.

Record 3 is a submission to the Minister containing a proposed response to the OFT request. The paragraphs to which access was refused in record 2 are repeated in page 2 of record 3 and are also redacted. Pages 3 and 4, containing the proposed response, have been refused under Section 21(1)(c) of the FOI Act. Record 4 is the actual reply to the OFT request. The redacted material in record 4 is identical to that redacted in record 3.

Section 21(1)(c)
Section 21(1)(c) of the FOI Act provides:
"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-
(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body".

The FOI Act provides strong protection for negotiating positions as the only requirement for the exemption to be met is that release of records would disclose such positions. Generally speaking section 21(1)(c) is designed to protect negotiating positions or plans from being disclosed directly or indirectly to other parties. There is no requirement that disclosure would have an adverse effect on conduct by the body of its negotiations. Records relating to past, present or future negotiations may be protected.

In order to apply the exemption provided for in Section 21(1)(c), it is necessary for the information to disclose positions taken for the purpose of negotiations. The negotiations at issue must be identified. The Department's argument is that the disclosure of its response to the OFT, as contained in records 3 and 4, would disclose a position taken in response to the OFT query. It did not, however, argue that the position taken was for the purpose of any specific negotiations. Furthermore, in its submission to this Office, the OFT stated it did not consider that there were any negotiations to which the provisions of Section 21(1)(c) might apply. Accordingly, as no negotiations have been identified by the Department, I find that Section 21(1)(c) cannot be applied to exempt pages 3 and 4 of record 3 from release. I also find that Section 21(1)(c) does not apply to the same material in record 4.

Section 26:
The Department refused access to "the text of the query made by the OFT to the Department" as contained in records 2, 3 and 4 on the basis of Section 26(1)(a) of the FOI Act. Section 26(1)(a) provides that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body,".

For section 26(1)(a) to apply, there are four separate requirements to be satisfied:

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• 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.

All four of these tests must be satisfied in order for a record to be considered exempt from release under this section of the FOI Act. I must admit that it is not clear to me that the information at issue in this case was considered by the Department as having been given on the understanding that it would be treated as confidential. I note, for example, that the Department consulted with the OFT on foot of the FOI request and it appears to have been guided by the OFT view that the information at issue should be treated in the strictest confidence. In any event, even if I were to accept the second requirement to have been met, I do not accept that the third requirement has been met. In its submission to this Office, the department stated that "Taking account of the concerns expressed by the OFT ...the Department decided against release on the basis that release could ... threaten continued open communications of this nature between the Department and the OFT. However, the OFT has clearly indicated that it is less concerned about the release of the questions it posed regarding the impact of the merger and that it is now a matter of public record that the OFT was in contact with the Department. In any event, it is not reasonable, in my opinion, to suggest that the OFT would not seek the views of the Irish government if it were to carry out similar investigations in the future, nor is it reasonable to suggest that any similar body, in carrying out its statutory investigatory functions, would not seek the views of the Irish Government on a similar matter, given the role of the Government in relation to aviation policy and as a shareholder in Aer Lingus. As I do not accept that the four requirements for Section 26(1)(a) to apply have been met, I find that Section 26(1)(a) does not apply to the information redacted from record 2. I also find that section 26(1)(a) does not apply to the relevant information in records 3 and 4.

Other Exemptions:
Finally, I would like to comment on the arguments raised during the course of the review relating to the potential harm to the OFT's investigations as a result of the disclosure of the information at issue. The OFT expressed concerns as to the likely prejudice that disclosure of the responses would create to its investigative processes. It argued that third parties would be likely to be disincentivised to cooperate with the OFT and would be likely to be less than completely candid if they felt their responses would be disclosed, thus undermining the effectiveness of the OFT's statutory investigative functions. It also appears that the Department were concerned as to the likely prejudice to the OFT's investigation were the information at issue to be released.

There are a number of points I would make about these arguments. Firstly the protection afforded to the investigative process of public bodies is provided for in section 21(1)(a) of the FOI Act. However, the exemption provides for the protection of the investigative process of only those public bodies that are subject to the provisions of the FOI Act. On the other hand, section 23(1)(a)(i), which is a discretionary exemption, provides a more general protection where granting access could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for those purposes. Furthermore, section 23(1)(a)(ii) provides for the discretionary refusal of a request where granting access could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. However, no argument has been made by the Department that the exemptions at section 23(1)(a)(i) or section 23(1)(a)(ii) are relevant in this case.

Secondly, I note that even if the Department had sought to rely upon such exemptions, the exemptions are harm based as opposed to offering protection to investigative records as a class. It would have been incumbent on the Department to show how the release of the particular information at issue in this case could reasonably be expected to give rise to the harms identified in section 23(1)(a)(i) or 23(1)(a)(ii). Again, no such case was made, nor am I aware of how such harms might arise at this stage, given that the OFT's investigation of whether a relevant merger situation has been created as a result of the acquisition of a minority interest by Ryanair in Aer Lingus has since concluded and the decision arising from its investigation was published in July 2012, I am satisfied that the sections are not relevant to this review.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the Department and direct the release of records 2, 3, and 4 in full.

Right of Appeal

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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
31 January 2013