Whether the Department was justified in refusing access to two records concerning a third party, under section 27 of the FOI Act.

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

Background
One element of the applicant's FOI request of 30 January 2012 (as modified on 15 February 2012, further to clarification sought by the Department) concerned particular correspondence with a third party, which operates pre-school classes. The Department's decision of 14 May 2012 told the applicant that some records of relevance to this aspect of the request (including minutes of two meetings held in November 2008, which were designated as records 19 and 20 and described as containing commercially sensitive information) were being refused further to "third party consultations under section 29 of the Act". Although the Department said that an appeal of that refusal must be made directly to this Office, the applicant's internal review application of 18 May 2012 disputed, inter alia, the refusal of records 19 and 20. The Department's internal review decision of 12 June 2012 did not deal specifically with that issue (presumably because it considered that such an appeal should have been made to this Office). On 18 June 2012, the applicant sought a review by this Office of the Department's decision on all aspects of his request. Subsequently, on 10 April 2013, he agreed to confine the scope of the review to the refusal of records 19 and 20.

The Department's submission to this Office of 16 July 2012 contended that records 19 and 20 could not be subject to review as the applicant had not made an application directly to this Office within the appropriate timeframe for cases involving section 29 of the FOI Act. However, the Investigator dealing with the case explained to the Department, on 22 April 2013, that this was not the case. When a public body seeks to consult with a third party under section 29, the requirements of section 29(1) must be met in the first place. Section 29(1) requires the decision maker to have formed the view that the records in question are protected by a relevant exemption (in this case section 27) but that, in the particular case, that exemption should be set aside in the public interest. Thus, before consulting under section 29, the public body must have decided (subject to the consultation process) that the public interest favours the release of the records. In the case at hand, documentation provided by the Department to this Office indicated that it had not considered the public interest prior to the purported section 29 consultation with the third party. Thus, the applicant was entitled to apply to this Office for a review of the refusal of records 19 and 20 further to the internal review application he submitted to the Department.

In carrying out my review, I have had regard to copies of records 19 and 20 (all records of relevance to the modified request were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Department and the applicant, including those as set out above; to details of various contacts between this Office and the applicant; to details of various contacts between this Office and the Department, particularly a "preliminary views" email sent to it by Ms Anne Lyons, Investigator, dated 23 April 2013 and its response dated 14 May 2013; to details of the same preliminary views sent by Ms Lyons to the third party via email on 23 April 2013; and to a letter sent to the third party by the Department, dated 4 April 2012, and the third party's emailed response to the Department, dated 24 April 2012. I have also had regard to the relevant provisions of the FOI Act.

As the time-frame in which Ms Lyons invited a response to her preliminary views has now elapsed without reply from the third party, I have decided to conclude the review by way of a formal binding decision.

Scope of the Review
The scope of this review is confined to assessing whether the Department's refusal of records 19 and 20 is in accordance with the provisions of the FOI Act.

Findings
Section 43(3) of the FOI Act limits the extent to which this Office may describe any withheld record. Furthermore, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. In a case such as this, involving a third party, it is important that the third party is given an opportunity to make whatever submissions it wishes and that such submissions are taken into account in the final decision on the case.

Section 27(1) of the FOI Act requires that a request for a record shall be refused if it contains "(a) trade secrets of a person other than the requester concerned"; or (b) "financial, commercial, scientific, 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"; or (c) "information whose disclosure could prejudice the outcome or conduct of contractual or other negotiations of the person to whom the information relates." A record to which section 27(1) applies may be released if the public interest in its release outweighs the public interest in withholding it (section 27(3) refers).

The Department's email to this Office of 18 April 2013, although largely concerned with its purported consultation under section 29 of the FOI Act, said that upon initial examination of records 19 and 20 it "had concerns surrounding their release, mainly from the point of view of commercial sensitivity as the information relates in the main to the business operations of a Third Party". The Department also drew attention to the third party's claim that records 19 and 20 disclose its "trade secrets" and that disclosure "could lead to a material financial loss". Taken together, these arguments amount to a claim for exemption under sections 27(1)(a) and 27(1)(b) of the FOI Act.

The requirements of section 43(3) mean that I am unable to describe the preliminary views, as outlined both to the Department and to the third party, in any detail as to do so would disclose the content of the records at issue. However, both the Department and the third party were asked to explain why the now four-year-old details in records 19 and 20 might be a trade secret, and/or how they could be used now by the third party's competitors such that the third party's business could be threatened. The preliminary views also expressed the view that the public interest would warrant the release of the records, even if they could be said to be exempt at this point in time, and invited counterarguments.

The Department's reply of 14 May 2013 agreed that the records should be released. However, as no consent had been received from the third party, it was not open to the Department to release the records at that stage without a binding decision from this Office to that effect.

The third party has not replied to the preliminary views letter so there is no argument before me to explain how release of the details at issue, at this stage, would divulge trade secrets or could reasonably be expected to result in a material financial loss to the third party.

Having considered the requirements of section 34(12)(b) of the FOI Act, as set out earlier, I am unable to take the view that the Department has justified its decision to refuse access to records 19 and 20; nor is it now seeking to justify that decision. I note also that the third party has not made any case to this Office seeking to have the records withheld. I have no basis, therefore, to find that the records are exempt under section 27(1)(a) or (b) of the FOI Act or indeed under any other provision of the FOI Act. In these circumstances, it is unnecessary for me to consider the public interest test at section 27(3) of the FOI Act.

Accordingly, I find that records 19 and 20 are not exempt under the provisions of the FOI Act and that the applicant has a right of access to those records.

Decision
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's decision to refuse access to records 19 and 20 and I direct that they be released to the applicant.

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. Such an 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.

Fintan Butler
Senior Investigator
30 May 2013