Whether the Department's decision to refuse the applicant's request for access to an arbitration award was justified under the FOI Act.

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

Background

In a request dated 9 October 2012, the applicant sought access to all records held by the Department that are recommendations or awards resulting from conciliation or arbitration proceedings convened under or in accordance with the disputes clause of the Public Works Contract. One record was identified as falling within the scope of the applicant's request, namely, an interim award by an arbitrator dated 17 September 2012 that had been forwarded to the Department in accordance with Clause 17.2 of the Arbitration Rules for Use with Public Works and Construction Services Contracts. Access to the award document was refused by the Department under sections 26(1)(a) and (b) of the FOI Act. By letter dated 17 January 2013, the applicant applied to this Office for a review of the Department's decision.

On 7 March 2013, Ms. Melanie Campbell, Investigator, wrote to the applicant following a telephone call in which she explained her preliminary view that the Department's decision was justified under section 26(1)(b) of the FOI Act. The applicant made a submission on 19 March 2013 outlining his reasons for disagreeing with Ms. Campbell's preliminary view. Having had regard to the contents of the applicant's submission as well as his application for review, I have decided to conclude the matter by way of a formal, binding decision.

Scope of the Review

The applicant accepts that the interim award referred to above is the sole record of relevance to his request that is held by the Department. This review is concerned solely with the question of whether the Department's decision to refuse access to the record of the interim award was justified under the FOI Act.

Analysis and Findings

Section 26(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law". Under section 26(2), however, the confidentiality exemption does not apply to a record prepared by a staff member of a public body or a person who is providing a service for a public body under a contract for services "in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".

In his application for review, the applicant argued that section 26(1) cannot apply in this case by reason of section 26(2). However, it appears that the arbitrator who prepared the interim award was a barrister of independent standing, i.e. she was not acting as a staff member of a public body or a person providing a service for a public under a contract for services. Moreover, the parties to the dispute were not public bodies for the purposes of the FOI Act, nor were they persons providing a service for a public body under a contract for services. Therefore, I find that section 26(2) has no relevance in this case.

As the applicant is aware, Clause 17.4 of the arbitration rules governing the contract states: "An award may be made public only with the consent of all parties or as required by law or as permitted by the Contract." Accordingly, the Department considers that release of the award under FOI would constitute a breach of a duty of confidence provided for by agreement.

The applicant agrees that the arbitration rules provide for a duty of confidence. However, he contends that the duty of confidence applies only to the parties to the dispute and the arbitrator, not the Department. He also considers that the disclosure of the award to the Department has resulted in a waiver of confidentiality by the parties and the arbitrator. In addition, he argues that the FOI Act requires the award to be made public and that the award may be made public under certain exclusions to the confidentiality provisions of the Public Works Contract.

I accept that the Department is not a party to the arbitration proceedings concerned. However, it is a party on notice of the confidential nature of the arbitration award, and it seems to me that it is bound to observe the requirements of Clause 17.4 of the arbitration rules in the circumstances. As Fennelly J observed in Mahon v. Post Publications [2007] IESC 15, "While employees can be restrained in contract without resort to the equitable doctrine, the latter becomes relevant when the information is conveyed to third parties who are on notice of the confidential character of the information." Fennelly J also confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Fennelly J restated the requirements of the equitable doctrine of confidence as follows:
"The information must in fact be confidential or secret: it must, to quote Lord Greene, 'have the necessary quality of confidence about it';
It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence."

I am satisfied that the arbitration award has the necessary quality of confidence to give rise to a duty of confidence. I am also satisfied that the award was disclosed by the arbitrator to the Department for the limited or restricted purpose of compliance with Clause 17.2 of the arbitration rules, which requires the arbitrator to send an award to the National Public Procurement Policy Unit of the Department within 14 days of having sent the award to the parties to the dispute. I therefore find no basis for concluding that confidentiality has been waived by the arbitrator or the parties to the dispute in this case.

I do not agree that with the applicant that the Public Works Contract permits the disclosure of an arbitration award by virtue of the fact that it does not expressly require that such awards be kept confidential. I note that the confidentiality requirements of the Public Work Contract do not prevent the disclosure of information when required by law. However, the FOI Act does not require the disclosure of information where an exemption to the right of access applies, especially where, as here, the exemption is mandatory in nature. Macken J discussed the nature of exempt records in her judgment in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"].

Moreover, confidentiality is generally a significant element in alternative dispute resolution processes, as noted in Case 080208, Mr. John Burns, The Sunday Times and Trinity College Dublin (2009). It has been recognised by the Irish courts that there is a public policy of encouraging parties insofar as possible to settle their disputes without recourse to costly litigation. FOI is not intended to undermine the public interest in the settlement of disputes. In this case, confidentiality is expressly provided for in the rules governing the arbitration process. I do not accept that the FOI Act permits or requires the disclosure of the arbitration award in these circumstances where public bodies are not involved and the parties concerned have not consented. I am satisfied that the requirements for an equitable duty of confidence are met in this case and that section 26(1)(b) therefore applies.

Decision

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

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
11 April 2013