Whether the CRO's decision to grant a request to which section 29 of the FOI Act applies, concerning records relating to a company of which the applicant was a director, was justified

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

Background

On 20 May 2012, a request was made to the CRO for copies of all correspondence concerning three specified limited companies. The CRO issued a decision on 12 June 2012 refusing the request. The original requester sought an internal review of that decision on 20 June 2012. The internal reviewer took the view that the public interest required the release of the records concerned, notwithstanding that he considered them to contain confidential or commercially sensitive information. Accordingly, he referred the original decision back to the decision maker for third party consultations pursuant to the provisions of section 29 of the FOI Act. On 17 July 2012, the CRO notified the applicant, as an affected third party, of its intention to release 11 records affecting his interests in the public interest

By letter to the CRO dated 27 July 2012, the applicant objected to the release of the relevant records on the ground that they contained confidential information. On 2 August 2012, the CRO decided that the records should be released in the public interest. The applicant applied to this Office on 13 August 2012 for a review of the CRO's decision.

In carrying out my review, I have had regard to correspondence between the CRO and the applicant and original requester as set out above; to the contents of the records at issue, copies of which were sent to this Office for the purposes of the Commissioner's review; to contacts between this Office and the CRO; to contacts between this Office and the applicant, particularly a letter sent by Ms Anne Lyons, Investigator, on 29 May 2014, to which no substantive reply has been received; and to a letter sent by Ms Lyons to the original requester, also dated 29 May 2014, and the original requester's reply of 7 June 2014. I have had regard also to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned with whether the Council's decision to grant access to the 11 records it considered relevant to the request was justified.

I note that the applicant has not suggested that Ms Lyons' description of the records at issue (which were not supplied by the CRO to this Office until 2014 due to an oversight) is at odds with the copies of records originally supplied to him by the CRO in July 2012. Accordingly, I consider that the applicant is fully aware of the content of the various records subject to this review, and I have proceeded accordingly.

I have also proceeded on the basis that my review, and this decision, is concerned with the one page of record 7 that the CRO was able to provide to this Office in 2014 (i.e. a one-page email. The CRO's original schedule of records describes record 7 as a 10-page document). The printout of the email suggests that it included an attachment. However, the CRO submits that it is unable to locate any printout of the contents of the attachment, nor is it now able to open the attachment concerned. It is not possible for me to make a decision on the contents of a record that I have not seen. Should the attachment come to light, or become otherwise accessible, the CRO should notify this Office, and a fresh review of the record can be commenced.

Findings

Section 29 and the Burden of Proof
Section 29 requires consultation with an affected third party where a public body is considering the release, in the public interest, of records containing confidential information (section 26 of the FOI Act refers), commercially sensitive information (section 27 refers), or personal information (section 28 refers). If the body decides to release any or all of those records following consultation, the party to whom the records relate has a right to seek a review by this Office of the body's decision.

However, no party to a review has a right of veto over release of records. Section 34(12)(a) of the FOI Act provides that a decision to grant a request to which section 29 applies (as is the case here) is presumed to have been justified unless the person to whom the records relate satisfies the Commissioner that the decision was not justified. Effectively, this provision places the onus on the applicant for review to show that the records concerned should not be released on the basis that the records are exempt under section 26, or section 27, or section 28, and that the public interest does not weigh in favour of their release.

Preliminary Matters
It should be noted that any review conducted under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office.

While the FOI Act requires the Commissioner and his Office to provide reasons for decisions, section 43(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Thus, I cannot describe the records at issue in this case in great detail. However, I have had proper regard to the requirements of section 34(12)(a) of the Act, as set out above. I have also had regard to the requirements of section 13 of the FOI Act, which provides for the partial release of a record where this would not cause the copy of the record to be misleading.

General Comments on the Application of sections 26, 27 and 28 in this Case
This Office's email to the applicant of 29 May 2014 explained the requirements of section 34(12)(a), and invited an explanation, by a particular date, as to why the records at issue should be found to be exempt under section 26, or section 27, or section 28, at this point in time. While the applicant sought an extension of time to reply, and was asked to do so by 25 June 2014, no substantive reply has been received. Accordingly, the applicant has not met the requirements of section 34(12)(a) of the FOI Act.

Thus, I have no basis on which to find, at this point in time, that the details in the records at issue contain information that is required to be exempt under the mandatory sections 26 or 27. However, while the applicant has not highlighted any information that he considers to comprise his personal information, I do not consider it appropriate to direct the release of information that appears to me to comprise personal information about the applicant (or others), or personal information about the applicant that is inextricably linked to personal information about the original requester ("joint personal information"). It is relevant to note here that release under FOI is taken as being equivalent to release to the world at large.
I elaborate further below. I will deal with the application of section 28 of the FOI Act in the first instance.

It is useful, at this point, to set out my understanding of the role of the CRO where it is notified of a dispute regarding filings relating to the directorship of a company. Once so notified, in writing by, or on behalf of, an officer of the company, the CRO institutes a temporary hold on registration to allow the company to resolve the matter internally or through the courts. The CRO has no role in resolving director disputes, nor does it require details of such disputes in order to carry out its functions.
Section 28 and Personal Information

Sections 28(1) and 28(5B)
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties. Personal information is defined in section 2 of the FOI Act as:

"..information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to 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 by it as confidential,...".

The definition goes on to detail twelve specific instances of information which is personal "...without prejudice to the generality of..." (a) and (b) above.

Companies act through their directors. Thus, correspondence from a company director to a body such as the CRO, about the relevant company or companies, does not in my view concern the personal affairs of that director and therefore does not comprise his or her personal information. Certain of the details in the records can be described as such, and I thus have no basis to find that section 28 of the FOI Act applies to the records in full.

However, I am satisfied that certain other details in the records comprise the personal information of the applicant, or joint personal information.

The original requester disputes how "any material communicated to the CRO by a Director or his agent relating to [companies referred to in the request] could be deemed to be of a personal nature." The requirements of section 43(3) mean that I cannot elaborate further on the information at issue. However, having examined the records at issue, and in line with the provisions of section 13, I am satisfied that the details listed below contain personal information about the applicant (and, indeed, other parties), or personal information about the applicant that is inextricably linked to personal information about the original requester ("joint personal information"):

Record 1, attachment only:
First page: second paragraph: from 22nd word of first sentence to end of that sentence; second sentence in full;
First page: fourth paragraph: fourth sentence to end of paragraph;
Third page: third complete paragraph: second, third and fourth sentences (there being four sentences in this paragraph);
Final page: incomplete paragraph (i.e. that which continues on from the previous page): seventh to 19th words inclusive of first complete sentence;
Throughout attachment: various references to a third party (contained in the third paragraph of the first page, and in the first and second complete paragraphs on the third page).

Record 2
In full.

Record 3, cover emails (i.e. that sent at 4:35 pm):
Second paragraph: second, third, fourth and fifth sentences.

Record 3, various attachments (as appropriate)
Address of the applicant (for avoidance of doubt, that address should also be redacted from any other records containing such details).

Record 4
Last 13 words of second last sentence of email at 3:48 pm and the final sentence of that email in full.

Record 5, cover email
First paragraph: fourth, fifth and sixth sentences, and the tenth to 16th words of the final sentence;
References to another party (in the first and final paragraphs);
Title of the second icon/attachment (there are five icons in total) at the end of the email, along with a 12-word reference to that attachment as contained in the second paragraph. The content of that particular attachment, which I am unable to describe due to section 43(3), should also be withheld;
Third paragraph in full.

Record 5, attachment dated 9 October 2010
In full.

Record 5, two attached agreements
In full.

Record 6
The subject details in the cover email, along with the attachment in full.

Record 7
In full.

Record 8, cover email
First sentence and the first 34 words of the last sentence;
Name of a third party (title of icon/attachment refers).

Record 8 - attachment dated 29 September 2010
First page: sixth paragraph in full;
First page: third paragraph: second sentence;
Second page: first paragraph in full;
Reference to a third party contained throughout.

Record 9
Final Sentence: Eighth word to the end.

Record 10 - attachment dated 7 September 2010
First paragraph: third to seventh sentences, inclusive: the tenth sentence in full (which contains eight words) and the name of and reference to a third party;
Second paragraph: first sentence.

Record 10, other attachment
In full.

Record 11, letter of 5 August 2010
Second paragraph: name of and reference to a third party;
Third paragraph in full.

Record 11, attachment dated 9 February 2010:
In full except for the details at points 1, 2, and 3 on the second page of the letter (the details at 4 pertain to a business not referred to in the request).

I find the details above to be exempt under the mandatory provisions of sections 28(1) and 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) and section 28(5B) do not apply. Having examined the above details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the original requester and I find that section 28(2) does not apply to the withheld details.

Section 28(5)
Section 28(5) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), may be released in certain limited circumstances.

The Public Interest
The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1) or 28(5B), may be released if it can be demonstrated that "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 its judgment of July 2011, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, [2011] 1 IR 729, [2011] IESC 26, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.

That judgment suggests that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

In correspondence with this Office, the original requester said he considers himself entitled to all documentation that may have influenced the CRO in decisions it made regarding the companies. He also stated that he wishes to have a right to reply to any comments about him personally that may be contained in the records at issue. As this is a private interest, it is not one to which I can have regard in arriving at my decision in this case.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies, as well as the public interest in ensuring that persons can exercise their rights under the Freedom of Information Act. These public interests can be served to some extent by the release of the remainder of the records considered by the CRO to be relevant to the request, which, as I will explain below, I do not consider to be exempt from release.

However, being aware of the content of the details to which I have found sections 28(1) and 28(5B) to apply, I do not consider that their release would further serve those public interests to such an extent that a breach of the third parties' Constitutional rights to privacy is required. Furthermore, even if the original requester's right to reply to the contents of the records at issue may be taken as a public, rather than a private, interest, I would not consider it to be of sufficient weight, in addition to the weight of the public interests already identified, to warrant the release of the details to which sections 28(1) and 28(5B) apply in this case. Thus, I find that the relevant details should not be released further to section 28(5)(a) of the FOI Act.

Section 28(5)(b)
Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1) or section 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. I have no reason to consider that the release of the personal information of the applicant and other third parties would be of benefit to those parties, nor has the original requester made such an argument. I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.

I need only consider the application of sections 26 and 27 to the remainder of the records at issue.

Section 26
Section 26(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:

given to a public body in confidence and,
on the understanding that it would be treated by it as confidential 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.

Section 26(1)(b) provides for the refusal of a request 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.

However, section 26(2) of the FOI Act provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members 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 a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "

Record 1, and record 9 in part, were created by the CRO. Section 26 can only apply to the details still at issue in those records if the disclosure thereof would result in a breach of a duty of confidence owed by the CRO to the applicant. It would seem that the CRO does not consider itself bound by any duties of confidence in this case, having regard to its decision to release the records in full. Be that as it may, it is not clear to me why the CRO would owe a duty of confidence to the applicant regarding the remaining details at issue in these records, which I understand to have been relevant to the CRO's performance of its statutory functions in respect of the companies. Importantly, although the applicant's initial correspondence with this Office listed particular records that he did not wish to be released, he has not made any argument as to why release of any of the details at issue would result in a breach of a duty of confidence owed to him by the CRO.

The remaining details at issue are contained in correspondence sent by the applicant to the CRO, and comprise information about the companies that, again, I understand to be relevant to the CRO's performance of its statutory functions. It is not apparent to me why I should consider that information to be confidential or otherwise sensitive, nor (again, other than specifying records that he did not wish to be released) has the applicant made any arguments as to why this should be the case. Accordingly, I do not accept that the CRO owes any duty of confidence to the applicant in respect of the details therein. Neither, having regard to those particular details, do I consider them to contain information that was given to the CRO in confidence, or on the understanding that it would be treated as such, or that release of the details now would be likely to prejudice the giving to the CRO of further similar information from the applicant or other parties. Again, the applicant has made no arguments that would enable me to consider otherwise, nor does it appear that the CRO consider the details at issue to meet these criteria.

As I have no basis to find that section 26 applies to the remainder of the records at issue, I find accordingly.

Section 27
Section 27(1) of the FOI Act provides for the mandatory refusal of three different classes of commercially sensitive information, of which section 27(1)(a) (an exemption applicable to trade secrets) has no relevance to the case at hand.

Section 27(1)(b) provides for the refusal of 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. Section 27(1)(c) provides for the refusal of information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The applicant has not made any arguments as to why, at this point in time, I should find these provisions of the Act to apply to the remaining details at issue. Thus, I have no basis to consider section 27(1)(b) or (c) to apply to those details, and I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the CRO's decision to release the 11 records at issue. I direct that it release the records subject to the redaction of those details, as set out earlier in this decision, to which I have found sections 28(1) and 28(5B) of the FOI Act to apply. This Office will provide marked copies of the records in order to facilitate the CRO in releasing the redacted versions.

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.

Elizabeth Dolan
Senior Investigator