Whether the Council was justified in refusing to release insurance documentation and health and safety statements submitted by a third party to the Council in relation to a tender process on the ground that they are commercially sensitive

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 1 October 2014, the applicant submitted a request to the Council for copies of insurance documents and health and safety statements submitted to the Council by his own company and a named third party company for the years 2008, 2009 and 2010. On 10 November 2014, the Council issued a decision part granting his request. It identified four records relating to the applicant's request, of which it released two relating to the applicant's company for 2007/2008. It withheld the remaining two records, which related to the third party company on the ground that they contain commercially sensitive information. The Council indicated that no records could be found for the applicant's company in respect of 2009/2010 or for the third party company for 2010.

The applicant sought an internal review of the Council's decision relating to the records withheld in relation to the third party company. On 4 December 2014, the Council upheld its original decision on the grounds of commercial sensitivity. On 9 December 2014, the applicant applied to the Commissioner for a review of the Council's decision. On 8 January 2015, the Council released a safety statement in respect of the applicant's company for 2008, which it had located since processing his request.

I note that the applicant was invited to make a submission in support of his application, but chose not to do so. I have decided to conclude this review by issuing a formal decision. The third party company was notified of the application for review and was invited to make a submission on the matter. Solicitors for the company informed this Office that it had no submission to make other than that all personal information should be removed from the records.

In conducting this review I have had regard to the correspondence between the applicant and the Council on the matter, to correspondence between this Office and the applicant, the Council and the third party company, and to the contents of the records in question, copies of which were provided to this Office for the purposes of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is solely concerned with whether the Council was justified in refusing to release further records relating to the applicant's request under sections 10(1)(a) and 27(1)(b) of the FOI Act.

Preliminary Matters

While the applicant, the Council and the third party company all commented upon an ongoing dispute the applicant has with the third party company, section 8(4) of the FOI Act provides that, subject to the provisions of the Act, the reasons that a requester gives for a request shall be disregarded.

Furthermore, while I note the applicant's contentions about the Council's dealings with the third party company, it is important to note that the Commissioner's remit does not extend to examining the actions of a public body in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act.

Finally, it is important to note that 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.

Analysis and Findings

Section 10(1)(a)
The Council stated that it could not locate records relating to the company for 2010. Section 10(1)(a) of the FOI Act provides that a request for 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. The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002] No. 18 MCA.

I note that Ms Sandra Murdiff, Investigating Officer, contacted the Council and requested details of the steps taken to locate records relating to the applicant's request. The Council provided details of the searches undertaken to locate all relevant records, including manual searches undertaken of files in the Navan, Kells, Trim, Slane and Dunshaughlin local area Council offices. The Council stated that its own guidelines mean that the company would have been required to lodge documentation in respect of 2010 as it carried out minor works for the Council in that year. It has stated that records were found in respect of the company for the years 2008/2009 and 2011.

I note that the applicant has suggested that these records cannot be found because they were not submitted to the Council by the company and do not, in fact, exist. However, while it is unsatisfactory that certain records the Council acknowledges should exist cannot be located, having considered the submissions of both parties and the measures taken to locate the records, I am satisfied that the Council has taken all reasonable steps to locate any further records and that its decision was justified under section 10(1)(a) of the FOI Act. I find accordingly.

Section 27(1)(b)
The Council relied on section 27(1)(b) of the FOI Act in its decision to refuse to release records relating to the company. Section 27(1)(b) provides that a head shall refuse to grant a request if the record concerned contains 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. The essence of the test in section 27(1)(b) is not the nature of the information contained in the record but the nature of the harm which might be occasioned by its release.

The records at issue are insurance documents (Record No. 4 and page 1 of the Appendix to the 2009 health and safety statement) and health and safety statements for 2008 and 2009 (Record No. 5). The records in question were submitted to the Council by the company in response to an invitation to tender for minor works. It is my understanding that the company was contracted for minor works on that basis. The Council stated that the normal procedure when conducting a tender competition of this type is that it advertises in the local press and invites tenders from contractors. It also stated that a tender response must include a health and safety statement and insurance documentation.

The Council argued that it is often the case that a company will engage the services of a consultant to prepare health and safety statements and if released to another company, the documentation could be easily adapted by that company to prepare its own health and safety documents. In essence the Council's argument is that the release of a company's health and safety statement could facilitate plagiarism and could put the company that has invested in the services of a consultant at a disadvantage commercially. I have a number of difficulties with this argument. Firstly, no argument has been made that the third party company in this case invested in the services of a consultant. More importantly, however, it seems to me that health and safety statements are generally widely available, frequently published on company websites (although the documents at issue in this case do not appear to have been published on the company's website), and are often based on an industry-specific template. Companies are required to make the statements available to a wide range of people, including employees, sub-contractors and any other person who may be exposed to any risks covered by the statements. I also note that the Health and Safety Authority has made detailed information available on its website as to what information should be included in a safety statement. In such circumstances, I do not accept that the release of a company's safety statement 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.

On the matter of the release of insurance documentation for the company, I note that the documentation at issue is now more than five years old. I also note that neither the Council nor the company concerned has made any specific argument as to how the release of the records might give rise to any of the harms identified in section 27(1)(b), nor do I see how such harms might arise. Having regard to the provisions of section 34(12)(b) of the FOI Act as set out earlier, I find that the Council has not justified its decision to withhold the records in question under section 27(1)(b). Accordingly, I find that section 27(1)(b) does not apply.

Personal Information

I note that page no. 1, Record No. 4 contains what appears to be the home address of a director of the company. In Record No. 5, I also note that the first page of the 2008 safety statement contains what appears to be the mobile phone number and personal email address of the same director. I further note that the first page of the 2009 statement contains the same mobile phone number. This information is not published on the company website, nor is it generally available. In the particular circumstances of this case, I find that this information is exempt from release under section 28(1) of the FOI Act, as it comprises the personal information of third parties as defined in section 2 of the Act. While the FOI Act provides for the release of personal information in certain circumstances, I do not consider any such circumstances to arise in this case.

Decision

I hereby vary the decision of the Council and direct the release of the records in question (Records No. 4 and 5), subject to the redaction of the personal information identified above. I affirm the decision of the Council to refuse to release further records on the grounds of section 10(1)(a) of the Act.

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.

Stephen Rafferty
Senior Investigator