Whether Comreg was justified in its decision to refuse access to records about a broadband speed project, on the ground that they are exempt under sections 29, 30, 36 and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background
On 30 March 2015 the applicant made an FOI request to Comreg for access to reports carried out by or on behalf of Comreg about "exchange launched VDSL (very-high-bit-rate digital subscriber line)" services in the last four years; all raw data collected by Comreg about internet speed measurement projects carried out in the last four years; and all reports/memos or other internal documentation generated as a result of any such internet speed measurement projects.

By letter dated 9 June 2015, Comreg granted access to some records and refused access to others, on the ground that they were exempt under section 29 (deliberations of FOI bodies), section 30 (functions and negotiations), section 36 (commercial sensitivity) and section 37 (personal information) of the FOI Act.

On 3 July 2015, the applicant applied for an internal review of the decision in respect of the withheld records. Comreg issued an internal review decision by letter dated 24 July 2015, in which it affirmed its original decision. On 4 August 2015 the applicant applied to this Office for a review of Comreg's decision.

In conducting my review, I have had regard to Comreg's decision on the matter; Comreg's communications with the applicant and with this Office; the applicant's communications with Comreg and with this Office; the content of the withheld records, provided to this Office by Comreg for the purposes of this review; and the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make three general points.

First, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on Comreg to satisfy me that its decision is justified.

Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the withheld information and elaborate on my reasoning is limited.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Scope of this Review

In the course of this review Comreg released an additional record to the applicant: the "Red C Panel Profile Analysis" from January 2015. Accordingly, the records which fall within the scope of my review are the third and fifth records listed on Comreg's schedule, which I will refer to as record 3 and record 5. The question for me is whether these records are exempt under sections 29, 30, 36 or 37 of the FOI Act.

For completeness, I should mention that Comreg consulted with third parties under section 38 of the FOI Act about the records which it released to the applicant by letter dated 9 June 2015. However, this consultation did not relate to records 3 and 5. Therefore it was proper for Comreg to give the applicant an internal review of its decision in relation to those records and the part of the request under review is not one to which section 38 applies.

Analysis and Findings

Section 36 - commercial sensitivity

In November 2014, Comreg commissioned a study on broadband speed, the objective of which was to measure consumer experience of broadband speed around the country. Comreg did not publish the data which the study produced. Instead it issued a high-level report on its findings in July 2015. This report stated "Although the composition of the sample panel of respondents was broadly in line with the nationally representative sample of broadband users, the subset which provided the test data is not a weighted survey and does not purport to be representative of the wider population. In many cases the aggregated data gathered on the Pilot sample was not statistically robust due to small sample sizes of the particular test cases and therefore unable to be relied upon or published. Comreg has been able to publish only high-level insights into the broadband performance results of the Pilot, which are outlined in section 3".
Record 3 consists of raw data from the study. Record 5 is a report produced by the consultants who conducted the study. As I have noted, Comreg refused access to both records under various provisions of the FOI Act, including section 36.

Section 36(1)

Section 36 of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of commercially sensitive information. Specifically, section 36(1) of the FOI Act provides:
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -
...
(b) 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".

However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The Commissioner takes the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is that disclosure of the information could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b).
Comreg submits that releasing records 3 and 5 would disclose unsubstantiated, unqualified, invalidated and statistically insignificant data. It submits that this could lead consumers to make uninformed decisions about choosing or switching providers. It says that the broadband speeds could be incorrectly under or overstated. This could undermine the competitive position of one or more broadband providers, thereby distorting competition in the telecommunications market. It submits that this could cause potentially serious material and financial loss for the service providers.
Having considered these submissions and having examined records 3 and 5, I am not satisfied that the first part of section 36(1)(b) applies. Comreg has not demonstrated to my satisfaction that there is a "reasonable expectation" of "material loss" accruing to the third parties.
However, the standard of proof necessary to meet the second test in section 36(1)(b) is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part. Comreg does not have to demonstrate that harm is certain to occur, but merely that there is a possibility of it occurring, i.e. that it "could prejudice the competitive position etc.".
I have examined records 3 and 5. I accept that they could give misleading impressions about broadband providers which could influence consumer behaviour and thereby prejudice the competitive position of broadband providers. I am therefore satisfied that section 36(1)(b) applies to these records.

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3) - The Public Interest

Having found that section 36(1)(b) applies, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. Section 36(1) itself recognises the public interest in the protection of commercially sensitive information. The Act also recognises a significant public interest in FOI bodies being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider both the positive public interest served by disclosure and the harm that might be caused by disclosure.

It seems to me that Comreg commissioned the broadband study as part of its regulatory role to ensure that consumers of broadband are appropriately protected and informed. As the Commissioner has observed in many published decisions, there is a significant public interest in openness and accountability about the performance by public bodies of their functions. I accept that there is a public interest in transparency around the broadband study which Comreg has commissioned. However, this does not necessarily mean that the public interest requires the publication of raw data and other detail contained in records 3 and 5. Comreg has satisfied me that these records could mislead and misinform the consumer about different companies' provision of broadband. As the Commissioner has noted in various decisions, the fact that a record could be misleading is not of itself enough to justify withholding it. Nonetheless, I consider that the unreliability of the data is relevant to my assessment of the public interest.

I cannot identify a public interest which would be served by releasing unreliable data which could prejudice the competitive positions of broadband providers. I consider that the public interest in openness and accountability in relation to Comreg's functions in its regulatory area has been met, at least to some extent, by the publication of the study's high-level findings in July 2015 and by granting access to the Red C Panel Profile Analysis from January 2015.

Accordingly, in the circumstances of this case, I find that on balance, the public interest would not be better served by releasing records 3 and 5, to the extent that overriding the commercial sensitivity of those records would be justified.

In view of this finding, I am not required to consider the exemptions claimed under sections 29, 30 or 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Comreg's decision in relation to records 3 and 5.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator