Whether the Department was justified in its decision to refuse access, under section 27(1)(b) of the FOI Act, to the scoring and appraisal of the applications for funding of each of the 26 disability/patient support agencies that were informed that they would not be given funding from the Scheme to Support National Organisations in the Community and Voluntary Sector

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 22 July 2014, the applicant submitted a request to the Department for certain correspondence between 26 disability/patient support agencies that were informed that they would not be given funding from the Scheme to Support National Organisations in the Community and Voluntary Sector. She also requested all internal correspondence on the matter and all correspondence between the Department and Pobal on the issue. Following a discussion with the Department, the applicant amended her request on 13 August 2014. She sought access to the scoring and criteria for all 26 disability/patient support agencies that were informed that they would not be given funding. In response, the Department released copies of the Application Form and Application Guidance that issued to all applicants which contained the criteria used for scoring.

In relation to the scoring, the Department explained that the applications were submitted directly to Pobal where they were assessed under the criteria contained in the application form, and that Pobal made recommendations to the Minister based upon its assessment of those applications. It stated that as Pobal was conducting an appeals process at the time which could result in an alteration of the assessments, it would be inappropriate to release any scoring at least until the process was finalised.

On 14 August 2014, the applicant sought to amend her request yet again, this time seeking release of the recommendations on grant funding sent to the Department by Pobal, relating to all 26 agencies. On 22 August 2014, the Department informed the applicant that the recommendations were contained in a Recommendations Report submitted to the Minister. It stated that it would be inappropriate to release this report until the appeals process was finalised, at which stage it would be in a position to assess the release of the information sought. The Department cited section 11 of the FOI Act which provides for the deferral of access to records in certain circumstances.

In June 2015, the Department decided to grant access to a redacted version of Pobal's Report. On 22 June 2015, the applicant submitted a request for an internal review of the Department's decision to refuse access to the score of each organisation that applied for funding. In its internal review decision of 5 August, the Department affirmed the decision to refuse access to the information sought. The applicant sought a review by this Office of the Department's decision on 26 August, 2015.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between each of the parties as outlined above and to the submissions received from both the Department and the applicant. I have also examined the record at issue.

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 and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

In its original decision on the applicant's request, the Department granted partial access to a report prepared by Pobal entitled "Scheme to Support National Organisations in the Community and Voluntary sector 2014-2016 - Recommendations For Funding". It released details of the identities of the organisations that applied for funding, details of the organisations recommended for funding and details of those not recommended. The details released show that 108 of the 154 eligible applications did not meet the quality threshold of 65% to be considered for funding. The Department released the identities of all organisations that were not recommended for funding but did not limit the information to the 26 organisations described by the applicant. However, it refused access to the scoring for all 108 organisations and to the summary of the rationale for the decision in each case.

In her request for internal review, the applicant applied for a review of the decision to refuse access to the score of each organisation that applied for funding. While the Department considered that request, it seems to me that the applicant had fundamentally changed the nature of the information she was seeking which went beyond the scope of her original request. I am satisfied that my review is bound by the wording of the applicant's original request and that I have no jurisdiction to review a decision of the Department on information that was not originally sought. The applicant limited her request to the scoring and criteria for all 26 disability/patient support agencies that were informed that they would not be given funding. Accordingly, it is not open to me to consider whether the Department was justified in refusing access to the scores of the organisations that were recommended for funding. I am prepared to accept that the information sought extends to the summary of the rationale provided by Pobal for the scoring and recommendation in relation to the 26 disability/patient support agencies that were not recommended for funding.

Accordingly, the scope of this review is concerned solely with the question of whether the Department was justified in its decision to refuse access to the scoring and appraisal of the applications for funding of each of the 26 disability/patient support agencies that were informed that they would not be given funding from the Scheme to Support National Organisations in the Community and Voluntary Sector.

I have made no effort to identify the specific organisations of the 108 not recommended for funding that are captured by the applicant's request. However, in light of my findings below, I do not consider it necessary to do so.

Analysis and Findings

The Department refused access to the scoring of the relevant organisations under sections 27(1)(b) and 27(1)(c) of the FOI Act. Section 27(1) provides for the mandatory refusal of a request where disclosure of the information sought (b) 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) could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates

In its internal review decision, the Department essentially argued that the release of the scoring and appraisal of the unsuccessful applicants would be likely to have a negative impact on those organisations and that their future reputational and economic circumstances could well be impacted. The internal reviewer considered it likely that disclosure of the marks and rating comments could reasonably be expected to result in some of the applicants incurring a material financial loss, particularly in respect of being able to secure future funding and support. He argued that it is also possible that their information could be used to discredit some of the organisations with a view to other competing organisations benefitting from this reputational damage, through donations, for example.

The internal reviewer noted that just because the applicants may have failed to secure funding under this call for proposals, this does not, of itself, undermine the merits of the organisations across their full range of activities. He argued ,however, that publicising their rankings and ratings in this particular case could be used to impact unreasonably on their wider reputation outside of the specific grant application process, which would likely have a detrimental economic consequence.

The standard of proof required to show that disclosure of the information sought could prejudice the competitive position of the person to whom the information relates in the conduct of his or her profession or business or otherwise in his or her occupation is relatively low. It seems to me that the release of the information sought could, as the Department suggests, prejudice the competitive position of the various organisations concerned. Release of the scoring would allow for direct comparisons to be made as to the merits of their respective proposals. The organisations concerned operate in a very competitive market in relation to securing charitable donations, which are critical to the survival of most such organisations. Notwithstanding the fact that the information at issue does not represent an overall reflection of the views of Pobal or the Department as to the merits of the organisations, I agree that its release could influence decisions in relation to which organisations should receive charitable donations, thus impacting on their ability to raise funding and prejudicing their competitive positions. Accordingly I find that section 27(1)(b) applies.

However, that is not the end of the matter. Section 27(3) provides that section 27(1) does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.

The applicant argued that there is a strong public interest in release of the information sought. In her application to this Office, she argued that charities should be fully transparent as members of the public give to charities in good faith and deserve to know all the vital details of how well they are run and managed. She argued that this is particularly important in light of recent controversies where secrecy was found to undermine the credibility of charities.

It is worth noting at the outset that the bodies such as those involved in this case are not subject to FOI. The FOI Act is concerned with the promotion of transparency and accountability in public bodies and while it is open to the Minister for Public Expenditure and Reform to extend the provisions of the Act to community and voluntary organisations, this has not been done to date. It seems to me that if there is a public interest in releasing the information sought, it arises in relation to the manner in which public funds are granted to those organisations by the Department.

On this point, the Department argued that there has been full transparency in terms of the criteria used for scoring, which were included in both the application form and the associated guidance document that issued to all applicants and also given to the applicant, and also as a result of the fact that each application was assessed independently by Pobal before they were submitted, with recommendations, to the Department for consideration and determination. In my view, this of itself is not sufficient to suggest that there is full transparency in the manner in which the public funding is or is not awarded. However, regard must also be had to the level of information that the Department has already disclosed in the copy of the redacted report that was made available to the applicant.

Those parts of the report that were released contain details of the number of applicants, the details of those recommended by Pobal for funding and those not recommended. It is noteworthy that the amount of funding recommended by Pobal is indicative of its views on the merits of the application and is not necessarily indicative of the order in which Pobal scored the various applications. The release of this additional information brings further transparency to the manner in which the Department may or may not act on the recommendations of Pobal in disbursing public funds.

The question I must consider here is whether the public interest would, on balance, be better served by disclosing the information relating to the unsuccessful organisations than by refusing the request and thereby protecting the commercial interests of those organisations. In my view, it would not. Accordingly, I find that section 27(3) does not apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the scoring and appraisal of the applications for funding of each of the 26 disability/patient support agencies that were informed that they would not be given funding from the Scheme to Support National Organisations in the Community and Voluntary Sector.

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