Case Number: 150303

Whether the refusal of access by the EAT to a record containing the identities of limited company respondents is justified under the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 2 July 2015 the applicant made an FOI request to the EAT for a list of respondent companies/employers who are not "employer persons" but limited companies in the period 14 April to 26 June 2015. By letter dated 22 July 2015, the EAT refused access to the record on the basis that it was exempt from release under section 30(1) of the FOI Act (functions and negotiations). On 3 August 2015 the applicant applied for an internal review in respect of the record and asked for the list for the period 14 April to 31 July 2015. By letter dated 27 August 2015, the EAT issued its internal review decision, in which it affirmed its decision of 22 July 2015. On 10 September 2015, the applicant applied to my Office for a review of the EAT's decision.

In order to understand the background to this case, it is necessary to point out that the applicant's FOI request in July followed earlier requests. On 20 May 2015 the applicant made an FOI request to the EAT for a list of all the claims (claimants and respondents) in the period 14 April 2015 to 15 May 2015. By letter dated 27 May 2015 the EAT refused access to the record on the basis that it was exempt under section 37 of the FOI Act (personal information). On 3 June 2015 the applicant narrowed the request, seeking a list of respondent company/employer details in respect of claims in the period 14 April 2015 to 31 May 2015. By letter dated 29 June 2015 the EAT again refused access to the record on the basis that it was exempt under section 37. The applicant made a further FOI request in July 2015, which led to this review.

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

Scope of the Review

In the application for an internal review on 3 August 2015, the applicant sought to widen the time period for the list requested to 14 April 2015 to 31 July 2015. As I understand it, it is not open to the applicant to extend the scope of an FOI request in an application for an internal review under section 21 of the FOI Act. Therefore the scope of my review is confined to the record sought in the original request, which relates to the period 14 April 2015 to 26 June 2015. The question to be determined is whether this record is exempt under the FOI Act.

Preliminary Matters

In considering this matter, I have had regard to Schedule 1 to the FOI Act and to principles of statutory interpretation. In my view, the principle that "to express one thing is to exclude another" applies in this case. The legislature has opted to exclude certain records relating to some agencies which deal with employment disputes from the FOI Act. Part 1 of Schedule 1 to the FOI Act expressly excludes records of the Equality Tribunal concerning the provision of mediation services (paragraph k); certain records of the Labour Relations Commission, including those concerning the provision of conciliation or mediation services (paragraph (s)); certain records of the Labour Court, including those concerning the provision of services in trade dispute resolution (paragraph (t)). However, it does not exclude any records of the EAT. It is therefore clear to me that such records are not intended to be excluded as a class under the FOI Act. I must consider the particular records and the particular exemption which the EAT claims over them.

Furthermore, it is important to note that 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 the EAT to satisfy me that its decision is justified.

Analysis and Findings

Section 30 - functions and negotiations

Section 30(1)
Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or the methods employed for the conduct thereof".

The EAT invokes section 30(1)(a) in this case. When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The FOI body must show that there are adequate grounds for its expectation. It should identify the potential harm or prejudice to the relevant test, examination etc and show how release of the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc. It should then go on to consider the public interest test under section 30(2).

Having examined the record, I am satisfied that it relates to the EAT's processing of claims and accept that this process can be classified as an examination or investigation for the purposes of section 30(1)(a).

Submissions
The EAT describes itself as an independent statutory employment rights body which provides an informal means for individuals to seek remedies for alleged infringements of their statutory rights. Tribunal decisions are legally binding and can be appealed to the Courts. Given that a revised structure for such complaints and appeals came into operation on 1 October 2015, the EAT is currently dealing with "legacy cases" lodged before that date.

The EAT states that its policy is to keep the details of the parties to a claim confidential until the hearing. It says that it publishes the parties' details on its website when the case is listed for hearing, which is usually the Friday before the week in which the case is heard. It then confirms the parties' names on the day of the hearing, when the parties are available to verify them.

The EAT identifies two potential harms for the purposes of section 30(1)(a) in this case. First, it says that the respondent companies' details are submitted by the claimants and are regularly found to be incorrect. It says that releasing the record could cause considerable reputational and financial damage to the respondent companies, before they have the opportunity to defend themselves at hearing. It submits that releasing the record could expose the EAT to various causes of legal action (defamation, loss of reputation/income etc.), thereby exposing it to delays and costs. Secondly, the EAT submits that releasing the record could deter respondent companies from entering into settlement agreements, which the EAT considers to be the optimum outcome for the parties to a claim.

The applicant submits that the EAT's original decision is flawed because the information which the record contains can be found, albeit on a case by case basis, on www.workplacerelations.ie/en/Decisions_Determinations. In response, the EAT submits that while the public interest in its operations is well-served by public hearings, the release of information about respondents in advance of hearing dates would not add anything to the public interest and would, on balance, damage the public interest.

Analysis
I must examine the potential harms to its functions which the EAT has identified. Firstly, as regards possibly incorrect company details in the record, I believe that it would be open to the EAT to release the record with a warning that the details which it contains are given by the claimants and have yet to be verified at the hearing. The EAT would merely be stating the fact that a claim has been issued against a named respondent, whose details are yet to be confirmed. I am not satisfied that it is reasonable to expect that doing this would expose the EAT to litigation. This is particularly so given that section 49(2) of the FOI Act provides FOI bodies with immunity from legal proceedings for certain acts under the FOI Act, including complying with decisions made by this Office. As I understand it, the names of parties in other proceedings e.g. in litigation, are routinely published notwithstanding the fact that there may be errors in relations to names and other details supplied.

Furthermore, in relation to any reputational harm identified as being reasonably expected to prejudice the effectiveness of the EAT's investigations or the procedures or methods it employs, it is the case that the parties' details are published once the case is listed for hearing. It seems to me that participants in the process, including the respondent companies, could not therefore expect that their cases would be put into the public domain only if and when a decision was given in their case. Moreover, it seems to me that there is nothing to stop complainants from putting into the public domain the fact that they have brought a claim. Even if any prejudice to the companies could be linked to releasing the record before the cases are listed for hearing, the harm test in section 30(1) is concerned with the effectiveness of the FOI body's processes, rather than the subject of the records. The EAT has advised this Office that it does not have a function in negotiating settlements; at most, it allows the parties time to discuss matters. I therefore do not see how the anticipated harm could prejudice the effectiveness of EAT's functions, procedures or methods. However, I consider the substance of the EAT's argument insofar as it relates to the companies further under section 36(1) of the FOI Act below.

The EAT has not demonstrated to my satisfaction that releasing the record could prejudice its functions. As I am not satisfied that section 30(1) applies, I am not required to consider the public interest test under section 30(2). I find that the EAT's refusal of access to the record is not justified under section 30(1).

Section 36(1) - Commercial Sensitivity
Section 36(1) 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 -
(a) trade secrets of a person other than the requester concerned,
(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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

The EAT did not invoke this exemption in its decision, although its submissions to my Office put substantial emphasis on the potential harm to the companies' interests, as opposed to its own functions. This Office drew the section 36 exemption to the applicant's attention and invited his submissions. The applicant submitted that, as the FOI Act places the onus of proof on the FOI body, it was not open to this Office to consider an exemption which the FOI body itself had not raised without representations from the EAT on the matter. He also submitted that his FOI request is only intended to obtain the records for his own purposes. I will address each point in turn.

First, as I have noted above, section 22(12)(b) of the FOI Act requires the EAT to justify withholding access to the records. Nevertheless, my jurisdiction is to make a new decision and I have the statutory power to affirm, vary or annul the FOI body's decision. It is therefore open to me to consider provisions of the FOI Act to which the parties have not referred. I consider that I am particularly entitled to do so if it is possible that third party rights may be involved, since the FOI Act recognises that such rights may be taken into account in sections 35, 36 and 37. In the normal course, failure by the body to justify its decision is sufficient for my Office to find that the body has not justified its refusal to release certain records. However, given the nature of the record at issue, I am also cognisant of the fact that its release could affect the interests of third parties. I will therefore consider the EAT's submissions below in the context of section 36; I do not believe it is necessary to seek further submissions from it.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner[2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. Furthermore, I am required to disregard the motive or reasons for the request, except insofar as this might be relevant to consideration of the public interest.

I do not consider that section 36(1)(a) applies, as no trade secrets are involved. Neither do I consider that section 36(1)(c) is relevant, since no specific negotiations are in train or reasonably foreseen at this point in time.

Turning now to section 36(1)(b), the EAT did not claim this exemption in its decision to refuse access. However, in the context of its argument that access to the record could reasonably be expected to prejudice the effectiveness of the EAT's investigations or procedures (s30(1)(a) refers), it did identify potential harms to the companies. Therefore, it seems to me that the prejudice claimed is not actually prejudice to the EAT and its investigations, but rather to the companies themselves. Whilst the applicant says that the record merely lists the company names, in fact, it discloses that a claim was made by an employee that their employment rights had been breached by the companies listed. Thus, I consider that it is appropriate to examine the harms put forward by reference to section 36(1)(b).

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. I take 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). I am not satisfied that the first part of section 36(1)(b) applies. However, I consider that the second part of the exemption may well apply.

Generally speaking, I accept that reputation contributes to an entity's competitiveness and that damage to a company's reputation could prejudice it in the conduct of its business vis a vis its competitors. I believe it is reasonable to accept that disclosure of the fact that claims have been lodged against companies could influence negatively the perception of the companies by clients, competitors or the public at large. In this regard, I must say that I give significant weight to the EAT's submission that release of the company names in advance of listing for hearing could affect the potential for the companies to settle the case. While the EAT does not have a function in negotiating settlements, it seems to me that releasing the record could deny a company the opportunity of approaching a complainant and entering settlement talks before the fact that the company was subject to a complaint had entered the public domain. This could compromise the company's ability to safeguard its reputation and minimise damage to its business. Thus, the timing of the release - being in the window between the drawing up of the list and its publication on the week before the hearing - could contribute to the harm, in that it might affect the prospects of a successful settlement. I am therefore satisfied that section 36(1)(b) applies to the record.

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. I take 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.

The July 2011 Supreme Court judgment 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 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. Therefore, I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law".

While section 8(4) of the FOI Act requires me to disregard the applicant's reasons for the request, I may take them into account to the extent that they are potential public interest factors which favour release. The applicant says that his FOI request is intended to obtain the records for his own purposes. In my view this is a private, rather than a public interest. Section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant here in that it is a public interest which equates with "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law " as referred to by Macken J. in Rotunda Hospital v Information Commissioner [2011] IESC 26. However, I cannot see how releasing the identity of the companies which did not manage to settle their cases before listing serves the public interest in openness and transparency, given the fact that the hearings in those cases which are not settled between the parties will be reported. I accept the EAT's view that settlement is considered to be the optimum outcome. In any case, this particular tranche of cases lodged before October 2015 comprise the "legacy cases" lodged before the introduction of new procedures under the Workplace Relations Commission.

Accordingly, in the circumstances of this case, I find that, on balance, the public interest would not be better served by releasing the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the EAT and find that the record is exempt under section 36(1)(b) of the FOI Act.

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.

Peter Tyndall
Information Commissioner