Case Number: 160056

Whether the Gallery was justified in refusing access to records relating to export licence applications made by or on behalf of Anthony O'Reilly, Chriss O'Reilly (née Goulandris), Neva Group Limited and/or Genetix Holdings Limited for artworks for the six-year period dating from October 2009 to October 2015

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

Background

In a request dated 2 October 2015, the applicant sought access to records relating to export licence applications made by or on behalf of Anthony O'Reilly, Chriss O'Reilly (née Goulandris), Neva Group Limited and/or Genetix Holdings Limited for artworks over the past six years. The Gallery refused the request under sections 35, 36, and 37 of the FOI Act. On 9 February 2016, the applicant applied to this Office for a review of the Gallery's decision.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and the Gallery. In addition, I have examined a sample of the records relating to the export licence applications concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the Gallery was justified in refusing access to records relating to export licence applications made by or on behalf of Anthony O'Reilly, Chriss O'Reilly (née Goulandris), Neva Group Limited and/or Genetix Holdings Limited for artworks for the six-year period dating from October 2009 to October 2015.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 22(12)(b) of the Act, which requires the Gallery to show to my satisfaction that its decision to refuse to grant the request was justified.

In addition, I wish to explain the approach of this Office to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including part of anything that is a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

The records at issue in this case consist of completed export licence applications forms together with an image of each work concerned, a limited amount of correspondence relating to certain export licence applications, the relevant export licences as issued with the Director's signature, and a spreadsheet of all the export licences issued. In its submissions, the Gallery argues that disclosure would constitute a breach of a duty of confidence provided for otherwise by law and that section 35(1) of the FOI Act therefore applies. The Gallery also argues that the records contain commercially sensitive information within the meaning of sections 36(1)(b) and (c) of the FOI Act. In addition, section 37(1), the exemption applicable to personal information, is claimed by the Gallery in relation certain personal details (mobile telephone number, personal landline telephone number, and home address) that are included in the records concerned. The Gallery's submissions are supported by a written statement of objection made by a representative of the third party owners of the artworks concerned; in the statement, the third party representative argues that the records contain "confidential, private and personal [information] relating to the financial and business affairs of both [the company concerned] and the Owners".

However, the applicant refers to the release of information under FOI by the Gallery to The Sunday Times relating to applications for export licences reportedly made on behalf of one of the affected third parties. He argues that the Gallery has taken an inconsistent approach in relation to his request and notes that at least some of the information that he seeks is already in the public domain. In addition to The Sunday Times article relating to the export licence applications, which is dated 26 July 2015, the applicant refers to press reports relating to "a number of disposals by Mr. O'Reilly in the last few months". He also argues that the requirement for an export licence under Chapter IV of the National Cultural Institutions Act 1997, headed "Provisions relating to Heritage Collections", is a recognition by the Oireachtas that the artworks concerned are not "simply private property but objects of cultural importance that the entire community shares an interest in". He therefore contends that there is a "clear public interest in disclosing details held relating to the Export Licence system to members of the community".

Section 35(1)(b) is a mandatory exemption that applies 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) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law". Under section 35(2), the confidentiality exemption does not apply to a record prepared by a staff member 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 head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".

In Mahon v. Post Publications [2007] IESC 15, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Fennelly J restated the requirements of the equitable doctrine of confidence as follows:

1. "The information must in fact be confidential or secret: it must, to quote Lord Greene, 'have the necessary quality of confidence about it';
2. It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence."

In this case, I accept that the information contained in the records at issue concerns private matters, namely, applications for export licences in relation to privately-owned artworks. The licensing requirement in relation to the artworks concerned arises under section 49, rather than section 48, of the National Cultural Institutions Act 1997; this means that the artworks have not been registered as "cultural . . . objects whose export from the State would constitute a serious loss to the heritage of Ireland". I note that The Sunday Times article presented by the applicant reports, based on information obtained under FOI, that export licences were granted for the export of more than 25 artworks from a certain collection in Ireland to London between 2010 and 2012. I further note that a number of the works, but not all, are named in the article. However, the scope of the request made by The Sunday Times differs from the request made in this case, which covers a six year period and is focused on certain named individuals and companies associated with these individuals. Disclosure of the records at issue would reveal the full body of artworks for which affected third parties applied for export licences over the six year period concerned and other details that are not mentioned in the article, including about the named works of art, such as the insurance valuations, the owner of the each work as identified in the export licence application, the length of time that each work was in the possession of the owner, and the specific identity of the intended consignee.

In any event, while licences were required for the export of the artworks concerned, it is nevertheless the case that the artworks are, or at least were at the time, private property. Moreover, a brief search of the Internet indicates that the information in the public domain about the actual or potential sale of the works by the affected third parties is based to some degree on speculation. I am aware of press reports from earlier this year suggesting that part of the art collection of the affected third parties was sold at auction in April. However, the reports reflect that the vendor was not formally identified because of a wish to remain anonymous, a practice that does not seem to be unusual in relation to the auctioning of artworks from private collections. As the Commissioner observed in Case 110023, Mr. X and the Department of Jobs, Enterprise and Innovation (19 Dec. 2013), available at www.oic.ie, "not all information in the public domain is necessarily accurate and reliable. Thus, there is a distinction to be drawn between published newspaper accounts based on undisclosed or anonymous sources of information, on the one hand, and primary documentation relating to the matters concerned, on the other." In the circumstances, I am satisfied that the information concerned has the necessary quality of confidence about it.

I also accept that the information about the private artworks was given to the Gallery for the limited or restricted purpose of applying for an export licence in accordance with section 49 of the National Cultural Institutions Act 1997. Although the legislation does not expressly provide for confidentiality, the Gallery states that export licence applications are made on the reasonable expectation that the information provided will be treated confidentially and will not enter the public domain. According to a statement signed by the Director, the Gallery "endeavours to be as open and transparent in its dealing as possible", but "there are no circumstances which, in the normal course, the Gallery and applicants for export licences would expect such information to be disclosed". The Gallery's submissions are supported by the written statement of objection made on behalf of the owners of the artworks concerned in this case as well as by the nature of the information at issue. As noted, even where the name of a particular piece of artwork is publicly available, the related application contains details that are not publicly known, such as the insurance valuation. As also noted, even where artworks are sold at auction, the identity of the vendor is not necessarily disclosed. I am therefore satisfied that an obligation of confidence exists with respect to the information sought relating to the export licence applications at issue in this case.

It is acknowledged that the obligation of confidence was not properly observed in response to the FOI request by The Sunday Times in 2015, which, as stated in the article, was made following the controversy over export licences issued in respect of works owned by the Alfred Beit Foundation.. However, the Gallery has admitted that information was "erroneously released under FOI without having due regard for the full range of exemptions from disclosure that could have correctly applied to such information". Moreover, the Gallery did not release the identity and contact details of the owners of the artworks; the identity of the supposed owners apparently was determined by the journalist by cross-referencing information obtained from other sources. The Gallery has also admitted that it neglected to comply with the third party consultation procedure provided for under section 38 of the FOI Act and that, upon publication of The Sunday Times article, "the Gallery came under harsh criticism from, and on behalf of, the third parties named in that article for not having consulted with them before releasing the relevant records under FOI, as the information contained therein was personal, commercially sensitive, and confidential and given by them on the understanding that it would be treated as confidential". In my view, the Gallery's previous error in failing to have due regard for the provisions of the FOI Act, or the possibility that information released under FOI may be pooled together with information available from other sources, does not remove its obligation of confidence with respect to the information requested in this case.

I note that the applicant has suggested that the disclosure of information under FOI means that there is no unauthorised use of the information. However, in the case of Rotunda Hospital v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26, Macken J emphasised that "there is simply no statutory 'right of access' to any records covered by Part III [now Part 4] of the Act". Macken J's statement was made in relation to the 1997 FOI Act, but section 11(7)(a) of the current Act specifies that there is no right of access to an exempt record where the exemption is mandatory. The Oireachtas has determined that a duty of confidence provided for by law must be respected unless the record concerned falls within the ambit of section 35(2) of the FOI Act, which the records at issue in this case do not, as the duty of confidence is owed to a person other than an FOI body, the staff member, etc of an FOI body or a service provider. In the circumstances, I am also satisfied that disclosure of the requested information under FOI would result in an unauthorised or wrongful use of the information that would be detrimental to the interests of the affected third parties. Accordingly, I find that the requirements for an equitable duty of confidence are met in this case and that section 35(1)(b) therefore applies.

Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3), but as noted in previous cases, the existence of an equitable duty of confidence is still subject to public interest considerations. However, it has also been acknowledged in previous cases (e.g., Case 090163, The Sunday Times and Office of the Revenue Commissioners (10 Sept. 2010); see also Case 150419, Mr. X and the Department of Finance (23 Aug. 2016)) that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. Moreover, while certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily mean that there is a public interest in disclosing the information (e.g., Case Number 030624, The Sunday Times and the Office of the Revenue Commissioners(11 Aug. 2005)). I do not accept that any grounds have been identified that would justify or excuse a breach of a duty of confidence in this case.

Based on the above, I am satisfied that section 35(1)(b) applies to the records requested. I therefore do not consider it necessary to address the additional claims for exemption made under sections 35(1)(a), 36(1)(b), 36(1)(c), and 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Gallery in this case.

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.

Elizabeth Dolan
Senior Investigator