Case number: 160068

Whether the Department-s decision to refuse access to records concerning the Irish Airlines Superannuation Scheme under sections 28, 30, 31, 35, 36 and/or 42 was justified

 
22 November 2018   
 

Background

 
The Irish Airlines Superannuation Scheme (IASS) is a multi-employer pension scheme for employees of Aer Lingus, daa, the Shannon Airport Authority, and the former SR Technics.  As of 31 March 2011, the IASS had a deficit of €344m, and was only 81% funded.  In 2014, the Oireachtas passed the State Airports (Shannon Group) Act 2014, which allowed for a restructuring of the IASS.  This restructuring had the effect of reducing the benefits payable to scheme members. 
 
On 31 August 2015, the applicant, who is a deferred member of the IASS, requested access, via his solicitor, to all records relating to 
 
(i)The IASS pension fund between 2008 and 2015, the solvency of the fund, its impact on the valuation of Aer Lingus and the shares of the company, and proposals and strategies to address the structure, management, solvency or deficit;
(ii)The legislative proposals and changes concerning the IASS pension scheme in the State Airports (Shannon Group) Act 2014;
(iii)The proposal for change of rules introduced by the Trustees, following the passage of the 2014 Act.
 
In a decision dated 7 September 2015, the Department refused the request under sections 31(1)(b) and 32(1)(a)(iv) of the FOI Act because of ongoing court proceedings related to the IASS.  On 17 September 2015, the applicant requested an internal review of the decision.  On 9 October 2015, the Department affirmed its original decision.  On 12 February 2016, the applicant sought a review by this Office of the Department's decision.
 
Regrettably, a long delay arose in bringing this review to conclusion, which was due to a number of factors, but primarily the large volume of records affecting the interests of numerous third parties.  During the course of the review, the applicant agreed to reduce the scope of his request to 112 specified records.  In addition, he stated that he was willing to exclude any record exceeding ten pages in length.  Nevertheless, there remained a large number of documents at issue that affected the interests of numerous third parties who could not be given sight of all of the records concerned by the Department because of the exemptions claimed and the need to protect the interests of third parties which could be affected by disclosure of the records to other third parties.  
 
In October 2016, this Office notified the affected third parties of the review in line with our procedures, but in doing so, an attempt was made to identify the specific records that may concern or relate to each respective party.  This proved to be a difficult and potentially flawed task in and of itself, and in response, two of the three primary third parties, Aer Lingus Limited and daa, expressed concern that there may be other records at issue that also affect their interests.  In addition, the parties had been advised to contact the Department with any queries about the contents of the records at issue, but as indicated above, the Department was unable or unwilling to give the parties sight of all of the records concerned.  Aer Lingus and daa argued in essence that they were not in a position to make fully informed submissions in the circumstances.  Both parties did, however, make comments about all of the specific records that had been identified as affecting their interests at the time.
 
Given the unusual nature of this case, the concerns raised, and the regrettable delay which arose in making progress on the matter, this Office wrote to the three primary third parties again, as well as another third party, SIPTU, which had not been previously notified of the review, in July 2018.  With the Department's permission, my Office included a copy of the relevant schedule describing all of the records remaining at issue in its correspondence to the primary third parties and explained that, while it was not in a position to make copies of the records available to them, they should feel free to contact the Investigator directly with any queries they may have about the records.  The Investigator explained that the Department was aware that she intended to provide the relevant third parties with a description of the records should it be required.  The Investigator also spoke with representatives from daa and Aer Lingus by telephone before issuing the further correspondence to ensure that the intended consultation process in light of the unusual nature of the case was fully understood.  
 
SIPTU replied within one week to say that it had no objection to the release of the record affecting its interests.  The IASS Trustee, the third primary third party, made a timely further submission dated 7 August 2018.   However, Aer Lingus and daa ultimately replied on 4 September 2018 and 17 September 2018, respectively, by continuing to raise objections over not being given sight of all of the records affecting their interests.  I note that neither party had availed of the opportunity to contact the Investigator beyond requesting an extension of the deadline for making further submissions.  In the circumstances, I now consider it appropriate to bring this matter to conclusion by way of a binding decision.  In carrying out my review, I have had regard to various submissions made by the Department, the applicant, and the affected third parties from 2016 to date.  I have also examined the records remaining at issue. 
 

Scope of the Review

 
As the applicant has been advised, a few of the 112 specified records are over 10 pages in length and were therefore excluded from the scope of the review on that basis.  In addition, certain records were deemed to be outside the scope of the request in full or in part based on their contents.  Accordingly, my review is concerned solely with the question of whether the Department decision to refuse access to the following records was justified:
 
  • 2, 3, 14, 16, 24, 37, 40 (para 8), 41, 42, 46, 47, 61, 66, 67, 68, 76, 77, 91, 94, 99, 105, 106, 108, 111, 112, 113, 114, 120 (in part), 121, 122, 127 (in part), 130, 133, 135, 138, 141, 143, 145 (in part), 146 (in part), 147, 148 (in part), 150, 151, 152, 157, 158, 160 (in part), 161, 162, 167, 176, 186, 187, 188, 189 (in part), 190 (in part), 193, 195, 198, 199, 200, 201, 202, 206, 207, 210, 211, 212, 218, 219, 221, 225, 227, 229, 232, 263, 268, 277, 296, 298, 306, 307, 323, 326, 329, 342, 343, 346, 350, 355, 364, 367, 370, 372, 374, 392, 401, 403, 411, 415 and 419.
 
For the sake of clarity, I note that any reference to the records below that are only partially within scope (e.g., record 40) is a reference to the record only insofar as that record is within scope (e.g. para. 8 of record 40).
 

Preliminary matters

 
Before setting out my findings, there are some preliminary points I wish to make.
 
The first point to note is that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.  This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions.   
 
In addition, 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.  
 
Lastly, I wish to explain the approach of this Office to the granting of access to parts of records.  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, this Office takes that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.  
 

Analysis and Findings

 
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."  It should also be noted that a review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.
 
As stated above, the Department justified its refusal to release the records in its original and internal review decisions under sections 31(1)(b) and 32(1)(a)(iv).  The Department has subsequently sought to rely on a number of additional exemptions.  However, my understanding is that it still seeks to rely on its original two exemptions.  As these exemptions were applied by the Department to all the records under review, I believe it is appropriate to consider them before proceeding, if necessary, to considering the other exemptions on a record-by-record basis.
 
Section 31(1)(b)
Section 31(1)(b) is a mandatory exemption that applies where the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court.  The Department did not explain in its original or internal review decisions why it considered that release of the records would constitute a contempt of court. 
 
In its submissions to this Office, the Department has referred to representative litigation on behalf of approximately 730 pensioners of the IASS which was initiated in the High Court in 2015; seeClarke & Ors v Ireland and the Attorney General2015/5819P.  The Department has stated that the parties in that case have reached an agreement on discovery and that this agreement encompasses all but 15 of the records under review by this Office.  Therefore, the Department-s position, as I understand it, is that the release of records through FOI, that are the subject of a discovery agreement in litigation proceedings, would breach the implicit undertaking to the court not to use the records for a purpose other than the litigation in which they were disclosed.
 
InCase 050166(Murphy & IDA), available atwww.oic.ie, the previous Commissioner concluded that, where discovery has been made by an FOI body to a party to the proceedings, release under the FOI Act to that party, as opposed to a third party, would result in a contempt of court arising, as release would constitute a breach of the party-s implied undertaking to the court not to disclose the documents to any third party.  However, no such breach, or contempt of court, can arise if records held in the ordinary course by the FOI body are released to a third party who has not given any undertaking.  
 
In this case, the applicant's solicitor has stated that the applicant is not a party to the proceedings involving the discovery agreement and thus is not bound by any undertaking to the court.  The Department asserts that the initial litigation before the High Court is a representative action on behalf of the members of the IAS scheme, of which the applicant is one.  However, the Department does not claim that the applicant is a party to the Clarke case.  Rather, the Department notes that the applicant's solicitor has now commenced another set of proceedings, which it refers to a "theByrne case" (John Byrne v. Aer Lingus, Ireland and the Attorney General and the Trustees of the Irish Airlines (General Employees) Superannuation Scheme2017 2771P).  The Department states that theByrnecase "is intimately connected to theClarkecase and is in effect backup litigation".  Nevertheless, it seems that no order for discovery in respect of proceedings involving the applicant has been made to date.  Therefore, no issue regarding any undertaking, express or implied, given by the applicant to the court arises at this time.  In the circumstances, I am satisfied that release of the records to the applicant under FOI would not breach an undertaking to the court and therefore would not constitute a contempt of court.  Consequently, I find that section 31(1)(b) does not apply to the records.
 
Section 32(1)(a)(iv)
Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.  Under section 32(1)(a)(iv), it is necessary for the Department first to identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue.  Having identified the potential harm, the Department is then required to show that its expectation of such harm arising is reasonable.
 
In this case, the Department claims that section 32(1)(a)(iv) applies to all of the records at issue for reasons related to the proceedings in theClarkecase.  Given the close connection between theClarkecase and theByrnecase, the Department argues that releasing the records to the applicant, who would not be subject to an undertaking that binds the plaintiffs inClarke, would prejudice or impair the fairness of civil proceedings.  The Department states:  "Releasing the records in circumstances where we are facing a large representative action, are in the process of amending our pleadings, and discovery is potentially on-going will prejudice our legal team's ability to fully advise their clients and to prepare witness statements."
 
However, the mere existence of related court proceedings is not sufficient to show that any harm could arise from the release of the records at issue.  The Department has not shown how it expects the release of the particular records at issue to prejudice or impair the proceedings concerned, nor has it shown that any such expectation of harm is reasonable.  Rather, it seeks to withhold all of the relevant records as a class, it seems, based on speculation over the advantage that the applicant may gain from achieving access through FOI rather than discovery and because of the general demands of the on-going litigation.  While the Department refers to the preparation of witness statements, it does not suggest that the release of the records at issue in this case could result in any interference with potential witnesses.  I accept that dealing with FOI requests in the context of on-going litigation may result in a diversion of resources, but I do not consider that this provides a justification for applying section 32(1)(a)(iv) as opposed to perhaps section 15(1)(c), an administrative ground for refusal that the Department did not invoke in this case.  In the circumstances, I am not satisfied that the Department has justified its refusal to grant access to the records at issue on the basis of section 32(1)(a)(iv). 
 
As I have found that the Department-s attempt to refuse access to the entirety of records as a class was not justified, I will now proceed to consider the exemptions claimed on a record-by-record basis.
 
Section 42(f)
Section 42(f) provides that the FOI Act does not apply to -a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration-.  For the exclusion to apply, the record at issue must be held by or created by, among others, the Office of the Attorney General. I t is important to note that the Office of Parliamentary Counsel (OPC) is a constituent part of the Office of the Attorney General and as such, records held or created by the OPC (apart from records relating to general administration) are also excluded from the FOI Act under section 42(f).  However, the fact that a record might contain advice received from the Office of the Attorney General does not, of itself, mean that section 42(f) applies.
 
In its earlier submissions, the Department claimed that section 42(f) applies to the following records:
 
  • 24, 106, 112, 113, 114, 143, 151, 158, 162, 186, 193, 229, 263, 307, 329.
 
In its most recent submission, it suggests that section 42(f) also applies to the following records:  121, 122, 161, 167 (in part), 195, 206, 218 (in part), 219, 225, 268, 296.
 
Based on my examination of the records, I accept that the following are excluded from the FOI Act by virtue of section 42(f):
 
  • 112 (part), 143, 162 (part), 263 and 268 (in part).
 
I do not agree that section 42(f) applies to the remaining records claimed by the Department on the basis that it has not been shown that they are either "held" or "created" by the Office of the Attorney General or any of its constituent parts.  I am therefore not satisfied that section 42(f) applies to these records.  
 
Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.  
 
Legal professional privilege enables a client to maintain the confidentiality of two types of communication:
 
(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and 
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
 
In previous decisions, I have accepted that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  I have adopted this approach having regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:
"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."
 
Based on my examination of the records, I accept that the following records contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice and that section 31(1)(a) therefore applies:  
 
  • 24, 106, 112 (insofar as not excluded by section 42(f)), 113-114, 120, 121, 122, 127, 130, 151, 158, 161, 162 (insofar as not excluded by section 42(f)), 167 (in part - the final two sentences of the penultimate paragraph of the appendix), 186, 188, 189, 193, 195, 206, 218 (in part - the final two sentences of the penultimate paragraph of the appendix), 219, 225, 229, 232, 268 (insofar as not excluded by section 42(f)), 296, 306, 307, 329, 346. 
 
I note that some of the records above (e.g., 120, 122, 127) include or consist of communications from legal advisers to daa or Aer Lingus.  However, I accept that the sharing of legal advice by these parties with the Department is not a waiver of privilege in the circumstances of this case.  
 
Section 31(1)(a) was also claimed by the Department in relation to records 145, 201, and 202.  However, the basis for the claim of privilege in relation to these records is unclear.  Record 145 refers to the Office of the Attorney General in a response made to an email from daa, but I do not consider this to be sufficient to qualify the record for legal professional privilege even in light of the common interest that the Department and daa had in the matter.  Records 201 and 202, on the other hand, consist of internal Departmental emails dealing with a queries received from the Department of Public Expenditure and Reform.  An email dated 4 February 2014 refers to an intention to "work on the legal advice this afternoon", but this reference does not appear, on the face of it, to be linked to the substance of the other communications in the emails.  There is also nothing to suggest that the records were prepared for the dominant purpose of preparing for contemplated or pending litigation.  Moreover, I note that the Department has not identified the records 145, 201, and 202 among those that were regarded as privileged in the discovery proceedings the Clarke case.  Accordingly, I am not satisfied that records 145 (insofar as within scope), 201, and 202 are exempt as claimed.
 
Section 35 
Section 35(1) states that  "Subject to this section, a head shall refuse to grant an FOI request if-
(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or  (b) 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) inPart 1or 2 ofSchedule 3of an enactment specified in that Schedule) or otherwise by law".
 
The confidentiality exemption generally does not apply to a record prepared by a staff member of an FOI body or a service provider "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 an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider" (section 35(2) refers).  In addition, section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).
 
Where I have found that section 42(f) or section 31(1)(a) applies, I do not consider it necessary to address any claims for exemption made under section 35 or the other provisions of the FOI Act referred to below.  Accordingly, the relevant records that fall to be addressed in relation to section 35 are the following:  14, 16, 37, 40, 41, 42, 46, 47, 61, 66, 67, 68, 76, 77, 91, 94, 99, 105, 108, 111, 133, 135, 138, 141, 145, 146, 147, 148, 150, 152, 157, 160, 167 (in part), 176, 187, 190, 198, 199, 200, 207, 210, 211, 212, 218 (in part), 221, 227, 277, 298, 323, 326, 350, 355, 364, 367, 370, 372, 374, 392, 401, 403, 415, 419.
 
I will consider section 35(1)(b) first.
 
Section 35(1)(b)
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 inCoco 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."
 
It is apparent from both the contents of the records and the litigation that has followed the restructuring of the IASS that the proposed changes to the scheme involved matters of political, legal, and commercial significance to the State and the relevant third parties.  In this context, I accept that there were numerous exchanges of correspondence between the Department and the relevant affected third parties that were understood to have been made on a private, confidential basis.  Based on my examination of the records concerned and having regard to the relevant submissions, I am satisfied that the following contain information of a confidential nature about the relevant third parties' proposals, strategies, considerations and/or approaches regarding the IASS and therefore satisfy the first test:
 
  • 42, 47, 61 (p. 2: "More recently . . . confidential discussions with the Department of Finance and NTMA."), 67, 99, 157, 210, and 212.
 
I am further satisfied that the information in these records was communicated to the Department for the limited purpose of attempting to reach a solution to the serious problems affecting the future of the IASS.  I consider that the highly sensitive circumstances surrounding the exchange of the information, together with the complex matters under consideration, imposed an obligation of confidence on the Department in respect of the above records.  I am also satisfied that disclosure of the information concerned 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 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).  However, it is established that the action for breach of confidence is itself subject to a public interest defence.  This Office takes the view 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. In my view, no such public interest grounds arise in this case.
 
However, I am not satisfied that section 35(1)(b) applies to the following:
 
  • 14, 16, 37, 40, 41, 46, 61 (in part), 66, 68, 76, 77, 91, 94, 105, 108, 111, 133, 135, 138, 141, 145, 146, 147, 148, 150, 152, 160, 167 (in part), 176, 187, 190, 198, 199, 200, 207, 211, 218 (in part), 221, 227, 277, 289, 323, 326, 350, 355, 364, 367, 370, 372, 374, 392, 401, 403, 415, 419.
 
In reaching this conclusion, I note that the affected third parties to which the records most directly relate did not previously object to the release of the following insofar as they were given sight of the records:  14, 37, 40, 41, 66, 76, 77, 91, 94, 111, 133, 135, 138, 145, 147, 150, 167, 277, 323, 350, 355, 367, 370, 374, 403, 415, 419.  Moreover, records 160, 190, 198, 199, 200, 211, 372, 392 (in part), 401 are Departmental records that do not appear to contain any confidential information communicated by any third party who was not a staff member of an FOI body.  I also find that the information in these and the remaining records is simply not of a sufficiently confidential or private nature to have be regarded as having the necessary quality of confidence for the purposes of section 35(1)(b) of the Act, particularly as the information was communicated with the apparent purpose of influencing what may be regarded as matters of public policy given the Minister's role in relation to the State airports and the legislative proposals being made. 
 
Section 35(1)(a)
Section 35(2) operates to disapply section 35(1) to the following records since there were created by Departmental staff and it has not been shown that a duty of confidence is owed to a third party other than an FOI body:  
 
  • 16, 61 (apart from p. 2: "More recently . . . confidential discussions with the Department of Finance and NTMA."), 160, 190, 198, 199, 200, 211, 372, 392, 401.
 
The remaining records that fall to be considered in relation to section 35(1)(a) are therefore as follows:  14, 37, 40, 41, 46, 66, 68, 76, 77, 91, 94, 105, 108, 111, 133, 135, 138, 141, 145, 146, 147, 148, 150, 152, 167 (in part), 176, 187, 207, 218 (in part), 221, 227, 277, 298, 323, 326, 350, 355, 364, 367, 370, 374, 403, 415, 419.
 
For the exemption to apply, it is necessary to show the following:
 
  • that the information was given to an FOI body in confidence, 
  • that the information was given on the understanding that it would be treated by the FOI body as confidential,
  • that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
  • that it is of importance to the body that such further similar information should continue to be given to the body. 
 
Regarding the first two requirements, I accept for similar reasons as set out above in respect of section 35(1)(b) that the information was given in confidence and on the understanding that confidential treatment was desired.  I also accept that it is of importance to the Department that it continue to receive information from entities such as daa and Aer Lingus about matters concerning the airline industry, particularly where it could have an impact on industrial relations.  
 
However, the records concerned do not contain particularly sensitive or confidential information.  Moreover, providing such information also served the interests of the parties who supplied it, and as noted above, the most directly affected third parties did not object to the release of many of the records concerned.  Therefore, I do not accept that disclosure would be likely to prejudice the future supply to the Department of similar information from these parties or others and thus am not satisfied that the third requirement of section 35(1)(a) has been met.  
 
Section 35(1)(a) is subject to a public interest balancing test set out in subsection (3).  The FOI Act recognises the general public interest in favour of openness and transparency, and section 11(3) requires an FOI body to have regard to, among other things, the need to achieve greater openness in its activities and to promote adherence by it to the principle of transparency in government and public affairs in performing any function under the Act.  On the other hand, the inclusion of the section 35 exemption in the FOI Act is itself a recognition of the public interest in upholding the integrity of confidential communications.
 
As I have stated, I do not consider that the relevant records contain particularly sensitive or confidential information.  In the circumstances, I find that the public interest in favour of their protection is not particularly compelling.  On the other hand, I accept that there is a strong public interest in openness and transparency in relation to the role that the Department played in the preparation of the legislation which enabled the changes to the IASS pension scheme.  Consequently, I am satisfied that the public interest would, on balance, be better served by granting than by refusing the request.  I conclude that, even if section 35(1)(a) is applicable to the relevant records, the public interest favours their release.
 
Section 36
The Department has claimed that records 14, 40, 108, 138, 150, 207, and 367 are exempt under section 36(1)(b) and/or section 36(1)(c) of the FOI Act because they contain commercially sensitive information.   In addition, daa and Aer Lingus have generally claimed that records affecting their interest, with certain exceptions, are exempt under section 36(1)(b) and/or section 36(1)(c) of the Act.  I note that some but not all of the specific records previously identified as affecting their interests, and in relation to which objections were raised, have been found to be exempt above.  {for AL, all but 61 in part and 187; for daa, 46 in part, 108; 146 & 148, plus, it seems, 3 & 16} 
 
Section 36(1) provides that a request shall be refused 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, or (c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."  Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request (section 36(3) refers). 
 
I note that the standard of proof is relatively low under sections 36(1)(b) and (c) in that the mere possibility of prejudice to the competitive position, or to the conduct or outcome of negotiations, of the person concerned is sufficient.  (The first part of section 36(1)(b) sets a higher test, however.)  However, in the High Court case of Westwood Club v The Information Commissioner[2014] IEHC 375, Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive.  A party opposing release should explain why disclosure of the particular records could prejudice its competitive position. 
 
The affected parties to which the records most directly relate did not previously object to the release of the following:  records 14, 40, 138, 150, and 367.  Having examined the contents of the records, I am satisfied that section 36(1) does not apply.
 
Record 108 is a table outlining the pension value of deferred members from daa, Aer Lingus and SR Technics as of 30 June 2013.  In its initial submission dated 5 December 2016, daa objected to release of the record on the grounds that the record contains confidential information.  Aer Lingus did not previously object to its release, but in its recent submission it claims that the detailed calculations in the record that it provided were provided in confidence and with the mutual understanding that they would be treated as confidential.  However, the Department did not itself claim that the information contained in the record was given in confidence, and indeed the provenance of the record is not clear.  Moreover, deferred members are likely to be aware of or have had access to information about the historic values of their own pensions.  I see nothing to support the claim that the information is of a confidential or commercially sensitive nature, particularly as it is well known that both contributions and benefits were defined under the scheme. 
 
Record 207, on the other hand, is a Departmental briefing note for public representatives on the IASS dated 6 November 2014.  It does little more than provide an update on the developments at the time regarding the proposed changes to the IASS and set out the likely scenarios should the proposals fail.  It is apparent that the matters discussed would have been generally known to any interested parties.  No explanation has been provided to show how or why disclosure of the record could result in any prejudice to the companies concerned.  In the circumstances, I am not satisfied that either record 108 or record 207 qualifies for exemption under section 36(1) of the Act.  I am also not satisfied that the general objections made by daa and Aer Lingus under section 36(1)(b) and/or section 36(1)(c) are sufficient to show that disclosure of the records affecting its interests could prejudice their competitive position or the conduct or outcome of any negotiations.  While one party refers to the risk of adverse publicity resulting from information being "misconstrued", I do not accept that the possibility of information being misunderstood is a good reason to refuse access to information under the FOI Act.
 
Other previously claimed exemptions
In its earlier submissions, the Department claimed that section 28(1)(c) and section 30(1)(c) applied to certain records.  In its schedule of records, it also referred to section 28(1)(a) and section 28(2)(a).  However, in its most recent submission, no reference to section 28 or 30(1)(c) has been made.  For the sake of completeness, I note that I am not satisfied that section 28 or 30(1)(c) applies to any of the records at issue as previously claimed.  That is to say, it has not been shown that record 16, 37, 342, or 343 was submitted, or was proposed to be submitted, to Government and was created for that purpose, nor has it been shown that any of these records contain information for use by the Minister solely for the purpose of the transaction of any business of the Government at a meeting of the Government; record 343 has not been shown to contain the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement; and it has not been shown that records 2, 3, and 411 could reasonably be expected to disclose any positions, plans, procedures, etc to be taken or followed by the Department in any current or future negotiations carried on by or on behalf of the Government or an FOI body.
 
Section 37  
In light of the above, I am not satisfied that the decision to refuse access to the following records was justified under the exemptions claimed:  
 
  • 2, 3, 14, 16, 37, 40, 41, 46, 61 (in part), 66, 68, 76, 77, 91, 94, 105, 108, 111, 133, 135, 138, 141, 145, 146, 147, 148, 150, 152, 160, 167 (in part), 176, 187, 190, 198, 199, 200, 201, 202, 207, 211, 218 (in part), 221, 227, 277, 298, 323, 326, 342, 343, 350, 355, 364, 367, 370, 372, 374, 392, 401, 403, 411, 415, 419.
 
However, many of these records (e.g., 227 and 392) include the names and contact details of staff members of and service providers to daa, Aer Lingus, and other third parties that are not FOI bodies.  Unless the individuals concerned have consented to release (e.g., 419), these details qualify as personal information and thus are subject to redaction under section 37(1) of the FOI Act.
 
Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details fourteen  specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual" and "(iii) information relating to the employment or employment history of the individual".  
 
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.  However, I am satisfied that none of those circumstances arises in this case in relation to the third party individual concerned.  Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:
 
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or 
(b) the grant of the information would be to the benefit of the person to whom the information relates. 
 
As I find no basis for concluding that the release of the information concerned would be to the benefit of the individuals to whom it relates, I find that section 37(5)(b) does not apply.  In considering the public interest test contained in section 37(5)(a), I note that the FOI Act recognises a strong public interest in protecting privacy rights. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution.  Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.  In this case, having regard to the details concerned, I find that the public interest in granting access to the personal information identified above does not, on balance, outweigh the public interest in upholding the right to privacy of the individuals concerned.
 

Decision

 
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision in this case as follows:
 
  • I affirm its decision to refuse access to the following records under sections 42(f) and/or 31(1)(a), and 35(1)(b):  24, 106, 112, 113-114, 120, 121, 122, 127, 130, 143, 151, 158, 161, 162, 167 (in part - the final two sentences of the penultimate paragraph of the appendix), 186, 188, 189, 193, 195, 206, 218 (in part - the final two sentences of the penultimate paragraph of the appendix), 219, 225, 229, 232, 263, 268, 296, 306, 307, 329, and 346;
  • I affirm its decision to refuse access to the following records under section 35(1)(b):  42, 47, 61 (p. 2: "More recently . . . confidential discussions with the Department of Finance and NTMA."s), 67, 99, 157, 210, and 212;
  • I annul its decision with respect to the remaining records at issue and direct that access be granted subject to the redaction, where relevant, of the names and contact details of the staff member of daa, Aer Lingus, and other third parties that are not FOI bodies, the remaining records being:  2, 3, 14, 16, 37, 40, 41, 46, 61 (apart from p. 2: "More recently . . . confidential discussions with the Department of Finance and NTMA."), 66, 68, 76, 77, 91, 94, 105, 108, 111, 133, 135, 138, 141, 145, 146, 147, 148, 150, 152, 160, 167 (in part), 176, 187, 190, 198, 199, 200, 201, 202, 207, 211, 218 (in part), 221, 227, 277, 298, 323, 326, 342, 343, 350, 355, 364, 367, 370, 372, 374, 392, 401, 403, 411, 415, 419.  
 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
 
 
 
Peter Tyndall
Information Commissioner