Whether the Department was justified in granting partial access to records relating to the funding of a charity on a request to which section 38 of the FOI Act applied

27/04/2018

Background

This review arises from a decision made by the Department to grant partial access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) should be released in the public interest.

Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

On 8 November 2017, the requester submitted an FOI request to the Department for copies of all correspondence between a [named] charity and Irish Aid/Department of Foreign Affairs between 1 March 2017 and 8 November 2017 and copies of any documents enclosed or attached to such correspondence. Having formed the view that the request was one to which section 38 of the FOI Act applied, the Department undertook a process of consultation with the charity. On 21 November 2017, it notified the charity of the request and stated that it was considering the release of certain information in the public interest. The charity was invited to submit any concerns or views about the possible release of this information. 

On 14 December 2017, the charity made a submission to the Department in which it objected to the release of certain information contained in the requested records. On 19 December 2017, the Department decided to grant partial access to records requested. The Department refused to grant access to certain information which it found was confidential, commercially sensitive or personal information about third parties. On 20 December 2017, the charity (hereinafter referred to as the applicant) applied to this Office for a review of the Department's decision to partially release two of the records namely the Narrative Report to Irish Aid for 2016 Funding and the Application to Irish Aid for Funding 2017.

During the course of the review this Office invited the requester, the applicant and the Department to make submissions and both the applicant and the Department made submissions. I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the applicant has shown that the Department's decision to partially release the Narrative Report and the Application for Funding was not justified having regard to sections 35, 36 and 37 of the FOI Act.

Preliminary Matters

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 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 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent

Section 22(12)(a) of the FOI Act provides that where a decision to grant a request to which section 38 applies is being reviewed by the Commissioner, there is a presumption that the granting of the requested access is justified unless the person (to whom the information relates) shows to the satisfaction of the Commissioner that the decision was not justified. Thus, in this case, the onus is on the applicant to satisfy me that the Department's decision was not justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large.

Analysis and Findings

The Records

The Narrative Report for 2016 Funding outlines progress and developments over 2016 to Irish Aid. The Department decided that while the report is exempt under section 36 of the Act, the public interest favours release of the report with the exception of sums of money which relate to individual identifiable projects (pages 10-24) and certain results information (framework appendix). The Department decided that the commercial prejudice that could be caused by the release of this limited information outweighs the public interest in its release.

The Application for Funding 2017 sets out the applicant's request to Irish Aid for funding for the period 2017 to 2019. The Department decided that while the report is exempt under section 36 of the Act, the public interest favours release of the report with the exception of certain financial, budget and fundraising information (pages 10, 21, 32) and information in relation to the country visit planner and results information (annexes 1-2 ). The Department decided that the commercial prejudice that could be caused by the release of this limited information outweighs the public interest in its release. The Department also withheld a small amount of board member information on the basis of sections 35 (information given in confidence) and 37 (personal information) of the Act.

Section 35 - Information given in Confidence

The applicant argues that the Narrative Report and Application for Funding contain confidential information. The applicant has not specified which of the provisions of section 35 it is relying on but as section 35(1)(b) is not subject to a public interest test and is generally not an exemption to which section 38 is relevant, I will consider section 35(1)(a).
 

Does section 35(2) dis-apply section 35(1) in this case?

Section 35(2) provides that section 35(1) does not generally apply where a record is prepared by a member of staff of an FOI body or a service provider to an FOI body, unless disclosure would be a breach of a duty of confidence owed to a person other than such a staff member or service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), section 35(2) should be considered at the outset.

The applicant is not an FOI Body. Section 2 of the Act defines a service provider as "a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services." The Department provides the applicant with funding to support it in carrying out its work; however, it is the applicant who decides how the funding will be used. I am satisfied that the applicant is not a service provider to the Department. I find that section 35(2) does not dis-apply section 35(1) in this case.

Section 35(1)(a)

Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. In order for section 35(1)(a) to apply, it is necessary to show the following:

· that the information was given to an FOI body in confidence and

· that the information was given on the understanding that it would be treated by it as confidential and

· 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.

All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act.

The applicant states that it was not informed in Irish Aid's letter requesting it to submit an application for funding that its application could be released under FOI. According to the applicant, it has been custom and practice since it was founded that applications for funding were treated as confidential even if this was not expressly asserted. It states that its understanding was that these applications would not be released beyond the Department.  It argues that release of the application would be a breach of good faith and against the spirit of its partnership with Irish Aid.

The Department states that paragraph 20 of the annual financial contracts signed by both sides in 2013, 2014, 2015 and 2016 provides that "the contractor understands that any information provided in its application or any correspondence with Irish Aid may be subject to examination for possible release in accordance with the Department's obligations under the FOI Acts." It states that a similar provision is contained at paragraph 16 of the 2017 funding contract. The Department argues that the applicant was aware that its applications or any correspondence with Irish Aid could potentially be released outside the Department if requested under FOI.

In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, a number of factors may be relevant. These include the expectations of the person giving the information to the FOI body, the purpose for which the information was provided and the circumstances in which the information was received, including any statements or assurances given at the time the information was given.

I do not accept that the applicant had an understanding that the records could not be released beyond the Department. The Department has been subject to FOI since 1998 and the financial contracts expressly refer to the possibility of release under FOI. However, even if I did accept this argument, the third requirement for section 35(1)(a) to apply is that disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons. It seems to me that it is unlikely that release of the records would prejudice the supply of similar information from the applicant to the Department in the future. It is in the interests of the applicant to continue to submit applications for funding to the Department. The requirements of section 35(1)(a) are not satisfied in this case. I find that the records are not exempt under section 35(1)(a) of the Act.

Section 36 -“ Commercially Sensitive Information

The applicant also argues that the Narrative Report and Application for Funding contain commercially sensitive information. The applicant has not specified which of the provisions of section 36 it is relying on. However, based on its submissions, it appears that it is relying on section 36(1)(b) of the Act. Section 36(1)(b) applies to a record containing:

(b) financial, commercial, scientific, or technical or other information the disclosure of  which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person.

Section 36(2) provides for various exceptions to section 36(1). Section 36(3) provides that Section 36(1) is subject to a public interest balancing test.

According to the applicant, a body of research has been amassed which serves to define its ethos and unique competencies. It states that the application, in particular, is explicit in its description of its uniqueness and it argues that its competitive position could be prejudiced if the way in which its case was presented to Irish Aid was released. The applicant also argues that the reports are technical documents and were written with a specific audience in mind, i.e. Irish Aid and not for the general public. According to the applicant, the intended audience was specific, limited and informed with regard to the subject matter so that the interpretation Irish Aid would put on the content would be predictable; it argues that this would not be the case with the general public. It argues that its 2016 annual report is in the public domain and accounts for how grant money received from Irish Aid was spent.

The Department states that while section 36 applies to the Narrative Report, the public interest in the expenditure of public funds outweighs the exemption and any public interest in not releasing. The Department states that it has withheld any information which could prejudice the competitive position of the applicant. In relation to the Application for Funding, the Department states that there is a clear and significant public interest in knowing the use to which publically granted funds are to be put.  It argues that given that the application has been processed and decided upon, the public interest is better served by release generally, subject to a number of exceptions in relation to financial, budget and fundraising information.

The only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned.  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 accept the applicant's submission that it is competing with other bilateral, multilateral and civil society actors for a share of the overall aid budget and that competition for funding is strong. I also accept that if the applicant's Narrative Report and its Application for Funding were released, this could give competitors an insight into the particular approach it takes in seeking to secure funding and could prejudice its competitive position with regard to the acquisition of funding. I find that the Narrative Report and the Application for Funding are exempt under section 36(1)(b) of the Act.
 

Section 36(3) The Public Interest

Section 36(3) provides:

"Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."

Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect. The Act also recognises, both in its long title and its individual provisions that there is a significant public interest in government being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things:

· the first is the positive public interest which is served by disclosure and

· the second is the harm that might be caused by disclosure.

The Commissioner takes the view that there is a strong public interest in openness and accountability in the use of public funds. He considers that openness in respect of the expenditure of public funds is a significant aid in ensuring effective oversight of public expenditure, in ensuring that the public obtains value for money, and in preventing fraud corruption and waste or misuse of public funds.

In this case the Department has withheld a small amount of information which relates to certain identifiable projects and also certain financial, budget and fundraising information. I accept that commercial prejudice could arise from release of this information, including the potential for misappropriations, prejudice to the efficacy of audits and commercial harm to the applicant. I find that, on balance, the public interest would not be better served by the release of this information.

I do not accept the applicant's submission that the remainder of the reports should also be refused in the public interest. It seems to me that the public interest in the protection of commercially sensitive information has been met, at least to some degree, by the withholding of the information described above by the Department. I do not accept that the possibility that some information contained in the reports could be misunderstood by members of the public is a good reason to refuse access to the reports in their entirety. In terms of balancing the competing public interests at issue here, I believe that the advantages in terms of openness and accountability of disclosing the remaining information in the records outweigh any possible harm to the applicant. I find that the public interest is better served by the release of the remaining information contained in the records.

Section 37 -“ Personal Information

The Department released the names of Board members contained in the Application for Funding but withheld their detailed biographies on the basis that this is the personal information of the Board members concerned and is exempt under section 37 of the Act. Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. Section 2 of the Act defines "personal information" as information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (iii) information in relation to the employment or employment history of the individual. The detailed biographies contain information in relation to the employment history of the Board members concerned. I find that this information is exempt under section 37(1) of the Act.

Section 37(5) The Public Interest

Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

In relation to section 37(5)(a), the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is 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. There may be some public interest in knowing the experience of charity trustees but I am not satisfied that the public interest is better served by release and I find accordingly.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the Department's decision. I find that section 36(1)(b) of the FOI Act applies to the records. However, I find that the public interest would, on balance, be better served by the release of the records with the exception of the information redacted by the Department.

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 four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator