Whether the CRU was justified in its decision to refuse access to records relating to an incident on a gas pipeline, on the ground that they are exempt under sections 32, 35 or 36 of the FOI Act 

21 December 2018    

Background

On 22 November 2017, the applicant made an FOI request to the CRU for any reports which the CRU possesses on an incident which occurred in May 2010 in the course of commissioning a new pipeline. On 5 December 2017, the CRU consulted with Gas Networks Ireland (GNI) about Records 1-13 under section 38 of the FOI Act. It informed GNI that the records were being considered in line with section 35 of the FOI Act. On 10 January 2018, the CRU issued a decision to the applicant. It refused access to the information which the applicant sought on the ground that it was exempt under sections 32, 35 and 36 of the FOI Act. On 22 January 2018, the applicant applied to this Office for a review of the CRU's decision. 

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) 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. In this case, the CRU made its final decision under section 32 as well as sections 35 and 36. A question therefore arose as to whether it was a case to which section 38 applies. In the circumstances, this Office has decided to proceed with this review, in fairness to the applicant and on the basis that it appears that section 38 applies, at least in part.

In conducting my review, I have had regard to the correspondence between the applicant and the CRU as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the CRU for the purposes of this review. During the review, the Investigator obtained submissions from GNI and I have also had regard to those, including its proposed redactions to certain records.

Scope of this Review

The CRU scheduled 19 records. On examining the records, I believe that the majority of Records 14, 15, 16 and 19 falls outside the scope of the applicant's FOI request, since it does not relate to the incident concerned. During the review process, the CRU released the small parts of Records 14, 15, 16 and 19 which do relate to the incident concerned. Also, during the review the applicant confirmed to this Office that he does not seek access to the names and contact details of third party individuals and this information therefore falls outside the scope of this review.

The question for this review is whether Records 1-13, 17 and 18 are exempt under the provisions claimed or otherwise. 

Preliminary Matters

First, 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 CRU to satisfy me that its decision is justified. Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited. Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view 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 15(1)(d)

Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse access to information where the information is already in the public domain. Record 11 is a report which is publicly available on GNI's website atwww.gasnetworks.ie. In his submissions to this Office, the applicant says that he already has this record and proposes to test or review the CRU's grounds for refusal in relation to it. As it is already in the public domain,  I find that the CRU is justified in refusing access to Record 11 under section 15(1)(d) of the FOI Act. Given this finding, I do not need to consider Record 11 under the other exemptions claimed.  

Section 36(1) - Commercially sensitive information

The CRU claims that section 36(1)(b) of the FOI Act applies to Records 1-10 and 12. Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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. However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers). 

In its decision letter, the CRU says that information relating to commissioning the pipeline is commercially sensitive. The applicant submits that the technology used in commissioning pipelines is standard and publicly available on the internet. During the review process, the Investigator asked the CRU to identify the information which it says is exempt under section 36. In response, the CRU says that GNI noted that the records contain technical information relating to a "pig", which is a device sent through a pipeline for various functions; e.g. to determine pipeline damage. The Investigator then consulted GNI. She advised GNI that the CRU had identified the relevant information as being technical information in relation to "pigging" and asked GNI to identify this information. The Investigator noted that these were merely the questions which she regarded as relevant and invited GNI to provide any other relevant information for this Office's consideration. In response, GNI points to Record 7, which is a report of a pipeline inspection conducted by a private contractor. GNI says that a limited number of competent contractors provide the specialised service of "pigging" and the specification and detection limits of their tools and levels of accuracy are aspects on the basis of which pigging contractors can win or lose work. It submits that publicly disclosing such information could cause commercial and financial harm, should it fall into the hands of a competitor. 

Having examined Record 7, I accept that it contains very detailed technical information, the disclosure of which could prejudice the competitive position of the private contractor concerned. Even if the applicant is correct in contending that the technology used in commissioning pipelines is standard, I do not believe that this would negate the fact that this record contains information relating to a specialised service as delivered in respect of a particular incident by a particular contractor. In the circumstances, I accept that section 36(1)(b) applies to Record 7. I am then required to consider sections 36(2) and (3).

However, neither the CRU nor GNI pointed to specific information in the remaining records which is said to be commercially sensitive. Having regard to the onus of justifying the exemption referred to earlier, I am not satisfied that section 36(1) applies to the records apart from Record 7 and I am not required to consider section 36(2) or (3) in relation to them. I find that the CRU is not justified in refusing access to the remaining records under section 36 of the FOI Act. 

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. GNI has confirmed that it does not have the consent of the relevant private contractor to release Record 7.

Section 36(3)

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 FOI request. Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable, which is reflected in section 11(3) of the FOI Act. 

I take the approach 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 positive public interest which is served by disclosure and the harm that might be caused by disclosure. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. I do not consider that disclosing the commercially sensitive information in Record 7 would achieve openness and accountability around FOI bodies to any great extent. In relation to the harm which might be caused by disclosure, I have already identified the potential prejudice to the private contractor's competitive position. In the circumstances and on balance, I find that the public interest would not be better served by granting access to this record and therefore section 36(3) does not disapply section 36(1). Having regard to the above, I find that the CRU is justified in refusing access to Record 7 under section 36(1)(b) of the FOI Act. Given this finding, I do not need to consider Record 7 under the other exemptions claimed.

Section 32 - Law enforcement and public safety

The CRU claims that sections 32(1)(a) and (b) apply to the remaining records (Records 1-6, 8-10, 12, 13, 17 -18). 

Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified. 

Section 32(1)(b) allows an FOI body to refuse access to records if access could reasonably be expected to endanger the life or safety of any person. The Commissioner considers that this exemption is such that it should only be invoked in circumstances of the most serious nature. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will occur, but the FOI body should show that there is reasonable expectation of this.

Regarding section 32(1)(a), the CRU identifies two potential harms. First, it submits that releasing the records may prejudice or impair the prevention, detection or investigation of offences relating to the pipeline incident. It understands that the incident relates to a report made to An Garda Siochána (AGS) and says that releasing the records would notify the perpetrator of the information available to GNI and AGS. However, it cannot confirm whether an investigation is ongoing. Secondly, the CRU says that some records refer to processes and systems in place to reduce risk to GNI assets and releasing this information may give the perpetrator and other potential saboteurs more information on GNI safety processes. Regarding section 32(1)(b), the CRU submits that as the records relate to an apparent act of vandalism, releasing the records could inform others on how to damage gas pipelines. This may result in the leak of natural gas, which poses a severe risk to public safety, resulting in harm to members of the public or damage to property.

The CRU consulted GNI about Records 1-13. Regarding section 32(1)(a), GNI submits that releasing these records could prejudice a criminal investigation or prosecution of the incident, or prosecution of subsequent similar acts. However, it is not aware of the status of any Garda investigation. It says that releasing information about damaging the pipelines could reasonably be expected to result in a similar act which could endanger the life or safety of a person. This point relates more to the harm which it alleges under section 32(1)(b). GNI submits that releasing these records may give rise to a serious risk to safety where it is used to damage and/or conceal damage to GNI's network. A gas leak could result in a fire and/or explosion with significant potential for injury/fatality and/or significant environmental damage.

Regarding section 32(1)(a), both the CRU and GNI claim a potential harm to an investigation of offences relating to this incident. Yet neither party can confirm whether an investigation is ongoing or impending. As noted above, the incident occurred in 2010. I do not consider that the expectation of harm is reasonable in the circumstances. I am therefore not satisfied that section 32(1)(a) applies on the basis of such a harm. 

However, I do accept that parts of the records disclose the means of damage to the pipeline; the concealment of the damage; how to successfully hide the damage and the consequences of the damage. I further accept that it is reasonable to expect that disclosing such information could prejudice or impair the systems in place to prevent such damage, which ultimately ensure the safety or security of persons and property. Although the applicant says that the means of damage to the pipeline is "hardly innovative", I accept that it is reasonable to expect that disclosing the detail of the means of damage and its concealment and consequences could lead to the harm identified. In the circumstances, I am satisfied that section 32(1)(a)(iii) applies to the following information: GNI's proposed redactions to Records 1-6, 8-10, 12, 13; and Records 17 and 18.

The public interest test in section 32(3) is limited to certain circumstances specified in paragraph (a)(i) or (a)(ii). I am satisfied that these circumstances do not apply to the information listed above (GNI's proposed redactions to Records 1-6, 8-10, 12, 13; and Records 17 and 18). I find that the CRU is justified in refusing access to this information, under section 32(1)(a)(iii) of the FOI Act.

Regarding section 32(1)(b), the harm which the CRU and GNI claim in this respect relates to the information which discloses the means and concealment of damage to the pipeline. I have found this information to be exempt under section 32(1)(a). I therefore do not need to consider this claim for exemption further. 

I find that the CRU is not justified in refusing access to the remaining information in Records 1-6, 8-10 and 12-13 under section 32 of the FOI Act. 

Section 35 - Information obtained in confidence
The CRU claims that section 35(1)(a) of the FOI Act applies to Records 1-6, 8-10 and 12. Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; 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 it is important to the body that such further similar information should continue to be given to the body.

The CRU says that the records contain information given to it by GNI under the Gas Safety Regulatory Framework to enable the CRU to carry out its functions. It specifies legislation in this regard and says there is no direct statutory penalty for GNI not reporting incidents to the CRU. It says that the CRU and GNI have agreed that other specified types of incidents should be voluntarily reported to the CRU. The CRU submits that if, as a consequence of the records being released, GNI reduce their level of reporting incidents to the CRU, the CRU will not have the opportunity to acquire learnings from the incident. Its other submissions under section 35 are the same arguments which it makes under sections 32 and 36, which I have addressed above.

GNI says that the relevant duty of confidence is owed to GNI's specialist advisers and that some of the specialist information is commercially sensitive. I have addressed GNI's argument on specialist information under section 36 above. GNI confirms that it is obliged to report incidents to the CRU under specified legislation. It says that although it provided the records to the CRU on a mandatory basis, they were provided in confidence and it reports matters which fall outside statutory reporting requirements.

In the circumstances, I am not satisfied that the third requirement of section 35(1)(a) is met. As noted above, it is necessary to meet all four requirements of section 35(1)(a). According to the parties' own submissions, GNI provided the information on this incident on a mandatory basis. I do not consider it feasible to suggest that GNI would not comply with its statutory obligation to report incidents to the CRU- i.e., to give further similar information - if these records were disclosed under FOI. I find that section 35(1)(a) does not apply. I therefore do not need to consider the public interest balancing test under section 35(3). I find that the CRU is not justified in refusing access to Records 1-6, 8-10 and 12 under section 35 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the CRU's decision as follows. I find that the CRU was justified in refusing access to certain information under sections 15(1)(d), 32 and 36 of the FOI Act, as specified in my findings above. I find that the CRU was not justified in refusing access to the remaining information and direct its release. 

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.

Elizabeth Dolan
Senior Investigator