Whether the BAI was justified, pursuant to sections 35, 36, and 37 of the FOI Act, in refusing access to the fee paid and the terms of a contract relating to the booking of a named broadcaster to host a BAI event

28/09/2018

Background

On 6 March 2018 the applicant sought access to all correspondence relating to the booking of a named TV broadcaster (the broadcaster) to host a specified BAI event. Following consultation with the talent management agency (the agency) that had organised the booking, the BAI issued its decision on 25 April 2018, granting partial access to two records it identified as coming within the scope of the applicant's request. It relied on sections 36 (commercially sensitive information) and 37 (personal information) of the FOI Act to redact certain information from the records.
The applicant sought an internal review of that decision, following which the BAI issued an internal review decision affirming the original decision. On 19 May 2018 the applicant sought a review by this Office of the BAI's decision.

During the course of the review, this Office invited all parties to the review to make a submission on the matter, including the broadcaster. The broadcaster objected to the release of the relevant information sought and argued, among other things, that the information relating to the fee had been provided in confidence to the BAI, and was therefore exempt under section 35.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the BAI, and the BAI and the agency as set out above, and to the correspondence between this Office and the applicant, the BAI, the agency and the broadcaster on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

The records at issue consist of an agency booking confirmation form (record 1) and an agency invoice and BAI purchase order form (record 2). During the course of the review the applicant confirmed he was seeking access only to the fee paid to the broadcaster and to the terms of the contract as contained in the booking form. Accordingly, this review is concerned solely with whether the BAI was justified in its refusal to grant access to that information under sections 35, 36, and 37 of the FOI Act.

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews 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 BAI to satisfy the Commissioner that its decision to refuse access to the records at issue was justified. The FOI Act also gives affected third parties a right to make submissions to this Office in cases such as this and their submissions must be taken into account before a decision is made that might affect their interests.

Analysis and Findings

Section 35 - Information Given In Confidence

In her submission to this Office the broadcaster stated that it was her honestly held belief that information given by her relating to the fee charged was given on the understanding that it would be treated by the BAI in strict confidence and that at no time was she made aware that the information supplied would be released under the FOI Act. She argued that the BAI owes her, as a third party service provider, a duty of confidence in relation to the fee charged and that the disclosure of the fee would constitute a breach of a duty of confidence.

While the broadcaster's submission focused exclusively on the fee charged, I note that terms and conditions of the booking, as sought by the applicant, contains details of the applicable fees chargeable in the event of a cancellation of the booking. As such, I consider it reasonable to assume the broadcaster's confidentiality argument extends also to the terms of the contract.
Section 35(1) provides for the protection of information given to a public body in confidence. However, section 35(2) provides that subsection (1) does not apply to record that is prepared by a member of the staff of a public body or a service provider 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 owed to a person other than a public body or a service provider or to a member of the staff of a public body or a service provider.

The information at issue in this case is contained in records that were prepared by the agency. The agency accepts that it provided a service to the BAI. The question I must consider, therefore, is whether the disclosure of the information sought would constitute a breach of a duty of confidence owed to a person other than a public body or a service provider or to a member of the staff of a public body or a service provider.

I note that the agency argued that it was "the relevant service provider for these purposes" and not the broadcaster. I am satisfied that the broadcaster was providing a service for the BAI in this case. Indeed, the broadcaster herself accepts that this was the case. As such, I find that the disclosure of the information sought would not constitute a breach of a duty of confidence owed to a person other than a public body or a service provider or to a member of the staff of a public body or a service provider. I find, therefore, that section 35(1) does not apply in this case.

Section 36 - Commercially Sensitive Information

The BAI refused access to the information sought under section 36(1)(b). That section provides for the refusal of a 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).

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

The BAI argued that release of the fees charged by the agency on behalf of the broadcaster would disclose the rate sought for a particular event and could prejudice the ability of the agency and the broadcaster to offer and charge different rates for different work opportunities and would also expose both parties to the risk of being at a competitive disadvantage vis-a-vis their competitors, thereby prejudicing their competitive position. It also argued that disclosure of the terms and conditions used by the agency would open this information up to the agency's competitors and could be used to disadvantage the agency in its future work.

The agency argued that the format and style of its invoice is copyrighted material and therefore commercially sensitive information under section 36 of the FOI Act. It made no specific argument in relation to the fee charged or the terms and conditions as set out in the booking form.
In her submission to this Office, the broadcaster argued that because she has already experienced financial loss as a result of publication of similar material, she fully expects that release of the information at issue in this case will result in further material loss. She made other arguments concerning possible harm if further information related to the service provided was to be disclosed but such information is not at issue here.

Having considered the various arguments of the parties concerned, along with the content of the information at issue, and in light of the low threshold required for the harm test on the second part of section 36(1)(b) to apply, I am satisfied that the release of the information sought could prejudice the competitive position of both the broadcaster and the agency in this case. Therefore, I am satisfied that section 36(1)(b) applies.

Section 36(1) is subject to subsection (2) and is also subject to a public interest balancing test as set out in section 36(3). I am satisfied that none of the provisions of section 36(2) apply to the information which I have found to be commercially sensitive.

Section 36(3) - The Public Interest

In its submission to this Office the BAI acknowledged that as a publicly funded body, there is a public interest in it being transparent about its expenditure. It argued that it already offers transparency on its expenditures by publishing financial statements in its publicly available annual reports and that it is sufficiently open, transparent and accountable in its spending. It argued that the release of the information sought in this case would unduly impede the broadcaster and the agency and its own ability to negotiate fees for the provision of such services in the future. It also argued that the information at issue is of such a specific and detailed nature that it would open up the operations of the broadcaster and the agency in ways that are not intended by the FOI Act.

I accept that there is a legitimate public interest in protecting the commercially sensitive information of third parties and in third parties being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. Indeed, this is what the exemption serves to protect. On the other hand, the Act recognises, both in its long title and in its individual provisions, that is a strong public interest in the enhancement of openness, transparency and accountability in public bodies. In performing their functions under the Act, section 11(3) requires public bodies to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs, and to strengthen their accountability. In my view, this need to enhance openness, transparency and accountability carries even greater weight where the use of public funds is involved.

The fact that a certain degree of transparency and accountability currently exists does not mean that no further enhancement of accountability and transparency is necessary. It is well established that details of total payments made, using public funds, to third parties who provide goods or services to public bodies are generally likely to be released under FOI. It seems to me that this is a factor that third parties should be cognisant of when deciding whether or not to enter into contractual arrangements with public bodies. It is also noteworthy, although not determinative of itself, that the information at issue in this case concerning the fee charged is more than three years old, which may serve to lessen the potential harm to the competitive position of both the broadcaster and the agency.

In relation to the terms and conditions as set out in the booking form, I note that they essentially contain little more than details of the applicable fees chargeable in the event of a cancellation of the booking. In my view, there is a significant public interest in the disclosure of such information, with quite limited potential prejudice to the competitive position of the agency or the broadcaster.
Having carefully considered the matter, I find that the public interest would, on balance, be better served by the release of the information at issue in this case.

Section 37 - Personal Information

Both the BAI and the broadcaster argued that disclosure of details of the fee paid would involve the disclosure of personal information relating to the broadcaster. Section 37 provides for the mandatory refusal of a request if the public body considers that access to the records sought would involve the disclosure of personal information relating to individuals other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including information relating to the financial affairs of the individual.

However, the Act also provides for the exclusion of certain information from the definition of personal information. Personal information does not include, in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service. I am satisfied that the fee paid to the broadcaster and the terms of the contract as contained in the booking form are therefore excluded from the definition of personal information in this case. I find, therefore, that section 37 does not apply.

In conclusion, therefore, I find that the BAI was not justified in refusing access to the fee paid to the broadcaster and to the terms of the contract as contained in the booking form under sections 35, 36 or 37 of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the BAI to refuse access to the fee paid to the broadcaster and to the terms of the contract as contained in the booking form. I direct the release of the information sought.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              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.

Stephen Rafferty
Senior Investigator