Whether the Department was justified in its decision to redact information from a record of a meeting with a named company under section 36(1)(b) of the FOI Act on the ground that the redacted information is commercially sensitive.

10/09/2018

Background

On 22 May 2018 the applicant sought access to all records relating to a particular entry in the lobbying database relating to lobbying activity undertaken by a public relations agency on behalf of a named client company. On 15 June 2018 the Department released one record and refused access to a second record under section 29 of the FOI Act on the ground that the record relates to issues that are the subject of an ongoing deliberative process.

On 18 June 2018 the applicant sought an internal review of that decision following which the Department granted partial access to the record that had been withheld, with redactions made under section 36(1)(b) of the FOI Act, which is concerned with the protection of commercially sensitive information. On 10 July 2018, the applicant sought a review by this Office of the Department's decision.
During the course of the review, Ms Whelan of this Office invited both the Department and the named client company to make submissions in relation to this review. To date, neither party has made a submission. Therefore I have decided to bring this case to a close by way of a formal, binding decision based on the information currently before me. In reviewing this case I have had regard to the communications between the Department and the applicant as set out above, and to the communications between this Office and both the applicant and the Department on the matter. 

Scope of the Review

The record at issue is a note of a meeting between the Department and a representative of the client company on whose behalf the public relations agency registered lobbying activity. Three lines of text have been redacted. This review is concerned solely with whether the Department was justified in redacting the information in question under section 36(1)(b) of the FOI Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. The FOI Act also gives potentially 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.

Section 36(1)(b)
Section 36(1)(b) is a mandatory exemption that must be applied to certain types of 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 the person in the conduct of his or her profession or business or otherwise in his or her occupation. 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).

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 section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of the exemption.  However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 (the Westwood case), 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 their financial position.

As I have outlined above, neither the Department nor the client company has made a submission to this Office in relation to the record at issue. In its internal review decision, the Department argued that the release of the information concerned could prejudice the competitive position of the client company. However, it did not explain how that harm might arise, nor is it clear to me, having examined the contents of the record, how such harm might arise. The redacted information does not appear to be of a particularly sensitive nature. Having regard to the provisions of section 22(12)(b), I find that the Department has not justified its decision to redact the record at issue under section 36(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision to redact the record and I direct that it be released in full.

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