Whether the Department was justified, pursuant to section 35 of the FOI Act, in refusing access to correspondence between the Department and the Commission for Energy Regulation in relation to the bonus scheme in place for staff at the Commission

2 November 2018

Background

On 4 May 2018 the applicant sought copies of any correspondence between the Department and the Commission for Energy Regulation (the Commission) for the period 1 January 2016 to the date of his request in relation to the bonus scheme in place for staff at the Commission. On 6 June 2018 the Department decided to refuse access to two records it identified as coming within the scope of the request under section 35(1) of the FOI Act, which is concerned with the protection of information given in confidence. Following a request from the applicant for an internal review, the Department affirmed its decision to refuse the request under section 35(1). On 22 August 2018 the applicant sought a review by this Office of the Department's decision.

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 Department, and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

In the schedule of records the Department prepared in response to the request, it described record 1 as an email with three attachments. Record 2 comprises an email string containing three emails in total, one of which is a copy of the email contained in record 1. In its submission to this Office, the Department stated that the only records of relevance to the request are two of the three emails contained in record 2.  It stated that the only reason record 1 and its attachments was scheduled was because the email in record 1 is included as the third email in record 2.

Having examined the records, I am satisfied that no part of record 1 is captured by the scope of the applicant's request. This review is therefore concerned solely with whether the Department was justified in refusing access to the two remaining emails in record 2 under section 35(1) of the FOI Act.

Preliminary Matter

Before I address the substantive issue arising, I wish to make two preliminary points. Firstly, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been 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 Department to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Secondly, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. In light of that requirement, the description I can give of the Department's arguments in support of its refusal of the request is extremely limited in this case.

Analysis and Findings

Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. A number of conditions must be met in order for the exemption to apply. Section 35(1)(b) provides a mandatory exemption for records where disclosure of the information would constitute a breach of a duty of confidence. 

However, section 35(2) provides that section 35(1) shall not apply to a record which is prepared by a member of the staff of an FOI body 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 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 a member of the staff of an FOI body or service provider. 

The records at issue in this case comprise an exchange of emails between the Department and the Commission, both of which are FOI bodies. Therefore, section 35(1) cannot apply unless their disclosure would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. 

During the course of the review the Department's attention was drawn to section 35(2). The Department's subsequent submission failed to address the applicability of section 35(2) and no argument was made that the disclosure of the record would constitute a breach of a duty of confidence owed to any person other than the Commission. I therefore find that section 35(1) of the FOI Act does not apply to the records in this case.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department to refuse access to the two emails at issue in this case and I direct their 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator