Whether the Department was justified in refusing to grant access to the minutes of monthly meetings that took place from January 2016 to June 2018 between the Department and two JobPath contractors under sections 35 and 36 of the FOI Act

14 June 2019

Background

On 13 June 2018 the applicant sought access to the minutes of monthly meetings that took place from January 2016 to June 2018 between the Department and representatives of Seetec and Turas Nua who have been engaged by the Department to operate the JobPath scheme.

The appointment of Seetec and Turas Nua (the contractors) to operate the JobPath scheme on behalf of the Department followed a procurement process which was launched in 2013.  The roll-out of the scheme itself began on a phased basis in July 2015.  The JobPath scheme aims to increase the activation of long-term unemployed jobseekers through the support and assistance of a personal adviser.  The Department refers jobseekers to one of the JobPath service providers who undertake an initial 12 month engagement with the individual.  Through the elaboration of a personal progression plan, the aim is that jobseeker will be supported in finding employment.   When the jobseeker enters employment the JobPath personal adviser continues to work with the individual for a period of 3-12 months to sustain this employment. 

On 10 July 2018 the Department issued its decision wherein it identified 46 records as falling within the scope of the applicant’s request – 23 records relating to meetings with Seetec and 23 records relating to meetings with Turas Nua.  It refused access to all 46 records under sections 35 and 36 of the FOI Act. The applicant sought an internal review of that decision following which the Department affirmed its original decision. The applicant sought a review by this Office of the Department's decision on 7 August 2018.

During the course of the review, this Office notified the contractors of the review and invited them to make submissions on the issue arising. Both parties made submissions, in which they argued that section 37 is also of relevance to the records at issue.

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 Department's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the Department on the matter and to correspondence between this Office and the two contractors. I have also had regard to the contents of the records at issue. When referring to the records at issue I have adopted the numbering system used by the Department in the schedule of records it prepared when processing the request.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing to grant access to the minutes of monthly meetings that took place from January 2016 to June 2018 between the Department and representatives of Seetec and Turas Nua under sections 35, 36 and 37 of the FOI Act.

Analysis and Findings

The records at issue comprise reports of meetings, referred to as Monthly Contractor Management Meetings (MCMMs), held between the Department and the contractors to review the operation of the JobPath service. In the majority of cases the reports contain action points from the previous meeting, minutes of discussions at the current meeting and the reports conclude with action points to be implemented following the meeting, along with the allocation of specific responsibility for such follow-up. In general the meetings address a wide-range of issues, including, but not limited to, the initial rollout of the JobPath service, service delivery, management of the contract between the Department and the respective contractors, issues arising following inspections by the Department of the offices of the two contractors as well as miscellaneous other issues. 

The Department has relied on sections 35 and 36 to refuse access to the reports of these meetings.

Section 35

Section 35 is concerned with the protection of information obtained in confidence. The Department has sought to rely on subsections (1)(a) and (1)(b) to refuse access to the relevant records.

Subsection (1)(a) provides for the mandatory refusal of a request if;

• the record sought contains information given to an FOI body in confidence, and
• on the understanding that the information would be treated by it as confidential (including such information that a person was required by law, or could have been required by the body pursuant to law, to give), and
• the body considers that its disclosure would be likely to prejudice the giving to it of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information should continue to be given to the body.

Subsection (1)(b) provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. 

However, subsection (2) of section 35 provides that subsection (1) shall not apply to a record prepared by a member of staff of an FOI 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 that is provided for by an agreement or statute or otherwise by law and is owed to a person other than the FOI body, its staff or a service provider. As subsection (2) serves to disapply subsection (1), it is appropriate for me to consider subsection (2) at the outset.

The Department has confirmed that the records at issue were prepared by its staff. This means that neither subsection (1)(a) nor subsection 1(b) can apply unless disclosure of the information contained in the records 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 the FOI body, its staff or a service provider.

The Department's arguments for refusing access to the records sought are based on its views that a duty of confidence is owed to the contractors. Section 2 of the FOI Act defines "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 and contract for services in this definition includes an administrative arrangement between an FOI body and another person". I am satisfied that the contractors are service providers for the purposes of the FOI Act. The Department has not identified any party other than an FOI body or service provider to whom a duty of confidence is owed. It is worth noting at this stage that the Department's argument's relating to the confidentiality of the information contained in the records at issue are based primarily on its concerns as to the commercial sensitivity of the information. Section 36 serves to protect commercially sensitive information and I will consider the applicability of that exemption to the records at issue separately below.

In its submission to this Office Turas Nua stated that it is an entity of a joint venture between two other parties, namely a private Irish company and a private UK based company. It argued that the disclosure of the requested information would breach a duty of confidence which is owed under the existing individual Turas Nua agreements with each party, neither of whom are an FOI body or a direct service provider to the Department. Turas Nua provided extracts of its services agreements with the two companies. According to those extracts, the agreements provide that no confidential information disclosed by one of the parties to the other under the agreements may be disclosed except in certain circumstances.

I fail to see how the disclosure of the records at issue, comprising reports of meetings between the Department and Seetec relating to the operation of the JobPath scheme, could possibly constitute a breach of the confidentiality agreement between Turas Nua and the companies concerned, nor has Turas Nua explained how such a breach might arise.

Turas Nua also argued that the disclosure of the requested information would breach a duty of confidence which is owed to its customers regarding the personal data it holds. In my view, this argument is more properly an argument that the disclosure of the information contained in the records would involve the disclosure of personal information relating to the users of the JobPath scheme. Section 37 serves to protect such information and I will consider the applicability of that exemption to the records at issue separately below.

Having considered the matter, I find that the disclosure of the information contained in the records at issue would not 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 the FOI body, its staff or a service provider. As such, I find that section 35(1) cannot apply.

Section 36

Section 36(1) provides for the mandatory refusal of a request where the record sought contains

(a) trade secrets of a person other than the requester concerned,

(b) 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, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

The Department claimed that all three subsections, (a), (b), and (c), apply to the records, as did Turas Nua. Seetec argued that subsection 1(b) applies.

Subsection (1)(a)

This Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication. This Office also accepts that an exact definition of a trade secret is not possible, but that the some factors that are considered relevant to the determination are as follows: 

(1) the extent to which the information is known outside of the business concerned;

(2) the extent to which it is known by employees and others involved in the business;

(3) the extent of measures taken by the business to guard the secrecy of the information;

(4) the value of the information to the business and to its competitors;

(5) the amount of effort or money expended by the business in developing the information;

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others. 

In its submission to this Office the Department argued that any references in the relevant records to the 'performance offer' or PA ratios would be considered trade secrets.  In support of this argument it referred to section 2.14.2 of the Request for Tender (RFT) document, wherein prospective tenderers were asked to identify, in the context of the FOI Act, specific information contained in their tenders which should not be disclosed because of its commercial sensitivity. Seetec identified its 'performance offer' as commercially sensitive and stated that to 'disclose this information will enable third parties, including our competitors, to gain valuable proprietary information which they would not otherwise have been entitled to'.  The Department did not identify any similar specific reference to proprietary information identified by Turas Nua. However Turas Nua did, within the context of section 2.14.2 of the RFT, identify its performance offer as being commercially sensitive. 

In addition, in its submission to this Office, Turas Nua provided the following list which it contends are trade secrets within the meaning of section 36(1)(a); internal policy and procedures, strategy and business decisions, IT systems development, implementations and IT issues, internal audit information, business continuity management information, engagement with third parties and other service providers, staff turnover and staffing issues, provision of equipment and conditions in certain specific office locations. Turas Nua has argued that these are 'proprietary' to it and constitute trade secrets.   

It seems to me that much of the very broad range of information Turas Nua has attempted to categorise as comprising trade secrets simply does not have the requisite qualities. For example, I do not accept that all of Turas Nua's engagements with third parties and other service providers could possibly constitute trade secrets. In the High Court case of  Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J., when considering the applicability of section 36(1)(b), held that it is not sufficient for a party relying on that section to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. Similarly, I am satisfied that it is not sufficient for the Department or the service providers in this case to simply state that certain types of information constitute trade secrets without explaining why they hold that view and without identifying any specific information in the records at issue that meets those descriptions. In the circumstances, I find that section 36(1)(a) does not apply to the records at issue.

Subsection (1)(b)

Subsection (1)(b) protects financial, commercial, scientific, 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. 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. The test to be applied is whether the decision maker's expectation of the identified harm arising 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.

The Department stated that JobPath is a payment by results model, which means that companies will not be able to fully recover their cost until they place sufficient numbers of jobseekers into sustainable jobs. It stated that payments are subject to penalties in the event that service providers do not meet their service quality commitments or achieve the target levels of performance. It stated that the minutes of the contractor meetings contain considerable amounts of sensitive information, detailing issues identified during the course of the establishment, process initiation and ongoing implementation of the service. It stated that the information is extremely condensed and consequently the concentrated nature of the records is not representative of the relative importance of the matters at issue and the degree of concern they would engender in both parties.

The Department added that this is of utmost concern in the case of disclosure of the level of contractor performance attained in comparison with the contractual commitments, in particular when deficiencies in the delivery of the service are identified during the course of an on-site inspection and addressed at a subsequent meeting. It argued that public disclosure of deficiencies identified during the lifetime of the contract and in the absence of context, and the consequent imposition of financial penalties, will entail reputational damage to the contractor. It accepted that this reputational damage will occur in any event should the deficiencies be revealed to the public once the contract has concluded. It argued, however, that the Department must be in a position to not only require the issues to be addressed, but also to give the contractors due consideration in allowing time for a response and to avail of the process for addressing deficiencies. It argued that the minutes are a record of continuous conversation and that they are not a report and contain no conclusions or recommendations.

In essence, the Department's argument is that the disclosure of deficiencies identified in the records in the absence of context and the consequent imposition of financial penalties would entail reputational damage to the contractors and that any such reputational damage would have an adverse impact on their current business and future business prospects.

In their submissions to this Office both contractors supported the Department's position. Turas Nua argued that 'public disclosure of any deficiencies identified within the minutes ... if taken out of context would only serve to unfairly and/or inaccurately cast Turas Nua in a 'false light' which could result in an adverse impact to our current and possibly future business'.  In addition Turas Nua argued that the minutes contain references to performance monitoring data, performance improvement plans, Turas Nua business decisions and processes, contract performance, staff-to-caseload ratios and the perceived revenue based on those ratios, financial particulars relating to job sustainment payments and invoicing fees of individual cases, recoupment of fees in particular cases, the potential for applying penalties in certain cases, IT systems implementations, development and IT issues, business continuity management, internal audit information and complaints data.  Turas Nua argued that such references clearly reflect sensitive commercial information, the release of which could reasonably result in material financial loss. 

Seetec argued that the minutes of its meetings with the Department contain references to its own performance methodology and performance improvement plan, staff-to-caseload ratios and the perceived revenue based on those ratios, financial particulars relating to job sustainment fees of individual cases, business processes relating to handling individual job sustainment fees, recoupment of fees, potential for applying penalties in certain cases, matters relating to Garda vetting for staff members, internal investigations into potential disciplinary issues, discussions relating to Seetec's internal corporate management structure, complaints management processes, management of IT systems to eliminate duplicate job entries, and discussion of strategies for improving job sustainment rates. Seetec argued that such matters are clearly commercially sensitive. 

On the matter of the arguments advanced by the Department and Tura Nua concerning the absence of context, this Office has previously found that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In Case 98078 - Mr Martin Wall and the Department of Health and Children, the then Commissioner considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

On the matter of the arguments advanced by the contractors as to the type of information that would be disclosed were the records to be released, I would refer again to the comments of Cross J. in the Westwood High Court case, namely 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.

It seems to me that the contractors have adopted an approach of describing the various types of information that it considers to be commercially sensitive and making a general argument that to release such information would give rise to one or more of the harms identified in section 36(1)(b). As I have explained above, 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. Neither the contractors nor the Department identified any specific information contained in the records and explained how the release of such information might give rise to the harms identified.

Having examined the records, I am not satisfied that their release would provide a sufficiently detailed and meaningful insight into the business affairs of the contractors that could reasonably be expected to result in a material financial loss to the contractors or might prejudice their competitive positions.

More specifically, I cannot accept that references to the meeting of specific targets in terms of job sustainment rates on a monthly basis might give rise to the harms identified. It is clear from the records that such information is clearly a snapshot at a particular moment in time and does not purport to represent the overall target delivery by the contractors over the lifetime of the contract. Neither the Department nor either contractor has explained how the release of such information could prejudice the commercial position of either company.

Likewise I do not consider that references in the relevant records to the Personal Adviser (PA) ratios, which essentially relates to the number of clients currently being managed by an individual PA, could give rise to the relevant harms. While the contract between the Department and the two contractors indicates that the PA ratio should be maintained at a certain level, it appears that on occasion the PA ratio of certain case-workers exceeded this agreed level. Neither the Department nor the contractors have explained precisely how the release of such information could be commercially damaging to either company and I fail to see how it could. 

Equally I do not consider that references in the relevant records to complaints received by the contractors in relation to their service delivery is commercially sensitive.  It is to be expected that in cases such as this where a private company is contracted to provide what could be described as a public service then it is likely that complaints from members of the public will be received.  I do not consider that the receipt of such complaints can in any way be interpreted as damaging to the company's commercial position. In any event there are a number of references in the relevant records to the overall level of complaints being quite low.

In conclusion, therefore, I find that section 36(1)(b) does not apply to the records at issue.

Subsection (1)(c)

As outlined above, this subsection provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. This Office takes the view that a party seeking to rely on section 36(1)(c) should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.   

The Department argued that meetings with the respective JobPath contractors may address a number of issues such as the performance offer, staffing arrangements, pricing, the company's financial position, their future plans etc. and that if this information were to be made available to competitors it would leave the current contractors exposed and vulnerable to being undercut in future negotiations. 

In its submissions to this Office, Turas Nua provided another list of the type of information contained in the relevant records which it claimed 'could be taken out of context and would be commercially and reputationally damaging which would adversely impact the opportunity for future business'. The type of information identified included systems implementations, systems development & IT issues, performance monitoring data - contractor performance and revenue, complaints data, business decisions, internal policy information, internal audit information, business continuity management information, payment, invoicing and validation information and engagement with third party organisations. 

As with section 36(1)(b), both the Department and Turas Nua essentially argued that the reports are exempt from release under section 36(1)(c) on the ground that their disclosure would be misleading. For the same reasons as I have outlined above, I do not accept this argument. Seetec did not make any specific arguments in its submission in relation to the applicability of section 36(1)(c). As none of the parties identified any particular contractual or other negotiations that were in train or were reasonably foreseen which might be affected by the disclosure and as no explanation was given as to how exactly the disclosure of the reports could prejudice the conduct or the outcome of such negotiations, I find that section 36(1)(c) does not apply.

The Public Interest

Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing the request. Given my findings that none of the relevant subsections of section 36(1) apply, it is not strictly necessary for me to address the public interest balancing test in this case. Nevertheless, for the sake of completeness, I would like to make the following comments for the information of the parties involved.

The majority of the public interest factors identified by the Department in support of refusing the request are based on its concerns as to the confidentiality of the information contained in the records relating to the contractors. Among other things, it argued that factors in favour of refusal include protection of the confidentiality of the contractors' intellectual property and financial and commercial information. It also argued that the detail contained in the minutes will not enhance the public knowledge in terms of understanding whether or not effective governance is in place. It added that reports from the Office of the Comptroller & Auditor General (the C&AG), which are due for publication in the near future, will provide the type of information that the public are entitled to in relation to the expenditure of public monies.

In its submission to this Office Seetec argued that while the minutes of meetings between the Department and Seetec may be of interest to the public, the public interest in ensuring open disclosure in relation to such meetings is substantially outweighed by the likely commercial harm to Seetec that would result from the disclosure of sensitive commercial information. It also argued that there is an inherent public interest in protecting the Department's ability to outsource functions to external companies such as Seetec and if commercially sensitive information in such operational meetings were to be released it would negatively impact on the willingness of companies to provide their services in future. This would, it argued, make it impossible for the Department to continue outsourcing such services which would have 'a seriously detrimental effect on the members of the public relying on the expert services provided by the service provider'.

Turas Nua argued that there is certain information available to the JobPAth scheme which will pass the public interest test in demonstrating JobPath operates in a fair and effective manner while justifying value for money to the Irish taxpayer, namely performance data and customer satisfaction survey results that are available on the Department's website.

The public interest balancing test in section 36(3) expressly acknowledges the potential for harm arising from the release of a record. Therefore, the fact that release of the record might give rise to one or more of the harms identified in section 36(1) does not, of itself, provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must consider or assess the competing interests that must be weighed in that balancing exercise and explain the basis on which it has decided where the balance of the public interest lies.

On the matter of public interest factors favouring release, it is important to note the long title to the Act which provides for a right of access "to the greatest extent possible consistent with the public interest". There is a strong public interest in the enhancement of openness, transparency and accountability in FOI bodies. These principles are recognised by section 11(3) of the Act which provides that an FOI body, in performing any function under the Act, shall have regard to —

(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,

(b) the need to strengthen the accountability and improve the quality of decision-making of FOI bodies, and

(c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

This Office considers that section 11(3) of the Act is relevant to the consideration of the public interest. There is a significant public interest in openness, transparency and accountability in public bodies, particularly where the use of public funds is concerned. The release of information relating to the expenditure of public funds by FOI bodies acts as a significant aid in ensuring the effective oversight of public expenditure and bringing transparency to the principle of ensuring value for money. It is worth noting that the expenditure of public monies in this case is significant. According to the Department, in 2017 alone, payments to the JobPath contractors amounted to €58.5 million. I would add that the fact that certain mechanisms may already exist in terms of enhancing accountability and transparency, such as audit by the C&AG, does not mean that there is no need to further enhance that transparency.

In this case, even if I had accepted that some or all of the information contained in the records at issue was commercially sensitive, it seems to me that any resulting commercial harm that might have arisen would be minimal having regard to the  rather general and high level nature of the information. On the other hand, there is a strong public interest in the enhancement of transparency and accountability in the use of what amounts to substantial public funds. In the circumstances, I am satisfied that the public interest would, on balance, be better served by the release of the records at issue.

Section 37(1)

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. While the Department has not formally relied on the provisions of section 37(1) to refuse access to the relevant records, in their submissions both contractors argued that the records contain personal information that should not be released.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Where the individual is or was a service provider, the definition does not include his or her name 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 (Paragraph II refers).  I am therefore satisfied that the names of staff members of the contractors is not personal information for the purposes of the Act and is not protected under section 37 of the Act.  

In addition, Turas Nua has also argued that the relevant records contain the personal information of clients of the JobPath service.  Having examined the records I can only identify two instances where the personal information of clients of the service is disclosed.  Point 2 under the heading "AOB" in record 11 contains a reference to a specific individual with certain additional information. Point 12 under the heading "Seetec Agenda Items" in record 13 contains a reference to an individual client and possible legal proceedings. While individuals are not named in either instance, I am satisfied that the extracts contain sufficient detail to find that the disclosure of the information would involve the disclosure of personal information relating to identifiable individuals. I find that section 37(1) applies to this information. I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1).

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 minutes of monthly meetings that took place from January 2016 to June 2018 between the Department and representatives of Seetec and Turas Nua under sections 35 and 36 of the FOI Act. I direct the release of the records subject to the redaction of a small amount of personal information from records 11 and 13 as described in the body of the decision above.

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.

 

 

 

Stephen Rafferty

Senior Investigator