Whether the NTA is justified in deciding to grant the applicant's request for statistical and other information about the 133 route

 

29 May 2019

 

Background

 
This review arises from this Office's decision in Case No 180519, which issued on 19 December 2018 in relation to an FOI request made to the NTA on 1 October 2018. The FOI request asked for the following information: 
 
  1. Punctuality and reliability (i.e. % of buses that did not run) statistics for 2017 and 2018 for the 133 service. 
  2. Details of the key performance criteria relating to punctuality and reliability per the terms of Bus Éireann's licence to operate from the NTA. In this regard please detail the rates of contractual penalties to be imposed for failure to meet the said criteria. 
  3. Details of financial penalties actually imposed for failure to meet performance criteria for the periods 2017 and 2018 arising in connection with the said 133 service. Specifically please detail the method by which such penalties were paid together with invoices issued in relation thereto. 
  4. Details of the number of customer complaints notified by Bus Éireann to the NTA in relation to the 133 service for the periods 2017 and 2018.
  5. Copies of minutes of the service review meetings held between the NTA and Bus Éireann during 2017 and 2018. Alternatively please provide relevant extracts detailing any discussion in relation to any aspect of the operation of the 133 service. 
  6. Copies of, or relevant extracts from, internal NTA assessments, reviews or oversight reports of Bus Éireann's operation of the 133 service for the past three years. 
 
Section 38 applies to cases where the FOI body has formed a view that the record(s) in question are exempt under section 35 (confidential information) and/or section 36 (commercially sensitive information) and/or section 37 (personal information) but that the record(s) should be released in the public interest.
 
Where section 38 applies, the FOI 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. The requester, or an affected third party, on receiving notice of the final decision of the FOI body, may apply directly for a review of that decision to this Office.
 
In Case No 180519, the Senior Investigator (Mr Rafferty) found that the NTA had not complied with certain procedural requirements of section 38 in relation to the request. He annulled the NTA's decision and directed it to carry out a new decision making process on the request that complies with the requirements of section 38. 
 
The NTA accordingly consulted with Bus Éireann under section 38 of the FOI Act on 3 January 2019. On 24 January 2019, Bus Éireann replied to the NTA explaining why it believed that the requested details are exempt under section 36(1)(b) of the FOI Act and that the public interest does not weigh in favour of their release. On 25 January 2019, the NTA decided to grant the request. On 6 February 2019, Bus Éireann made an application to this Office for a review of the NTA's decision.
 
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the NTA, Bus Éireann and the original requester. I have had regard also to the records considered by the NTA and to the provisions of the FOI Act.
 
 

Scope of Review

 
This review is confined to whether the NTA's decision to grant the request is justified under the FOI Act. 
 
Records Covered by the Review
It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for records containing the information sought. 
 
The NTA has provided this Office with eight records containing information covered by the six parts of the request. 
 
 

Analysis and Findings

At the outset, I will deal with some comments made  by the original requester. He is of the view that this Office and Bus Éireann are deliberately delaying his right to gain access to the records. I reject entirely any assertion that this Office has delayed in carrying out this or the earlier review. Bus Éireann is entitled to exercise its rights under the FOI Act. Furthermore, it would not be appropriate or indeed permissible under procedural fairness for me to summarily make a decision on the review without inviting and considering submissions from the parties and considering any arguments made. In that regard, the requester's dissatisfaction with the service he has received on the route or with how his complaints have been dealt with by either Bus Éireann or the NTA are not matters that I can take into account. Finally, while rail and airline reliability and punctuality statistics may well be published as a matter of course, this of itself does not create an entitlement to the requested records under FOI. In any event,  I note that this decision should be ready for issue within the four month statutory objective period (section 22(3) of the Act refers). 
 
The applicant says that his request was intended to get information relating to the NTA's oversight of Bus Éireann. He says that the information is not commercially sensitive.
 
Section 36(1)(b) 
Section 36(1)(b) requires the refusal of access to records containing certain types of information whose disclosure could reasonably be expected to result in 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. 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". This Office 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 considerably lower than the "could reasonably be expected" test in the first part of this exemption.  However, this Office 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 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. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns J stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.  
 
This Office invited the NTA to make a submission in this case. It did not do so. 
 
Bus Éireann's application to this Office sets out the same arguments as in its submission to the NTA of 24 January 2019. It says that the information is exempt under section 36(1)(b) and that the public interest weighs in favour of refusing the request. It says that the route will be open to tender at a future date and that placing information about the route in the public domain could prejudice public opinion in relation to the proposed tendering of the route. It explains various issues impacting on service on the route and says that granting the request would unfairly single out the route from others that encountered similar issues. It says that disclosure of the details would be premature in light of a service improvement plan currently in progress, which has been agreed with the NTA, and wishes to have time and freedom to implement final critical changes. It says that it is happy for the information to be shared at a future date. 
 
This Office's Investigator asked Bus Éireann it to explain, in particular, why it considers that disclosing the records at this point in time could prejudice its competitive position in the tender process, having regard to her observations on the particular nature of each record. Bus Éireann chose to make no further comment. 
 
I should make it clear that a record is neither exempt from release under FOI nor is it in the public interest to refuse access to it because the grant of access may of itself be considered to be "unfair" . The records appear to me to contain historical factual, statistical and other information concerning performance on the route, the number of complaints made, other general information and material that is in the public domain. On their face they do not refer to particular factors impacting on the route's performance or details of any complaints made or their outcomes. It is not apparent to me from the content and context of the records nor has it been explained why the information in the records is commercially sensitive for the purposes of section 36(1)(b) or how, in particular, its disclosure could impact on the tendering process for the route. Neither is it evident nor has it been explained how disclosure of the details could impact on Bus Éireann's ability to implement its service improvement plan on this or other routes. In such circumstances, I have no basis on which to find that section 36(1)(b) applies to the records in the first place.
 
I find that the records are not exempt under section 36(1)(b). Accordingly, there is no need for me to consider the exceptions to section 36(1) as set out in section 36(2) of the FOI Act, or the public interest test at section 36(3). 
 
 

Decision

 
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTA's decision to grant the request and direct it to release the records it identified as falling within the scope of the request. 
 
 
 

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. 
 
 
 
 
 
 
 
 
 
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Elizabeth Dolan
Senior Investigator
 
 
 
 
 
 


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