Whether ComReg was justified in refusing to grant access to parts of reports on telecommunications masts in the vicinity of the applicant’s residences relating to the TETRA and PMR networks under sections 32(1)(a)(i), (ii), (iii) and (x), 32(1)(b) and (c), 33(1)(a) and (b), and 36(1)(b) of the FOI Act

2 July 2020

Background

According to ComReg, an agent acting on its behalf carried out two surveys on 15 March 2019 to measure the non-ionizing radiation (NIR) from local telecommunications masts in the vicinity of the applicant’s residences. The applicant was provided with copies of the reports with the redaction of certain frequencies and graphs relating to the national TETRA network. The National Digital Radio Service (NDRS) is operated by TETRA Ireland, a company appointed by the State with the function to deliver an NDRS using Terrestrial Trunked Radio (TETRA) technology.

On 26 May 2019, the applicant sought access, under the FOI Act, to unredacted versions of the reports. On 25 June 2019, ComReg refused access to the information concerning the TETRA network under sections 32(1) and 33(1)(a) and (b) of the Act on the ground that the redacted frequencies and graphs are used by the TETRA Network and form part of the communications systems of An Garda Síochána.

The applicant sought an internal review of ComReg’s decision, following which ComReg affirmed its original decision. On 10 October 2019, the applicant sought a review by this Office of ComReg’s decision to refuse access to the redacted information.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and ComReg as set out above and to the correspondence between this Office and both ComReg and the applicant on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of this review it emerged that while ComReg had redacted information from the two reports at issue relating to the TETRA network, it had also redacted certain frequency values and related graphs concerning private mobile radio (PMR) signals in one of the reports.

Mr O’Gorman of this Office sought to clarify the matter with ComReg. In response, it argued that the PMR information was not relevant to the applicant’s request as she sought access only to the redacted TETRA information. It referred to that part of her request wherein she referred to an earlier phone call she had “re Redacted report on TETRA”. It said the PMR information is not connected to or related to the TETRA signal information.

ComReg added that it would have been both irrelevant and confusing for it to have highlighted PMR information to the applicant in its decision on the request as it was not what she sought in her request. It argued, nevertheless, that the redacted PMR information is commercially sensitive information within the meaning of section 36(1)(b) of the FOI Act and that it did not consider, taking all relevant matters into consideration, that the public interest would be better served by granting than by refusing access to that information.

Mr O’Gorman queried why ComReg had measured PMR signals during its surveys. ComReg explained that notwithstanding that the applicant’s complaint seems to relate primarily to TETRA (based on her own research), it nevertheless did a full survey of all non‐ionising radiation (NIR) emissions at her home. It said if a signal such as PMR is detected in the measurement location then the PMR signal is measured so that the total exposure to all NIR at the location can be measured. A detailed survey is performed at the point of maximum NIR near the site in order to identify the individual transmit frequencies and field strengths of each type of emission (e.g. mobile telephone GSM, UMTS and LTE, wireless broadband, TV, radio signals etc.) and their contribution to the total electromagnetic field. It said the detailed methodology used by ComReg  for NIR measurements is set out in the document entitled “Programme of Measurement  of  Non‐Ionising Radiation Emissions – Site Survey Methodology” (ComReg document 08/51R3) which is publicly available on its website.

ComReg added that in the investigation in question, the Site Survey Report indicates that that in addition to TETRA signals, several other signals/services were detected and measurements of both the mean and peak NIR were taken for each signal. It said that in every case, including for the TETRA signals, the measurements were fractions of 1% of the International Commission on Non‐Ionising Radiation Protection (ICNIRP) limits.

I have examined the applicant’s letter of 26 May 2019 to ComReg. While she did, indeed, refer to the “report on Tetra” in her letter, she specifically requested “a copy of the unredacted version” of the reports. In circumstances where the applicant does not appear to have been made specifically aware of the fact that PMR information was also redacted from the reports, to interpret her request as relating only to the redacted TETRA information would, in my view, represent an unduly narrow interpretation of the request. Furthermore, ComReg’s description of the basis on which it captures PMR information in surveys such as the one undertaken does not appear to support its understanding that the applicant did not want such information. I also consider that had there been any doubt as to the scope of her request, ComReg could have sought to clarify the matter with the applicant.

In the circumstances, while I am satisfied that ComReg did not deliberately seek to interpret the request narrowly, I find that the applicant’s request for an unredacted copy of the reports at issue is sufficiently broad to capture all information redacted from the reports, including the redacted PMR information.

The TETRA information redacted from the reports comprises frequency values and related graphs concerning the TETRA network. In its submission to this Office, ComReg clarified that it was seeking to rely on sections 32(1)(a)(i), (ii), (iii) and (x), 32(1)(b) and (c) and 33(1)(a) and (b) to refuse access to that information.

Accordingly, this review is concerned with whether ComReg was justified in refusing access to the TETRA information redacted from the two reports under the various exemptions cited above and whether it was justified in refusing access to the redacted PMR information under section 36(1)(b).

Preliminary Matters

Before I address the substantive issues, I would like to make a number of preliminary comments. Firstly, the applicant indicated that she is seeking the information at issue due to a number of health issues she asserts she is experiencing as a result of telecommunications masts close to where she lives. In support of her view, the applicant provided a considerable amount of documentation to this Office. I would like to express my sympathy to the applicant for the discomfort and upset she has experienced. However, I must draw her attention to section 13(4), which provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Secondly, it is important to note that the release of a record under FOI is generally considered to be release to the world at large as the Act places no restrictions on the uses to which a record released under FOI may be put. This means that when considering whether or not a record should be released under FOI, I must consider the effect and implications of release of the information to the world at large.

Analysis and Findings

Information concerning the TETRA network

ComReg redacted certain information concerning the TETRA network from the two reports at issue under a number of exemptions. Having regard to its submissions and to the nature of the information at issue, I consider section 32(1)(a)(x) to be the most relevant exemption to consider in this case. The section provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair the security of any system of communications, whether internal or external, of the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution.

Where an FOI body relies on section 32(1)(a), it should, first, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To justify its decision to refuse access to a record under section 32(1)(a), the FOI body must show how or why releasing the record concerned could reasonably be expected to cause the harm which it has identified.

The information at issue consists of graphs and frequencies concerning the TETRA network. ComReg stated in its submission to this Office that the TETRA network forms part of the communications systems of An Garda Síochána. It contended that if this information was released, sophisticated criminal gangs have the technical capability to use it in order to intercept Garda Síochána communications, and also to potentially disrupt those communications. ComReg argued that there is a high likelihood that such harms would occur. It stated that the whole purpose of the TETRA network is to provide a high security communications network for state agencies, and argued that release of the information would compromise the network.

ComReg cited Case 99329 in its submission to this Office, in which the then Commissioner, when considering a very similar provision of the FOI Act 1997, section 23(1)(a)(viii), stated that he considered “that the type of record that would be covered by the exemption in section 23(1)(a)(viii) is, for example, one that gives technical details of the location and/or type of equipment used by the Garda Síochána for their electronic communications or one that gives details of codes or waveband frequencies used in the transmission of communications.” ComReg argued that the information in this case fell clearly within that description.

Having considered ComReg’s submission, and examined the information concerning the TETRA network refused in the two reports, I am satisfied that disclosure of the details of the TETRA network at issue could reasonably be expected to prejudice or impair the security of a system of communications of An Garda Síochána. I therefore find that section 32(1)(a)(x) applies to the information at issue.

Section 32(3) serves to disapply section 32(1) in certain limited circumstances, described in paragraphs (a)(i) and (a)(ii), where the public interest would, on balance, be better served by granting than by refusing the request. No such limited circumstances apply in this case. As such, I find that section 32(3) does not apply.

In conclusion, therefore, I find that ComReg was justified in redacting the relevant information relating to the TETRA network from the reports at issue under section 32(1)(a)(x). Having found section 32(1)(a)(x) to apply, I do not deem it necessary to consider any of the other exemptions cited.

Information concerning PMR networks

ComReg refused access to graphs and frequencies concerning PMR in the first report, referred to as the “Log Cabin” report, under section 36(1)(b). That section 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 financial 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.

During the course of this review, Mr O’Gorman informed the applicant of ComReg’s reliance on section 36(1)(b) in respect of the PMR information in the “Log Cabin” report, and provided a summary of its arguments. The applicant indicated that she did not wish to make a submission on the matter.

In its submissions to this Office, ComReg said the only reference to PMRs that have been redacted are in relation to PMR UHF High Band in the 450–470 MHz range. It argued that the redacted information is commercially sensitive information. It argued that for PMR licences in the range of 450–470 MHz, as the frequencies of the channel can be calculated from the INCIRP limit, measured value and adjusted value, these must also be redacted – only the value of the multiple below the ICNIRP limit is not commercially sensitive and can be released. It said the value of the multiple below the limit is also the most relevant information provided by these reports. It added that the PMR information is not connected or related to the TETRA signal information.

ComReg further explained that PMR frequencies are used by commercial enterprises and are localised so that the disclosure of the frequencies in the reports at issue would identify that they were being used within a particular area. It said there are likely to be quite a small number of PMR licence holders in any particular area and that the disclosure of the frequencies would allow for competitors of a company to take advantage of that information. It cited an example where a competitor of a taxi firm might seek to exploit its knowledge of the frequency being used by that firm.

Having considered ComReg’s arguments, I am satisfied that the release of the redacted PMR information could prejudice the competitive position of the various licence holders in the conduct of their business and that section 36(1)(b) applies.

However, that is not the end of the matter as the question of whether the public interest would, on balance, be better served by granting rather than by refusing the request remains to be considered, pursuant to section 36(3).

In this case, ComReg argued that it had redacted only that PMR information that could be used to calculate the frequencies and that it did not redact the information of relevance to the applicant, namely the data which indicated the extent to which the levels measured fell below the ICNIRP limit.

The FOI Act itself acknowledges that there is a public interest in the enhancement of the accountability and transparency of public bodies. Indeed, section 11(3) provides that in performing any function under the Act, an FOI body must have regard to;

• 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,
• the need to strengthen the accountability and improve the quality of decision- making of FOI bodies, and
• 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.

It seems to me that the release of the redacted PMR information would enhance the accountability and transparency of ComReg in this case, insofar as it would disclose more precise information relating to the readings detected at her properties. However, this must be balanced against the potential harm that might arise for the various licence holders. In my view, the public interest had been served to a large extent by the disclosure of the extent to which the levels measured fell below the ICNIRP limit. This should allow the applicant to draw her own conclusions as to the extent of the levels detected. In the circumstances, I do not consider that the public interest would, on balance, be better served by the release of the redacted PMR information in this case.  Accordingly, I find that ComReg was justified in redacting the information in question under section 36(1)(b) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm ComReg’s decision to refuse access to the TETRA information redacted from the two reports under section 32(1)(a)(x) and to refuse access to the redacted PMR information under section 36(1)(b).

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