Whether the Department was justified in refusing access to inspection reports of a vessel used for a particular shipment of live cattle under section 36(1)(b) of the FOI Act (commercial sensitivity)

29 January 2021

Background

In an FOI request dated 22 April 2019, the applicant sought access to various records concerning a shipment of live cattle from Ireland on a named vessel on a certain date. Further to its decision dated 30 May 2019, the Department released five records in part. It withheld the remainder of these records and the entirety of four inspection reports under sections 36 (commercial sensitivity) and 37 (personal information) of the FOI Act. On 5 July 2019, the applicant sought an internal review of the Department’s decision on the inspection reports. The Department’s internal review decision of 9 August 2019 affirmed its refusal to grant access to these reports under section 36. On 11 September 2019, the applicant applied to this Office for a review of the Department’s decision on the inspection reports.

I apologise to the applicant for how long it took for this review to conclude. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department, two third parties and the applicant. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act.

Scope of the Review

The scope of the review is confined to whether the Department’s refusal of the inspection reports (records 4, 5, 6 and 7) is justified under the provisions of the FOI Act. Record 4 is a Marine Surveyor’s report and records 5, 6 and 7 are Departmental Veterinary Inspector’s (V.I.’s) reports. The applicant says that details identifying the Marine Surveyor, who is a sole trader operating a private business from the Surveyor’s home, may be redacted. Accordingly, such details such as the name of the Surveyor’s company as contained on its headed paper, its address, other contact details and the Surveyor’s signature, etc. are excluded from my review and do not fall to be released.

Analysis and Findings

The Department’s decisions do not identify the provision(s) of section 36 on which it is relying. Neither do its decisions explain why any or all of that particular provision applies. The Department should be aware that, under sections 13(2)(d) and 21(5)(c) of the FOI Act, where a body decides to refuse to grant a request whether wholly or in part, the notification of the original or internal review decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

The Department’s submission in this review confirms that it is relying on section 36(1)(b) of the FOI Act in relation to records 4 to 7.

Section 36(1)(b)

Section 36(1)(b) must be applied to 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 whether 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 this exemption.  However, this Office takes the view that, in invoking the phrase "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.

Analysis

The reports at issue date from 2018 and 2019 and concern the named vessel’s compliance with the Carriage of Livestock by Sea Regulations 2016 (S.I. No. 356 of 2016), which were completed prior to the vessel’s departure.

The Department’s submission in support of its refusal of the reports is focused solely on the harms that might arise for the Marine Surveyor arising from the release of his report (record 4). Its argument is that the disclosure of the Marine Surveyor’s report could result in that particular business being targeted by protests and boycotts and thus could prejudice the Marine Surveyor’s competitive position in the conduct of its business or profession.

This Office’s Investigator consulted with the Marine Surveyor, who describes safety concerns arising from the disclosure of identifying information as contained in the relevant report. As noted earlier, the applicant has agreed that such identifying details may be redacted. As such, it seems to me that the concerns expressed by the Department and the Marine Surveyor do not arise in circumstances where the identifying details of the Marine Surveyor are to be redacted. I find, therefore, that section 36(1)(b) does not apply to record 4.

The Department identified no specific harms that might arise from the release of the three V.I. reports (records 5, 6, and 7). This Office’s Investigator also consulted with the party that the Department identified as the agent of the vessel’s owner. Although the agent subsequently queried certain matters, no substantive reply has been received. I note that the reports reflect particular historic findings regarding the vessel’s compliance with S.I. No. 356 of 2016. I also understand that the vessel in question has changed ownership since the reports at issue were completed.

In effect, apart from a general assertion by the Department that section 36(1) applies, no supporting evidence has been presented to this Office as to how any of the harms identified in section 36(1)(b) might arise from the release of records 5, 6 and 7, or even whose interests might be affected by their release. In The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, 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. made it clear that 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. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.

In the circumstances, and having regard to the comments of the courts as described above, I see no basis for finding that section 36(1)(b) applies in this case. Accordingly, I find that section 36(1)b) does not apply to records 5, 6, and 7.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s refusal of records 4-7. I find that they are not exempt and I direct that access be granted to them, subject to the redaction of any details that would identify the Marine Surveyor and/or its business.

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.

Deirdre McGoldrick

Senior Investigator