Whether the Council was justified in its decision to grant access to records relating to a waste and recycling facility
30 May 2022
Background
This review arises from the Council's decision to grant access to records which relate to a waste and recycling facility pursuant to an FOI request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body formed the view that the records in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively), but that the record(s) should be released in the public interest. Where section 38 applies, the public 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 public body, may apply directly for a review of that decision to this Office.
In this case, the Council received a request on 5 June 2022 seeking access to the following records:
- Copy of the application that was submitted to Fingal County Council for a certain Waste Facility Permit (WFP) circa late 2010/early 2011;
- Copy of certain Annual Environmental Reports (AER's) for years 2009, 2010 and 2011;
- Copy of destination sites for material moved of site and volumes of material moved to each destination for years 2009, 2010 and 2011;
- Copy of all correspondence covering certain Waste Facility Permits between the permit holders and Fingal County Council.
When processing the request, the Council formed the view that the release of the records would affect the interests of the party that operates the waste and recycling facility (the applicant in this review). The Council engaged in a process of consultation with the applicant under section 38 of the FOI Act. The Council informed the applicant that it had formed the view that the request was one to which section 38 of the FOI Act applied. The Council invited submissions on the possible release of the records. The applicant made a submission to the Council on 2 July 2021, objecting to the release of the records following which, by correspondence dated 9 July 2021, the Council notified the applicant of its decision to grant the request. The applicant sought a review by this Office of that decision on 10 August 2021. I note that a separate identical request was made to the Council under the AIE Regulations and the applicant has also applied to the Office for the Commissioner for Environmental Information for a review of the Council's decision on that request. The decision in that case will issue separately.
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 submissions made to date, I have also examined the records at issue and had regard to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
The Council formed the view that the records in question qualify for exemption under sections 35 and section 36 of the Act; however, it decided that they should be released in the public interest. The scope of this review is confined to whether the Council was justified in its decision under the relevant provisions of the FOI Act.
Preliminary Matters
It is important to note that under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant of satisfying this Office that the Council's decision to grant access to the records at issue was not justified.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Analysis and Findings
The Records
The Council located 14 records which fall within the scope of the applicant's request. These records include Waste Facility Permit Applications which contain information about the applicant and a description of the waste activities carried out on site. The records include Annual Environmental Reporting Forms which contain information in relation to waste accepted at the facility including the source, type, quantity and the destination sites for waste moved of site. Finally, the records contain correspondence between the Council and the applicant in relation to various matters concerning the facility.
Relevant Exemption Provisions
As outlined above, the Council considered the records under sections 35 and 36 of the FOI Act. Section 35(1) of the Act provides as follows:
"Subject to this section, a head shall refuse to grant an FOI request if - (a) the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law".
The confidentiality exemption generally does not apply to a record prepared by a staff member of an FOI body or a service provider "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 head or a director, or member of the staff of, an FOI body or of such a service provider" (section 35(2) refers). In addition, section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).
Section 36 of the FOI Act provides protection for three different classes of commercially sensitive information as follows:
"36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned 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."
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.
Findings
During the course of the review of this case, this Office's Investigator invited the Council to make focused submissions in relation to its decision that the records qualify for exemption under 35 and 36 of the Act but that they should be released in the public interest. A number of matters arise from the Council's submissions to this Office.
When asked about section 35(2) and whether records were created by a member of staff, the Council stated "No they were not." It is clear from examining the records, that they do include correspondence sent from members of staff of the Council to the applicant. When asked whether disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons the Council said "No, the information was provided as part of permit compliance conditions or as part of the waste permit application process." It is unclear from this submission, whether the Council continues to rely on section 35 of the Act in relation to the records at issue.
When asked by the Investigator why it formed the view that the records are commercially sensitive and why it decided that they should be released in the public interest, the Council referred to OCEI Decision CEI18/0027 (available athttps://www.ocei.ie/decisions/mr-xy-and-fingal-county-c/Decision-CEI.18.0027.pdf). It said the request in that case was for a copy of an Annual Environmental Report (AER) including information in relation to waste types, quantities and destinations of waste dispatched from a facility. It said the Commissioner was satisfied that disclosure of the information would adversely affect commercial confidentiality and he found that article 9(1)(c) of the AIE Regulations applied to the information, however he went on to find, having considered the public interest under article 10(3) of the AIE Regulations, that the public interest in disclosure outweighed the interests served by refusal. The Council said its decision in this case was informed by the outcome in CEI18/0027.
There are a number of important differences between case CEI18/0027 and this case. In case CEI18/0027, the request was made and decided under the AIE Regulations. This request is made under the FOI Act 2014. Section 36(1) and (3) of the FOI Act are not identical to the provisions set out at Articles 9 and 10 of the AIE Regulations. In case CEI18/0027 the records at issue were AERs. In this case the records at issue include AERs; however they also include Waste Application Permits and correspondence between the Council and the applicant in relation to various matters. This distinction is important. The type of public interest factors which favoured the release of AERs in case CEI18/0027 may not be applicable to certain records at issue in this case. For example, in CEI18/0027, the Commissioner found that disclosure of AERs would facilitate further public scrutiny of waste management, this may not apply to certain correspondence between the Council and the applicant, for example, in relation to matters such as organising a guarantee bond for the facility.
Another matter which arises from the Council's submissions concerns the issue of whether section 36(2)(d) of the FOI Act applies to certain records at issue in this case. The Council was asked by the Investigator about section 36(2)(d) and whether the information in the records was given to the Council by the person to whom it relates. If so, the investigator asked whether the person was informed before the information was given that it belongs to a class of information that would, or might be, made available to the general public? In reply, the Council referred to the decision in CEI18/0027. It did not address the query raised. I understand that the Waste Management (Facility Permit and Registration) Regulations 2007 deal with public inspection in relation to Waste Facility Permit Applications. I note that Article 14 of the Regulations provides for availability and inspection of applications in the offices of the local authority in accordance with the provisions of the Regulations. It is unclear from its submission, whether the Council considered the applicability of section 36(2)(d) to certain records at issue in this case.
In addition to the above matters, I note that there is no reference in the Council's decision to any consideration of the applicability of section 37 of the FOI Act to the records at issue. It seems to me that a number of the records contain personal information. One of the records for example contains details of an individual's identity, date of birth, address, PPSN, next of kin, details of an injury sustained, details of medical treatment received etc. Another record contains details of a dispute concerning named individuals in relation to a will and property matters. In my view, if each of the records was examined, it ought to have been clear that section 37 of the Act should be considered in this case.
While the onus is on the applicant to satisfy this Office that the Council's decision was not justified, I have concerns as to whether the Council adequately examined the records prior to its decision. It appears to me that the Council took a decision to release all of the records on the basis of a previous decision which was made under a different regime and which concerns a narrower category of records than those at issue in this case.
In my view, the Council failed to consider each record individually and its blanket approach of releasing all of the records fails to have regard to the particular content of each individual record. It seems to me, that the most appropriate decision for me to make is to annul the Council's decision on the request and to direct it to make fresh decision on it in accordance with the provisions of the FOI Act.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the Council's decision. I direct the Council to conduct a fresh decision-making process on the FOI request, in accordance with the provisions of the FOI Act.
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
