Whether the CCPC was justified in refusing access to certain records relating to the CCPC's investigation into the private motor insurance sector under sections 35(1), 36(1) and 30(1) of the FOI Act
25 July 2022
Background
In 2016, the Competition and Consumer Protection Commission (CCPC) opened an investigation into suspected anti-competitive practices in the supply of private motor insurance (PMI) in Ireland, looking at the time period January 2012 to September 2016. The CCPC issued preliminary findings to seven parties in September 2020, setting out its initial view that the parties may have engaged in conduct that potentially breached competition law. In August 2021, the CCPC issued a press release stating that it had secured legally binding commitments from six parties that were under investigation (AIG Europe S.A., Allianz PLC, AXA Insurance DAC, Aviva Insurance Ireland DAC, FBD Insurance PLC and AA Ireland Limited), to reform their internal competition law compliance programmes, but that a seventh party, Brokers Ireland (formerly the Irish Brokers Association and the Professional Insurance Brokers Association) had refused to enter into similar commitments.
In an FOI request dated 9 September 2021, the applicant sought access to (1) all internal and external correspondence (emails, text messages etc.) gathered from AIG, AA Ireland and Brokers Ireland/Irish Brokers Association in the course of the CCPC's investigation into the private motor insurance sector, and (2) a copy of any Excel spreadsheets gathered from Allianz during the same investigation. On 23 September 2021, the CCPC wrote to the three parties mentioned in the first part of the request, informing them that the request had been made and that it was considering whether it should release the relevant records, in the public interest. The CCPC invited the parties to make submissions under section 38 of the FOI Act. While AA Ireland responded that it did not object to the release of one particular record that was already in the public domain, all three parties made submissions objecting to the release of the remaining records.
On 29 October 2021, the CCPC issued a decision to the applicant, part-granting his request. It identified 97 records of which records 2-79 and 90 - 97 related to the first part of the request, and records 1 and 80-89 related to the second part. The CCPC released one record (record 16), and refused to release the remaining 96 under sections 35(1) (information given in confidence) and 36(1) (commercially sensitive information) of the FOI Act. The applicant sought an internal review of that decision on 2 November 2021 in which he argued, among other things, that there was no evidence that release of the records would breach a duty of confidence provided for in law and that there was significant public interest in releasing the records. On 24 November 2021, the CCPC affirmed its original decision. In addition to relying on sections 35(1)(a), 36(1)(b) and 36(1)(c), it said that it was also refusing to release the records under section 30(1) of the Act. On 13 December 2021, the applicant applied to this Office for a review of the CCPC's decision.
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 by the CCPC to this Office, to the comments made by the applicant in his application for review to this Office and to the correspondence between the parties referred to above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned with whether the CCPC was justified in refusing to release records 1-15 and 17-97 under sections 30(1), 35(1) and 36(1) of the FOI Act.
Preliminary Matters
Before I address the substantive issues arising in this case, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.
Analysis and Findings
The CCPC'sPMI Investigation
In its submissions to this Office, the CCPC provided some background and context to the records at issue. It said that it initiated the PMI Investigation in 2016 pursuant to section 10(1)(c) of the Competition and Consumer Protection Act 2014 (the CCPC Act) which provides that one of its functions is:
"(c) to carry out an investigation, either on its own initiative or in response to a complaint made to it by any person, into any suspected breach of-
i. the relevant statutory provisions, that may be occurring or has occurred,
ii. Article 101 or 102 of the Treaty on the Functioning of the European Union, that may be occurring or has occurred, or
iii. notwithstanding their repeal, the Competition (Amendment) Act 1996 and the Competition Act 1991, that has occurred".
It explained that one of its principal functions is to investigate and enforce breaches of Irish and EU competition law which forbids two broad types of behaviour: anti-competitive agreements between two or more independent firms (including cartel-type agreements between competitors to fix prices, share markets, restrict output, or share commercially sensitive information), and "abusive" practices by a firm which holds a dominant market position e.g. predatory pricing or refusal to supply. It said that having investigated allegations of anti-competitive behaviour, the CCPC then has to determine whether there is sufficient evidence of a breach of competition law to warrant the initiation of civil or criminal proceedings in the Irish courts against the firm(s) and/or individual(s) concerned.
The CCPC referred to section 18(1) of the CCPC Act which gives it a number of powers in support of its investigative function, as follows:
"(1) The Commission may, to enable it to perform its functions under this Act, do all or any of the following things
a. summon witnesses to attend before it;
b. examine on oath [...] the witnesses attending before it;
c. require any such witness to produce to the Commission any books, documents and records in his or her power or control;
d. by notice in writing, require any person or undertaking to provide it with such written information as the Commission considers necessary to enable it to carry out its functions."
In addition, under section 18(4) of the CCPC Act, failure to comply with the exercise of the CCPC's powers under section 18(1) is a criminal offence, for which fines and/or a term of imprisonment may be imposed following conviction.
The CCPC explained that the PMI Investigation involved an assessment of whether there was evidence to suggest that multiple operators in the Irish insurance sector had engaged in conduct which was potentially in breach of competition law. It said that during the investigation, the CCPC gathered a substantial amount of electronic material, as well as extensive oral testimony and documentary evidence through witness summons hearings and meetings which it obtained using its powers under section 18(1) of the CCPC Act. The information contained in the 96 records at issue in this review was provided to the CCPC by the four parties (AIG, AA Ireland, Brokers Ireland/the Irish Brokers Association and Allianz) in response to notices to provide information pursuant to section 18(1)(d) of the CCPC Act ("Statutory RFIs") and formed part of the evidence on the CCPC's case file.
On 17 September 2020, the CCPC issued its preliminary findings to the seven parties under investigation, which was that certain parties made public announcements and/or engaged in contacts with one another that reduced strategic uncertainty between them as to whether there would be increases in PMI premiums during the period investigated. The CCPC explained that this was considered problematic because, under competition law, businesses are required to set their prices independently. It said that if a business has advance warning of a competitor's intention to increase prices, then they in turn may be encouraged to also increase prices, since their customers are less likely to find a cheaper option elsewhere. The CCPC said that all of the parties under investigation strongly disagreed with the preliminary findings and denied that they had breached competition law. Nevertheless, following extensive engagement with the parties, the CCPC entered into legally binding agreements with six of the seven parties involved wherein they committed to reform their internal competition law compliance programmes.
Thefull report into the CCPC's investigationwas published in February 2022.
Section 35 - Information obtained in confidence
Section 35(1)(a)
It is the CCPC's position that the records are exempt from release under section 35(1)(a) of the FOI Act. This provides a mandatory exemption for certain records given to an FOI body in confidence. In order for the section to apply, it is necessary to show the following:
- that the information was given to an FOI body in confidence and
- that the information was given on the understanding that it would be treated by the body 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 to the body) and
- that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and
- that it is of importance to the body that such further similar information should continue to be given to the body.
All four of these requirements must be satisfied for section 35(1)(a) to apply. Even then, the section is subject a public interest balancing test set out in section 35(3).
The applicant in his request for internal review pointed out that section 35(1) does not apply to a record prepared by an employee of the CCPC in the course of that individual carrying out their 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". This is provided for in section 35(2) of the FOI Act. The records at issue were prepared by the relevant parties. I am satisfied that none of them were prepared by a director or member of staff of the CCPC, or any other FOI body, or a service provider, and that section 35(2) is not relevant in this case.
In its submissions to this Office, the CCPC said that all of the information contained in the records at issue was provided to it by AIG, AA Ireland, Brokers Ireland/the Irish Brokers Association and Allianz in response to Statutory RFIs. It provided this Office with the template cover letter that it said was sent with each RFI. This letter sets out that the particular body is required, under section 18(1)(d) of the CCPC Act to provide certain information/answers to certain questions to enable the CCPC to carry out its investigative functions. The instructions state that any information contained in the response considered to be confidential should be identified and reasons should be given for the claim of confidentiality. The letter sets out the potential penalties for non-compliance. It also states that any information (including any personal data) that is provided to the CCPC in response to the Notice may in certain circumstances be disclosed by the CCPC to third parties, including third party service providers and other recipients. It said that the CCPC may disclose such information to third parties where required or permitted to do so by law.
Further to these Statutory RFIs being issued, the CCPC said that it then went on to engage with the legal representatives of the various parties to discuss the scope of the RFIs and the purposes for which the information was being sought. The CCPC stated that a number of parties' legal representatives sought and received specific assurances that the information would be treated in confidence and not used for purposes beyond the PMI Investigation. It said that this, in its view, indicated that the parties would have objected to providing the information if such assurances were not given.
The CCPC said that when responses were sent in by the various parties, they were labelled along the lines of ""Strictly Private and Confidential: Contains Business Secrets" or "Private and Confidential". It quoted one response in particular which said it was:
"providing these documents on the basis that it is compelled to pursuant to section 18 of the Competition and Consumer Protection Act 2014 and it reserves the right to have its confidentiality maintained by the CCPC during the course of the CCPC's investigation".
The CCPC said that these examples are comparable to the way in which documents and other information were provided to it by other parties to the investigation.
Having regard to the submissions made by AIG, the AA, and Brokers Ireland to the CCPC in the course of the section 38 consultation process, it is clear that their position is also that the records were given in confidence and on the understanding that they would be treated as confidential. AIG, in its submission, stated that it was clear:
"... that the Records provided by AIG to the CCPC (a) were provided to the CCPC in confidence and (b) were marked as confidential, commercially sensitive and containing trade secrets. AIG reiterated the highly confidential and commercial sensitivity of the documents and information being provided to the CCPC and this was highlighted and repeated in every exchange of correspondence with the CCPC."
It referred to meetings with the CCPC further to the RFI being received in which it highlighted the confidential and commercial sensitivity of the information being sought and said that the CCPC confirmed to it that it would be used solely for the purposes of the investigation. It said that all documents were provided to the CCPC by way of an encrypted memory stick with several of the documents password protected and the memory stick itself password protected. It said also that it was notable that despite requests by AIG for access to the CCPC's files, AIG itself was not provided access to the file in the Investigation. It said that it considered it to be highly unusual for the CCPC to be considering disclosing information in respect of the investigation to third parties in circumstances where AIG itself was refused access to documentation which it considered was necessary for the purposes of mounting a defence to the CCPC's Preliminary Findings.
Brokers Ireland stated that the records were collected under Witness Summonses during the CCPC's PMI Investigation and that they were given in confidence on the understanding that they would be treated as confidential. The AA, among other things, said that the records were disclosed to the CCPC for the limited purpose of compliance with a legally binding obligation on the part of the AA.
Allianz, the fourth party to whom the records in this case relate, was not consulted by the CCPC under section 38, presumably because it was not considering release of records 1 or 80-89 in the public interest. There is nothing, however, to suggest that the circumstances in which Allianz provided information to the CCPC in the course of the investigation differed in any material way from the rest of the parties.
It is the circumstances in which the information was imparted and received that are important in determining whether the first two requirements of section 35(1)(a) are met, rather than the nature of the information itself. In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, a number of factors may be relevant. These include: the expectations of the person giving the information to the FOI body; any assurances sought or given regarding the information; the purpose for which the information was sought or provided; the practice, procedure or policy of the FOI body with regard to such information; any action which the FOI body may be expected to take in relation to the information; and the nature of the relationship between the provider of the information and the FOI body receiving it. The understanding of confidentiality may be express or implied.
Having considered the various submissions, it seems to me that there was an express understanding of confidentiality between the CCPC and the parties that provided it with the information contained in the relevant records. I am satisfied that the information was sought for a specific purpose, i.e. for the CCPC to carry out an investigation under section 10(1)(c) of the CCPC Act, and that the parties provided the information pursuant to their obligation to cooperate under section 18 of that same Act, having sought and received assurances that the information would be used for that one purpose only. I am satisfied that the first two requirements of section 35(1)(a) are met.
In order for the third requirement of section 35(1)(a) to be met, it should be shown that disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons. It is not necessary that disclosure would definitely prejudice the supply of information; rather what is required is that disclosure would be likely to prejudice the supply of similar information.
I note that section 35(1)(a) explicitly includes information "that a person was required by law, or could have been required by the body pursuant to law, to give to a body". It cannot therefore be assumed that just because a person provided information that they were required by law to provide and that the same or other persons could be required by law to supply similar information in the future, that disclosure of the records could not prejudice such a supply. The contents of the actual records and the particular circumstances of the case must be carefully considered. In that context, the investigating officer from this Office asked the CCPC to explain the basis for its assertion that the release of the records at issue could prejudice the giving of further similar information to the CCPC in the future, given that it has statutory powers to compel persons or undertakings to provide information to it and that non-cooperation is an offence.
In response, it said that it believed that disclosure of the records would prejudice the integrity of the CCPC's evidence-gathering powers, with the effect that parties subject to a Statutory RFI may be less forthcoming with relevant information, may more frequently object to providing information (including taking legal proceedings against the CCPC), or may be less likely to comply with the Statutory RFI in full. It said that, notwithstanding the legal requirement to provide such information, it considered that a party under investigation may be less cooperative with the CCPC if it considered that confidential material would ultimately be disclosed to the public through the FOI process. It gave a number of examples in this regard. It explained that, during the investigation, two of the parties to whom a Statutory RFI and/or a witness summons had been issued, sought to withhold certain information from the CCPC on grounds of commercial sensitivity or confidentiality. Following correspondence with the CCPC, the parties in question ultimately did agree to submit the relevant documents without redactions. The CCPC pointed to the views expressed by one of the parties following consultation with it under section 38 of the FOI Act. It said that the disclosure of any of the records at issue would prompt "serious concerns about providing similar information to the CCPC in the future". The CCPC said that it considered it appropriate to put significant weight on the express views of the parties in this regard. It said that these examples indicate that even though a party under investigation has a statutory obligation to provide information or documentation to the CCPC pursuant to a Statutory RFI or a witness summons, it frequently encounters resistance to providing full information/documentation to the CCPC from the parties concerned on various grounds, including confidentiality of information.
The records themselves contain details of the various parties' pricing methodologies, rate planning and strategy, negotiations and business planning, internal business reviews, market analysis, and sales strategies. The parties consider this information to be confidential and commercially sensitive and do not wish it to be put into the public domain. While the CCPC has statutory powers to compel bodies to provide it with the information it requires to carry out its investigations, it seems to me to be a reasonable assumption that the release of these records would likely have a negative impact on the engagement of the four parties, and/or other similar private companies, with the CCPC's investigations in the future including delays, legal arguments, and general resistance in response to RFIs. I am satisfied that this constitutes prejudice to the giving to the CCPC of further similar information and I find that the third requirement of section 35(1)(a) has been met.
Finally, I am satisfied that in order for the CCPC to exercise its statutory powers and functions, it is important for parties under investigation, including private commercial enterprises, to give the CCPC similar information to that contained in the records at issue and I find that the fourth requirement is met.
I find that section 35(1)(a) applies to all of the records at issue.
Section 35(3) - the public interest
That is not the end of the matter, however, as 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 FOI request concerned (section 35(3) refers).
In considering the type of public interest factors that might support the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a "sufficiently specific, cogent and fact-based reason" in order "to tip the balance in favour of disclosure".
Moreover, while the Court stated that the public interest balancing test involves a "weighing of the respective private and public interests in the analysis of the records in issue", it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests.
I therefore consider that, if I am to direct the release of the records at issue, I am required to identify a specific public interest, identifiable following an analysis of relevant records in this case, which is sufficiently strong as to outweigh the interests of protecting information that was given in confidence.
The applicant stated that it was clear that the records are of immense public interest given the importance of the motor insurance market to citizens. He said that, unlike any other form of insurance, motor insurance is not optional. He argued that this puts it in a different category of public importance to all other similar products. He pointed to the CCPC's statement on 17 September 2020 in which it communicated its preliminary findings and highlighted the consumer detriment the practices being investigated can have on consumers, stating: "Price signalling and other types of anti-competitive cooperation between competitors ultimately lead to increased prices for consumers." The applicant argued that this is a clear illustration of the public interest at stake with this request.
In addition, the applicant referred to the fact that the CCPC publicised that it had "gathered a substantial amount of electronic material from relevant parties, as well as extensive oral testimony and documentary evidence through witness summons hearings and meetings" which led it to arrive at a position whereby it had "reasonable grounds to suspect that a breach of the law has occurred". He noted, however, that the CCPC ultimately did not take the legal recourse available to it to prove this assertion and he said that no satisfactory explanation has been provided as to why this course of action was not pursued. In these circumstances, he argued that it was abundantly clear that there was a public interest in the content of the "electronic material" and "documentary evidence" gathered from those named in his request being released to the public, in order to provide transparency regarding the work and decision-making of a public body, which is funded by the taxpayer. He said that this would also provide an insight into what led the CCPC to publicly assert that it had "reasonable grounds to suspect that a breach of the law has occurred".
The CCPC, on the other hand, said that it considered that the public interest would not be better served by releasing the withheld records. It said that it was of the strong view that, although there is a public interest in ensuring transparency and openness, this would not be achieved by releasing the records. It said that the information contained within the records was obtained in accordance with a duty provided for by law, and disclosure of such records would have a detrimental effect on the effectiveness of the CCPC's investigations in future and would actively hinder and prejudice the CCPC's ability to carry out its functions under section 10(1)(c) of the CCPC Act. In particular, the CCPC said that it considered that disclosing information provided in confidence to the CCPC by parties under investigation would significantly harm the public interest in obtaining appropriate enforcement outcomes and undermine public confidence in the integrity of the CCPC's investigations.
It said that the PMI Investigation concluded with a number of parties entering into legally binding commitment agreements which were the result of extensive engagement between the CCPC and the parties under investigation. It said that, in its view, this was the most effective (from a consumer benefit and cost perspective) and pragmatic approach in light of the available enforcement options. It said that such engagement depended on the parties' confidence in the CCPC's ability to discuss and negotiate highly confidential and commercially sensitive issues on a strictly without-prejudice basis and that the release of the records would seriously harm the CCPC's ability to ensure that engagement with parties remains confidential in future. It said that this would jeopardise the public interest in obtaining effective and appropriate enforcement outcomes.
The CCPC went on to say that in light of the subsequent publication of the outcome of the PMI Investigation in adetailed investigation reportby the CCPC, for the purpose of ensuring transparency and openness as to the steps taken by the CCPC during the PMI Investigation and its preliminary findings, there can be no reasonable public interest justification for releasing these records.
The submissions from AIG, AA Ireland and Brokers Ireland all broadly argued that there is no public interest in releasing the records.
Having regard to the applicant's arguments, it is important to note that a review by this Office is considered to be "de novo", which means that it is based on the circumstances and the law as they pertain at the time of the decision. Since the applicant first made his FOI request and since he applied to this Office for a review of the CCPC's decision on it, as stated above the CCPC has published its report on the investigation. This report provides more detail explaining why it made the preliminary findings that it did and why it decided to take the enforcement actions that it did, including why it decided not to pursue litigation.
It seems to me that there is a significant public interest in the CCPC being in a position to carry out its functions to investigate and enforce breaches of Irish and EU competition law, as set down in section 10 of the CCPC Act, and in order to do this it must be able to obtain and then review and assess relevant information from bodies under investigation, including information that the bodies consider to be highly confidential and sensitive and that they would not otherwise make available externally. I accept the CCPC's argument that to release records given to it in confidence risks undermining the effectiveness of future investigations both in terms of obtaining information that it needs and in negotiating with the relevant parties. I have carefully reviewed and considered the content of each of the 96 records that were refused. I note from the investigation report that, with the assistance of digital forensic tools, the CCPC conducted a detailed review and assessment of more than 1.4 million files and that this fed into its preliminary findings. The majority of the 96 records at issue are emails and email chains, as well as the Excel spreadsheets mentioned in the second part of the FOI request. It is not apparent to me, having carefully considered the content of each record, that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case. I consider that the public interest would, on balance, be better served by refusing to release the records at issue. I find therefore that records 1-15 and 17-97 are exempt from release under section 35(1)(a) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the CCPC's decision. I find that it was justified in refusing access to the records at issue under section 35(1)(a) 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.
Stephen Rafferty
Senior Investigator
