Whether the Arts Council was justified, under sections 35(1) and 36(1)(c) of the FOI Act, in refusing to release certain correspondence with the Abbey Theatre 

14 September 2022

Background

In an FOI request dated 3 November 2021, the applicant sought access to all correspondence between the Arts Council and the Abbey Theatre in 2021. On 21 January 2022, the Arts Council issued a late decision to the applicant, part-granting his request. It identified 103 relevant records and released 42 of them in full. It refused to release the remaining records, in full or in part, in accordance with sections 35, 36 and 37 of the FOI Act. On 22 January 2022, the applicant sought an internal review of the decision to refuse to release 24 specified records. On 21 February 2022, the Arts Council affirmed its decision in relation to 23 of the 24 records, but varied its decision in relation to one record (record 48) which it released in part to the applicant. On 23 February 2022, the applicant applied to this Office for a review of the Arts Council-�s decision on his request.

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 Arts Council and by the Abbey Theatre, and to the applicant-�s comments in his communications with this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Arts Council when processing the request.

Scope of Review

During the review, the applicant indicated that he did not require a review of the decision to redact certain information from record 48. Accordingly, the review is concerned solely with whether the Arts Council was justified in refusing access to records 40, 43, 45, 46, 49, 51, 54, 58, 63, 65, 68, 83, 93, and 95 under section 35(1) of the Act, to records 81, 82, 88, 89, 90, 92, 96, 97, 100 under sections 35(1) and 36(1)(c), and in redacting small amounts of what it regarded as personal information contained in records 83, 88 and 95 under section 37(1).

Preliminary Matters

It is important to note at the outset that, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I 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 FOI Act requires a consideration of the public interest.

Furthermore, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Analysis and Findings

Section 35 -� Information obtained in confidence

Section 35(1)(a) is a mandatory exemption which provides for the withholding of certain records containing information given to an FOI body in confidence. Section 35(1)(b) provides a mandatory exemption for records where disclosure of the information would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. It is the Arts Council-�s position, and the Abbey Theatre-�s position, that the records are exempt from release under both sections 35(1)(a) and 35(1)(b) of the FOI Act.

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her 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 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.

Submissions

In general terms, the Arts Council said that in order for it to carry out its mandate successfully, it must maintain positive relationships with the organisations to which it provides funding. As part of those relationships, it said that these organisations provide it with certain information which informs the Arts Council-�s budgetary decisions. As the Abbey Theatre-�s primary funder, the Arts Council said that it communicated with it about financial, governance and HR matters on the expectation that such information would be held confidentially. It argued that the Abbey Theatre must be free to engage openly with the Arts Council and to disclose information which the Arts Council would not then disclose to the world-at-large.

In relation to the exemption at section 35(1)(b), the Arts Council said that it owed a duty of confidence to the Abbey Theatre that is provided for both by a provision of an agreement, and otherwise by law, namely an equitable duty of confidence. 

Firstly, it pointed to Clause 16(b) of the 2021 funding agreement between the Arts Council and the Abbey Theatre which provides:

-�The Recipient shall comply with a written request from the Arts Council for any information that the Arts Council considers material to the utilisation of the Funding. The Arts Council shall specify in any request the information required and the reason for the request. Save as may be required by law or by the direction of any competent court or authority, the Arts Council shall not disclose any confidential information provided to it in response to a request.-�

Secondly, it said that there was an equitable duty of confidence owed to the Abbey Theatre. It said that the records contained information regarding a HR investigation and settlement by the Abbey Theatre and the cost implications of same as well as information demonstrating compliance by the Abbey Theatre with its contractual obligations under the funding agreement with the Arts Council. It said that such information was imparted to the Arts Council in confidence and on the implicit understanding that it would be treated confidentially. It said that the information has the necessary quality of confidence as it is inherently confidential and not trivial. It said that disclosure of the information contained in the records would constitute unauthorised use to the detriment of the parties involved.

The Arts Council argued that section 35(1)(a) also applied to the records at issue. It said that under its funding agreement with the Abbey Theatre, the Arts Council may at certain times request information or enter into correspondence on sensitive matters and that there is an expectation on both sides that any such information supplied to the Arts Council would be given in confidence and in turn that it would be treated confidentially. It said that disclosure of the information would be likely to prejudice the future giving to the Arts Council of further similar information by the Abbey Theatre, or by other organisations it funds, if, for example the Abbey Theatre was subjected to public scrutiny and criticism over the information contained in the records. It said that the Arts Council must be able to fully engage with those organisations that receive public funds, and to obtain information from them, not only because it enables the Arts Council to ensure that organisations are complying with their contractual obligations but also because such information informs the Arts Council-�s future budget policies. In addition, it said that this information is important for the Arts Council to measure the impact of its funding on an organisation as well as making the case to the Government for additional funding. It said that any reduction in the willingness of an organisation funded by the Arts Council to share this information with it would negatively impact on the Arts Council's ability to fulfil its statutory functions.

In relation to the public interest, the Arts Council said that having weighed up various public interest factors for and against release, it was of the view that, on balance, the public interest lay in the Arts Council performing its functions effectively and that there was a real risk that release of the records could substantially damage the relationship between the Arts Council and the Abbey Theatre. In addition, the Arts Council said that release could subject the Abbey Theatre to unnecessary and unwarranted media/public scrutiny and criticism in circumstances where no findings of any financial irregularities (or otherwise) have been made against it. More broadly, it said that it had the potential to negatively impact on the arts industry as a whole as others may believe that they cannot have confidential discussions with the Arts Council.

The Abbey Theatre also made a submission in the course of this review in which it objected to the release of all 23 records at issue. In relation to section 35, it made arguments along broadly the same lines as the Arts Council. It said that release of the information it gave to the Arts Council in confidence would not only be a cause of concern for it but it would likely be a concerning development for other arts organisations and recipients of funding as well, particularly at this time of difficulty for the arts sector due to the slow recovery from the impact of the Covid pandemic. Responding to the applicant-�s contention that there is a public interest in the release of the information as the Abbey Theatre is in receipt of public funding and the records concern financial irregularities, it strongly refuted the suggestion that there are any financial irregularities, and in particular, that there are financial irregularities in relation to its use of public funds. It said that the Abbey Theatre has complied with its reporting obligations under the Grant Agreement in respect of its public funding, as well as undergoing an annual audit by the Comptroller and Auditor General. It said that the Abbey Theatre is a commercial entity with additional sources of funding outside of public funding, that it complies with all its obligations under the Companies Act in respect of audited accounts, and that it has published its financial statements on its website thereby making this information available to the public. It said that there is nothing on which the applicant has based any allegation of financial irregularity or wrongdoing and that therefore, there is no public interest grounds that would justify or excuse a breach of the duty of confidence owed.

Analysis

I will first look at the Arts Council-�s claim that it is required, under section 35(1)(b), to refuse to release the records at issue as disclosure of the information concerned would constitute a breach of a duty of confidence provided for -�otherwise by law-�. A duty of confidence provided for -�otherwise by law-� is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).

In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 IR 338, Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47: -�[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Fennelly J. summarised or restated the requirements of what he called -�the contours-� of the equitable doctrine of confidence as follows:

1. -�the information must in fact be confidential or secret: it must ... -�have the necessary quality of confidence about it-�;

2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;

3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.-�

The Commissioner has adopted this approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence. In considering whether disclosure under FOI may be an unauthorised use of details detrimental to the party communicating it, the Commissioner understands that release of information without consent is enough for detriment to arise.

As noted earlier, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by providing the following description. The 23 records at issue contain a chain of correspondence between the Arts Council and the Abbey Theatre in which the Arts Council sought further information from the Abbey Theatre concerning a HR investigation and settlement that had been brought to its attention. This was in the context of the Arts Council being the Abbey Theatre-�s primary funder. Having carefully examined the records, I note that the responses from the Abbey Theatre emphasised the sensitive nature of the issues and on a number of occasions sought assurances of strict confidentiality. I accept that the withheld information is confidential and has the necessary quality of confidence about it and, given the overall context set out above, I accept that the information was communicated to the Arts Council by the Abbey Theatre in circumstances which impose an obligation of confidence on the Arts Council. The Abbey Theatre does not consent to the release of the records to the world at large which is sufficient for detriment to arise. I am satisfied that the three relevant tests have been met and that the Arts Council owes an equitable duty of confidence to the Abbey Theatre.

As the Abbey Theatre is not an FOI body or a service provider within the meaning of the Act, section 35(2) does not operate to dis-apply the mandatory exemption at section 35(1)(a), even for those records prepared by the Arts Council.

Section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence and the Commissioner may consider the public interest defence in the context of section 35(1)(b). The Commissioner has acknowledged that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public, which I do not find to be the case here, having considered the content of the records. I take the view that the FOI Act was designed to increase openness and accountability in the way in which FOI bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of private enterprises to scrutiny. It is not disputed that the Abbey Theatre is in receipt of substantial funding from the State, however it is not a public body for the purposes of the FOI Act, as provided for in section 6. While certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily mean that there is a public interest in disclosing such information. Having considered the public interest defence, I am not satisfied that I have any basis for finding that a breach of the duty of confidence owed may be excused in this case. I am satisfied that section 35(1)(b) applies to all 23 records falling within the scope of this review.

As I have found section 35(1)(b) to apply, I do not need to consider the applicability of section 35(1)(a) or 36(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Arts Council-�s decision to withhold the records under section 35(1)(b) on the basis that an equitable duty of confidence is owed to the Abbey Theatre.

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