Whether the Department was justified in deciding to grant access to various records of correspondence and meetings in 2020 between a named company (the Company) and Department officials, on the basis that while the records contained commercially sensitive information which had been provided in confidence, the public interest, on balance, favoured their release

2 February 2022

Background

This review arises from a decision made by the Department to part grant a 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 has 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 relating to third parties, respectively) but that the records 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 a request dated 28 January 2021, the original requester sought a copy of records which had been listed by the Company on the Lobbying Register maintained by the Standards in Public Office Commission. The records comprised a number of letters from the Company on various dates in late 2020 addressed to the Minister for Transport or the Department’s Assistant Secretary, as well as minutes from two meetings held between the Company and the Minister and Minister of State for Transport in late 2020.

On 12 February 2021, the Department informed the Company that it had received a request for access to the records concerned. It stated that it was considering the records under sections 35 (confidential information) and 36 (commercially sensitive information) of the FOI Act, and that the decision maker’s preliminary view was that the public interest would, on balance, be better served by granting rather than refusing the request.

The Department informed the requester that it had consulted a third party whose interests may be affected, as it was considering the release of some of the records sought in the public interest.

On 5 March 2021, the Company wrote to the Department objecting to the release of the 14 records identified by the Department, on the basis of sections 35(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act. It indicated that, in its view, the Department had not identified any specific public interest favouring the release of the records sought. On 19 March 2021, the Department issued a decision to the Company, stating that it had decided to refuse access to records 9, 10 and 12 on the basis of section 36. My understanding is that it also intended to refuse access to record 14 on the basis that it did not exist (section 15(1)(a) of the FOI Act refers), although this was not stated. The Department said that before it released the remaining 10 records to the original requester, it was informing the Company of its right to appeal. It did not provide any further details as to the reasoning behind its decision to release the records at issue.

On 1 April 2021, the Company made an application to this Office for a review of the Department’s decision to grant access to records 1-8, 11 and 13.

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 third party applicant objecting to release to the records, by the FOI body in support of its decision, and by the original requester. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Department did not officially notify the original requester of its decision to part grant his request, or his right to make an application to this Office in relation to the records to which it had decided to refuse access (records 9, 10, 12 and 14) until during the course of this review. On 24 September 2021, this Office’s Investigator wrote to the applicant and informed him that if he wished to appeal the Department's decision, that this Office is prepared to accept a late application for review, given the circumstances. Any such application will be dealt with as a separate review.

Therefore, this review is solely concerned with whether the Department was justified in its decision to grant access to records 1-8, 11 and 13 on the basis of sections 35 and 36 of the FOI Act.

Preliminary Matters

It is important to note that in section 38 cases section 22(12)(a) of the FOI Act shifts the burden of proof, which generally lies with the FOI body, onto the person who is objecting to the release of the record. This is not to say that only the arguments raised by the third party will be considered. The Commissioner takes the view that it would contravene the purposes of the FOI Act and be inconsistent with the public interest and/or the right of privacy if he were to direct the release of sensitive information in records simply because a third party failed to raise substantial arguments to justify the setting aside of the FOI body's public interest decision. Nonetheless, this provision does serve to reinforce the statutory position that, apart from section 38, the request would have fallen to be granted.

I also note that the Courts have recognised that a decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date.

Analysis and Findings

The records at issue comprise letters from the Company to the Department from September to December 2020 (records 1-8 and 11), and a note of a meeting between the Company officials and Ministers of the Department in October 2020 (record 13). As noted by the Company on its return on the public lobbying register (available at www.lobbying.ie), the purpose of the correspondence and meetings was to “outline [the] effect of Covid-19” on the relevant industry, with the intended result being “[a]n efficient restoration” of relevant operations in Ireland after the COVID-19 pandemic.

The Department made submissions to this Office in relation to sections 35 and 36. The Company’s letter of 5 March 2021 to the Department stated that the records also contained personal information and that section 37 was relevant. I note that this Office’s Investigator invited the Company to identify the personal information contained in the records as defined in the Act. I also note that the Company did not address this matter in its response.

I consider section 36 to be of most relevance, so I shall consider the records under this exemption first.

Section 36(1)

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record(s) concerned contain 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. 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 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 considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office 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, Cross J made it clear that it is not sufficient for the 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. The FOI body or the third party opposing release should explain why disclosure of the particular records could prejudice the competitive position of the third party concerned.

When considering the application of section 36(1)(b) in other cases, factors that have been taken into account by the Commissioner and that may be relevant include: the availability otherwise of the information and whether it is in the public domain; the passage of time; and the broader context in the relevant industry.

The Company also cited section 36(1)(c) of the FOI Act, which provides for the refusal of a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on section 36(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain exactly how the disclosure could prejudice the conduct or the outcome of such negotiations.

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.

The Company’s submissions

In its submission to the Department objecting to the release of the records sought, the Company asserted that the records contained “commercial information of a highly sensitive nature, including forecasts, projections and operational planning”. It stated that the release of this information could result in a material financial loss to the company, potentially impact its sales and investor confidence, prejudice it in the conduct of its business and/or prejudice it in current and ongoing contractual or other negotiations with third parties. It made similar arguments in its application for a review of the Department’s decision by this Office.

In submissions to this Office, the Company also stated that the records at issue contained details of its views on relevant matters, how it conducts its business and its business model. It was concerned that there may be what it described as “a cynical spin” put on the records if they were released and taken out of context. Its position was that this could create substantial negative publicity for the Company. The Company stated that the level of bookings it receives varies significantly depending on the prevailing media coverage. Its view was that the release of the records sought would cause negative publicity which would adversely affect its sales, as well as its share price (it is a publicly traded company). It also said that the disclosure of what it believed to be confidential and commercially sensitive information could affect its negotiating position in commercial negotiations with “numerous third parties”.

Requester’s submissions

In submissions to this Office, the original requester stated that it was important that companies have a platform to discuss the impact of the state's policy decisions on their organisation and the relevant industry. However, he was of the view that it is equally important for the public to have sight of these discussions, in order to scrutinise the effects such lobbying can have on state policy. He stated that while he understood that the records contained some information which was considered to be commercially sensitive and “not fit for release”, the Company’s objection to the release of all of the records at issue was “baseless” and “would do harm to transparency in Irish politics”.

Department’s Submissions

In submissions to this Office, the Department stated that it considered several of the records to contain (to varying degrees) what it described as “potentially commercially sensitive information”, such as information relating to the company’s possible suspension of services at certain locations, and its positioning for coming seasons, etc. The Department said that it refused to grant access to these records on that basis. However, in relation to the contents of records 1-8 and 11 in particular, its view was that any potentially commercially sensitive information had already been discussed in public by the Company itself at the time of the request, and/or the relevant proposed action(s) had already taken place.

The Department listed each record in turn and set out its view of the contents and the basis for its decision to release the record concerned. It was of the view that records 1-8 directly related to its own decision making process, and that records 1-5 did not contain what it considered to be commercially sensitive information. It stated that record 6 referred directly to the Company’s own press release which contained the same information and that record 7 contained what it described as “publicly available commercial information”. It described record 11 as containing “mildly commercially sensitive information” and it stated that while record 13 contained commercially sensitive information concerning the Company’s possible closure of two locations, it noted that this closure had taken place at the time of the FOI request.

The Department also cited section 11(3) of the FOI Act in support of its decision to release the records sought.

This Office’s Investigator put the Department’s comments regarding the information being in the public domain and the effect of the lapse in time on the sensitivity of the records to the Company during the course of this review. She also drew its attention to a number of press releases on its own corporate website during the relevant timeframe which appeared to directly relate to the matters contained in the records. The Investigator stated that it was not clear to her what harm would be likely to arise from the release of the particular information contained in these specific records in terms of section 36 of the FOI Act in the circumstances outlined above, and invited the Company to comment. No response has been received to date.

Analysis

The Company has argued that the release of the specific information contained in the records sought could reasonably be expected to prejudice its competitive position, negatively affect its negotiations, sales and share price and thereby cause a material financial loss to it. I note the Investigator’s comments in her letter concerning the specific content of the records concerned, and her comment in the initial request for submissions to the Company, asking it to identify the specific relevant information contained in the records, which it considered to be commercially sensitive. However, despite this, the Company has not pointed to any particular information in the records that could cause the harms identified. Nor has it provided any specific information concerning relevant upcoming negotiations and how they would be affected by the release of the particular records concerned.

As noted above, this review is de novo and carried out in light of the facts and circumstances at this time. In this regard, I note that the original request for these records was made in January 2021, shortly after a number of the records were created. I also note that the records concerned are now mostly over a year old and were referred to in the Company’s lobbying return in 2021. Furthermore, having carefully examined the records at issue, I accept that, as argued by the Department, many of the pending changes or proposals contained in the records had taken place at the time of the FOI request.

In any event, I am satisfied that much of the content in the records is very similar to information put in the public domain by the Company in this case, who bears the burden of satisfying this Office that the Department’s decision to release the records at issue was not justified. I note that the Company has not commented on this aspect of the case, despite being given the opportunity to do so. It also seems to me that the information in the records concerned relates to changes which the Company lobbied for, rather than details of specific impacts on its operations and other matters.

In those circumstances, and having close regard to their contents, I do not accept that the release of the majority of the information contained in records 1-8, 11 and 13 could reasonably be expected to lead to the harms outlined by the Company. Furthermore, I do not consider the Company to have satisfied me that the entirety of the records at issue should be exempt from release on the basis of sections 36(1)(b) or (c) of the FOI Act. Accordingly, I find that the Department was justified in deciding to grant access to the majority of the records concerned. 

However, in my view, the final 2 sentences in record 13 do not directly relate to the Company’s lobbying of the Department in relation to Covid-19 and Government policy concerning travel. I note that this information is not contained in the letters from the Company to the Department or on the Company website, nor is it generally available. I also note that this comment relates to the views and opinions of an identifiable individual who is not a member of staff of an FOI body or a service provider. While section 25(3) precludes me from going into detail concerning the information, in the particular circumstances of this case, I find that section 36(1)(b) of the FOI Act applies to this information, as I am satisfied that its release could prejudice the competitive position of the Company.

As I have found section 36(1)(b) to apply to certain information in record 13, I must also consider whether the public interest would, on balance, be better served by granting than by refusing access to these remarks.

On the matter of the type of public interest factors that might be considered in support of the release of this information, I have had regard to the findings of the Supreme Court in The 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 to tip the balance in favour of disclosure.

In its submission to this Office, the Department stated that the public interest factors which it considered to favour the release of the records concerned were that this would enable the scrutiny of its decision-making process and demonstrate that the State had considered information and arguments from several sources when pursuing relevant policies concerning international travel and the unprecedented level of restrictions that the public faced.

Among other arguments in its submissions concerning public interest factors against the release of the records concerned, the Company contended that the object of section 11(3) of the FOI Act was to promote openness in government activities, not to make public “confidential company activities and viewpoints” which were shared in order to support important public interest matters.

As noted above, the requester was of the view that it was important for the public to have view of discussions such as those in the records concerned, in order to scrutinise the effects that such lobbying can have on state policy.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that 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 principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, this Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, that it was not designed as a means by which the operations of private enterprises or, in this case, the views of private citizens, were to be opened up to scrutiny.

I accept that there is a public interest in being able to scrutinise lobbying information considered by FOI bodies when making important policy decisions. Furthermore, it also seems to me that the Regulation of Lobbying Act 2015 represents a true public interest in ensuring openness in relation to lobbying activities.

However, I am satisfied that there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure where the records contain information that could prejudice the competitive position of a private company. Having regard to the content and context of the information concerned, I am satisfied that the public interest, on balance, weighs against the release of the final two sentences contained in record 13. 

Accordingly, I find that the Department’s decision to release the majority of the information in the records concerned on the basis of section 36 of the FOI Act was justified, other than the two sentences at the end of record 13.

As I have found that section 36(1) does not apply to the remaining records at issue, I do not need to consider the application of the public interest test contained in section 36(3) of the FOI Act to records 1-8 and 11 in full and the remainder of record 13.

Section 35

Both the Department and the Company have indicated that they consider the records to have been submitted in confidence. Accordingly, section 35(1)(a) of the FOI Act is relevant.

Section 35(1)(a) provides for the mandatory refusal of a request where the record concerned contains information given to an FOI body in confidence, on the understanding that it would be treated by it as confidential, the body considers that 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 should continue to be given to the body.

Section 35(2)

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.

In this case, there is no dispute that records 1-8 and 11 were created and submitted by the Company to the Department. However, the part of record 13 which I have not already found to be exempt from release comprises minutes of a meeting which were prepared by a member of staff of the Department, which is an FOI body. Accordingly, I will consider section 35(2) in relation to the remainder of record 13 at the outset.

Pursuant to section 35(2) of the FOI Act, section 35(1)(a) will not apply to record 13 unless disclosing it would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc., under an agreement or statute or otherwise by law. While none of the parties in this case have argued that a duty of confidence was owed to the Company or any of its staff, the Commissioner takes the view that it would contravene the purposes of the FOI Act and be inconsistent with the right to privacy if he were to direct the release of sensitive information in records simply because it was not successfully argued by a third party.

Having carefully examined the contents of the note of the meeting, I am satisfied that much of the information contained in the record is already in the public domain. Indeed, I note that the Company issued a press release on its website on the day of the meeting, giving details of the points it made to the Minister. Having regard to the content of record 13 and in the particular circumstances of this case, where the Company has put much of this information in the public domain itself, I do not accept that a duty of confidence is owed to the Company in relation to the remainder of this record. Therefore, I find that section 35(2) applies and that section 35(1) does not apply to the remainder of Record 13.

Section 35(1)(a)

I will now consider the remaining records at issue under section 35(1)(a) of the FOI Act. Four requirements must be satisfied for a record to be exempt under section 35(1)(a):

• the information was given to an FOI body in confidence;
• the information was given on the understanding that it would be treated by the FOI body as confidential;
• 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
• it is important to the body that such further similar information should continue to be given to the body.

In its application to this Office, the Company stated that the records at issue were given to the Department in confidence, on the understanding that they would be treated by the FOI body as confidential. It also stated that all the correspondence was headed “Strictly Private and Confidential” and the Company further noted that there was an email disclaimer attached to its electronic correspondence with the Department, which stated as follows: “This e-mail and any files and attachments transmitted with it are confidential and may be legally privileged. They are intended solely for the use of the intended recipient.”

In submissions to this Office, the Department noted that all of the records submitted by the Company were marked as confidential. It also said that several of the records contained information which it described as “potentially commercially sensitive” to varying degrees. The Department further stated that, in the course of its consultation with the Company under section 38 of the FOI Act, the Company indicated that the letters were submitted to the Department on the understanding that they would be treated as confidential.

However, when addressing the public interest factors for and against the release of the records concerned, the Department stated that although the records were marked “Private and Confidential”, this in and of itself did not preclude their release under the FOI Act. It noted that the requester referred to the records as being recorded on the lobbying register and it also said that the Company “would be aware that these records were potentially liable to release under FOI”, regardless of how it had designated them.

Both parties have stated that the records concerned were submitted to the Department in confidence by the Company. However, the second requirement for section 35 to apply is that the information was given on the understanding that it would be treated by the FOI body as confidential. Such an understanding may be express or implied, but there must be a mutual understanding of confidentiality. In considering the facts and the circumstances of each case, the Commissioner may take into account various matters such as the relevant documentation or the actions of the parties concerned.

In this case, I note that the Department stated that the designation of the records under review as “Private and Confidential” did not preclude their release under FOI. However, I also note that the Department refused to grant access to a number of additional records, which are outside the scope of this review, on the basis that they contained commercially sensitive and/or confidential information. The Department stated that the records it had decided to release referred to events which had since taken place or matters that were already in the public domain. It described these matters as “relatively minor and “expired”” commercial and confidentiality considerations.

Furthermore, I note that while the Company issued a number of press releases in relation to much of the information contained in the records under review, it appears not to have done so in relation to the information contained in the records which have been withheld by the Department. As set out above, this Office’s Investigator outlined the Department’s comments to the Company and referred to a number of press releases published on the Company’s website, which appeared to directly relate to the matters contained in the records. She invited the Company to comment but it has not responded to date.

I have had close regard to the particular content of the records concerned, as well as the context in which they were created and provided to the Department. I have noted the Company’s and the Department’s comments concerning the records being marked private and confidential and the wording of the Company’s email disclaimer. While I accept that this wording was used, it seems to me that this is not necessarily determinative of the nature of the communications concerned. I am satisfied that the records do not contain details of the Company’s business model or plans, and that they relate more to the Department’s actions and the Company’s views on these actions. I am also satisfied that, to a large extent, the Company’s views contained in the records are already in the public domain.

It seems to me that even if I were to accept that, on its face, the Company provided the correspondence to the Department in confidence, on an understanding that it would be treated by the Department as confidential, the Company itself went on to put much of the information concerned in the public domain. Furthermore, and without prejudice to any application for a review which may be made by the original requester, I note that the Department did not decide to release all of the records sought. It decided to part grant the request and to refuse to release three records which it described as containing commercially sensitive information.

Based on the actions of the parties in this case, it seems to me that there may well have been a mutual understanding of confidence in relation to some of the information provided by the Company. However, it also seems to me that this does not mean that a mutual understanding existed in respect of all of the information provided. As noted above, the Department was of the view that the specific records under review could be released as the commercial sensitivity and/or confidentiality concerns had lapsed. As also noted, the Company published views similar to those contained in the records itself online.

In the particular circumstances of this case, I do not accept that there was an implied mutual understanding between the Company and the Department that the particular information in the records at issue was provided on the basis that it would be treated as confidential. On this basis, I find that the requirements of section 35(1)(a) have not been met and that the Company has not adequately demonstrated that the information in the records concerned is exempt from release on the basis of section 35 of the FOI Act.

As I have found section 35(1)(a) not to apply to the remaining records at issue, I do not need to consider the public interest test at section 35(3).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Department’s decision. I find that the Department was justified in deciding to release the majority of the information contained in the records sought and that the Company has not satisfied me that the records are exempt from release under sections 35 or 36 of the FOI Act. I also find that a small amount of information in record 13 is exempt from release on the basis of section 36(1)(b) and that the public interest, on balance, does not favour its release. I direct the release of the records sought subject to the redaction of the final two sentences in record 13, as set out above.

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Deirdre McGoldrick

Senior Investigator