Whether the Council was justified in refusing access to correspondence between the National Transfrontier Shipment Office (NTFSO) and licenced waste collection permit holders in Co Donegal in 2017

28 June 2023

Background

The NTFSO is part of the Council and is the competent authority for the enforcement and administration of the Waste Shipment Regulation, which concerns the export from, import to and transit of waste shipments through Ireland.

The applicant's FOI request of 14 October 2022 sought access to all correspondence between the NTFSO and all licenced waste collection permit holders in Co Donegal for the year 2017. On 16 December 2022, the Council refused the request under all three provisions of section 36(1) of the FOI Act. Generally speaking, section 36(1) is concerned with commercially sensitive information.

The applicant sought an internal review on 23 December 2022. The Council's internal review decision of 20 January 2023 granted partial access to the relevant records. It withheld the remainder of these records under sections 35(1)(a) (confidential information), 36, and 37 (personal information).

On 26 January 2023, the applicant applied to this Office for a review of the Council's decision. Further to my request for submissions, the Council took the position that all of the records should be released, except for personal information relating to employees of the companies involved. Having then consulted informally with the companies, the Council released additional records (i.e. subject to the redaction of personal information). However, three companies objected to the Council's release of any information affecting their interests. 

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Council, the three companies referred to above, and the applicant. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act.

Scope of Review

On 9 June 2023, I informed the applicant of my understanding that the review need not consider any personal information in the records. I invited him to reply within a fortnight if he disagreed. The applicant sent me a brief email on 11 June 2023, indicating that he would be in further contact. However, I have not heard from him since. In the circumstances, my review excludes all details redacted by the Council on the basis that they comprise personal information.

Accordingly, and also having regard to the various details released by the Council at internal review stage, my review covers the remainder of three letters, which the NTFSO sent to the three companies referred to above. The scope of the review is confined to whether the Council's revised position that such details should be released is in accordance with the provisions of the FOI Act.

Preliminary Matters

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request.

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

Analysis and Findings

The withheld information

Each letter contains two pages. The details released by the Council at internal review stage disclose the names of the companies as inspected entities, the general nature of the inspections, and the fact that non-compliances were noted. Bearing in mind the requirements of section 25(3), the redacted information details the particular non-compliances observed and the NTFSO's ensuing directions.

Section 35 - confidential information

The Council's internal review decision relied on section 35(1)(a) of the FOI Act. Section 35(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record contains information given to an FOI body in confidence and on the understanding that it would be treated as confidential and 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.

However section 35(2) dis-applies section 35(1) 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.

The records at issue were prepared by an FOI body (the NTFSO/Council) in the course of the performance of its functions. Therefore, section 35(1) will not apply unless disclosing the records 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.

The parties'arguments

The Council's internal review decision does not either explain how section 35(1)(a) applies, or refer to any duty of confidence that it may owe to the three companies. Furthermore, none of the companies make any comments of relevance to section 35 in their responses to the Council's informal consultation.

On 26 April 2023, I also invited the companies' comments on the potential disclosure of the details. I noted that the details were now almost six years old. I informed the companies of the nature of the information already released. I told them that the Council agreed with my view that the withheld details concern administrative breaches of environmental/waste legislation. I said that the details seem to me to have no ongoing relevance, in that they concern the NTFSO's findings on those specific administrative matters at a particular date in time. I informed the companies also that the Council had given no reasons for its reliance on section 35. I have received no comments from the companies.

Analysis

Given the nature of the information at issue, as described above, and the lack of relevant argument made by the parties to the review, I have no reason to consider that the NTFSO/Council owes any duty of confidence to the three companies regarding the information concerned. I find that section 35(2) operates so as to dis-apply section 35(1), and that the details are not exempt under section 35(1) of the FOI Act.

Section 36 - commercially sensitive information

The Council's decisions refer to all three provisions of section 36(1) but do not specify which one(s) are being relied on.

Section 36(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned contains trade secrets of a person other than the requester concerned.

Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The argument that different types of inspected entities have continued to cooperate with investigations generally, despite their names being published, is not relevant to my consideration of section 36(1)(b).

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.

Pursuant to section 36(1)(c), access to a record must be refused where the disclosure of information contained in the record 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 this exemption 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 how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

The parties'arguments

The Council's decision does not explain why it considers the details to be exempt under section 36. Its internal review decision asserts that disclosure could be prejudicial to the competitive positions of the relevant businesses in their current contractual obligations, and that the information could be exploited by competitors in future business negotiations. However, it does not explain how such outcomes could arise from release of the particular details at issue.

In response to the Council's informal consultation, all three companies express concern about the motive for the FOI request. One makes no further argument. The other two argue that the records may be used to support another party's defence submissions in Court, regarding what they say are grave breaches of environmental legislation. They say that, if found guilty, the relevant party's public reliance on the records at issue would irreparably damage their businesses' reputation, because the general public will understand them to have carried out a similar scale of breaches. They say that, having regard to the small size of their businesses, release of the records could thus prejudice their competitive position. As set out already, I have not received any comments from the companies in relation to my review.

Analysis

As noted earlier, I cannot have regard to any views on the merits of, or the stated/suspected reasons for the FOI request. The other arguments made by the two companies to the Council seem to me to relate to a claim under section 36(1)(b). Essentially, the companies maintain that commercial harm will arise in a very specific set of circumstances, which will lead the general public to misunderstand the nature of the information in the records at issue. However, a record does not qualify for exemption on the basis that it might be misunderstood by the general public.

Accordingly, and also having regard to the nature of the information at issue, as described above, I do not see how disclosure of the details at this point in time could prejudice the companies' competitive position in the conduct of their businesses, or could reasonably be expected to result in material financial loss to the companies. I find that section 36(1)(b) does not apply.

Furthermore, given the lack of relevant argument made by the parties to the review, I do not see how the particular information comprises a trade secret, or how it may be used by the companies' competitors in future negotiations, such that I could accept that disclosure could prejudice the conduct or outcome of the companies' negotiations. I find that neither section 36(1)(a) nor (c) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's revised position that, with the exception of any personal information therein, the three letters should be released. I find that relevant details are not exempt under sections 35 or 36 of the FOI Act and I direct the Council to grant access to them accordingly.

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.
 

Anne Lyons
Investigator