Whether the Department was justified in refusing access to particular correspondence records between the Department and a third-party company on the basis of sections 35(1)(a) and 36(1)(c) of the FOI Act

30 January 2024

Background

In a request dated 12 April 2023, the applicant sought access to certain specified correspondence between the Department and a named company (Company X) relating to the submission of three related superannuation "pilotage schemes" for approval, including details of the schemes submitted for approval. Company X is a commercial semi-state company. In a decision dated 18 May 2023, the Department refused the request under sections 35(1)(a) and 36(1)(c) of the FOI Act. On 27 May 2023, the applicant sought an internal review of the Department's decision. In a decision dated 22 June 2023, the Department varied its original decision. It granted access in full to one record. It part-granted access to 22 records, with certain information redacted under sections 36(1)(c) and 37(1). It refused access to four records in their entirety on the same basis. On 29 June 2023, the applicant applied to this Office for a review of the Department's decision to refuse access to three of the records at issue.

During the review, this Office notified Company X of the review and invited it to make submissions, which were duly received. 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 applicant, the Department and Company X. Lengthy submissions were received from the applicant and while I do not propose to recount those details in their entirety in this decision, I confirm that I have carefully considered the entirety of the submissions received. 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 Department in the schedule of records it prepared at the internal review stage.

Scope of Review

The applicant sought a review of the Department's decision to refuse access to records numbered 24, 25 and 26. During the course of the review, it became apparent that record 24 is an exact copy of one of two records that had been the subject of a consultation with Company X under section 38 of the Act. Under section 38, where an FOI body considers a record to qualify for exemption under one or more of the relevant third party exemptions (sections 35, 36 and 37 of the Act, relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record should be released in the public interest, it must notify the 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.

Following that consultation, the Department decided to refuse access to the two records in question and the applicant subsequently sought a separate review by this Office of that refusal (case OIC-139108 refers). As record 24 is a copy of one of those records which is included in our review in case OIC-139108, I have excluded record 24 from the scope of this review.

The Department refused access to records 25 and 26 under section 36(1)(c). In its submission to this Office, Company X supported the Department's refusal on that basis and also argued that the records are exempt under section 35(1)(a).

Accordingly, this review is concerned solely with whether the Department was justified in refusing access to records 25 and 26 under sections 35(1)(a) and/or 36(1)(c) of the FOI Act.  

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is limited.

Secondly, it is important to note that a review by this Office is considered to be "de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the "de novo" nature of our reviews, I consider it appropriate to consider the applicability of section 35, which is a mandatory exemption, notwithstanding the fact that the provision was not relied upon by the Department as a ground for refusing access to the records at issue in its internal review decision.

Finally, I note that in submissions to this Office, the applicant referred to the conduct of Company X and its engagement with the applicant or other individuals. It is important to note that the remit of this Office is confined to a review of decisions taken by FOI bodies under the FOI Act. We have no remit to investigate complaints or adjudicate on how bodies perform their functions, whether they are FOI bodies or commercial semi-state entities.

Analysis and Findings

The records at issue

While I am limited in the extent to which I can describe the records at issue, I believe it would be useful to include some contextual background information.

The records at issue relate to superannuation arrangements concerning Company X. In particular, the records relate to pension entitlements/arrangements in respect of individuals providing pilotage services. In background information provided, Company X said that the individuals are self-employed and operate on the basis of commercial terms and conditions negotiated and agreed between itself and the pilots. The applicant's position is that the pilots have not been provided with information in respect of superannuation schemes and that Company X has sought to apply unapproved schemes or schemes which have been altered. Company X said that the issue of pension entitlements has been a complicated and contentious one for many years and that certain pilots assert that they have different entitlements than those commercially agreed.  

In its submissions, the Department provided an overview of its responsibilities in respect of Company X. It said its Maritime Transport Division is responsible for corporate governance oversight of State commercial port companies, including Company X. It said this involves, among other things, attendance at the AGM of Company X and overseeing compliance with the Code of Practice for the Governance of State Bodies which outlines the mandatory documentation to be supplied by companies to the Department. It said the Division is also responsible for the appointment of directors to Company X and the granting of Ministerial consents in relation to matters such as borrowings and the establishment of joint ventures. It said Company X receives no State funding and that the Department has no involvement in the day-to-day business activities of Company X. It said that Company X is run and managed on an entirely commercial basis. It also said the pilots operating in the relevant Port are not direct employees of the Company. It said they are self-employed and are licensed by Company X to provide pilotage services in its pilotage district.

The Department said pursuant to section 40 of the Harbours Act 1996 (the 1996 Act), the approval of the Minister for Transport, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, is required to establish, amend or revoke a port company pension scheme.

It said that as provided by section 40(1) of the 1996 Act, a port company may prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to, or in respect of, such members of the staff of the company (including the chief executive) as it may think fit. It said that the negotiations of Company X with its staff in relation to superannuation arrangements are a matter for the Company and that the provisions of section 40 apply only to employees of a port company.

Record 25 comprises a string of emails exchanged between Company X and the Department concerning Company X superannuation arrangements and includes an excel attachment and a handwritten annotation. Record 26 comprises a note of a meeting between the Department and the Company concerning superannuation arrangements.

The applicant's position is that the records sought relate to a group of licensed pilots and accounts, funds and schemes which are wholly their property. He said that Company X is remunerated to administer relevant schemes on behalf of the licensed pilots and that the requested information should be released.

I propose commencing my analysis with section 36 of the FOI Act.

Section 36(1)(c) - contractual negotiations

Section 36(1)(c) provides for the mandatory refusal of a request if the record concerned 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, this Office 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 outcome of such negotiations.

The Department's position is that disclosure of the relevant records would impact Company X in the conduct of its business, specifically in regard to negotiations concerning its pension arrangements. It said that release of the information could undermine ongoing and future negotiations with pilots in relation to pension arrangements. It said that it "would not wish to do anything that would harm the commercial interests of" Company X. It said such negotiations are solely a matter for Company X and that the Minister and the Department is precluded from interfering in the performance by a company of a statutory function conferred on it. It referenced submissions received by Company X wherein the Company voiced significant concerns regarding the release of the relevant material. It referred to specific information in the records which it said is inaccurate and may be open to misinterpretation. I do not intend to repeat the specifics of such submissions as to do so would risk disclosing information that is argued to be exempt but I confirm that I have had regard to same.

Company X also made submissions in support of the application of section 36(1)(c). Its submissions refer specifically to the email correspondence at record 25 and in particular the relevant attachment. It said that pension arrangements have been the subject of contractual negotiations over an extended period of time and that issues remain unresolved. In further submissions it said that since 2022 there have been a number of meetings between the Company and pilots in respect of superannuation arrangements. It said that there were three meetings in 2023 with further meetings planned in the coming months. It again referenced the protracted nature of negotiations, due to the complexity of the issues involved. It said that the negotiations remain "live" and it is hoped that a satisfactory conclusion may be arrived at during the course of 2024.

Company X referenced specific information in the record which it said could be used against it in ongoing discussions or litigation. Again, I cannot detail the exact submissions made. It said that the record contains information which could seriously prejudice the negotiating position of the Company and could give rise to material financial loss.

The applicant also made submissions to this Office. He said that the material and information sought relates solely to a group of licensed pilots and that Company X's only role is to act as an administrator in respect of certain charges and funds. He said that schemes submitted to the Department were submitted on the pilots' behalf. He questioned why information pertaining to the pilots could be construed as commercially sensitive as the pilots are the "sole owners to all monies in the account and fund". He said that it is of "paramount importance" that the licensed pilots have access to all documentation pertaining to accounts and schemes administered by Company X. He said that there is no competitive advantage or gain for the licensed pilots and that the matter is "solely a transparency issue".

The applicant also provided background information in respect of the organisation of pilotage in the relevant area, the pilots' employment status, and the schemes and systems in place. He referenced certain legislative provisions relating to pilotage agreements, bye laws and a 2001 pilotage agreement. The applicant said that Company X is statutorily required to administer the accounts and funds on behalf of the licensed pilots in a "fully transparent and financially appropriate manner". He said that it is of utmost importance that the licensed pilots are fully briefed on correspondence with the Department made on their behalf. He said that this is to ensure "transparency and financial accountability". He said that the scheme is wholly owned by the licensed pilots and therefore any correspondence relating to the scheme "must be shared with those who are the de facto owners".

Having carefully considered the records in question and the submissions received, I am satisfied that the disclosure of certain information could reasonably be expected to prejudice the conduct or outcome of negotiations. Both the Department and Company X claim that negotiations in respect of pension arrangements are ongoing. The applicant has not made specific submissions on this point but neither has he argued that negotiations are not in train or foreseen. I accept that negotiations between Company X and relevant pilots in respect of pension arrangements are ongoing or foreseen. I am also satisfied that the release of certain information contained in the records could reasonably be expected to prejudice the conduct or outcome of such negotiations. In particular, I find that the Excel attachment to record 25 contains information provided by and relating to Company X which could reasonably be expected to prejudice such matters. Similarly, I am satisfied that record 26, the meeting note, contains sufficient particulars to meet the harm requirements of subsection (c). Again, while I am limited in the extent to which I can describe the contents of the record, the information therein relates to certain pension schemes and work being undertaken by Company X.

I am not satisfied that the email attaching the Excel document, at record 25, contains sufficient information to prejudice negotiations. The correspondence is largely administrative in nature and relates to requests for information issued from the Department to Company X. While the record contains some information in respect of particular pension schemes, this is limited. I am not satisfied that the detail contained in the attaching email could reasonably be expected to result in the relevant harms, nor have submissions to that effect been made by the relevant parties.  

I am satisfied that section 36(1)(c) applies to record 26 and the Excel attachment to record 25. As I have found that section 36(1)(c) applies, I must also consider whether sections 36(2) or section 36(3) serve to disapply section 36(1).

Section 36(2) - Exceptions

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. Section 36(2)(c) provides for the release of information to which subsection (1) applies if the record relates only to the requester. The applicant's position is that the information sought relates solely to a group of licensed pilots. His position is that Company X fulfils an administrative role only in respect of superannuation schemes. As noted above, this Office has no remit to investigate complaints or allegations made about the conduct of third parties. Nor can I adjudicate on whether third parties are meeting their obligations in respect of other legal regimes. While noting the applicant's position, it seems to me that the information provided by Company X in email correspondence or during meetings with the Department relates to that Company. While the matters at issue may also impact other individuals, I do not accept that the information to which I have found section 36(1)(c) to apply could be considered to relate only to the requester. I am satisfied that neither section 36(2)(c) nor any of the other subsections apply in this case.

Section 36(3) - Public Interest

Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than refusing to grant the request. In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". It further found that section 36(1) "recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request."

In its submissions, the Department said that there is a public interest in not "encroaching on the protections afforded by the Act" in respect of records containing sensitive material. It reiterated its position that release could prejudice negotiations and the competitive position of Company X.

In its submissions and in respect of the public interest, Company X said that the pension arrangements in question apply to a very limited number of individuals. It said that arrangements had been put in place following commercial negotiations with those individuals and that there is no public interest to be served by the disclosure of the information at issue.

While the applicant has not made specific submissions in respect of the public interest, he has referenced the need for Company X to act with accountability and transparency. He said that it is of the utmost importance that correspondence between Company X and the Department is shared.

Section 36(1) is an express recognition of the fact that there is a public interest in the protection of commercially sensitive information. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. While I note that Company X is a commercial semi-state company, it is relevant that the company is an exempt agency for the purposes of the FOI Act. An entity specified in Part 2 of Schedule 1 is not a public body for the purposes of the Act. It seems to me that the fact that Company X has been expressly excluded from the scope of the FOI Act reflects an acknowledgment of the commercial nature of the company and its operating environment. The Department has stated that Company X receives no state funding.

While Company X is a commercial entity, it is one which was established by Statute. Certain activities of the company require Ministerial approval, including in relation to certain superannuation matters. The disclosure of the records would disclose information relating to the company's engagement with the Department in respect of such matters. There is a public interest in knowing that the Department is appropriately undertaking its functions in respect of legislation such as the Harbours Act. However, I note that the Department has granted access to other records identified as relevant to the request, either in full or in part. It seems to me that the release of other records evidencing the Department's engagement with Company X serves that particular public interest. The applicant argued that the licensed pilots should be provided with information in respect of superannuation schemes, referencing transparency and accountability in support of this position. On its face, this seems to reflect a private interest. However, I accept that there is a public interest in the appropriate administration of pension schemes, as evidenced by the existence of bodies like the Pensions Authority. 

It seems to me that the Department has sought to strike a balance by deciding to release certain information and records relating to its corporate governance oversight role while protecting commercially sensitive information which could prejudice the conduct or outcome of negotiations. I have carefully considered the nature of the information, the subject matter, and the status of Company X as a commercial entity. I am not satisfied that the interests of the licensed pilots outweigh the interests of Company X in the context of the FOI Act, which is designed to improve openness and transparency in respect of public bodies.

Having carefully weighed the competing public interest factors in favour of and against release of the relevant records at issue, I find that the public interest would, on balance, be better served by withholding access. I find that the Department was justified in refusing access, under section 36(1)(c) of the FOI Act, to record 26 and the Excel attachment to record 25.

As I have found section 36(1)(c) to apply to the above records I am only required to consider the application of section 35(1) to record 25. 

Section 35(1) - information obtained in confidence

Section 35(1)(a) of the FOI Act provides for the protection of information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a), namely that;

• 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.

Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (section 35(3)).

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.

As section 35(1) does not apply where the records fall within the terms of section 35(2), I deem it appropriate to consider the applicability of subsection (2) at the outset. Record 25 comprises a thread of email correspondence between Company X and the Department. Certain emails in the thread were sent by Department staff and I am satisfied that these were created in the course of the performance of their functions. However, I note that the same emails have been part-granted to the applicant as part of a separate record (record 23 on the relevant schedule). Certain redactions were made to that record but the applicant has not sought a review of same. I consider that this indicates the applicant's acceptance of the redactions made. Accordingly, I do not propose to consider the emails originating from the Department, which have been part-granted as record 23.  

In addition, a short hand-written note on the record appears to have been added by a named staff member of the Department. However, the content of the note is brief and administrative in nature and I am not satisfied that its disclosure would constitute a breach of a duty of confidence owed to Company X.  As such I find that section 35(1)(a) cannot apply to the annotation, pursuant to section 35(2).

I will consider the application of section 35(1)(a) to the remainder of the record. While the Department has not explicitly sought to rely on the exemption, it has made submissions referencing the confidentiality of the records in question. It said the documentation relates to confidential and commercially sensitive information that was submitted to the Department by Company X. It said it would not wish to prejudice the giving of further similar information to the Department in the future. It said it was in the interest of the Department and the public that such companies feel they can share commercial information with the Department without risk of its release. It provided some examples of recent situations in which it needed confidential information with a quick turnaround time and contexts in which the sharing of information is critical.

Company X's submissions focused on record 25 and in particular the relevant attachment, which comprises an Excel spreadsheet. It said that the correspondence in question arose from a request from the Department that Company X complete a survey relating to superannuation schemes. I do not propose to repeat the precise detail of the submissions received, as to do so would be to potentially reveal information contained in the records. However, I confirm that I have had regard to same. Company X said it was difficult to complete the requested spreadsheet and that in sending same to the Department, it flagged that the document was "in draft form" and requested a meeting to explain and discuss the matter further. It said that the it was concerned that the spreadsheet "could be misleading" and could misrepresent matters. It said that it was therefore given to the Department strictly on the understanding that it was confidential information. It pointed to detail in email correspondence at record 25 which it said supports this position.

Company X said it interacts with the Department on a regular basis and is always anxious to assist by providing information regard its business. It said that information is provided which is confidential, the disclosure of which would be prejudicial to Company X. It said that if such information is to be disclosed on foot of requests under the FOI Act, it would need to reassess the basis on which it provides information to government departments and, in certain circumstances, "would have no option but to decline to provide such information due to the potential damage to the interests of [Company X] which would arise from their disclosure". It said the Minister for Transport is a sole shareholder of Company X and that it is of critical importance to the Department that it should feel able to provide it with information regarding its affairs without being concerned as to whether confidential information might be disclosed to its detriment.

The applicant also made submissions in respect of the application of section 35(1)(a). He said that the information sought pertains to the licensed pilots and is "wholly and uniquely relevant to them alone". He questioned why information pertaining to the pilots could be construed as confidential. He said that the pilots are the sole owners on any monies in the account or fund and that any discussions between Company X and the Department should be made available. He said that the Harbours Act 1996 requires Company X to submit a scheme to the Minister for approval and that that approval process is designed to protect all parties. He referenced section 59(4)(b)(ii) of the Harbours Act in this regard. He said that denying information on the approval process to the pilots removes "one leg from the 'trust triangle'". The applicant provided substantial submissions in respect of the pilotage agreement in place and the terms of same. I do not propose to repeat such submissions here, but I confirm that I have had regard to the contents where relevant.

As I have outlined above, all four of the requirements outlined in section 35(1)(a) must be satisfied in order for a record to be considered exempt from release. I have carefully considered the content of record 25. As also noted above, the email included an attachment which I have found to be exempt under section 36(1)(b). The submissions received from the Department and Company X relate predominantly to that attachment and the information contained therein. While I am limited in the extent to which I can describe the contents of the attaching email, I would note that the record contains little substantive information. It is the circumstances in which the information was imparted and received that is important in determining whether the first two requirements of section 35(1)(a) are met. Thus, the information itself does not necessarily have to have to be private, secret or confidential.

As noted above, the submissions made by Company X relate to the information in the spreadsheet attached to record 25. In respect of the attaching email, I do not accept that the information therein constitutes information given in confidence or on the understanding that it would be treated by the Department as confidential. The information is high-level and largely administrative in nature. It includes a request to discuss the substance of the attachment in more detail. Furthermore, I do not accept that the release of an administrative cover email would serve to prejudice the giving to the FOI body of further similar information. While the Department has stated that it has no role in the day-to-day running of Company X, it said that it is responsible for corporate governance oversight of such companies. I do not accept that the release of the email in question would prejudice the provision of similar correspondence, given the relationship between the Department and Company X, particularly in circumstances where I have accepted that section 36(1)(b) serves to protect the relevant attachment.

Accordingly, I am not satisfied that the information in record 25 is exempt from release on the basis of section 35(1)(a).

Section 37(1) - personal information

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition including at (iii) information relating to the employment or employment history of the individual.

Neither the Department nor Company X have claimed that information in record 25 is exempt by virtue of section 37. However, I note that the Department has relied on section 37 in the part-granting of other records. In early submissions to this Office, the applicant referred to section 37 and made limited submissions in respect of same. The Investigator engaged with the applicant and he confirmed that he was not seeking a review in respect of the records to which the Department applied section 37. However, in light of my findings in respect of sections 35 and 36, it is necessary for me to consider the application of the exemption to the remaining record. I have also considered the submissions made by the applicant at the outset and I note that they focused on information relating to the licensed pilots, rather than third parties. As noted, the applicant has not sought a review of the Department's decision to withhold personal information from other records.

Having considered the record at issue, I am satisfied that it contains the name and contact details of a staff member of Company X. I am further satisfied that such information comprises personal information such that section 37(1) applies.

I am satisfied that none of the exceptions in section 37(2) apply and that any public interest in releasing the limited information does not outweigh the privacy rights of the individual concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that it was justified in refusing access to record 26 and the Excel attachment to record 25 under section 36(1)(c). I find that it was not justified in refusing access, under section 35(1)(a), to the cover email comprising record 25 and I direct its release, subject to the redaction of the name and contact details of a staff member of Company X.  

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 applicant 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.

Stephen Rafferty
Senior Investigator