Whether the Department was justified in refusing access to a named study/report on Fatigue Risk

16 February 2024

Background

In a request dated 29 May 2023, the applicant sought access to a copy of a named study/report on Fatigue Risk. In a decision dated 27 June 2023, the Department refused the applicant's request. In its decision, the Department stated that it did not hold the record. At the same time, it also argued that the record was exempt from release under section 36(1) of the FOI Act. On 7 July 2023, the applicant sought an internal review of the Department's decision. On 28 July 2023, the Department issued its internal review decision, in which it confirmed it did in fact hold the record, and affirmed its decision to withhold access to the record. However, it amended the basis on which it had made its decision, relying on section 35(1)(a) of the FOI Act. On the same date, the applicant applied to this Office for a review of the Department's decision.

In the course of conducting this review, I formed the opinion that the release of the record at issue had the potential to affect the interests of a third party, specifically the company which had been engaged by the Department to compile the study/report that comprises the record ("the company"). Accordingly, I corresponded with the company to bring the matter to its attention and to afford it the opportunity to make any submissions that it wished in relation to the possible release of the record. The company subsequently made submissions wherein it indicated that it considered the record to be exempt from release under section 36(1) of the FOI Act. I have considered the company's submission in full, and analyse its arguments under section 36(1) in more detail below.

I also contacted the applicant to put him on notice that the company had cited section 36(1) in support of the Department's decision to withhold the record. The applicant did not make any further submissions.

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's comments in the course of his correspondence with the Department, and in his application for review, as well as to the submissions made by the Department in support of its decision, and the submissions made by the company. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the Department was justified, under sections 35(1)(a) and 36(1) of the FOI Act, in refusing access to the record sought by the applicant.

Preliminary Matters                                                                        

I wish to make a number of preliminary points before I address the substantive arguments of the parties in this case. Firstly, as outlined above, in its initial decision on the applicant's request, although it sought to rely on section 36(1) of the FOI Act, the Department also stated that it did not hold the relevant record. Subsequently, following the applicant's request for an internal review, it conceded that it did in fact hold the record. The applicant brought up this point in correspondence with this Office, stating first of all that, if the Department did not hold the record, it should more properly have sought to rely on section 15, rather than section 36(1), of the FOI Act. In addition, the applicant stated that, given the Department's subsequent revision of its position in relation to the record at internal review stage, he considered that the Department's decision-making process in respect of his request had been poor and that he had been placed at a disadvantage as a result.

Given that the Department now seeks to rely on section 35(1) of the FOI Act, following its revision of its position at its internal review decision-making stage, it is not within the scope of this review to examine in detail (or make any determination on) its initial finding that it did not hold the record. However, I consider that it is incumbent on me to take this opportunity to encourage the Department to take steps to ensure its record storage and retention policies are in line with best practice, in order to avoid a repeat of the situation outlined above.

Secondly, I wish to note that, under section 25(3) of the FOI Act, I am required to take precautions to prevent the disclosure of information that might be exempt from release. As such, I am somewhat limited in the extent to which I can discuss the contents of the record at issue.

Finally, 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.

Analysis and Findings

Section 36(1)

I consider it appropriate to examine firstly the potential applicability of section 36(1) of the FOI Act to the record in question. As outlined above, the company cited section 36(1) as a basis for its support of the Department's decision to withhold the record, and in particular sought to rely on section 36(1)(b) and (c) of the FOI Act.

Section 36(1)(b)

Subsection (1)(b) of section 36 provides for the protection of financial, commercial, scientific, 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.

In relation to the first test in section 36(1)(b), in its submissions the company argued that the record contains commercial, technical and scientific information regarding its operations and staff rostering practices, with particular emphasis on its Fatigue Risk Management (FRM) system and practices. According to the company, this included details of shift patterns, sleep recovery and workload in relation to its staff, and various forms of data collection in relation to the issue. The company argued that it was clear that the record relates exclusively to it and its operations.

The company further argued that it would expect to suffer a material financial loss should the record be released, stating that its disclosure would reveal details of its extensive work in fatigue risk management and its approach to staff rostering (which, it stated, drove its competitive cost and service model) to the world at large. The company argued that if the record was released, this extensive work would become common knowledge, jeopardising its competitive position when seeking to enter into other business contracts or submitting tenders. This, according to the company, would result in a financial loss to it, for example, through negatively impacting on future bids for new business.

In addition, the company argued that the release of the record would give its competitors insight into its approach to staff rostering and fatigue risk management work, and would allow this work to be copied and/or replicated. It argued that this would significantly increase the potential for its competitors to effectively manage fatigue risk without having to undergo the same level of extensive research, work and considerable financial outlay as it had done. The company stated that this would enable its competitors to submit lower and more competitively priced bids than they would currently be able to do in upcoming procurement processes, and would potentially allow them to match or undercut it in seeking other new business.

I have considered the arguments of the company above, and have also examined the contents of the record at issue, and my findings are as follows. Firstly, having analysed the contents of the record, I fully accept the company's contention that the record contains commercial, technical and scientific information regarding its operations and staff rostering, in the context of FRM. The record sets out in considerable detail the scope and findings of certain information gathering exercises carried out by the company in relation to its operations, and in my view it is beyond doubt that the information related in the record is of, in particular, a technical and commercial nature, given that it touches on such subjects as its shift practices, bases for employees and the facilities available thereon, travel requirements for staff, and so on. The record also sets out a number of themes regarding FRM which emerged from the information gathering exercises, and draws upon the results to make certain recommendations in relation to the company's FRM system and practices, for example in relation to recovery time between duties. The record also contains a number of recommendations made by company employees, via the information gathering exercises, in relation to how the company might improve its FRM practices. In its concluding section, the record sets out in detail a number of detailed "collated recommendations", grouped together by theme, which (it is suggested) the company should consider, alongside other mitigations identified through its FRM system, as measures to combat and reduce fatigue-related risk. Finally, the appendix section of the record goes into considerable detail in relation to the questions that were asked of company staff during the information gathering exercises.

On the question of whether the disclosure of the technical and commercial information contained in the record could reasonably be expected to result in a material financial loss to the company, or gain to its competitors, in satisfaction of the harm test in the first part of subsection 1(b), I find as follows. Firstly, I note that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the expectation of material financial loss or gain is reasonable. To this end, a party seeking to rely on the first part of section 36(1)(b) should demonstrate the nature of the harm envisaged and a basis for its claim that such harm could reasonably be expected to result from the release of the particular information in the records at issue. The body must engage with the question of why the particular information in the records could result in the harms identified. This Office has previously found that relevant factors to be taken into account when considering section 36(1)(b) include, for example, the availability or otherwise of the information and whether it is in the public domain, the passage of time, and the broader context and rate of change in the relevant industry.
Bearing all of the above in mind, and having regard to the specific information in the records, I find the company's arguments in relation to the harm test in the first part of section 36(1)(b) to be persuasive. In particular, I accept that the release of the record would reveal details of the company's work in the area of FRM and its approach to staff rostering, potentially to the world at large. I consider that there is nothing unreasonable in the company's stated expectation of the harms that would result from the release of the record, namely that its own work on FRM could become common knowledge. I accept as reasonable the company's argument that the release to the world at large of its approach to rostering and FRM could allow its work in these areas to be replicated by competitors without having to undergo the same level of research, work and financial outlay. I further accept that it is reasonable to suggest that this could result in its competitors being able to submit more competitive bids than the company in procurement processes. Thus, in my view, it is reasonable to suggest that the release of the record could result in a material financial loss to the company, and/or a material financial gain to its competitors. The harm test in the first part of section 36(1)(b) is therefore satisfied.

For the avoidance of doubt, on the basis of the above analysis I also consider that the harm test in the second part of section 36(1)(b), which in any case is a lower bar than in the first part (namely that the release of the records could prejudice the competitive position of the relevant person in the conduct of his or her profession or business or otherwise in his or her occupation) is also met.

Section 36(1)(c)

In circumstances where I have found section 36(1)(b) to apply to the record, it is not necessary for me to also examine the potential applicability of subsection (1)(c) of section 36.
Sections 36(2) and 36(3)

Having found that the requirements of section 36(1)(b) have been met, I must go on to consider the other subsections of section 36 to which subsection 1 is subject. Section 36(2) sets out a number of conditions that, if met, shall disapply section 36(1). I am satisfied that none of these conditions arise in the case at hand.
Section 36(3) provides that subsection 1 of section 36 shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. In relation to this public interest test, the company stated that it had identified, as public interest factors in favour of releasing the record, the public interest in individuals being able to access information relating to the expenditure of public funds (notwithstanding that, in this case, the report comprising the record was only partially funded by the Department); and the public interest in openness and transparency of administration of FOI bodies (albeit that the record related to the company as opposed to the Department). Against this, it identified as public interest factors in favour of withholding the record the public interest in protecting commercially sensitive information of third parties, including service providers, in circumstances where the information in the record was relevant to its business in general and not exclusively to the services provided to the Department in its capacity as a service provider;  and the public interest in protecting commercially sensitive information shared with FOI bodies, as the release of the record could discourage other service providers to the Department sharing commercially sensitive information with it. The company argued that this last point was particularly important, given that there was no obligation under the relevant services agreement or otherwise that required it to to share the record with the Department.
In conclusion, the company argued that, while there existed certain public interest factors that favoured release of the record, these were limited and were outweighed by significant public interest factors that did not favour such release. Its overall assessment of the public interest was the public interest would, on balance, be better served by refusing rather than granting the request.

Before I examine the public interest arguments for and against release of the record, there are a number of important points to note. First, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it should be noted that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

It is also important to note that, 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. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, when considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet Case). In its judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a "sufficiently specific, cogent and fact-based reason" is required "to tip the balance in favour of disclosure".

Bearing all of the above in mind, I accept first of all that a number of public interest factors in favour of release exist. There is undoubtedly a public interest in individuals being able to access information relating to public expenditure within FOI bodies. While the company is a private enterprise, it is one engaged in providing services to an FOI body. There is undoubtedly also a public interest in openness and transparency within public bodies generally although, as outlined above, the Courts have noted that a general principle of openness and transparency is insufficient to justify the release of records on public interest grounds.

Against this, I accept and agree with the public interest factors against release as identified by the company and referred to above. Moreover, I have examined the contents of the record and consider that its release would further the public interests in openness and transparency, and aid knowledge relating to the expenditure of public funds, in only the most limited fashion. Based on the contents of the record, I quite agree with the company's position that the information in the record relates almost exclusively, if not wholly, to the company (a private entity), and not to the Department. 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 it is a fact that the company is a service provider to an FOI body, it does not appear to be the case in this instance that the provision of the record by the company to the Department was something that was required by its service provision agreement. Thus, in this case the very limited public interest in releasing the record is, in my view, substantially outweighed by the public interest factors that favour the withholding of the record, and by the potential harms to the company's commercial interests that might reasonably be foreseen to follow.

On the basis of the above analysis, I find that the public interest would not, on balance, be better served by granting than by refusing to grant the FOI request. Accordingly, section 36(3) does not operate in this case to disapply section 36(1). I find that the record is exempt from release under section 36(1)(b) of the FOI Act.

Section 35(1)

In circumstances where I have found the record at issue to be exempt from release under section 36(1) of the FOI Act, I am not required to also consider the potential applicability of section 35(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department. I find that section 36(1) of the FOI Act, as cited by the relevant third party, operates to exempt from the release the record sought by the applicant.

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.

Neill Dougan
Investigator