Decision
Mr Y and Department of Jobs, Enterprise and Innovation (the Department)
From Office of the Information Commissioner (OIC)
Case number: 130156
Published on
From Office of the Information Commissioner (OIC)
Case number: 130156
Published on
Whether the Department was justified in deciding to grant a request to which section 29 of the FOI Act applies, involving access to records relating to the CAI
18 September 2014
On 16 April 2013, a request was received by the Department for access to:-
I. All correspondence sent to and received from the Consumers' Association of Ireland (the CAI) since 1 January 2012 to date (16 April 2013)
II. All internal records relating to the decision to grant the CAI funding for 2012/13
III. Any internal memos or records from 1 June 2011 to date relating to concerns about corporate governance and the CAI's financial standing.
On 30 April 2013, the Department notified the applicant of the request in accordance with section 29 of the FOI Act. The applicant responded to the Department on 24 May 2013 outlining his arguments as to why the records should not be released. The Department subsequently decided to grant access to certain records identified as affecting the interests of the CAI and the applicant. The applicant was notified of this decision on 18 June 2013 and advised of his right of appeal to the Information Commissioner within two weeks of the date of the decision. The original requester was also notified of the Department's decision of 19 June 2013.
The Commissioner received an application for review of the Department's decision from the applicant on 19 June 2013. I note that Mr Derek Charles, Investigator, outlined his preliminary views to the applicant on 11 November 2013 and invited him to make a further submission. Having regard to the applicant's response, I have decided to conclude this review by way of a formal binding decision.
I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the Department and to the submissions made by the Department and the applicant. I have also had regard to the provisions of the FOI Act and to the contents of the record at issue. For ease of reference I have adopted the numbering system used by the Department in its correspondence with the applicant when referring to the record at issue in this case.
In his letter of 10 September 2013 to this Office, the applicant indicated that he objected to the release of two records:- record No. 2 and record No. 21. However, following discussions on the matter with this Office, the applicant accepted that there were no valid grounds for objecting to the release of record No. 21, as this record had been released under a previous FOI request. Accordingly the scope of this review is concerned solely with the question of whether the Department was justified in deciding to release record No. 2.
Under section 34(12)(a) of the FOI Act, a decision to grant a request to which section 29 applies is presumed to have been justified unless the person concerned shows to the Information Commissioner's satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the applicant to show that the decision of the Department to release the record concerned was not justified.
Secondly, it is clear from the applicant's correspondence with the Department and from his submissions to this Office that he does not consider record No. 2 to come within the scope of the original FOI request. In his letter of 24 May 2013 to the Department, he argued that the document is unsigned and is not part of any correspondence between the Department and the CAI. In its submission of 17 July 2013 to this Office, the Department explained that the document was emailed to its Consumer Policy Section as an attachment called "CAI submission" from the Minister's Office. While subsequent enquiries as to the document's provenance proved inconclusive, the Department obtained and followed legal advice which indicated that the basis on which the document found its way into the Department is not relevant. The Department clearly considers the record to come within the scope of the first part of the original request. Having regard to the contents of the record, I am satisfied that it comes within the scope of the request for correspondence received from the CAI, notwithstanding the applicant's argument that it was not formally sent by the CAI. Accordingly, I am satisfied that it is open to me to review the Department's decision to release record No. 2.
While the Department referred to sections 26 and 27 of the FOI Act when notifying the applicant of the request, I am satisfied that section 27 is the relevant provisions to consider in this case. Section 27 provides as follows:
27 -(1) Subject to subsection(2), a head shall refuse to grant a request under section 7 if the record concerned contains-
(a) trade secrets of a person other than the requester concerned,
(b) 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom
the information relates.
Section 27(1) does not apply, however, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 27(3) refers).
The record at issue in this case purports to have been sent to the Department to aid it in discussions with the CAI following media reports of the Minister's intention to meet with the CAI in connection with a request for financial support. In his submission to this Office, the applicant argued that the intention of sending the unsigned document was to further commercially damage the CAI, its elected Council members and its employees through the release of misleading and speculative information that was already sensitive to the commercial practice of the CAI, its elected Council members and its staff members. He argued that such harm would arise if the record was released. In support of his argument, the applicant enclosed what he considered to be examples of how the anonymous release of documentation containing similar information had already resulted in misleading and speculative articles being written, printed and distributed nationally which, he argued, have had the effect of seeing the CAI lose vital funding through cancellations from subscribing members. The applicant went on to argue that access should not be granted to the record at issue as its disclosure could reasonably be expected to result in a material financial loss to the CAI, its elected members of Council and its CEO and could prejudice the members of Council and the CEO in their business and profession or otherwise in their occupations. This is clearly an argument that section 27(1)(b) applies.
At this point I should point out that much of the record at issue is already in the public domain and as such, I do not accept that the release of those parts of the record could give rise to any of the harms identified in section 27. The record comprises a covering note, a two page analysis of the published accounts of the CAI, a copy of the CAI 2011 Accounts as lodged with the Companies Registration Office (17 pages in total), an additional page containing details of the CAI accounts for 2010 and 2011, and a copy of the CAI 2009 Accounts (20 pages). I note that the additional page containing details of the CAI accounts for 2010 and 2011 is a copy of record 21 which was previously released on foot of a separate FOI request.
It seems to me that only the two page analysis of the the published accounts of the CAI could possibly give rise to the harms identified by the applicant (the second and third pages of record 2). Having regard to the applicant's arguments as set out in his submission and to the contents of the two pages in question, I accept that the release of those pages could reasonably be expected to result in a material financial loss to the CAI. Accordingly, I find that section 27(1)(b) applies to the two pages in question but not to the remainder of the record.
However, that is not the end of the matter as section 27(3) provides that the exemptions contained in section 27(1) do not apply where the public body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
In its submission to this Office, the Department stated that in deciding to grant the request, it considered that the public interest in transparency and accountability as to the use of public funds and transparency as to how the Department makes decisions regarding the expenditure of public funds outweighed the protection offered by section 27(1)(b). It stated that in arriving at the decision, the decision maker took into consideration the public funding that the CAI has received over the past six years, (with the exception of 2011 as a proposal was not submitted on time).
I agree that there is a significant public interest in optimising transparency and accountability in the use and allocation of public funds. However, it is not clear to me how the release of the two page analysis contained in record 2 serves to further such transparency and/or accountability. As outlined above, there are concerns about the provenance of the record in question. The CAI has stated that it did not create the record and that it does not represent the CAI's position, and it clearly does not represent an analysis of the CAI accounts as carried out by the Department. Furthermore, the Department has not argued that it had regard to the analysis when considering applications from the CAI for funding, nor is it clear to me that the analysis would, of itself, be of relevance, given that applications for funding appear to be considered on the basis of specific project proposals submitted by the CAI. On the other hand, I accept that the release of the information could reasonably be expected to result in a material financial loss to the CAI. Accordingly, I find that the public interest would, on balance, be better served by withholding the two page analysis
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department in this matter. I direct the release of record No. 2, subject to the redaction of pages two and three.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator