Decision
Mr Ken Foxe, of Right to Know CLG and IDA Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-135480-V9X7K7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-135480-V9X7K7
Published on
Whether the IDA was justified in redacting, under sections 29(1), 30(1)(b), 35(1), 37(1), and 40(1) of the FOI Act, certain information from minutes of the meetings of the IDA’s Organisational Development Committee
3 November 2023
In a request dated 16 December 2022, the applicant sought access to copies of the minutes of the meetings of the IDA’s Organisational Development Committee (ODC), a sub-committee of the IDA Board, for the most recently available twelve-month period. On 18 January 2023, the IDA part-granted the request. It granted partial access to all 13 records it identified as coming within the scope of the request, redacting information under sections 29(1), 30(1), 31(1), 35(1), 37(1) and 40(1) of the FOI Act. On 19 January 2023, the applicant sought an internal review of the IDA’s decision. On 13 February 2023, the IDA varied its original decision, releasing additional information from records 4, 5, 8, 9, 10, 11, and 13. On 14 February 2023, the applicant applied to this Office for a review of the IDA’s decision. During the course of the review, the IDA identified certain additional information in records 2, 5 and 9 that it was prepared to release. As a result, record 9 has now been released in full and needs no further consideration.
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 correspondence exchanged between the parties as set out above, and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In its submissions to this Office, the IDA indicated that it no longer sought to rely on section 31(1) of the Act to redact certain information from record 8 but it maintained that the information in question was exempt under sections 29 and 30.
Accordingly, this review is concerned solely with whether the IDA was justified in redacting, under sections 29(1), 30(1), 35(1), 37(1) and 40(1) of the FOI Act, certain information from each of the 12 outstanding records sought by the applicant.
I wish to note that section 22(12)(b) of the FOI Act provides that, in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that it was justified. Therefore, the onus is on the IDA to satisfy this Office that its decision to redact certain information from the records at issue was justified.
Section 37(1)
I consider it appropriate to first examine the information redacted by the IDA under section 37(1) of the FOI Act. The IDA relied on section 37(1) to withhold information in records 1 to 4, 6, 7 and 10 to 13. Each of the records at issue comprises the minutes of meetings of the ODC, with some referred to as “minutes” and others as “restricted minutes”. The parts of the records that the IDA withheld under section 37(1) are as follows:
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a) (personnel records). Section 11(6)(a) defines a personnel record as “a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member”.
Paragraph (I) of the definition of “personal information” in section 2 of the Act excludes certain information from the definition of personal information, including:
"... in a case where the individual holds or held-
a. office as a director of,
b. a position as a member of the staff of, or
c. any other office, or any other position, remunerated from public funds in,
an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,".
The IDA said in its submissions that the redacted information is personal information relating to identifiable individuals and that the information is held by it on the understanding that it would be kept confidential.
The information redacted from record 1, item 1, was described by the IDA as “the terms and conditions of employment of the former CEO of the IDA”. The information redacted from record 10, item 7, was described by the IDA as “a specific term of the former CEO’s employment contract”. The IDA also withheld related information in the first two bullet points of record 11, item 2, the first four bullet points of record 12, item 1, the second bullet point in record 13, item 1, and a paragraph in record 13, item 2. I am satisfied that all of the information at issue relates to the former CEO’s contract of employment.
As I have outlined above, the exclusion in Paragraph (I) to the definition of personal information provides that it does not include, in a case where the individual holds or held office as a director of an FOI body or a position as a member of the staff of an FOI body, “… information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid”. I have considered whether the term “information relating to” is confined to “the office or position or its functions”, or whether it also applies to “the terms upon and subject to which the individual holds or held that office or occupies or occupied that position”.
In light of the potential uncertainty arising from the lack of punctuation in the provision, I have had regard to the Irish language version of the provision, which states:
“(I) i gcás go sealbhaíonn nó gur shealbhaigh an phearsa aonair—
a. oifig mar stiúrthóir ar chomhlacht saorála faisnéise,
b. post mar chomhalta d’fhoireann comhlachta saorála faisnéise, nó
c. aon oifig eile, nó aon phost eile, a n-íoctar luach saothair ina leith as cistí poiblí i gcomhlacht saorála faisnéise,
ainm na pearsan aonair nó faisnéis maidir leis an oifig nó leis an bpost nó le feidhmeanna na hoifige nó an phoist nó leis na téarmaí ar orthu agus faoina réir atá nó a bhí an oifig sin i seilbh na pearsan aonair nó atá nó a bhí an post sin aige nó aici nó aon ní a scríobh nó a thaifead an phearsa aonair in aon fhoirm i gcúrsa chomhlíonadh na bhfeidhmeanna réamhráite agus chun na feidhmeanna sin a chomhlíonadh,” (my emphasis).
In my view, the use of “le” and “leis” in the Irish version immediately before ‘the office’, ‘the position’, ‘the functions’ and ‘the terms’, but not immediately before ‘anything written or recorded’, means that the term “information relating to” also applies to “the terms upon and subject to which the individual holds or held that office or occupies or occupied that position”. As such, I am satisfied that both the terms upon and subject to which the former CEO occupied his position and information relating to those terms is excluded from the definition of personal information pursuant to Paragraph (I).
I have considered whether the information at issue in this case is information relating to the terms upon and subject to which the former CEO occupied that position. In interpreting the term “relating to”, I have had regard to the High Court judgment of O’Neill J. in EH v the Information Commissioner [2001] IEHC 182, wherein he considered the meaning of “relate to” in the context of whether the FOI Act 1997 conferred a right of access to records created before its commencement where such records relate to personal information about the person seeking access to them. In his decision, O’Neill J. held as follows:
“In my view the test to be applied to determine whether or not a record “relates to” is … whether there is a sufficiently substantial link between the requesters personal information (as defined in the act) and the record in question.”
He added:
“A requester has a right of access to “records”. The record will generally speak for itself. Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, may inter alia, assist in determining “whether there is a sufficiently substantial link between the requester’s personal information (as defined in the Act) and the record in question.
…
If the record contains an express reference to the requester, be it however, insubstantial or trivial then clearly it "relates to personal information", about the requester. Here one would have in mind records such as letters which contained no personal information but are about or refer to the requester, such as holding type letters or pro forma or replies. Where the record does not name or has no express reference to the requester a substantial link will be established, if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of large scale class of the same.”
I consider it appropriate to apply a similar test to determine whether the information at issue relates to the terms upon and subject to which the former CEO occupied his position. The information refers to discussion of aspects of the terms of the former CEO’s contract or the considerations or dealings of the IDA in relation to those terms. In my view, there is a sufficiently substantial link between that information and the terms upon and subject to which the former CEO occupied his position. Having regard to the exclusion at Paragraph (I), I find, therefore, that the information redacted from record 1, item 1, the information redacted from record 10, item 7, the first two bullet points of record 11, item 2, the first four bullet points of record 12, item 1, the second bullet point in record 13, item 1, and the relevant paragraph in record 13, item 2 is not personal information. I find, therefore, that section 37(1) cannot apply.
The information redacted from record 2, item 3, was described by the IDA as “the 2022 performance targets and objectives for the former CEO”. In my view, the information redacted immediately after the text “... targets for 2022” and the next four bullet points cannot reasonably be described as such. Rather, it is information about the background and context against which the targets were agreed. I find that this is not personal information relating to an identifiable individual and that section 37(1) does not apply. I accept that the remaining information comprises information concerning the personal performance targets and objectives for the former CEO, that it is personal information for the purposes of the FOI Act, and that section 37(1) applies
I am satisfied that the information redacted from record 3, item 2, comprises commentary on the CEO’s performance and that section 37(1) applies.
The information the IDA sought to withhold from record 4, item 2, is the name of an individual contained in bullet point 2. I am satisfied that the entirety of bullet point 2 comprises personal information relating to the named individual as it comprises a comment on the individual’s performance. I find that section 37(1) applies to this information.
The information redacted from record 6, item 1, and record 7, item 2, comprises information relating to the employment of the former CEO. I am satisfied that it comprises personal information and that section 37(1) applies.
In summary, therefore, I find that section 37(1) applies to:
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. While the right to privacy is protected by the Constitution, the protection afforded might be described as a spectrum. For example, information relating to a person’s home and family life and medical information is likely to attract a high degree of constitutional protection. Conversely, the courts have found that a right to privacy in business affairs only exists at the ‘outer reaches of and the furthest remove from the core personal right of privacy’ and that, accordingly, the exigencies of the common good weigh all the more heavily against it (Caldwell v Mahon [2006] IEHC 86, per Hanna J). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy in the particular case.
In its submissions in respect of the applicability of section 37(5)(a), the IDA said it had weighed up the public interest arguments in favour of, and against, releasing the information. In terms of the former, it identified the public interest in the openness and transparency of public bodies and of the exercise of rights under FOI Act. As regards the latter, the IDA identified the need for it to maintain the confidentiality of information provided to it in confidence; the need to uphold Constitutionally-protected privacy rights; the fact that, in its view, the information provided no insight into its workings; and the expectations of its employees that personal information held about them would remain confidential.
As I have outlined above, the protection afforded to privacy rights in the FOI Act is generally strong. Moreover, while the exclusion to the definition of personal information is essentially intended to ensure that section 37 cannot be used to exempt the identity of public servants in the context of the particular positions held or any records created by staff member while carrying out their official functions, or information relating to the terms and conditions of positions, it does not deprive public servants of the right to privacy generally.
The information at issue in this case comprises information relating to the former CEO’s then performance targets and an assessment of his performance against previous targets. It also includes a comment on the performance of a Board member. Such information is of a type that can reasonably described as information that staff members would reasonably expect to be treated as private and confidential.
Having regard to the nature of the information at issue, and having regard to the fact that the release of information under FOI is, in effect, release to the world at large, I am aware of no “sufficiently specific, cogent and fact-based reason” in favour of disclosure of the information at issue that outweighs, on balance, the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the IDA was justified in refusing access, under section 37(1) of the Act, to the information I have identified above as personal. In light of that finding, I do not need to consider the applicability of any other exemptions to the information in question.
Section 29(1)
The IDA relied on section 29(1) to withhold information in records 1, 2, 4, 5, 8 and 10 to 13. Leaving aside the information to which I have found section 37(1) to apply, the information to be considered, therefore, is as follows:
Section 29(1) of the Act provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.
For the purposes of section 29(1)(a), a deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
As I have outlined, section 29(1)(a) provides that “matter relating to the deliberative processes of an FOI body” includes “opinions, advice, recommendations, and the results of consultations, considered by the body”. I accept that this list is not necessarily exhaustive but it does, in my view, give a clear indication of the nature of the information that falls for protection and, indeed, the purpose of the exemption itself. It seems to me that the information that falls for protection is, in essence, the type of deliberative material that feeds into an FOI body’s deliberations. This Office considers that a distinction may be made between records relating to positions adopted by an FOI body following its deliberations and matter relating to the deliberative processes. I note, for example, that in Case 030830, available on our website at www.oic.ie, the then Commissioner found that records disclosing the substantive submissions of a Hospital to a Tribunal of Inquiry related to positions adopted by the Hospital following its deliberations as opposed to material disclosing the internal thinking process within the Hospital or the weighing up of options. The Commissioner found that such material was not exempt under the equivalent provision of the FOI Act 1997.
The information redacted from record 1 contains details of a matter noted by the Committee and action it agreed to take. The relevant information redacted from record 2, item 3, essentially comprises the IDA’s description of the background against which performance objectives for the CEO were agreed. The information redacted from record 2, item 6 concerns the Committee noting certain points relating to a staff survey that was completed. However, it does not, in my view, contain matter around which deliberations might take place.
The information redacted from record 4, item 3 comprises a concern expressed by the Committee and details of action proposed. It is not, in my view, matter relating to a deliberative process. The information redacted from record 5, item 3 is simply information noted by the Committee. The information redacted from record 8, item 6 is simply a factual statement. The information redacted from record 10, item 3 contains details of a matter agreed by the Committee. The information redacted from record 10, item 4 comprises information noted by the Committee of action taken by the Chairman. The information redacted from record 10, item 7 and the information redacted from record 11 to 13 comprises details of points noted and actions taken by the Committee in relation to the position of CEO and the terms of employment of the CEO.
Having regard to the nature of the information redacted from the records as outlined and to this Office’s understanding of what constitutes a deliberative process as described above, I am not satisfied any of it can reasonably be described as comprising matter relating to the deliberative processes of an FOI body for the purposes of section 29(1)(a). It is not, in my view, deliberative material that fed into the IDA’s deliberations. I find, therefore, that section 29(1)(a) does not apply to that information. Even if I am wrong on this point, it is important to note that for section 29(1) to apply, subsection (1)(b) must also apply. I will consider the applicability of subsection (1)(b) to the information at issue below.
On the other hand, I accept, with some reservation, that the release of the following information would involve the disclosure of matter relating to the deliberative processes of the IDA:
I find that section 29(1)(a) applies to that information. Having done so, I must go on to consider whether section 29(1)(b) also applies, namely whether the release of the information would be contrary to the public interest.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the FOI Act (which generally require that, on balance, the public interest would be better served by granting than by refusing to grant the request). Any arguments against release should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The IDA identified a number of factors it deemed to support the withholding of the information to which it refused access under section 29(1). It argued that;
In its submissions, the IDA said the public interest lies in the Committee being able to exchange information with the Board and express opinions without being subject to public scrutiny, commentary or criticism. It said it operates in an intensely competitive international environment for foreign direct investment. It said the public interest is not served by allowing information about the IDA's internal business processes to be accessible to its competitors. It said release of the records could reasonably be expected to have a significant adverse effect on the management of staff by the IDA. It said release would negatively impede the work of the Committee. It said the Committee plays a central role in matters of strategy, governance and succession planning within the IDA. It said it is vital that opinions and views can be freely expressed without fear of such opinions becoming matters of public scrutiny, criticism and review. It argued that should such information come into the public domain, this could cause Committee members to withhold their views, to the detriment of the efficient operation and work of the Committee as a whole. It further argued that there is a substantial risk that valuable investment targeted for Ireland would be diverted to other countries (resulting in a loss of exchequer returns and jobs for Ireland which are crucial in the current challenging global environment) should the information be released.
It seems to me that the IDA has made sweeping arguments about the possibility of certain harms arising without having had appropriate regard to the specific nature of the information at issue. Indeed, the broad argument that the Committee should be able to exchange information with the Board and express opinions without being subject to public scrutiny, commentary or criticism seems to overlook the fact that the IDA is subject to the provisions of the FOI Act.
Record 2, item 7 and record 4, item 2, essentially contain details of how the Committee believes the Board could improve its effectiveness, while the relevant information in record 5, item 4 concerns a staffing proposal made by the CEO. The IDA did not explain what it was about any of the information at issue that might prejudice its ability to perform its functions relating to management effectively or to deliver its strategy. Neither has it explained why the release of any of the information at issue might cause Committee members to withhold their views in the future, nor is it apparent to me why they might. Moreover, it has not explained how the release of such information might benefit its competitors or how release could reasonably be expected to have a significant adverse effect on the management of staff by the IDA or might negatively impede the work of the Committee. It is also not apparent to me, nor has the IDA demonstrated, how the release of the relevant information could possibly be expected to put at risk inward foreign investment to Ireland. I am not satisfied that the release of the information at issue would be contrary to the public interest. I find, therefore, that section 29(1)(b) does not apply.
In summary, therefore, I find that the IDA was not justified in refusing access to any of the information at issue under section 29(1) of the FOI Act.
Section 30(1)(b)
The IDA relied on section 30(1)(b) to withhold information in records 1, 2, 4 to 8, and 10 to 13. Leaving aside the information to which I have found section 37(1) to apply, the information to be considered, therefore, is as follows:
Section 30(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).
Section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. Furthermore, an FOI body seeking to rely on section 30(1)(b) should explain how, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under this provision must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.
When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.
The IDA argued that it can reasonably be expected that there would be significant adverse effects on the management of staff and strategic planning if the information at issue was released. It said the functions of the Committee is to oversee activities including the process for selecting the CEO, the performance of the senior management team, staff surveys and management’s response as well as succession planning. It argued that disclosure of the information is likely to undermine the deliberations of the Committee as well as its relationships with the leadership and staff of the IDA, making them subject to public scrutiny, commentary or criticism in the media. It argued that it should be able to exchange information without being subject to public scrutiny, commentary or criticism. It said there is a substantial risk that release of the records would reasonably be expected to have a significant adverse effect on the management of IDA staff (including leadership within the IDA) as it would negatively impact on the willingness of Committee members to openly discuss issues. It further argued that release would have a detrimental effect on the efficient operation of the ODC and on the IDA's ability to deliver its strategy.
Yet again, it seems to me that the IDA has made sweeping arguments about the possibility of certain harms arising without having had appropriate regard to the specific nature of the information at issue. The harms it has identified are based on a general argument that the release of the information at issue would subject leadership and staff of the IDA to public scrutiny, commentary or criticism, with the effect that the Committee members would be less willing to openly discuss issues. However, it has not explained how the release of any of the specific information at issue might give rise to Committee members being less willing to openly discuss issues. It seems to me that the IDA’s arguments essentially amount to an argument that the Committee should be in a position to conduct its business without external scrutiny, regardless of the sensitivity or otherwise of its discussions. If that is what the IDA is arguing, I do not accept that argument. Having regard to the specific nature of the information at issue, I do not accept that its release could reasonably be expected to have such a chilling effect on participation by Committee members in future Committee business. The information is not, in my view, particularly sensitive. Accordingly, I find that section 30(1)(b) does not apply to any of the information at issue.
Section 35(1)
The IDA relied on section 35(1)(a) and (b) of the FOI Act to withhold the last two bullet points of item 3 in record 5. Section 35 provides as follows:
1) Subject to this section, a head shall refuse to grant an FOI request if—
(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, 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, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.
(2) 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 the record at issue was prepared by staff members of the IDA in the performance of their functions, and as section 35(1) does not apply where the records fall within the terms of section 35(2), I will first consider whether section 35(2) applies. The question I must consider is whether the release of the information at issue 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 its staff. It is well settled that a duty of confidence provided otherwise by law includes an equitable duty of confidence.
In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
“1. the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
The IDA argued that the information was provided in confidence and that its disclosure would constitute a breach of a duty of confidence owed to its client companies. The information at issue details certain specified challenges faced by clients. The challenges described are general and high level. No specific clients or sectors are identified. It seems to me that the IDA is essentially seeking to exempt the information simply because it appears to treat all information received from clients as confidential. This is not an appropriate application of the exemption. I find it difficult to accept that the information at issue has the necessary quality of confidence about it. Given that it is not possible to identify any specific clients and given the general and uncontroversial nature of the information, it seems to me that the information cannot reasonably be described as confidential or secret.
Moreover, the IDA has not shown that the specific information was communicated by its clients in circumstances which impose an obligation of confidence or trust on the IDA. I simply do not accept that the IDA’s clients have an expectation that every piece of information they provide to the IDA is provided in confidence, regardless of its sensitivity. Nor do I accept that the release of the information would constitute an unauthorised use of the information to the detriment of any particular IDA client. Accordingly, I find that the release of the information would not constitute a breach of a duty of confidence owed by the IDA to its client companies. I find, therefore, that section 35(2) applies and that section 35(1) cannot, therefore, apply.
Section 40
The IDA relied on section 40(1)(a), (c), and (d) to withhold information in records 2, 4, and 5. Leaving aside the information to which I have found section 37(1) to apply, the information to be considered, therefore, is as follows:
Section 40(1) provides that an FOI body may refuse a request where it considers that access to the record sought could reasonably be expected to:
a. have a serious, adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State, or
c. have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states, or
d. result in an unwarranted benefit or loss to a person or class of persons.
Section 40(1) is a harm-based provision. Where an FOI body relies on section 40(1) it should, firstly, identify the potential harm specified in the relevant paragraph of subsection (1) that it believes might arise from disclosure and, secondly, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should show the link between granting access to the record concerned and the harm identified. A claim for exemption under section 40(1) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.
The IDA also relied on section 40(2) of the FOI Act to exempt the above material. Section 40(2) sets out specific examples of the type of record that may be covered by section 40(1). The records listed may qualify for exemption under section 40(1) provided that the relevant test in subsection (1) is met. Thus, an FOI body may invoke section 40(2) only in conjunction with one of the paragraphs of section 40(1) and it should show that the requirements of subsection (1) are met. The IDA argued that the applicable subsections of section 40(2) to which section 40(1)(c) and (d) applied were subsection (j) (foreign investment in enterprises in the State) and subsection (k) (industrial development in the State).
Section 40(1)(a)
The IDA argued that the harms provided for in section 40(1)(a) would logically flow as a consequence of the negative impacts that would occur under section 40(1)(c). It emphasised the scale and importance of the Foreign Direct Investment (FDI) sector to the economy and the finances of the State as a whole and it argued that any adverse effect on investment or business development by new or existing IDA clients risks a serious adverse effect on the financial interests of the State.
In the case of records 2 and 5, the IDA argued that the release of the relevant information would undermine its ability to compete for the limited pool of FDI available. It argued that release of the information would also undermine trust between the IDA and its client companies particularly as, in its view, there is an implied understanding of confidentiality regarding information shared by client companies with the IDA. It said this was central to its relationship with its client companies. It said disclosure of the information is likely to prejudice the relationship between the IDA and client companies as well as potentially affect decisions/negotiations on further investment and expansion in Ireland
Regarding records 2, 4 and 5, the IDA said that disclosing details of its management processes and internal examinations and strategies to attract FDI would provide significant advantage to competitor countries. It argued that this could significantly affect and negatively impact on its ability to compete internationally for FDI and would have the effect of reducing the IDA’s competitiveness for new business, potentially reducing a vital source of investment in the Irish economy, and impacting on the performance of the IDA's statutory functions and on the effectiveness of the industrial development strategy of the State.
As I have described above, the information redacted from record 2, item 3 essentially comprises the IDA’s description of the background/landscape against which performance objectives for the CEO were agreed, while the information redacted from record 5, item 3 comprises details of certain specified challenges faced by clients. In both cases, the information in question is of a general and high level nature. No IDA clients are identifiable from the information. As such, I do not accept that the disclosure of the information would constitute a breach of a duty of confidence owed or might undermine the trust between the IDA and its clients. The information redacted from record 2, item, 7 and record 4, item 2 comprises matter relating to deliberations concerning the effectiveness of the Board. I do not accept that the release of the information would provide significant advantage to competitor countries, nor has the IDA explained how the release of any of the information might do so. It is not, in my view, information that competitor countries might be in a position to use to the detriment of the State’s ability to attract FDI. Accordingly, I find that section 40(1)(a) does not apply to any of the information at issue.
Section 40(1)(c)
The IDA’s arguments in respect of the applicability of section 40(1)(c) are similar to those made in respect of the applicability of section 40(1)(a). It described the information as including “valuable commercial information on client companies and the challenges they face in Ireland from a trading perspective”. It said the information also contains valuable insight and/or blueprint into how the IDA carries out its business as well as providing details on its effective management process and its internal examination/strategies to attract FDI. It argued that the information would be extremely valuable to competing FDI organisations globally and would undermine the IDA’s ability to compete for the limited pool of FDI available.
The IDA further argued that if the information was released to the world at large, it is reasonable to expect it would negatively impact on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states. It argued that it would enable competitor countries to use the information for their own competitive and commercial advantage, to the ultimate disadvantage of the IDA and Ireland. It argued that competitor countries could target various industrial sectors, and combined with other information contained in the records, it would also allow them to alter their strategies in general to allow them to compete with Ireland to the detriment of the State’s industrial development strategy.
I do not accept that the information at issue includes “valuable commercial information on client companies”. While it does contain details of challenges faced by industry as a whole, it seems to me that the details of such challenges would be known to industry generally. Moreover, the information at issue concerning the effectiveness of the Board is also of a general and high level. It does not disclose the inner workings of the IDA to the extent that it might be of use to competitors in undermining the IDA’s position. Indeed, the relevant material in record 2, item 7 merely refers to a number of basic procedural and operational matters within the IDA. The IDA has not explained how the release of any of the information might undermine its ability to compete for FDI, nor is it apparent to me how such harms might arise. I find that section 40(1)(c) does not apply.
Section 40(1)(d)
The IDA argued that disclosure of the relevant information would affect the ability of the IDA to develop FDI in the State which, it argued, can reasonably be expected to result in a loss to the State in a number of different ways, including reduced tax revenue. It argued that disclosure would also affect negotiations between the IDA and new and existing companies in a way that it would result in an unwarranted benefit to these companies, and loss to the IDA. It also argued that competitor countries would also receive an unwarranted benefit, as it may allow them to attract investment that they would not have done absent the information in the records.
It seems to me that yet again, the IDA has made general arguments in relation to the harms that might arise without having regard to the specific nature of the information at issue. It has not explained how the various harms it has identified might arise, nor is it apparent to me how they might, having regard to the nature of the information at issue as described above. I find that section 40(1)(d) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the IDA’s decision. I find that it was justified in redacting, under section 37(1) of the Act, the following information:
I find that it was not justified in redacting any of the other information at issue under sections 29(1), 30(1)(b), 35(1), 37(1), or 40(1) and I direct the release of that information.
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.
Stephen Rafferty, Senior Investigator