Decision
Mr X and IDA Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-53574-B9L7P9 & OIC-53887-X1R9Q5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-53574-B9L7P9 & OIC-53887-X1R9Q5
Published on
Whether the IDA was justified in refusing access to records relating to the IDA’s activity in relation to a named company, under sections 30, 35, 36, 37 and 40 of the FOI Act
12 December 2019
On 5 December 2018 the applicant made an FOI request to the IDA for information about the IDA’s activity in relation to a named company establishing in Ireland. Following correspondence with the IDA, the applicant refined his request on 8 January 2019. He made a second FOI request on 9 January 2019 (received on 14 January 2019). On 5 March 2019, the IDA refused access to the records in both requests on the ground that they were exempt under sections 30, 35, 36 and 40 of the FOI Act. On 27 March 2019, the applicant applied for an internal review decision. On 24 April 2019, the IDA issued its internal review decision, in which it affirmed its original decision. On 23 May 2019, the applicant applied to this Office for a review of the IDA’s decision on both FOI requests. As both FOI requests concern the same applicant and subject matter, I consider it appropriate to deal with them in the same decision.
In conducting my review, I have had regard to the correspondence between the applicant and the IDA as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the IDA for the purposes of this review.
During the review process, the IDA released certain information to the applicant, contained in Records 1, 2 and 3 (Case 53574). Furthermore, the IDA claimed section 37 over certain information. Accordingly, this review is concerned with whether the IDA was justified in refusing access to the withheld information in Records 1-7 (Case 53574) and Records 1-3 (Case 53887), under sections 30, 35, 36, 37 or 40 of the FOI Act.
Before considering the exemptions claimed, I would like to note the following. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to"the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Having regard to the content of the records and the submissions, I consider it appropriate to address section 35 of the FOI Act first.
Section 35(1)(a) of the FOI Act applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): 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(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.
The majority of the records relate to the company about which the applicant sought information and other companies. The IDA says that companies provide it with information about their financial positions, addressable markets, marketing strategies and growth plans in confidence and with the expectation that the IDA will treat it in confidence. It submits that releasing this information would prejudice the future supply of such information and prejudice the IDA’s ability to fulfil its statutory function of winning foreign direct investment. The IDA has provided this Office with a copy of a letter from the IDA to the company about which the applicant sought information, in which it gave assurances of confidentiality. It says that in accordance with its standard practice, other third party companies named in the records would have received this type of letter.
As section 35(1) does not apply if the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. Section 2 of the FOI Act defines“service provider” as“a person who, at the time the request was made, was not an FOI body, but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person” . The records were prepared by the IDA, which is an FOI body. Therefore, section 35(1) will not apply to the records unless disclosing them would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. With the exception of one record, the duty of confidence claimed is said to be owed to the companies, who are not service providers in the circumstances. I will therefore proceed to consider the exemption claimed under section 35(1)(a) in relation to the records.
An exception to the above must be made for page 14 of Record 3. This contains certain figures on the Live Register, which the IDA says were provided in confidence by the Department of Employment Affairs and Social Protection to the IDA. The duty of confidence being claimed is said to be owed to the Department, which is an FOI body. Therefore section 35(2) disapplies section 35(1) and I find that the IDA was not justified in refusing access to this information under section 35 of the FOI Act. I consider it below under other exemptions claimed.
The records disclose the following kinds of information: job figures given by companies to the IDA; the business requirements of the company about which the applicant sought information; business challenges and solutions for other companies; details of the company’s business model, strategy and figures relating to revenue. Having regard to its content and the context in which this information was given, I find that section 35(1)(a) applies to the records, except for certain information which I identify and discuss below. I am satisfied that the companies concerned would have given this information to the IDA in confidence and on the understanding that it would be treated by the IDA as confidential. I am also satisfied that disclosing this kind of information - effectively to the world at large - would be likely to prejudice the giving to the IDA of further similar information from other people. Finally, I am satisfied that it is important to the IDA that this kind of information continues to be given to it, in view of its statutory function.
I am therefore required to apply the public interest balancing test under section 35(3). On the one hand, section 35(1)(a) itself reflects the public interest in the proper preservation of confidences. I consider that there is a public interest in safeguarding the flow of information to the IDA. On the other hand, there is a public interest in transparency around the way in which the IDA carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making. As the information relates primarily to the companies themselves rather than the IDA, I do not consider that releasing it would serve to any significant extent the public interest in transparency around the IDA and its functions.
I consider that on balance, the public interest would not be better served by granting access to the records. I find that the IDA was justified in refusing access to them under section 35(1)(a) of the FOI Act.
However, I find that section 35(1)(a) does not apply to the following information: page 1 of Record 1; page 3 of Record 2; pages 26, 27, 28, 29, 30 and 32 of Record 3 (Case 53574). This comprises the following information: the name of the company about which the applicant sought information; salaries from published salary guides; and information about universities, including graduate numbers. First, the IDA has said that page 1 of Record 1 will reveal the name of the company concerned. The applicant knows the name of the company about which he made an FOI request and the IDA has released parts of Record 1 to the applicant, which is effectively release to the world at large. In this regard, it would have been open to the IDA to neither confirm nor deny whether records about the particular company were held (section 35(4) refers) but it did not do so. I cannot accept the contention that releasing this page will“disclose” the name of the company. Secondly, the relevant salary guides are published online. Finally, I do not consider that the information about universities, including graduate numbers, discloses confidential information given by the companies concerned. In summary, I am not satisfied that the information outlined above was given to the IDA in confidence by the companies concerned or that it meets the requirements of section 35(1)(a). I find that the IDA was not justified in refusing access to this information under section 35 of the FOI Act. I will refer to this and page of Record 3 as“the remaining information” .
I will now consider the other exemptions claimed, in relation to the remaining information.
The IDA claims sections 30(1)(b) and (c) over the remaining information. Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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)(c) of the FOI Act provides that an FOI body may refuse to grant an FOI request if access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1) is subject to a public interest test under section 30(2).
In relation to section 30(1)(b), the IDA submits that releasing the records, which were provided to the IDA by client companies on a confidential basis, would damage the IDA’s client relationships and result in IDA clients being reluctant to provide specific criteria to the IDA, thereby impinging on the effectiveness of IDA’s operations. It submits that releasing the records could reasonably be expected to have a significant adverse effect on the IDA’s management of client relationships, which could negatively impact on its ability to attract foreign direct investment.
In relation to section 30(1)(c), the IDA submits that releasing confidential and commercially sensitive criteria provided by a client to the IDA for the purpose of negotiations could have the same result. Furthermore, the IDA submits that releasing the records could reasonably be expected to disclose strategic IDA plans and procedures and prejudice the IDA’s competitiveness in attracting foreign investment.
As noted above, the remaining information was not information given to the IDA by companies. Neither is it apparent to me how its content could reasonably be expected to disclose IDA plans and procedures or how disclosing it could have a significant, adverse effect on the IDA’s management. Having regard to its content and the IDA’s submissions, I do not consider it credible that releasing the remaining information could lead to the alleged harms claimed under sections 30(1)(b) or (c). I find that section 30(1) does not apply to the remaining information and am therefore not required to apply the public interest balancing test under section 30(2). I find that the IDA was not justified in refusing access to the remaining information under section 30(1) of the FOI Act.
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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.
The harm test in the first part of section 36(1)(b) is that disclosure"could reasonably be expected to result in material loss or gain" . This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information"could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the"could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking"prejudice" , the damage which could occur must be specified with a reasonable degree of clarity.
The IDA submits that releasing the records could cause harm both to the company and to the IDA. First, it submits that disclosing the records would reveal confidential and commercially sensitive, strategic criteria and business requirements provided to the IDA by the company and therefore prejudice the company’s competitive position and/or could reasonably be expected to result in a material financial loss to it. Secondly, the IDA submits that releasing the records could give competing investment agencies an insight into IDA procedures and therefore prejudice the IDA’s competitiveness in attracting foreign investment. I do not accept that these submissions are credible insofar as they relate to the limited information which remains under review. As noted above, the remaining information was not given to the IDA by the company concerned and neither is it apparent to me how disclosing it could result in the alleged harms to either the company or the IDA.
I find that section 36(1)(b) does not apply to the remaining information and am therefore not required to consider sections 36(2) or (3). I find the IDA was not justified in refusing access to the remaining information under section 36(1)(b) of the FOI Act.
The IDA claims sections 40(1)(a) and (c) over the remaining information. Section 40(1) provides, insofar as is relevant:
"(1) A head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head -
(a) access to the record could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the national interests of the State,
...
(c) access to the record could reasonably be expected to 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,".
Where an FOI body relies on section 40(1), it should identify the potential harm specified in the relevant paragraph that might arise from disclosure and then 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. It must go on to consider the public interest test under section 40(3) before reaching a conclusion on the application of the exemption.
In relation to section 40(1)(a), the IDA submits that releasing the records would provide other states with insights into the IDA’s strategies and due diligence and could negatively impact on the effectiveness of the State’s strategy to attract foreign investment. In relation to section 40(1)(c), the IDA submits that disclosing confidential and commercially sensitive information could have a negative impact on decisions by enterprises to invest in the State. However, I am not satisfied that these are credible claims in relation to the remaining information. I do not see how disclosing it could provide insights into the IDA so as to undermine their strategy, or prejudice decisions to invest in the State. Having regard to the content of the remaining information and the IDA’s submissions, I am not satisfied that section 40(1)(a) or (c) applies to the remaining information. Given this finding, I am not required to consider the public interest balancing test under section 40(3) of the FOI Act. I find that the IDA was not justified in refusing access to the remaining information under section 40(1) of the FOI Act.
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve disclosure of personal information. The FOI Act defines the term“personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: (iii) information relating to the employment or employment history of the individual and (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary etc.
Page 14 of Record 3 contains figures from the Live Register 2018 as they relate to specific nationalities and locations. The IDA submits that the numbers are so small that releasing this information could identify personal information about the individuals concerned. Having examined page 14, including the numbers recorded, I am not satisfied that releasing it would disclose information about identifiable individuals. I find that section 37(1) does not apply to this page and am therefore not required to consider sections 37(2) or (5). I find that the IDA was not justified in refusing access to this information under section 37 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I vary the IDA’s decision as follows. I affirm its decision to refuse the majority of the records under section 35(1)(a) of the FOI Act. I annul its decision on the remaining information and direct its release. For the avoidance of doubt, the information which falls for release is as follows: page 1 of Record 1; page 3 of Record 2; pages 14, 26, 27, 28, 29, 30 and 32 of Record 3 (Case 53574).
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.
Elizabeth Dolan
Senior Investigator