Decision
Mr Mark Tighe, The Sunday Times and the Department of Transport, Tourism and Sport ("the Department")
From Office of the Information Commissioner (OIC)
Case number: 130009
Published on
From Office of the Information Commissioner (OIC)
Case number: 130009
Published on
Whether the Department was justified in its decision to refuse access to certain records relating to concerns about Ryanair's safety record under sections 24, 26, 28 and 32 of the FOI Act
18 February 2014
On 3 October 2012, the applicant made a request to the Department for access to records relating to concerns about Ryanair's safety record. On 23 November 2012, the Department issued its decision on the request, releasing a number of the 32 records it identified as coming within the scope of the request and refusing access, in whole or in part, to the remaining records. The Department's decision was upheld on internal review. The application sought a review by the Information Commissioner of the Department's decision on 11 January 2013.
Ms Rachel Dunn, Investigator, wrote to the Department on 14 June 2013 outlining her preliminary view in relation to the records at issue. She invited the Department to submit any further comments that it considered relevant to the review and the Department did so on 10 July 2013. At that stage, the Department also offered to release additional records subject to the redaction of certain email addresses and information which, it considered, did not relate to the subject matter of the request or was exempt from release.
As the question of access to a number of records remains at issue, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the submissions of the Department and the applicant (including those made to both the Department and this Office). I have also had regard to the provisions of the FOI Acts and to the content of the records at issue.
For convenience, I will refer to the numbering system used by the Department for the purpose of referring to the records at issue. The Department initially released records nos. 1, 2, 5, 11, 23, 28 and 31 in their entirety and released records nos. 20 and 27, subject to the redaction of information it considered to fall outside the scope of the request. Having examined the information which the Department redacted from those records, I am satisfied that it is not captured by the applicant's request and that there is nothing further to be considered in relation to records nos. 20 and 27.
During the course of the review, the Department also agreed to release records nos. 6, 8 and 12 in full on an administrative basis and records nos. 3, 4, 7, 14, 19, 21, 22 and 29 in part on an administrative basis subject to the redaction of certain information. Having examined the records concerned, I am satisfied that the information redacted from record no. 4 is not captured by the applicant's request and that there is nothing further to be considered in relation to that record. The Department also redacted information from records nos. 3 and 7 on the grounds that it does not relate to concerns about Ryanair's safety record. However, following correspondence with this Office on the matter, the Department subsequently accepted that the paragraph commencing with the word "Separately" on page three of record no. 3 and that same paragraph in record no. 7 does , indeed, come within the scope of the request and is willing to release that information. I am satisfied that the remaining information redacted from records nos. 3 and 7 is not captured by the applicant's request. Accordingly, I have also excluded records nos. 3 and 7 from the scope of this review.
The Department redacted an email address from record no. 14 and email addresses from record no. 22. It redacted certain information from records nos. 19 and 21, namely certain emails and other information which does not relate to concerns about Ryanair's safety record. Following correspondence with this Office, the Department agreed to release the email address previously withheld from records nos. 14, 19 and 21, with the exception of certain personal email addresses in record nos. 19 and 21. The Department subsequently informed this Office that it had agreed with the applicant that he does not require access to the email addresses which have been withheld. Accordingly, as I am satisfied that the remaining information withheld from records nos. 19 and 21 is not captured by the applicant's request, I have also excluded records nos. 14, 19, 21 and 22 from the scope of this review.
In summary, therefore, this review is concerned with the question of whether the Department was justified, in terms of the provisions of the FOI Act, in its decision to refuse access, in full, to records nos. 13, 15, 16, 17, 18, 24, 25, 26, and 32 and to grant only partial access to records nos. 9, 10, 29 and 30.
Before considering the substantive issues, there are a number of preliminary points I wish to make. Firstly, a review which is being carried out under section 34 of the FOI Act is in the nature of a de novoreview which means that the Information Commissioner is not bound by the original decision of the public body in reaching his decision. Instead, he will consider all of the material before him and will make his decision having regard to the circumstances which exist on the date on which he makes his decision.
Secondly, under section 34(12)(b) of the FOI Act a decision to refuse to grant a request shall be presumed not to have been justified unless the public body shows to the satisfaction of the Information Commissioner that the decision was justified. Finally, I should explain that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal. These constraints mean that, in the present case, the extent of the reasons which I can give is limited.
The Department has claimed exemption under section 24(1)(c) of the FOI Act in relation to the following records, or parts thereof - records nos. 13, 16, 17, 25 (in part), 26, 29 (in part), 30 (in part) and 32. That section provides that a public body may refuse access to a record if it considers that access could reasonably be expected to affect adversely the international relations of the State. Under section 24, there is no public interest test to be applied. However, a public body claiming exemption under section 24 must identify the potential adverse effect on one of the interests covered by the exemption, and having identified the adverse effect, and how it might occur, consider the reasonableness of any expectation of that adverse effect occurring.
In each and every review, this Office gives serious consideration to any arguments put forward by a public body as to why any particular record, or records, should not be released. In doing so, however, regard must be had to the provisions of the FOI Act and, in particular, to section 34(12). In determining whether access "could reasonably be expected to affect adversely" one of the interests outlined in section 24(1), this Office considers that there must be adequate grounds for any such expectation at the time the decision to refuse access is made. The mere possibility of some adverse effect is not sufficient. Furthermore, the fact that a public body may have substantial expertise in a particular field does not relieve it of its obligation of satisfying this Office that its decision to refuse access to a record is justified.
While I do not propose to attempt to give an exhaustive explanation of how the international relations of the State could be affected adversely, I do accept, as a broad proposition, that the release of records containing sensitive or embarrassing material, or material which another State has expressly requested be kept confidential, or material the release of which could be detrimental to the interests of another State, could reasonably be expected to affect adversely the international relations of the State. I do not accept, however, that the exemption contained in section 24 can generally be applied to records containing non-sensitive material.
The Department argues that release of these records could damage relations between the Irish and Spanish authorities in terms of international civil aviation. It explains that when consulted, the Spanish authorities advised that the release of the records was prohibited under Spanish national law. The Department argues that while [the release of] the contents of the records may not in themselves adversely affect international relations, the act of releasing the records would in itself lessen the confidence that the Spanish authorities have in the Irish authorities and make them unwilling to share information in writing with their Irish counterparts, a move which could have ramifications beyond the sphere of aviation.
The Central Policy Unit of the Department of Finance previously issued guidance for public bodies on the matter of FOI and International Relations (CPU Notice No. 18 refers). In that Guidance, the Department advises that the FOI Act requires the release of records to the greatest extent possible and that while foreign authorities need not fear FOI, they can no longer expect that all their dealings with Ireland will routinely be protected from public view. I cannot accept that all correspondence between the Spanish and Irish authorities should be protected as a matter of course regardless of the sensitivity, or otherwise, of the subject matter of the correspondence.
I would add that it is not clear to me that the Spanish authorities advised that the release of the records was prohibited under Spanish national law. Rather, it appears that the primary concern of the Spanish authorities is that the release of the records at issue would violate a privacy right generated in Spain which protects any operator acting on Spanish territory. It is not entirely clear whether the Spanish authorities have concerns about the rights of Ryanair or AESA (the Spanish Aviation Safety and Security Agency). However, while reference is made to a breach of privacy rights, it is not clear how the release of the contents of the records at issue is prohibited under Spanish national law. If the rights of Ryanair are of concern, it is noteworthy that the FOI Act recognises the rights of third parties through the exemptions contained in section 26 (confidential information), section 27 (commercially sensitive information) and section 28 (personal information). The question I must consider in this case is whether the release of the records could give rise to the harm identified by the Department, i.e. would release reasonably be expected to affect adversely the international relations of the State. It seems to me that the contents of the records could not, in my view, be described as being particularly unusual or sensitive given the respective roles/functions of the parties involved. Therefore, having regard to the contents of the records and to the Department's acceptance that the release of the contents of the records may not in themselves adversely affect international relations, I find that the release of the records at issue could not reasonably be expected to give rise to the harm identified. Accordingly, I find that the Department was not justified in relying on section 24(1)(c) of the FOI Act to refuse access, in whole or in part, to records nos. 13, 16, 17, 25 (in part), 26, 29 (in part), 30 (in part) and 32.
Section 24(2)(e) is a class based exemption which requires a head to refuse a request if the record concerned contains information communicated in confidence from, to or within an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union or relates to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body.
The Department has claimed exemption under section 24(2)(e) in respect of records nos. 13, 16, 17, 24, 25 (in part), 30 (in part) and 32. In relying on section 24(2)(e), the Department is not required to identify any specific harm that might arise from the release of the records concerned, nor must the public interest be considered. The Department must simply either demonstrate that the records contain confidential communications with an international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union, or that they "relate" to negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body.
Records nos. 13 and 17 contain details of communications between the Department and its counterpart in Spain (Ministerio de Fomento). Records 16 and 25 are communications between the Irish Aviation Authority and its Spanish counterpart (AESA). The redacted part of record no. 30 includes details of communications between the Ministerio de Fomento and the Department. Record no. 32 contains correspondence between the Irish Aviation Authority, the Department of Transport, Tourism and Sport, and the Ministerio de Fomento. Record no. 24 contains details of an email from the Ministerio de Fomento to the Management Board of the European Aviation Safety Agency (EASA).
Guidance on the CPU website (www.foi.gov.ie) in relation to section 24 and "what constitutes an international organisation of States" says that "the phrase suggests that the participants are representing their Governments and would include such international organisations of States such as the UN and its subsidiaries. Transnational federations, sporting, cultural or educational organisations may not come within this definition unless all the members are representative of and appointed by the Governments of the various States involved." I am satisfied that the Spanish Ministry of Development and the Spanish State Aviation Safety Agency cannot be equated with "international organisations of States" such as the UN or EU or other such transnational federations or organisations or institutions. I am also satisfied that none of the bodies referred to in records nos. 13, 16, 17, 25 (part of), 30 (part of) and 32 can be described as an "international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union"and that the records involved do not relate to "negotiations between the State and such an organisation, organ, institution or body or within or in relation to such an organisation, organ, institution or body." On the matter of record no. 24, I accept that the EASA is a body of the European Union established by Regulation (EC) No. 216 of 2008. However, it is not clear to me that the information contained in the record is such that it can be said to have been given in confidence.
Therefore, having examined records nos. 13, 16, 17,24, 25 (part of), part of 30 and 32, I find that section 24(2)(e) does not apply to these records and that the Department is not justified in refusing release of this information under this section of the FOI Act.
Section 24(2)(f) is a class based exemption which requires a head to refuse a request if the record concerned -
"(f) is a record of an organisation, organ, institution or body referred to in paragraph (e) containing information the disclosure of which is prohibited by the organisation, organ, institution or body."
The Department has claimed exemption under section 24(2)(f) in respect of records nos. 24 and 26. Record no. 24 contains an email which was sent to the Management Board of the European Aviation Safety Agency (EASA). The Department informed this Ofice that it consulted with both the Spanish Department of Transport and EASA and that neither party consented to the release of the record. As EASA is a body of the European Union which was established by Regulation (EC) No. 216 of 2008, I find that this record falls within the scope of section 24(2)(f) and is therefore exempt from release.
Record no. 26 comprises a communication between the Irish Aviation Authority and personnel from the Irish Department of Transport, Tourism and Sport and the Spanish Embassy along with a communication between the Spanish Department of Transport and its Irish counterpart. Having examined record no. 26, I am satisfied that this record does not qualify for exemption as none of the bodies who sent or received this correspondence can be described as an "international organisation of states or a subsidiary organ of such an organisation or an institution or body of the European Union" .
Therefore, I find that section 24(2)(f) applies to record no. 24 and this record is exempt from release. Furthermore, I find that section 24(2)(f) does not apply to record no. 26 and that the Department is not justified in refusing release of this information under this section of the FOI Act.
The Department has claimed exemption under section 26(1)(a) in respect of records nos. 13, 15, 16, 17, 24, 25, 26, 30 and 32. Section 26(1)(a) of the FOI Act provides that certain information given to a public body in confidence is, subject to consideration of a public interest balancing test provided for in section 26(3), exempt from release.
Section 26(1)(a) provides that:
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to the public body concerned 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,".
For section 26(1)(a) to apply, it is necessary to show four things, namely
Record no 13 is correspondence between the Spanish Ministerio de Fomento and the Department. Having examined the record, I do not accept that the third test is satisfied in respect of the information at issue here. In my view, it is not reasonable to suggest that the Spanish authorities would not cooperate with their Irish counterparts in relation to airline safety issues as a consequence of the disclosure of information in this record. Accordingly, I find that section 26(1)(a) does not apply to this record.
In case number 98049 (Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works),the former Information Commissioner, Mr Kevin Murphy, found that it is not sufficient for the provider of the information to assume or to "understand" that the information would be treated as confidential. He was satisfied that a mutual understanding of confidence must exist. I have examined record no. 15 in this context to determine whether an understanding of confidentiality existed. Having examined the contents of the record, which comprises a letter and enclosures from Mr Michael O'Leary to the Minister for Transport, Tourism and Sport, I am satisfied that the letter and enclosures were sent by Mr O'Leary on the understanding that their contents would be kept "strictly private and confidential" as marked on the letter. In addition, appendices 2 and 3 contain legally privileged information (which would be exempt under section 22(1)(a) of the FOI Act) and appendix 7 contains material regarding incidents, the disclosure of which is prohibited by another enactment (and therefore exempt under section 32(1)(a) of the FOI Act).
I am satisfied that Mr O'Leary imparted the information on the understanding that it would be treated as confidential, that its disclosure would be likely to prejudice the giving of further similar information by Mr O'Leary, and that it is of importance to the Department that such further similar information should continue to be given to it. Accordingly, I find that section 26(1)(a) applies to record no. 15. Given my view that section 26(1)(a) applies to this record, I must also consider the possibility of release of this record in the public interest under section 26(3).
The public interest factors in favour of release include the public interest in enhancing the accountability of the Department and the public interest in optimising openness and transparency in relation to the Department's decision making processes. Public interest factors against release would include the public interest in protecting information given in confidence and commercially sensitive information, the public interest in ensuring that a commercially competitive company would not be unduly impeded in the effective pursuit of its business by disclosing sensitive information and the public interest in allowing commercial companies operating in a very competitive industry the space they require to conduct their business in a confidential manner. On balance, I am of the view that the advantages in terms of openness and accountability of disclosing record no. 15 do not outweigh the possible harm which might be caused to Mr O'Leary and his company if this private correspondence were to be released. I find, therefore, that the public interest would not, on balance, be better served by the release of the record at issue in this case.
Record no 16 is correspondence between the Irish Aviation Authority and the Spanish Aviation Safety Agency. Having examined the record, I do not accept that the third test is satisfied in respect of the information at issue here. In my view, it is not reasonable to suggest that the Spanish authorities would not cooperate with their Irish counterparts in relation to airline safety issues as a consequence of the disclosure of information in this record. Accordingly, I find that section 26(1)(a) does not apply to this record.
Record no. 17 comprises both internal departmental correspondence and correspondence between the Department and the Spanish Ministerio de Fomento in relation to a joint press statement. Having examined the record, I do not accept that the first and second tests can be applied in respect of the information at issue here because the joint press statement was prepared for subsequent release into the public domain. Accordingly, I find that section 26(1)(a) does not apply to this record.
I have already found that section 24(2)(f) applies to record no. 24 and that this record is exempt from release therefore it is not necessary for me to consider the application of section 26(1)(a) to this record.
Record no. 25 is an invitation to visit Dublin which was extended by the Irish Aviation Authority to the Spanish Aviation Safety Agency. Having examined the record, I am satisfied that there is no evidence either in tone or content of the letter to suggest that it would satisfy any of the four tests above. Accordingly, I find that section 26(1)(a) does not apply to this record.
Record no. 32 is correspondence between the Department and the Spanish Ministerio de Fomento. The Department has said generally that records which contain information provided by the Spanish authorities should be exempt under section 26(1)(a) as the information was provided on a confidential basis and that release of this information would lessen the confidence that the Spanish authorities have in the Irish authorities and make them unwilling to share information with their Irish counterparts and that this would ultimately have ramifications beyond the aviation sphere. While the Spanish authorities may not have expected this information to be released, I do not accept that the third test is satisfied in respect of the information at issue here. In my view, it is not reasonable to suggest that the Spanish authorities would not notify the Irish authorities of airline safety issues as a consequence of the disclosure of information in this record. Accordingly, I find that section 26(1)(a) does not apply to this record.
Similarly, in relation to record no. 30, I cannot find evidence that the information imparted in record no. 30 (with the exception of the mobile phone number which is personal information and is dealt with under section 28 below) was given in confidence or under an understanding that it would be treated as confidential. In addition, given the Irish Aviation Authority's role in ensuring that Irish civil aviation operates to international and European safety standards and systems in accordance with international agreements, it is unlikely that disclosure of the information would prejudice the giving to the Department of Transport, Tourism and Sport of similar information in the future. Accordingly, I find that section 26(1)(a) does not apply to this record.
Record no. 32 is correspondence between the Department and the Spanish Ministerio de Fomento. The Department has said generally that records which contain information provided by the Spanish authorities should be exempt under section 26(1)(a) as the information was provided on a confidential basis and that release of this information would lessen the confidence that the Spanish authorities have in the Irish authorities and make them unwilling to share information with their Irish counterparts and that this would ultimately have ramifications beyond the aviation sphere. While the Spanish authorities may not have expected this information to be released, I do not accept that the third test is satisfied in respect of the information at issue here. In my view, it is not reasonable to suggest that the Spanish authorities would not notify the Irish authorities of airline safety issues as a consequence of the disclosure of information in this record. Accordingly, I find that section 26(1)(a) does not apply to this record.
Therefore, having examined records nos. 13, 15, 16, 17, 24, 25, 26, 30 and 32, I find that section 26(1)(a) does not apply to records nos. 13, 16, 17, 24, 25, 26, 30 and 32 (or parts thereof) and that the Department is not justified in refusing release of this information. I also find that while section 26(1)(a) does apply to record no. 15, the public interest does not favour its release and therefore the Department is justified in refusing release of this record under this section of the FOI Act. The Department has also contended that record no. 15 is exempt from release pursuant to the provisions of section 27(1) of the FOI Act. As I find that record no. 15 is exempt from release under section 26(1)(a) it is not necessary for me to consider the Department's claim for exemption under section 27(1)(b) and (c).
The Department has refused access to the mobile phone number of an individual which is contained in record no. 30 on the basis of Section 26(1)(a) of the FOI Act which provides that a public body may refuse access to information given to the public body in confidence. However, I am of the view that section 28 is the more appropriate exemption to consider in this case.
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Personal information is defined in section 2(1) of the FOI Act as" information about an identifiable individual that - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential," The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2) or 28(5).
I am satisfied that section 28(2) is not relevant in this case. Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual. I do not consider that release of the information would "benefit the individual" to whom it relates as envisaged by section 28(5)(b) of the FOI Act.
Turning to section 28(5)(a), I am aware of no public interest factors in favour of the release of the individual's mobile phone number which would outweigh, on balance, the very strong public interest in protecting privacy rights, which is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Accordingly, I am satisfied that the public interest in upholding the right to privacy of the individual to whom the information relates outweighs, on balance, the public interest in granting the request for access to this information and therefore I find that section 28(5)(a) does not apply. In conclusion, I find that section 28(1) applies to the mobile phone number which is contained in record no. 30 and that it is exempt from release under section 28 of the FOI Act.
Section 32(1)(a) requires a head to refuse a request for access if -
"(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule),"
Section 2 of the FOI Act defines "enactment" as "a statute or an instrument made under a power conferred by a statute" which means that the section 32(1)(a) exemption can apply to records whose disclosure is prohibited by a statutory instrument.
The Department refused access to records nos. 9, 10 and 18 under this exemption on the basis that there are a number of legislative provisions protecting the disclosure of information and correspondence directly related to incidents reported as a mandatory occurrence report under Directive 2003/42(EC) of the European Parliament and of the Council on Occurrence Reporting in Civil Aviation. This Directive was transposed into Irish law by S.I. No. 285 of 2007 which provides at regulation 9(2) that:-
Information received by the competent authority or otherwise by or on behalf of the State (including the AAIU) -
(a) being information referred to in Regulation 7(3) or 8(1) or;
(b) being information referred to in the provisions of the law of other Member States corresponding to Regulation 7(3) or 8(1) which give effect to Article 6(1) or 7(1), as the case may be, of the Directive
shall be treated as confidential and used solely for the objective of the Directive and these Regulations and shall not be disclosable under the Freedom of Information Acts 1997 to 2003.
In addition, Article 14 of Regulation (EU) No. 996 of 2010 of the European Parliament and of the Council on the investigation and prevention of accidents and incidents prevents the release of sensitive safety information such as mandatory occurrence reports filed under Directive 2003/42/EC.
I am satisfied that section 32(1)(a) of the FOI Act applies to record no. 18 and that the Department is justified in refusing release of this information under this section of the FOI Act because S.I. No. 285 of 2007 expressly prohibits the disclosure of the type of information contained in this record.
In relation to the redacted sentence in both record no. 9 and record no. 10, I am not satisfied that the sentence in question is exempt from release. The sentence is directly related to the subject matter of the request and, while it refers to an investigation, the Department has released references to investigations in the remainder of the record in question and also in other records. Therefore, I find that section 32(1)(a) of the FOI Act does not apply to the material which was redacted from records nos. 9 and 10 and that this information should be released.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department in this case. While I find that the Department was justified in refusing access to records nos. 15, 18, 24 and part of 30 (an individual's mobile phone number), I find that it was not justified in refusing access to records nos. 9 (part of), 10 (part of), 13, 16, 17, 25, 26, 29, part of 30 (with the exception of an individual's mobile phone number) and 32, and that these records should be released.
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. Such an 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