Decision
Mr X and Department of Transport
From Office of the Information Commissioner (OIC)
Case number: OIC-139108-M1X1T1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-139108-M1X1T1
Published on
Whether the Department was justified in its decision to grant a request to which section 38 of the FOI act applies, concerning access to information relating to a specified superannuation scheme
22 April 2024
This review arises from a decision made by the Department to refuse a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 – relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.
In a request dated 12 April 2023, the applicant indicated that he was writing on behalf of certain licensed Port Pilots. He noted that the 1996 Harbours Act required the Pilotage Authority to submit for approval by the Minister a superannuation scheme for all newly licensed Pilots after the vesting date of the Act. He said the relevant Port Authority Company (Company X) submitted a named scheme to the Minister for approval around that time and noted that in response to a previous FOI request, it was ascertained that no decision was made regarding the approval of the scheme. Referencing the decision letter that issued in response to that previous request, the applicant sought copies of correspondence between the Department and Company X relating to the latter’s submission of “three related pilotage schemes for approval in March 2007”, details of the three schemes submitted for approval, correspondence from 2011 and 2012 concerning requests for further information and documentation, and the last correspondence on file dated November 2012 in respect of the matter.
Pursuant to section 38, the Department notified Company X that it was considering the release, in the public interest, of two of the records it identified as coming within the scope of the request. Following receipt of submissions from Company X, the Department decided to refuse access to the two records in question, under sections 35(1)(a) and 36(1)(c) of the FOI Act. The applicant sought a review by this Office of the Department’s decision to refuse access to the two records on 31 May 2023. This Office has conducted a separate review in respect of the refusal of other relevant records (Case OIC-140045 refers).
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 comments made by the applicant in his application for a review, to the submissions made by the Department in support of its decision, and to the submissions made by both Company X and the applicant. 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 referring to the records at issue, I have adopted the numbering system used by the Department when processing the request.
There are two records at issue in this case, records 3 and 12. Record 3 comprises emails dated 23 March 2011 and 25 March 2011. However, I note that the email of 23 March 2011 was already released to the applicant as record 2 on foot of the Department’s internal review decision on his FOI request, apart from one sentence that was redacted on the ground that it was outside scope. Moreover, the email of 25 March 2011 was released as record 11 on foot of the Department’s internal review decision, apart from two phone numbers of third party individuals which the Department withheld under section 37(1) of the FOI Act.
In correspondence with this Office in respect of case OIC-140045, the applicant indicated that he did not seek access to personal information in the relevant records. I am satisfied that the sentence redacted from the email of 23 March 2011 falls outside the scope of the applicant’s request and that the remaining information in record 3 has already been released apart from a small amount of third party personal information that the applicant does not require. Accordingly, I will give no further consideration to record 3.
Record 12 comprises emails exchanged between the Department and Company X dated 5 October 2011, 4 April 2012 and 15 August 2012, along with an attached spreadsheet. I note that the emails of 5 October 2011 and 4 April 2012 comprise one of the records the Department decided to release in part on foot of the applicant’s FOI request (record 23). The Department redacted one sentence from the email of 5 October 2011, relating to a separate Port Company.
Given that the applicant has confirmed that he does not require information relating to other Port Companies, I am satisfied all of the relevant information in the emails dated 5 October 2011, 4 April 2012 has been released and I will give them no further consideration. Moreover, as the applicant has confirmed that he does not seek access to any third party personal information, I have excluded the name and contact details of a staff member of Company X that appear in the email dated 15 August 2012 from the scope of the review.
Accordingly, the scope of this review is confined to whether the Department was justified in refusing access to the remainder of the email dated 15 August 2012 and the attached spreadsheet, pursuant to sections 35(1) and/or 36(1)(c) of the FOI Act.
The record at issue
It is important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record at issue is somewhat limited. Nevertheless, in case OIC-140045, I provided some background information relating to the records captured by the scope of the applicant request, of which record 12 forms part. I will repeat that background information here for convenience.
The records sought relate to superannuation arrangements concerning Company X. In particular, the records relate to pension entitlements/arrangements in respect of individuals providing pilotage services. In background information provided, Company X said that the individuals are self-employed and operate on the basis of commercial terms and conditions negotiated and agreed between itself and the pilots. The applicant’s position is that the pilots have not been provided with information in respect of superannuation schemes and that Company X has sought to apply unapproved schemes or schemes which have been altered. Company X said that the issue of pension entitlements has been a complicated and contentious one for many years and that certain pilots assert that they have different entitlements than those commercially agreed.
In its submissions, the Department provided an overview of its responsibilities in respect of Company X. It said its Maritime Transport Division is responsible for corporate governance oversight of State commercial port companies, including Company X. It said this involves, among other things, attendance at the AGM of Company X and overseeing compliance with the Code of Practice for the Governance of State Bodies which outlines the mandatory documentation to be supplied by companies to the Department. It said the Division is also responsible for the appointment of directors to Company X and the granting of Ministerial consents in relation to matters such as borrowings and the establishment of joint ventures. It said Company X receives no State funding and that the Department has no involvement in the day-to-day business activities of Company X. It said that Company X is run and managed on an entirely commercial basis. It also said the pilots operating in the relevant Port are not direct employees of the Company. It said they are self-employed and are licensed by Company X to provide pilotage services in its pilotage district.
The Department said pursuant to section 40 of the Harbours Act 1996 (the 1996 Act), the approval of the Minister for Transport, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, is required to establish, amend or revoke a port company pension scheme.
It said that as provided by section 40(1) of the 1996 Act, a port company may prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to, or in respect of, such members of the staff of the company (including the chief executive) as it may think fit. It said that the negotiations of Company X with its staff in relation to superannuation arrangements are a matter for the Company and that the provisions of section 40 apply only to employees of a port company.
The relevant part of record 12 comprises an email dated 15 August 2012 from Company X to the Department and an attached spreadsheet concerning superannuation arrangements.
Section 36(1)(c)
Section 36(1)(c) of the FOI Act provides for the mandatory refusal of a request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, this Office expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train, or were reasonably foreseen, which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.
In its submissions on section 36(1)(c), the Department argued that the disclosure of the information contained in the records would impact on Company X in the conduct of its business, specifically in regard to its negotiations concerning its pension arrangements. It argued that the release of the information could undermine negotiations with the pilots, both existing and future, in the relevant Port in relation to their pension arrangements. It said matters such as these negotiations are solely a matter for the company concerned and the Minister/Department is precluded from interfering in the performance of a company of a statutory function conferred on it. It referenced submissions it received from Company X wherein the latter voiced significant concerns regarding the release of the information at issue. It referred to specific information in the records which it said is inaccurate and may be open to misinterpretation.
Company X also made submissions in support of the application of section 36(1)(c). It said the matter of the pension arrangements for self-employed pilots had been the subject of dispute and negotiation for some time. Giving examples from the information in the spreadsheet attachment to record 12, it outlined how, in its view, the release of such information could prejudice the conduct or outcome of its ongoing or future negotiations with pilots.
The applicant also made submissions on the applicability of section 36(1)(c), arguing that the records referred to superannuation arrangements which were funded from pilots’ own income surplus and pooled contributions. He argued that in this regard Company X acted on behalf of the pilots in a solely administrative capacity. He argued that as the pilots were the sole owners of all monies in the relevant account and fund, information relating to same could not be withheld from the pilots on the basis of commercial sensitivity. The applicant also provided background information in respect of the organisation of pilotage in the relevant area, the pilots’ employment status, and the schemes and systems in place. He referenced certain legislative provisions relating to pilotage agreements, bye laws and a 2001 pilotage agreement. He said Company X was statutorily required to administer the accounts and funds on behalf of the licensed pilots in a “fully transparent and financially appropriate manner”. He said that it was of utmost importance that the licensed pilots were fully briefed on correspondence with the Department made on their behalf. He said that this was required in order to ensure “transparency and financial accountability”. He said that as the scheme was wholly owned by the pilots, any correspondence relating to the scheme “must be shared with those who are the de facto owners”.
Having carefully considered the records in question and the submissions received, it seems to me that Company X’s concerns about the effect of disclosure of the records relate almost entirely to the release of the spreadsheet attached to record 12. Having regard to its contents and to Company X’s submissions, I am satisfied that the disclosure of the spreadsheet could reasonably be expected to prejudice the conduct or outcome of negotiations. Both the Department and Company X claim that negotiations in respect of pension arrangements are ongoing. The applicant has not made specific submissions on this point but neither has he argued that negotiations are not in train or foreseen. I accept that negotiations between Company X and relevant pilots in respect of pension arrangements are ongoing or foreseen. I am also satisfied that the release of the information in the spreadsheet could reasonably be expected to prejudice the conduct or outcome of such negotiations. I find, therefore, that section 36(1)(c) applies.
On the other hand, I am not I am not satisfied that the email dated 15 August 2012 contains information whose release might prejudice negotiations. Indeed, I note the Company X’s submissions in respect of the applicability of section 36(1)(c) focused entirely on the contents of the spreadsheet and no argument was made that the release of the email might cause such harm. I find that section 36(1)(c) does not apply to the email
Having found section 36(1)(c) to apply to the spreadsheet, I must go on to consider whether sections 36(2) or section 36(3) serve to disapply section 36(1).
Section 36(2) - Exceptions
Section 36(2) provides that section 36(1) will not apply in certain circumstances. Section 36(2)(c) provides for the release of information to which subsection (1) applies if the record relates only to the requester. The applicant argued that the relevant information relates solely to a group of licensed pilots, stating that Company X fulfils an administrative role only in respect of superannuation schemes. I do not accept this argument. It seems to me that the information provided by Company X in email correspondence with the Department relates to that company. While the matters at issue may also impact other individuals, I do not accept that the relevant information could be considered to relate only to the requester. I am satisfied that neither section 36(2)(c) nor any of the other subsections apply.
Section 36(3) – Public Interest
Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than refusing to grant the request. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision-making of FOI bodies. However, in considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet Case). In its judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. It also found section 36(1) “recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request.”
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.
In its submissions, the Department identified a number of public interest factors both in favour of, and against, disclosure, and argued that on balance the public interest was better served by withholding the relevant parts of the records. It emphasised that Company X was an independent commercial company operating in a competitive market, and that the conduct of contractual or other negotiations with relevant stakeholders was a matter for the company. The Department pointed out that the Department had no role in its day-to day operations of Company X and that the company received no State funding. The Department stated its view that the relevant information was commercially sensitive and that its release would the commercial interests of Company X. While it stated that it endeavoured at all times to be transparent, the Department argued that the greater public interest lay in withholding information that could harm the conduct or outcome of future negotiations of Company X.
In its submissions on the public interest, Company X said that the pension arrangements in question apply to a very limited number of individuals. It said that arrangements had been put in place following commercial negotiations with those individuals and that there was no public interest to be served by the disclosure of the information at issue.
While the applicant has not made specific submissions in respect of the public interest, he has referenced the need for Company X to act with accountability and transparency. He said that it is of the utmost importance that correspondence between Company X and the Department is shared.
Section 36(1) is an express recognition of the fact that there is a public interest in the protection of commercially sensitive information. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. While I note that Company X is a commercial semi-state company, it is relevant that it is an exempt agency for the purposes of the FOI Act. An entity specified in Part 2 of Schedule 1 is not a public body for the purposes of the Act. It seems to me that the fact that Company X has been expressly excluded from the scope of the FOI Act reflects an acknowledgment of the commercial nature of the company and its operating environment. The Department has stated that Company X receives no state funding.
While Company X is a commercial entity, it is one which was established by Statute. Certain activities of the company require Ministerial approval, including in relation to certain superannuation matters. The disclosure of the records would disclose information relating to the company’s engagement with the Department in respect of such matters. There is a public interest in knowing that the Department is appropriately undertaking its functions in respect of legislation such as the Harbours Act. However, I note that the Department has granted access to other records identified as relevant to the request, either in full or in part. It seems to me that the release of other records evidencing the Department’s engagement with Company X serves that particular public interest. The applicant argued that the licensed pilots should be provided with information in respect of superannuation schemes, referencing transparency and accountability in support of this position. On its face, this seems to reflect a private interest. However, I accept that there is a public interest in the appropriate administration of pension schemes, as evidenced by the existence of bodies like the Pensions Authority.
It seems to me that the Department has sought to strike a balance by releasing certain other information and records (that do not fall to be considered in this review) in response to the applicant’s FOI request, while protecting commercially sensitive information which could prejudice the conduct or outcome of negotiations. I have carefully considered the nature of the information, the subject matter, and the status of Company X as a commercial entity. I am not satisfied that the interests of the licensed pilots outweigh the interests of Company X in the context of the FOI Act, which is designed to improve openness and transparency in respect of public bodies.
Having carefully weighed the competing public interest factors in favour of and against release of the relevant records at issue, I find that the public interest would, on balance, be better served by withholding access to the relevant information. I find that the Department was justified in refusing access, under section 36(1)(c) of the FOI Act, to the part of record 12 comprising the Excel spreadsheet attached to the email from Company X to the Department dated 15 August 2012.
Section 35(1)
As I have found section 36(1)(c) to apply to spreadsheet, I am only required to consider the application of section 35(1) to the email dated 15 August 2012. Section 35(1)(a) provides that an FOI body shall refuse to grant an FOI request if:
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 and the body considers that 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
In order for section 35(1)(a) to apply, it is necessary to show the following:
In submissions made by Company X on the applicability of section 35(1)(a), it made a number of arguments in support of its position that each of the four requirements of the section were met. However, I would note that its submissions are focused solely on the spreadsheet which I have already found to be exempt under section 36(1)(c). To the extent that Company X’s arguments might also apply to its email to the Department of 15 August 2012, these arguments can be summarised as follows. Essentially, Company X’s position is that section 35(1)(a) applies as a result of the complex and contentious circumstances in which the records were created. It stated that it was always anxious to assist government departments with which it regularly interacts by providing confidential information regarding its operations, and argued that, if such information was to be disclosed on foot of an FOI request, it would need to reassess the basis on which it provided such information and, in certain circumstances, would have no option but to decline to do so. Company X stated that it was of critical importance to the Department that Company X should feel able to provide it with information regarding its affairs on a regular and unrestricted basis without being concerned as to whether confidential information might be disclosed.
In submissions made by the Department, it quoted sections of Company X’s email of 15 August 2012 to support its argument that the company had made clear that it did not want the information to be shared. The Department argued that Company X clearly regarded the material as having been given in confidence, in particular on the basis that certain material in the records was in draft form (although, again, I consider that this relates to the Excel spreadsheet that I have already found to be exempt). The Department also stated that it accepted Company X’s position that to release this information would harm the latter’s interests and that, as such, the disclosure of the in the records would very likely prejudice not only the provision of further similar information by Company X, but also the provision of similar information by the other similar companies. The Department argued that it did not wish to prejudice the provision of such information in the future, and stated that it was in the interest of the Department and of the public that entities such as Company X felt that they could share commercial information with the Department without risk of its release. The Department argued that, as a rule, information provided to it by the likes of Company X, particularly if it pertained to their business or financial activities, was deemed confidential.
I have considered the above arguments of Company X and the Department in the context of the information contained in the email at issue, and find as follows. The information is, to my mind, of a quite basic, administrative nature. The email essentially explains why Company X considers that a meeting with the Department would be useful. I am not satisfied that the information in the email could reasonably be described as having been given to the Department in confidence and on the understanding that it would be treated by the Department as confidential. Nor do I accept that disclosure of the information in the email would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future. In the circumstances, I find that the email is not exempt from release under section 35(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I find that it was justified in refusing access, under section 36(1)(c) of the Act, to the Excel spreadsheet that forms part of record 12. I find that it was not justified in refusing access, under sections 35(1)(a) or 36(1)(c), to the email of 15 August 2012 and I direct the release of that record, subject to redaction of the name and contact details of a staff member of Company X that appear in the email.
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