Decision
X CLG and Department of Environment, Climate and Communications
From Office of the Information Commissioner (OIC)
Case number: OIC-126270-S1G2K5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-126270-S1G2K5
Published on
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
4 June 2024
The State-led NBP is being delivered by National Broadband Ireland (NBI) under a 25-year contract to roll out and operate a high speed and future proofed broadband network within the Intervention Area (1.1 million people living and working in over 554,000 premises, including almost 100,000 businesses and farms and 600+ schools). The 7-year programme for the physical building of the network is due for completion by the end of 2026.
The applicant’s FOI request of 6 May 2022 sought access to the agendas for, and minutes of, the meetings from January 2022 to April 2022 of the NBP Governance Working Group (GWG), the Finance Performance Working Group (FPWG) and the Subsidy & Approval Working Group (SAWG). The Department’s decision of 3 June 2022 refused the request under sections 15(1)(d) (information already in the public domain), 29(1) (deliberative processes), 36(1)(b) (commercial sensitivity) and 36(1)(c) (prejudicial to negotiations) of the FOI Act.
On 12 June 2022, the applicant sought an internal review of the Department’s decision. The Department’s internal review decision of 8 July 2022 affirmed its refusal of the request.
On 12 July 2022, the applicant applied to this Office for a review of the Department’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Department, NBI and the applicant, the contents of the records at issue and the provisions of the FOI Act.
I apologise to the applicant for the considerable time it has taken to complete the review. The delay was due to a variety of factors including a heavy caseload, personnel changes, and the finite limited resources available to the Office.
The scope of this review is confined to whether the Department’s decision to refuse the request was justified under the provisions of the FOI Act.
The Department’s schedule lists 16 records. Records 1-4 are described as the FPWG agenda and minutes. Records 5-8 (described as the GWG agendas) are included in records 9-12 (described as the GWG minutes). Records 13-16 are described as the SAWG agendas and minutes.
Records 13-16 are PowerPoint presentations. These records are considerably longer than the other minutes and, on their face, are more detailed. The Department confirms that records 13–16 were prepared by NBI for discussion at the SAWG “in line with the working group’s agreed ways of working. These records represent working minutes of this particular working group.”
NBI’s submission says that it has “collated a portion of the Records that we hold, which are set out in Appendix 1. We are making our submission based on what we know of the Records and based on our awareness of their likely contents.” Appendix 1 to NBI’s submission lists the FPWG minutes from January to April 2022, the GWG minutes from January to March 2022, and a draft GWG Agenda from June 2022. However, while NBI’s submission comments on the possible release of “slide decks”, it does not comment specifically on records 13-16, which as noted earlier are NBI’s own PowerPoint presentations. The submission indicates that NBI did not seek to clarify with the Department which records had been considered for release, even though the Investigator provided contact details. It did not ask the Investigator for clarification.
I note that some of the minutes at issue contain icons, suggesting that what could be classed as slide decks were attached to them. However, the Department did not supply those attachments to this Office when we requested the copies of the records the subject of its decisions. Its decision making schedule also describes records 1-4 and 9-12 as between two and four pages long. I have no reason to consider that any slide decks are covered by my review other than records 13-16.
As the applicant is aware, the Department’s decisions do not address its intention to withhold the names and initials of various public servants and NBI employees. The Investigator told the applicant that, unless she heard otherwise, the review would proceed on the basis that these details could be excluded. I have not received a reply from the applicant. Therefore, I see no reason to include these names and initials in my review.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making its FOI request. I note here that the applicant describes this as a “test appeal”, and intends to request similar records regarding all eight NBP committees for the duration of the contract. The Department says that it would adopt the same position regarding such records. However, each review is carried out on its own merits. Each review has regard to the relevant facts, circumstances, and arguments and, in particular, the contents of the particular records at issue. Therefore, the decision in this case does not, of itself, set a precedent for any other similar records that the applicant may request.
Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large.
Finally, I have had regard to the comments of the Supreme Court’s judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment). The Supreme Court said “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner [2005] IESC 35, Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
In inviting the Department’s submissions on the substantive exemptions claimed, the Investigator noted that the records all on their face appear to largely contain high level and general information, notwithstanding that records 13-16 are more detailed. She gave some examples of such information. She said that the records refer to other, presumably more detailed, records and that some details appeared to have been overtaken by the passage of time. She referred the Department to its own comment that the records are a “snapshot relevant to the time when the records were created “.
The Investigator asked the Department to explain why, in light of the above, it did not consider it possible to release the records in part. She asked for details of all particularly sensitive information contained in the records. She invited the Department to explain how release of those details (or the records in full, if relevant) could lead to the harms envisaged in the Department’s decision.
The Investigator also invited NBI’s submissions in support of the Department’s claims under
section 36, which she summarised generally. She also informed NBI of the scope of the request and the implications of section 25(3). As already noted, she provided the Department’s contact details for any queries that it may have about the records or the Department’s position.
The Investigator made various general observations to NBI about the records, including their largely high level and/or undetailed content and the impact of passage of time on some details. She informed NBI that she had asked the Department to identify all particularly sensitive details. She said that it had not explained how the various harms which it had identified could arise. She explained that the possibility of confusion arising from release of a record is not, of itself, a basis for withholding it under the FOI Act. She invited NBI to identify the particular information which it considers to be commercially sensitive at this point in time and to explain how its disclosure could impact on ongoing tender processes, etc.
I will set out later the arguments received from the parties. However, overall, it seems to me that the Department’s arguments, and to a large extent, those of NBI, represent claims for the blanket exemption of all records relating to the NBP as a class, regardless of their contents. The FOI Act does not provide for the refusal of access to the records on such a basis.
Section 15(1)(d) (information already in the public domain)
Section 15(1)(d) provides that a head may refuse to grant a request where the information is already in the public domain. The Department relies on this provision in relation to parts of records 1-8 and 13-16, which it says comprise standing agenda items that are contained in a published table.
The published table provides high level details of all NBP Working Groups, their purpose, general items discussed at meetings, and their membership. The Department does not identify any details in records 1-8 and 13-16 which it maintains are already in the public domain. In any event, while elements of these records may be based on, or reflect, parts of the published table, I am not satisfied that this is an appropriate basis for applying section 15(1)(d) to the details concerned. I find that section 15(1)(d) does not apply.
Section 29 (deliberative processes)
Section 29(1) provides that a head may refuse to grant an FOI request (a) if 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 head, be contrary to the public interest, and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
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 the Commissioner that both requirements have been met.
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.
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 Act (which 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 supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest e.g. by identifying a specific harm to the public interest flowing from release.
There is nothing in the exemption itself which requires the deliberative process to be ongoing but this issue may be relevant to the issue of the public interest. The Commissioner has found that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest.
Finally, section 29(1) does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2).
Applicant’s submissions
The only argument that has been received from the applicant is that the cost to the State of the NBP will be in the region of €2.7bn over 25 years, and that there is a public interest in transparency about the financial performance, governance and state subsidies involved in the project.
Department’s submissions
The Department says that NBI is delivering the NBP in a highly competitive and commercial environment, subject to robust governance structures overseeing delivery. It describes what it says is a comprehensive reporting framework i.e. regular published updates through the Public Accounts Committee, relevant Joint Oireachtas Committees, and the NBI and Government of Ireland websites; a bi-annual newsletter issued to all stakeholders and also published on www.gov.ie; and the published table (described earlier), which it says ensures transparency around the project’s governance structure by detailing the bi-lateral engagement between it and NBI. It says that the Groups meet monthly or fortnightly, resulting in over 300 formal meetings a year, which are supplemented with ongoing weekly or daily engagement between counterparts.
The Department says that the records concern deliberations regarding delivery of the many elements of this very complex project e.g. physical deployment of the network; financial and commercial considerations from the NBI and State perspective; and oversight of the contractual requirements on NBI. It says that the records are operational documents reflecting discussions, opinions and advice relating to these matters. It says that they do not merely contain high level and general information. It says that release, including details that relate to a point in time, could likely cause confusion, disruption, delay, damage to the project as a whole and/or a higher cost to NBI and the State, which is not in the public interest.
The Department suggests that granting the request would lead to the requestor becoming aware of a significant decision that it proposes to make, which would be contrary to the public interest. It says that while it and NBI enable as much information as possible to be made publicly available, the details in the records are not in the public domain. It says that it is the public policy objective to deliver the NBP as quickly as possible, and that working group discussions reflect the dynamic nature of the project. It says that NBI engages with it openly on all aspects of its business, much of which is commercially sensitive and of a type that a private sector telecommunications organisation would never publicly reveal, to support the effective management and delivery of the project. It says that the release would adversely affect NBI as a private company in the highly competitive telecommunications market and would very likely impact on NBI’s open approach to working with the Department.
The Department notes the public’s right to gain access to information generally; the need to increase public knowledge regarding an important Government policy; the need to promote scrutiny of decision making, and openness and accountability in the conduct of public bodies.
On the other hand, the Department notes the public interest in preventing detriment to the prompt rollout of high speed broadband; in preserving its ability to make informed decisions (including in relation to the management of public monies) without undue intrusion by the public; in preserving its ability to receive confidential information and maintain the confidentiality of such details; in preventing the release of NBI’s commercially sensitive information; in preventing harm to current working relationships with and oversight of NBI, and to the management and cost of the NBP; in preventing harm to potential relationships with third parties in future large scale contracts; in protecting exempt material, and ensuring that confusion and disruption do not ensue.
In relation to section 29(2), the Department confirms that, in particular, the records contain factual information (section 29(2)(b)) and the reasons for the making of certain decisions by the Department (section 29(2)(c)).
Analysis
I am not persuaded that the records relate to a deliberative process for the purpose of section 29(1)(a). This Office has in previous cases distinguished between bodies engaged in a monitoring or supervisory role and those engaged in a deliberative process. However, while the Department contends that it must deliberate on matters such as the network’s physical deployment, financial and commercial issues, it does not describe its role in such matters. Furthermore, it says that it oversees the contractual requirements on NBI and therefore appears to me to act in a supervisory role in relation to this matter.
However, I do not intend to consider section 29(1)(a) further because I am not satisfied that the Department has demonstrated that release of the records would be contrary to the public interest in any event. I note also that it appears to have incorrectly carried out a public interest balancing test.
On a general level, I accept that it would be contrary to the public interest if the important NBP project was prevented from proceeding as swiftly as possible and/or delivering the best value for public monies. However, this does not mean that the release of any or all records relating to the NBP would be contrary to the public interest. The onus is on the Department to demonstrate how the release of any particular record meets this threshold. While the Department asserts various harms, it does not outline the basis for those assertions by reference to (and if necessary, explaining the significance) of specific information in the records and by also explaining how those outcomes will or may arise from release of such information.
For instance, the Department accepts that certain details have been overtaken by passage of time. It should be well aware that the possibility of confusion arising from the release of such details is not a basis for withholding them under FOI, which is the only argument made in relation to such details.
In addition, I agree with the Investigator that some of the details appear to be high level and general. Even if such information was sensitive at the time of writing, it is not apparent how it is sensitive now. However, if given particular circumstances information is sensitive now such that its release could cause harm, then one would expect the Department to identify the information and describe its significance and current sensitivity. The Department gives no such explanation in relation to either high level/general/outdated information, or what may be considered as more detailed and/or current information. Furthermore, the Department also makes a general claim that granting the request would lead to the requestor becoming aware of a significant decision that it proposes to make, but it does not identify the decision concerned or otherwise explain the basis for its assertion.
Finally, although the Department accepts that, in particular, sections 29(2)(b) and (c) apply, it does not identify the relevant details or explain why it appears to continue to rely on section 29(1) in relation to them.
In summary, having regard to the content of the records and the Department’s submission, I have no basis on which to find that section 29(1) applies.
Section 36 – commercially sensitive information
Section 36(1)(b) - commercially sensitive information
Section 36(1)(b) of the FOI Act provides that a head 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 essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
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.
Section 36(1)(b) – prejudice to negotiations
Section 36(1)(c) provides that a head shall refuse to grant an FOI 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, the Commissioner 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 the outcome of such negotiations.
Section 36(1) also requires consideration of sections 36(2) (exceptions) and 36(3) (public interest.
Department’s submissions
The Department says that NBI is a private company operating in a highly competitive environment. It says that the records contain market sensitive internal governance, financial, risk, commercial and technical information relating to NBI and its delivery of the NBP, as well as commercially sensitive information relating to other parties.
The Department says that NBI is required to procure labour, materials and other high cost activities over the duration of the contract further to competitive procurement processes. It says that NBI is therefore involved in continuous negotiations (including renegotiations, extensions and variations) of a complex paradigm of contracts throughout its supply chain, e.g. an ongoing new procurement process with all subcontractors on its framework. It says also that NBI is required to use existing telecoms infrastructure where possible in the deployment of the network, and therefore needs to enter into competitive service level agreements with other telecoms companies.
The Department says that NBI provides the Department with information like that at issue to enable its oversight of NBI’s procurement processes and to satisfy the Department that NBI has followed contractual obligations. It says that disclosing internal considerations and details of deliberations would be likely to impact on NBI’s ability to negotiate in a commercially effective manner, thus giving a competitive advantage to NBI’s competitors, suppliers and vendors; prejudicing NBI’s competitive position; interfering with the ongoing procurement and with the conduct of NBI’s business; and resulting in the NBP costing more to the State than might otherwise have been the case. It also says that the market could be misled by the disclosure of details regarding deliberations on various actions that do not reach full approval or sign off.
The Department says also that release of the information would fetter the open and transparent way of working that has been established across all aspects of the project and frustrate the effective oversight of the contract. It says that such an outcome will delay delivery of the NBP, cause an inefficient structure within the Department leading to increased costs and workload, and result in significant indirect costs for those who are waiting for high-speed broadband availability under the NBP.
The Department argues that publication of a third party’s commercially sensitive information without its consent could fetter the State’s future ability to negotiate and enter into commercial agreements and contracts/ large scale infrastructure projects. It says that this could lead to private sector reluctance to enter into similar contracts without further economic protections or confidentiality requirements, and could erode competition in relation to such contracts and also in relation to any associated long term debt (i.e. because parties factor extensive disclosure of commercial terms into offers).
NBI’s submissions
NBI says that the records’ audience should be limited to NBI and its Board, and, only to the extent necessary for its oversight of the NBP, the Department. It says that release would impact on its ability to operate its business competitively, to negotiate with critical subcontractors and to deliver the NBP for good value. Its submissions on the specific exemptions are set out below:
Section 36(1)(b)
In relation to the first limb of section 36(1)(b), NBI says that the records provide an holistic view of its financial, commercial and technical position, the release of which would enable current and potential sub-contractors to form a view on NBI’s internal governance structure, financial performance, contractual imperatives, strategy, and approach to risk management. It says that this would compromise NBI’s ability to optimally leverage such arrangements, resulting in poorer deals for NBI, delays to and increased costs of the NBP rollout, reduced value for money for the State and reduced returns to NBI’s shareholders.
NBI refers to this Office’s findings in Case No 080288, which affirmed the refusal of information in broadband coverage maps on the basis that the release of the information would enable subcontractors to reverse engineer and target certain areas for the upgrade of networks. NBI says that, having regard to the considerable financial and governance information disclosed to the public, the disclosure of the records in this case would not materially add to the public understanding of the NBP but could be used by potential and current subcontractors to the financial detriment of NBI.
In relation to the second limb of section 36(1)(b), NBI says that the sub-contracts relating to the delivery and maintenance of the NBP operate in a highly competitive market. It says that disclosure of the records would enable subcontractors to increase pricing for specific equipment or volumes to NBI’s detriment. It says that disclosure of risk management or governance approaches in this context could result in sub-contractors, infrastructure access providers and retail service providers seeking to take advantage in negotiations.
NBI illustrates its arguments by reference to the contents of records 9 and 11 and what appear to be related slide decks. As explained earlier, these slide decks are not covered by my review. However, I accept that the arguments may have bearing on the relevant details in the related minutes.
NBI says that “the minutes and slide deck” that it considers to comprise record 9 (GWG minutes, 10 January 2022) provide a wealth of information about its corporate structure, key strategic aims and outstanding risks and issues. It says that the slides outline NBI’s intended direction and plans for improving its business “to remain competitive and attract new business”, release of which would enable competitors to undercut NBI in future, and reduce NBI’s ability to achieve value in contractor negotiations and to retain talent necessary to implement the NBP.
NBI says that release of record 11 (GWG minutes, 9 March 2022) would disclose its strategy and would prejudice its competitive position. It says that this could impact on revenue available and costs incurred and on returns to the State. It says that details in the slides regarding the categorisation of a particular risk could misconstrued if released, potentially resulting in additional overheads “being driven into the business” and prejudicing its negotiations with the Department. It says also that disclosure of details in the slides about NBI’s governance structure and associated “objectives for the next period” could give competitors significant insight into its internal operations, thus impacting on its competitive advantage. It says also that parties negotiating with NBI may take a view on it “based on the governance structure in place”, particularly if released without context, which would paint an incorrect and piecemeal picture of oversight in NBI and of the NBP. It says that details about governance and risk management could enable vulnerabilities to be identified, making NBI more susceptible to fraud or cyberattacks.
NBI says that although relating to meetings from January to April 2022, the records would allow a sub-contractor to extrapolate current financial information or NBI’s chosen risk allocations. It says that the details of its governance framework has not changed and therefore the date of the records is irrelevant.
It refers to Case No 130264, where the Commissioner accepted that where planning and regulatory frameworks can contribute to long lead in times for projects, information about energy generation can remain sensitive even though several years old. It says that the NBP is a multi-year project, and therefore that details on financial performance, governance and subsidies are still relevant to sub-contractors for such a long-term project.
Section 36(1)(c)
NBI says that the records contain discussions and financial and technical information on live matters under negotiation between it and the Department, the disclosure of which could cause sub-contractors currently competing for contracts to revise their proposals, and thus substantially negatively impact on those and future such contract negotiations. It says that disclosure would also substantially negatively impact upon NBI’s own negotiations with the Department in the context of the on-going implementation of the Project Agreement.
NBI refers to the Commissioner’s acceptance in Case No 130264 that discussions remained “live” on a particular project that had not proceeded, and that release of the records, which set out a company’s plans and views on the project, would put that company at a disadvantage in future negotiations on the matter. It says that release of the records in this case, particularly those discussed below, could provide the Department and competitors with valuable insight into how NBI approaches procurement of contracts, and ultimately negatively impact NBI’s ability to enter into current and future negotiations in order to deliver a large scale project like the NBP with significant lead in times.
NBI describes the contents of the AOB section of record 11 and a part of the FPWG minutes from April 2022 (record 4). It says that the details in record 11 “relate to ongoing contractual negotiations between NBI and the Department and could prejudice negotiations with the Department in relation to the approach being adopted.” It says that the details in record 4 highlight proposed contractual engagements with a third party company and engagement with the Department on same, which are live issues under negotiation with those parties.
Finally, NBI describes parts of the FPWG minutes and actions from February and March 2022 (records 2 and 3), which it says disclose both the nature of a matter for discussion with the Department and also that new issues will arise in relation to the matter. It says that this matter is raised as a risk and “is a common theme running through the minutes”, disclosure of which “could impact on NBI’s ability to negotiate a position on these points with the Department.”
NBI makes no further comment about either the application of sections 36(1)(b)/(c) or any withheld information. I note however, that its arguments on the public interest say that the details at issue are akin to a case involving details of a contractor’s daily rate rather than the total cost of a project, in that they are specific, confidential and commercially sensitive to NBI. In this context, it refers to Case No 180433, in which the decision maker said that “section 36 itself recognises a public [interest] in persons being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result”.
Analysis
The NBP is a very important and complex project. There is a public need to ensure that it can proceed as quickly as possible, and also provide the best value for Exchequer monies. I note that the parties have placed certain information about the project in the public domain. However, these matters do not, of themselves, render further information relating to the NBP/NBI exempt from release under FOI.
I have no basis to disagree with the Department’s arguments about the environment in which NBI operates, or the extent to which it is involved in tendering and negotiation processes. I accept that NBI is a private company and that it competes with private sector companies for the provision of e.g. labour and materials. It is worth noting, however, that it is a company established to design, build, operate and maintain the broadband network, and one which receives Government subsidies.
However, even though NBI may not be a typical private company, this does not of itself mean that harms could not arise from the disclosure of information in the records, or that information about NBI or the NBP cannot be exempt from release under FOI. For instance, information which on its face appears outdated, or general, can have current or particular significance. On the other hand, relatively recent and/or detailed information may have been overtaken by the passage of time or other factors.
The Department and/or NBI must explain the basis for assertions that the contents of the records have current significance and that release thereof could or would cause harm.
Before I examine the arguments made, I note NBI’s reference to certain previous OIC cases. As I have explained, each case is treated on its own merits and one does not necessarily create a precedent for another. On the basis of the particular content of the records, the relevant circumstances, and the particular arguments made in the cases concerned, this Office was satisfied that there were grounds to find that the records were exempt. As set out below, I too am taking account of the content of the records covered by my review, the relevant circumstances, and the arguments made to this Office by both the Department and NBI.
The Department asserts that various harms could or will ensue from release of the records but does not explain how such harms could result. For instance, it refers to disclosure of actions that do not reach full approval or sign off causing confusion amongst “the market”. It does not identify the particular “market”, or explain how confusion may arise, or what effect such market confusion may have on NBI’s commercial or other interests or on those of the Department. It refers to third parties but does not identify them or explain why information relating to any such third parties may qualify for exemption. Having considered the Department’s arguments, I do not consider it to have given me any basis on which to find that section 36(1)(b) or (c) applies in this case.
NBI comments specifically on small excerpts of records 2-4. The excerpts concerned appear on their face to be quite general and summary. NBI does not refer to or comment on the remaining details in those records, including what I note are high level references to amendments to be made to certain slide deck material. It does not identify the details in the records amounting to the “common theme” which it says runs through the records. NBI also comments on small parts of records 9 and 11 by reference to associated “slide deck” information. It seems to me that the relevant parts of records 9 and 11 are high level and more general than the detailed slide deck information described by NBI. Again, NBI does not comment on the remainder of those records.
NBI does not comment on any of the other records under review, including any of the SAWG minutes, which I note include details of risks deemed “open” and “closed” at the time of writing the particular record. I note a general assertion that unspecified details on subsidies is still relevant to sub-contractors in such a long term project, which is not explained further.
I do not intend to comment on each argument made by NBI. Overall, it is not apparent to me, and NBI has not explained, how disclosure of disclosure of information already in the Department’s possession could give the Department “valuable insight” into NBI’s procurement methods or other matters, and/or impact on NBI’s ability to negotiate with the Department in relation to the matters referred to. A further argument is made about protecting NBI’s ability to “attract new business”. NBI does not explain how it may be possible to do so, having regard to the purpose for which NBI was established.
Furthermore, NBI’s arguments as to the outcome of release of the information on which it comments are comprised of assertions of harms. It gives no supporting explanation as to how disclosure of the information could or will give rise to the harms it describes. For instance, even if the records contained details of NBI’s current internal governance framework, risk management, etc., NBI does not explain how knowledge of those details could or will give competitors, sub-contractors, etc. an advantage in negotiations or in commercial or other matters, or enable fraud or cyberattacks. Overall, NBI gives no basis for its position that, from its perspective, the records are so specific, confidential and commercially sensitive that they are on the lines of a daily rate.
The Investigator and I have closely examined the records. It is not apparent how disclosure of the details therein could give rise to any of the harms identified. It is acknowledged that some of the records contain technical information. While this Office is not in a position to determine how the disclosure of such details might give rise to any harms, it is reasonable to expect the Department and NBI, as the subject matter experts, to be able to do so. Furthermore, it is not open to me to assume that the records have current or commercial sensitivity because of the importance or complexity of the project to which they relate, or to construct arguments for the Department and NBI. Both parties were asked to identify which (if any) details in the records have current commercial sensitivity, and/or to explain why this is the case. Both claim that it would cause confusion to release any details that do not remain current (an argument already addressed above). Neither party identifies such non-current details and both have made various unsupported assertions. For these reasons, and with one exception as discussed in the next paragraph, I have no basis to find the records to be exempt from release under sections 36(1)(b) and/or (c).
NBI argues that disclosure of information relating to a third party, as contained in record 4, would prejudice NBI’s position in impending negotiations with that party and the Department. I do not see how disclosure of disclosure of information already in the Department’s possession could prejudice NBI’s position in impending negotiations with the Department and I find that section 36(1)(b) does not apply for this reason.
NBI does not explain how disclosure might impact on its dealings with the relevant third party. However, I am prepared to accept that disclosure to the world at large of NBI’s intention to engage and negotiate with that party in relation to a particular issue could prejudice the conduct or outcome of those negotiations. Furthermore, it also seems to me that the particular details relate to the third party’s performance and financial affairs, such that disclosure could prejudice that third party’s competitive position in the conduct of its business. I note here that no comment has been received from the applicant on the potential application of section 36(1)b) to information relevant to third party interests.
Further to the above, I find that section 36(1)(b) in particular applies to the second bullet point under part 3 of record 4, the related first bullet point under “Actions arising”, and the name of the third party company as contained in the final bullet point under part 5. I am also prepared to accept that such details are also exempt under section 36(1)(c) i.e. from NBI’s perspective. I will now consider whether this material is releasable further to the provisions of sections 36(2) and (5).
Section 36(2) - exceptions to section 36(1)
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case. I also note that no argument has been made by the applicant that this is the case.
Section 36(3) - the public interest
In relation to the public interest test contained in section 36(3), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.
However, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a true public interest should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in the eNet judgment. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
As already noted, the applicant comments on the cost to the State of the NBP, and argues that there is a public interest in transparency about the project’s financial performance and governance and the state subsidies involved.
It seems to me that release of the details would give an insight into one small element of the NBP project. Disclosure would also enable an assessment of the Department’s and NBI’s performance of their respective functions in relation to this matter. Therefore, there is reasonable weight to the public interest in disclosure.
However, disclosure could also disclose commercially sensitive information relating to another party and prejudice the conduct or outcome of NBI’s negotiations in relation to the matter. I do not consider such outcomes to be in the public interest. Having considered the matter, it seems to me that the public interest in favour of disclosing these details does not, on balance, outweigh the public interest in favour of withholding them. I find, therefore, that section 36(3) does not apply.
Other exemptions
In inviting its submissions, the Investigator informed the Department that it was open to it to rely on other FOI Act exemptions. She said that it should accordingly show how the requirements of such exemptions are met in this case, and address the public interest where relevant. She also referred it to this Office’s Sample Questions for FOI Bodies document (available at http://www.oic.ie).
The Department makes contentions that may be appropriate to exemptions other than sections 29 or 36, such as that release of the details will impact on engagement between it and NBI and also on its effective oversight of the contract (thus delaying the NBP, increasing its own costs and workload, and increasing costs to users or potential users) and also impact on the State’s ability to enter similar future contracts. However, it neither relies on further exemptions nor supplies relevant argument to support its assertions. It presumably holds the position that such outcomes are likely to result by disclosure to the world at large of information that is commercially sensitive. I have explained above why, with one exception, I have not been satisfied that the records contain such information. Therefore, I see no reason to consider any other provisions of the FOI Act in this case.
In inviting NBI’s comments, the Investigator informed it of the exemptions generally relevant to the interests of third parties i.e. section 35 (information given in confidence), section 36 and section 37 (personal information). She also referred to it section 35(2), which is detailed below.
NBI did not make arguments regarding exemptions other than sections 36(1)(b) and (c). While it alludes to the confidential nature of the records, it does not make any arguments in respect of section 35. In any event, section 35(2) provides that section 35(1) shall not apply where a record is prepared by a member of staff of an FOI body or a service provider in the course of performance of his or her functions unless disclosure would constitute a breach of a duty of confidence which is owed to a person other than an FOI body, a member of staff of an FOI body or a service provider. Given that NBI is under contract to roll out the broadband network, and having regard to the contents of the records and the lack of arguments on the matter, I see no basis for section 35(1) to apply in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its refusal of part of record 4 (i.e. the second bullet point under part 3, the related first bullet point under “Actions arising”, and the name of the third party company as contained in the final bullet point under part 5).
With the exception of the names and initials that are excluded from my review, I annul the Department’s refusal of the remaining information and I direct its release.
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.
Stephen Rafferty
Senior Investigator