Decision
Mr. X & Department of Agriculture, Food and the Marine (‘the Department’)
From Office of the Information Commissioner (OIC)
Case number: OIC-151107-V7Y5Q8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151107-V7Y5Q8
Published on
Whether the Department was justified in its decision to refuse access, under sections 35(1)(a) and/or 36(1)(b) of the FOI Act, to certain correspondence sent by a named stud company to the Department’s Chief Veterinary Officer
30 October 2025
In a request dated 22 May 2024, the applicant sought access to any emails sent by representatives of a named stud company (‘Company X’) to the Department’s Chief Veterinary Officer since 1 January 2024, including specified emails mentioned in an entry on the Lobbying Register concerning the availability of equine vaccinations. On 8 July 2024, the Department refused access to two records, comprising two email threads and three attachments, under sections 35(1)(a), 36(1)(b) and 37(1) of the FOI Act. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. On 9 August 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, both parties to the review were invited to make submissions, as was Company X. While Company X and the Department made submissions, the applicant made no substantive submissions. Company X made its submissions through its legal representatives. Accordingly, references to communications with Company X in this decision may be taken as including references to communications with its legal representatives as appropriate. I have completed my review in accordance with section 22(2) of the FOI Act. In doing so, I have had regard to the correspondence between the applicant and the Department as set out above, to the correspondence between this Office and the Department, the applicant and Company X during the review, and to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the applicant indicated that he was not seeking access to the names of staff members and third-parties as part of his request, which had been refused under section 37(1) of the Act. Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under sections 35(1)(a) and/or section 36(1)(b) of the Act to the records at issue.
The Records
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records at issue is somewhat limited. Nevertheless, it is apparent from the details of the lobbying return published on the lobbying.ie website that in the period from 1 January 2024 to 30 April 2024, Company X lobbied the Department’s Chief Veterinary Officer concerning the availability of equine vaccinations for administration to thoroughbred stallions used for breeding purposes and that the purpose of the lobbying was to secure access to equine vaccinations.
Record 1 comprises three emails Company X sent to the Department, and two brief email responses from the Department. Record 2 comprises two emails Company X sent to the Department, one of which is included in Record 1, two attachments, and a brief internal departmental email. As the applicant’s request was for emails sent to the Department, I have confined my review to a consideration of whether the Department was justified in refusing access to the five emails Company X sent, along with the two attachments. In the Schedule of Records the Department issued with its decisions on the request, the Department described the records as letters “re Equine Viral Arteritis”. Accordingly, I believe that I am not in breach of section 25(3) by stating that the records at issue relate to the lobbying return that was recorded on the lobbying.ie register and concerned Company X making representations in an effort to secure vaccines to vaccinate its stallions against equine viral arteritis. As I consider section 36 to be of most relevance to the records at issue, I will consider its applicability first.
Section 36(1)(b) – commercially sensitive information
Section 36(1)(b) provides for the mandatory refusal of a request if the record concerned contains 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. Section 36(3) provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting the request.
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 considers 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. We do not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable, in the sense that there are adequate grounds for them.
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, we take the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. While an FOI body may have particular expertise in an area, unless it is readily apparent how the release of the information might cause the relevant harm, we expect the FOI body making the claim to provide a specific and coherent explanation in support of its position.
Submissions
In its submissions to this Office in respect of the applicability of section 36(1)(b) to the records, Company X said that the release of the overall context of the communications could be prejudicial to its competitive position. It said the disclosure of the records would place commercial and scientific information in the public domain regarding its management and breeding of horses, which is at the core of its business as a global leader in thoroughbred horse racing and breeding. It said such disclosure could prejudice Company X in its business, as competitors would gain an insight into how it manages and breeds horses.
The Department said the records include information in relation to Company X’s procedures for managing disease risk related to animals in its ownership, health and vaccination status information on specific breeding animals, breeding protocols and fees. It said material loss could result from placing information on the health and vaccination status of specific animals within the public domain. It said this information could have a negative impact on the breeding value of the animals. It said that the disclosure of how Company X manages disease risks could give competitors an insight into how it manages its horses and breeding business and that disclosure of information on fees would give competitors commercial information related to Company X’s business. It said that the release of both types of information could reasonably be expected to prejudice Company X’s competitive position.
As I have outlined above, it is already known that the records at issue comprise representations Company X made to the Department in an effort to secure vaccines to vaccinate its stallions against equine viral arteritis. As such, I find that the release of those parts of the records that contain such related information could not possibly give rise to the harms outlined in section 36(1)(b). Moreover, the two attachments to Record 2 comprise general information concerning equine viral arteritis vaccination. They do not relate to Company X specifically and I fail to see how their release could possibly cause harm to Company X.
On the other hand, I accept that Company X provided certain additional sensitive information about its business operations in order to provide more context and background to, and in support of, its lobbying efforts. While I believe I am restricted by section 25(3) from providing full reasons for my findings, I can say I accept that such information is not in the public domain and if released, could be used by Company X’s competitors to its detriment or could reasonably be expected to result in a material financial loss to Company X. I find that section 36(1)(b) applies only to the following parts of the records:
Records 1 and 2 (Email of 30 January 2024)
• Paragraph commencing “Having consulted with…”,
• All text in the second sentence of paragraph 2 after “for the importation of vaccinations”, and
• Bullet points 1 to 6.
Record 1 (Email of 2 February 2024 sent at 5.24pm)
• First sentence in the body of the email.
However, that is not the end of the matter as section 36(1) is subject to sections 36(2) and 36(3). Section 36(2) provides that section 36(1) does not apply in certain circumstances. I am satisfied that no such circumstances exist in this case. Section 36(3) provides that section 36(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting rather than by refusing the request.
Section 36(3)
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision-making of FOI bodies. However, in doing so, I have also 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 that case, the Supreme Court said that the exemption of certain records under section 36(1) is established to protect commercially sensitive information and that must be seen as a protection of the commercial interests of public bodies. It said the subsection 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. It further found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure ”.
The legislative framework around lobbying is a clear indicator of a strong public interest in enhancing transparency around lobbying. According to the lobbying.ie website, the Regulation of Lobbying Act 2015 (‘the 2015 Act’) does not aim to prevent or inhibit lobbying but rather aims to make the lobbying process itself more transparent. This is, in my view, a clear acknowledgement of the fact that not all aspects of lobbying must be made available. Rather, the 2015 Act is designed to provide information to the public about:
• who is lobbying,
• on whose behalf lobbying is being carried out,
• the issues involved in the lobbying,
• the intended result of the lobbying, and
• who is being lobbied.
In this case, I accept that the release of the information to which I have found section 36(1)(b) to apply would enhance the transparency of the specific lobbying activity in so far as it would disclose the full breadth of the information that was made available to it in the course of the lobbying activity. On the other hand, section 36(1) itself reflects the public interest in the protection of third-party commercially sensitive information. This Office considers that while the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. In my view, there is a countervailing public interest in ensuring that private entities such as Company X can continue to lobby without fear of commercial harm as a result of the release of commercially sensitive information. The information at issue in this case relates almost exclusively, if not wholly, to Company X, a private entity, and not to the Department. In my view, there is no sufficiently specific, cogent and fact-based reason to find that the public interest would be better served by the release of the information to which I have found section 36(1)(b) to apply. I find, therefore, that section 36(3) does not serve to disapply section 36(1)(b) in respect of the information to which I have found section 36(1)(b) to apply.
Section 35
Section 35(1)(a) of the FOI Act provides for the protection of certain information given to an FOI body in confidence. In order for the section to apply, it is necessary to show that:
• the information was given to an FOI body in confidence,
• the information was given on the understanding that it would be treated by the body as confidential,
• disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information should continue to be given to the body.
All four of these requirements must be satisfied for section 35(1)(a) to apply. Even then, the section is subject a public interest balancing test set out in section 35(3).
The Department’s Submissions
In its submissions to this Office, the Department said that in the response Company X submitted to it in respect of the third-party consultation it carried out when processing the request, Company X said it provided the information in Records 1 and 2 as a whole in confidence on the understanding that it would be read only by Department staff in the context of considering its application to import the live vaccine and that that the disclosure of the records would likely prejudice the giving to public bodies of further similar information in the future. The Department said the specific information in the records it considered to be confidential include Company X’s procedures for managing disease risk, health and vaccination status of specific animals, commercial information regarding breeding protocols and breeding details with regard to specific animals, and fees. It said one of the substantive emails sent contained a disclaimer regarding confidentiality.
The Department further said it considers that the sharing of information related to businesses procedures regarding disease risk, health and vaccination status of individual animals, breeding protocols and fees could discourage persons or organisations from sharing similar information in the future. It said it needs specific information to assess applications for vaccine import licences and to make other similar types of decisions. It said that in this case, the vaccine status of identified animals, breeding protocols and the impact of not receiving vaccines was discussed. It said this information is useful in assessing the need for the vaccine. It said it is important that the Department receives this information and continues to receive this type of information into the future.
Company X’s Submission
Company X said that the information contained in the records as a whole was provided to the Department in confidence, on the basis that it would only be read by Department staff in the context of considering Company X’s application to import the live vaccine and remain as confidential between both parties. It said disclosure of the information would likely prejudice the giving to public bodies of further similar information in the future. It said that given the role of the Department with respect to the supply of certain vaccines in the State and promoting animal health, it is important that such further similar information should continue to be given to the Department.
At the outset, I should say that it is well established that the marking of an email as ‘confidential’ does not automatically render it exempt from release under section 35. It is the circumstances in which the information was imparted and received that is important in determining whether the first two requirements of section 35(1)(a) are met.
I accept that a third-party seeking to lobby a government department may, on occasion, provide additional sensitive confidential information in order that the department can have a fuller picture of its aims and to allow the department to make a more informed decision on the matter. In such circumstances, it seems to me that the third-party might reasonably expect that such additional information provided would, indeed, be treated by the department as confidential. I accept that Company X has provided such additional commercially sensitive information in this case. However, as I have already found that information to be exempt under section 36(1)(b), there is no need for me to consider if section 35(1)(a) also applies to that information. What I must consider is whether section 35(1)(a) applies to the remaining information.
As I have outlined above, the records at issue concern Company X’s lobbying efforts to secure approval for the importation of vaccines. As such, having regard to the relevant legislative framework surrounding lobbying, and having regard to the fact that Company X was essentially attempting to secure an outcome which aligned with its own best interests, I do not accept that Company X can reasonably have expected the entirety of its correspondence to be treated as confidential. Moreover, I do not accept that disclosure of the remaining information would be likely to prejudice the giving to the Department of further similar information from Company X or other persons in circumstances where the information is not sensitive information relating to the operations of the company. I find, therefore, that section 35(1)(a) does not apply to any of the remaining information to which I have found section 36(1)(b) not to apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that it was justified in refusing access, under section 36(1)(b) of the Act, to the following information:
Records 1 and 2 (Email of 30 January 2024)
• Paragraph commencing “Having consulted with…”,
• All text in the second sentence of paragraph 2 after “for the importation of vaccinations”, and
• Bullet points 1 to 6.
Record 1 (Email of 2 February 2024 sent at 5.24pm)
• First sentence in the body of the email.
I find that it was not justified in refusing access, under sections 35(1)(a) or 36(1)(b), to any other parts of the records and I direct their release subject to the redaction of third-party names and email addresses (excluding staff of the Department).
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