Decision
Ms X and Legal Aid Board
From Office of the Information Commissioner (OIC)
Case number: OIC-149821-M7K8V3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149821-M7K8V3
Published on
Whether the Board was justified in refusing access, under sections 15(1)(a) and 36(1)(b) of the FOI Act, to certain financial records relating to a HR investigation conducted by an external provider
4 July 2025
The applicant in this case is an employee of the Board. In a request dated 18 December 2023, she sought access to all records relating to the budget allocated in connection with a specific HR-related investigation involving her, to include any payment made and any payment due and owing to a named service provider [company A], copies of all invoices and receipts received from company A, records of all monies paid to company A including all expenses claimed.
On 17 January 2024, the Board issued its decision on the request. It said it broke the request down into constituent parts for ease of references as follows:
1. Copies of all records relating to the budget allocated,
2. Payments made and payments due to company A, to include
(a) Copies of all invoices
(b) Receipts received from company A, and
(c) Records of all monies paid to company A to include all expenses claimed
It refused parts 1 and 2(b) under section 15(1)(a) on the ground that the records sought do not exist. It refused parts 2(a) and 2(c) under sections 36(1)(b) and 36(1)(c).
On 18 January 2024, the applicant sought an internal review of the Board’s decision. On 28 March 2024, as the Board did not issue its internal review decision within the statutory time period, the applicant applied to this Office for a review of the effective refusal of her request by the Board. On 2 May 2024, the Board issued a late internal review decision, in which it affirmed its original decision. On 16 June 2024, the applicant informed this Office that she wanted the review to proceed.
During the course of the review, the Board provided submissions to this Office outlining the details of the searches conducted for records relevant to the applicant’s request. The applicant was provided with details of those submissions and invited to make further submissions, which she duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In doing so, I have had regard to the correspondence between this Office and the applicant, the Board, and company A on the matter. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the Board said the original decision-maker had erred in her reliance on section 36(1)(c) to withhold certain records and that it no longer wished to rely on that exemption.
Accordingly, this review is concerned with whether the Board was justified in refusing parts 1 and 2(b) of the applicant’s request under section 15(1)(a) of the Act, and in refusing parts 2(a) and 2(c) under section 36(1)(b).
In her application for review and submissions to this Office, the applicant raised concerns about the Board’s handling of her FOI request and the HR-related investigation involving her. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Moreover, this review has been undertaken under section 22(2) of the FOI Act and is concerned solely with the appropriateness of the decision taken on the applicant’s FOI request as outlined above.
Section 15(1)(a) of the FOI Act provides for the administrative refusal of a request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them. The role of this Office in cases involving section 15(1)(a) is to review the basis on which the FOI body has taken the position that the relevant record(s) do not exist or cannot be found after all reasonable steps to ascertain the location of the record(s) have been taken and make a finding on whether the FOI body’s position is reasonable.
As noted above, during the course of the review the Investigator provided the applicant with details of the Board’s submissions wherein it outlined its reasons for concluding that no records exist in respect of parts 1 and 2(b) of the applicant’s request. The Board said it does not have a specific budget for investigations of this type and it did not create a specific budget-line for the relevant investigation. It said the payment of fees relating to the investigation were paid from the Board’s budget line “Professional Fees – HR”. It said this budget line is used to discharge a significant array of HR related expenditure on an annual basis. It said the budget line is not specific to HR investigations under any policy or, indeed, the relevant investigation. It also said it received no receipts from company A. It said the records sought by the applicant in relation to parts 1 and 2(b) simply do not exist.
Following receipt of the details of the Board’s submissions, the applicant made further submissions. Among other things, she argued that company A was providing a service for the Board in relation to the investigation and that all relevant records are deemed to be held by the Board pursuant to section 11(9) of the FOI Act. That section provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body. She argued, therefore, that “all records including details of the budget, amounts paid to date, receipts, statement of accounts and invoices issued by [company A] are records that are deemed to be in the possession of the Legal Aid Board”.
The effect of section 11(9) of the Act is that records relating to a service provided that are not physically held by the FOI body but are instead held by the service provider are deemed to be held by the FOI body for the purpose of the FOI Act. It seems to me that the applicant’s submissions in respect of the applicability of section 15(1)(a) are intended to capture all aspects of her request. However, as I have outlined above, the Board has relied upon section 15(1)(a) in respect of parts 1 and 2(b) only.
Accordingly, the question I must consider is whether the Board has taken all reasonable steps to ascertain the whereabouts of records falling within the scope of parts 1 and 2(b) of the request. Having regard to the nature of the records sought at these parts, I do not believe that the taking of reasonable steps would extend to the Board making enquiries of company A to determine if it holds relevant records. This is because if such records existed (records of budgetary allocation and receipts received), I would expect them to be in the physical possession of the Board and not company A.
Having considered the submissions of both parties, I am satisfied that the Board was justified in its decision to refuse to parts 1 and 2(b) of the request under section 15(1)(a) of the Act on the basis that no relevant records exist.
Section 36(1)(b) provides for the mandatory refusal of a request if the record concerned contains financial, commercial, scientific, 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. 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.
The Board refused access, under section 36(1)(b), to 10 records it identified as coming within the scope of the applicant’s request. Records 1 to 5 comprise five monthly invoices for services provided during the months from June 2023 to October 2023. Records 6 to 10 comprise five Statements of Account as at various dates from July 2023 to November 2023. Amongst other things, the invoices contain details of the hourly rate charged, the number of hours of service provided, and the total payment due each month. The statements contain details of amounts paid and the outstanding amounts due at each date.
In its submission to this Office, the Board argued that the release of the information in the records would prejudice the competitive position of company A by making its fees publicly known outside of the Office of Government Procurement (‘OGP’) framework. It said that had the records been released, they would have made known hourly rate and overall cost of the service that company A provides for the service. It said company A remains on the OGP framework and provides services outside that framework and it argued that as such, it could reasonably be seen to have negative commercial consequences for company A if that information was in the public domain. It said that in circumstances where company A may seek to be a named provider on further frameworks in the future, it is reasonable to assume that its competitive position could be prejudiced against competitors also seeking to be placed on that framework if the records were to be released. It argued that there is no passage of time consideration at the time of the request and so the information would remain useful for a competitor and the financial information contained in the records could not reasonably be seen as historic or subject to a rate of rapid flux within the sector.
Company A said it is a member of a multi-supplier framework agreement for the provision of external workplace investigation services for the public sector, which is procured and operated by the OGP. It said the current framework commenced in 2022, is in place for a period of four years, and is expected to be renewed in 2026. It said services are drawn down from the framework by clients on a cascade basis and given its placement, it is given choice on all investigations. It said its placement on the Framework followed a competitive procurement process which involved the submission of an extensive tender, inclusive of its hourly charge-out rates. It said a significant specified percentage of the total marks for the tender competition were allocated to costings. It said it understands that hourly rates are typically the differential between the marks allocated to, and accordingly the placings achieved by, the respective framework members. Isai, therefore, that its hourly rates are highly sensitive commercial information and that the disclosure of same could prejudice its competitive position significantly in terms of its position on the market and any future submissions for this framework, or other similar frameworks.
The applicant said the Board had failed and/or neglected to clarify how the release of the records at issue would prejudice the competitive position of company A. She said it did not specify with clarity the damage that could occur as a result of disclosure. She said there is an onus on the State to ensure financial transparency when obtaining contracts with private companies such as company A as payment is made from the Exchequer. She argued that the onus of openness and transparency is particularly high in circumstances where she was being subjected to an investigation process despite having notified company A of the procedural irregularities and noncompliance with the relevant Policy.
The applicant also drew attention to section 36(2)(c) which provides that an FOI body shall grant a request to which section 36(1) applies if the record relates only to the requester. She said the records relate to the expenses of a public body in relation to an investigation against her, an employee of an FOI body.
I should say at the outset that section 36(2)(c) has no relevance in this case. That section provides that section 36(1) does not apply where the information at issue relates only to the requester. The information at issue in this case concerns amounts charged by and paid to company A. The information relates to company A. The fact that the amounts in question are in respect of an investigation concerning the applicant is entirely irrelevant.
The key commercial information at issue in the records is (i) the details of the hourly rate charged, (ii) the number of hours of service provided each month, (iii) the total payment due each month, and (iv) details of amounts paid and the outstanding amounts due at each date. I accept the submissions of both the Board and company A that the release of the hourly rate charged could prejudice the competitive position of company A. It seems to me that competitors of company A could use that information to undermine company A’s future submissions for frameworks such as the one at issue in this case. I accept, therefore, that section 36(1)(b) applies to the details of the hourly rates.
I also accept that the release of both the number of hours of service provided each month and the total payment due each month would allow for the calculation of the hourly rate. However, it is not apparent to me how the disclosure of the total payment due each month, without more, could possibly give rise to any of the harms set out in section 36(1)(b). accordingly, I find that section 36(1)(b) applies to both the details of the hourly rate charged and the number of hours of service provided each month as contained in records 1 to 5. I am not satisfied that section 36(1)(b) applies to any other information in records 1 to 5 or to any of the information contained in records 6 to 10.
In summary, therefore, I find that section 36(1)(b) applies only to the information in records 1 to 5 comprising the hourly rate charged and the number of hours of service provided each month. However, that is not the end of the matter as I must proceed to consider whether the public interest would, on balance, be better served by granting rather than by refusing access to that information, pursuant to section 36(3).
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 Act. Section 11(3) provides that an FOI body must have regard to 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, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that 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. It 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”. It also stated that “… the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.”.
The Board referenced this Office’s Guidance Note on Section 36 and it being the Commissioners view that the 2014 Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, the 2014 Act is not designed as a means in which the operation of private enterprises, such as company A (who was appointed to the Board on foot of a request to the OGP who maintains frameworks for such services), were to be opened up to scrutiny. It argued that company A should be able to provides services to public bodies, such as the Board, without suffering commercially as a result.
The applicant argued that the Board is accountable in relation to how public money is spent particularly in circumstances where she asserts she was being penalised for making protected disclosures and for making protected acts.
The OGP has published on its website Public Procurement Guidelines for Goods and Services. Among other things, the Guidelines provide that bodies subject to the FOI Act are required to provide the following details in relation to public procurement under the Model Publication Scheme, published in July 2016:
• Procurement policies,
• A link to all current tender competitions on the eTenders website, and
• Public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts.
As such, the Guidelines ensure that a certain degree of transparency is currently met with regard to awarded contracts. However, this does not mean that companies awarded contracts should have no protection of their commercially sensitive information. As the Board correctly pointed out, this Office takes the view that the FOI Act is not designed as a means in which the operation of private enterprises, such as company A were to be opened up to scrutiny.
It is not the role of this Office to determine if the applicant was being penalised for making protected disclosures and for making protected acts as alleged. An argument for the release of commercially sensitive information must be based on the principle that, notwithstanding the commercial harm that might be caused by the release of the records, there is a stronger public interest in favour of release. As the Supreme Court has indicated, there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
I accept that the release of the information that discloses the hourly rate company A charged for its services would allow for more informed conclusions to be drawn as to the value achieved by the Board for the services provided. However, there is also a countervailing public interest in ensuring that companies such as company A are not deterred from tendering for similar such contracts due to the fear of commercial harm as a result of the release commercially sensitive information above and beyond the type of information that public sector bodies currently publish in-line with Procurement Guidelines.
It seems to me that the release of records 1 to 5 in part and records 6 to 10 in full would further enhance the transparency of the Board in respect of the services it received from company A whilst ensuring that release will not cause commercial harm to company A. On the other hand, I am not satisfied that there is a 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 that information.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Board’s decision. I find that the Board was justified in its decision to refuse parts 1 and 2(b) of the applicant’s request under section 15(1)(a) of the Act on the basis that the records sought do not exist. I find that it was not justified in refusing access, under section 36(1)(b) of the Act, to records 1 to 10, apart from the details of the hourly rate charged and the number of hours of service provided each month as contained in records 1 to 5.
I note that during the course of the review, the applicant said she was not concerned with company A’s bank details in full and only wished to have the IBAN with the last four digits removed. Accordingly, I direct the release of records 1 to 10 with the redaction from records 1 to 5 of the hourly rate charged and the number of hours of service provided each month and the redaction of the last four digits of company A’s IBAN where applicable.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator