Decision
Ken Foxe, Right to Know. and The Department of Transport
From Office of the Information Commissioner (OIC)
Case number: OIC-131911-H9G2X2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-131911-H9G2X2
Published on
Whether the Department was justified in refusing access to copies of ministerial submissions relating to various matters, in full or in part, on the basis of sections 30, 33, 35, 36 and 37 of the FOI Act
12 September 2025
In a request dated 29 August 2022, the applicant sought access to copies of ministerial submissions relating to the following matters:
1. State Board appointments review and plan for 2022
2. EU security inspection at Dublin Airport
3. Low-emission bus trials: Final Report
4. Rescue 116 Review Board: Assessment of Costs
5. Response to the audit and risk committee Shannon Airport Group
6. Terms and conditions for the recruitment of a CEO of Dublin Bus
7. Dispute with DAA regarding treatment of Exchequer funding
8. Terms and conditions for the recruitment of a CEO of Dublin Port Company
9. Dispute with DAA regarding treatment of Exchequer funding (2)
In a decision dated 26 September 2022, the Department identified ten records relating to the applicant’s request. The records are numbered in accordance with the list above. It released records 1 and 1a in full and records 2 and 3 in part and refused access to the remaining records. It relied on sections 29, 30, 33, 35, 36 and 37 of the FOI Act to withhold the records in full or in part. On 4 October 2022, the applicant sought an internal review of the Department’s decision. On 25 October 2022, the Department varied its original decision by releasing record 3 in full. It affirmed its refusal of the remaining records. Of note, in subsequent schedules provided attachments to relevant e-submissions are numbered separately. I will use this numbering format for ease of reference. On 27 October 2022, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, this Office’s Investigator notified the public bodies/organisations to which records 5 to 9 relate of the review and invited them to make submissions. There was some confusion in respect of the records at issue relating to Dublin Airport Authority (DAA) but this was clarified at a later stage. Shannon Airport Group (SAG), Dublin Bus (DB), DAA and the National Treasury Management Agency (NTMA) made submissions in response. No response was received from Dublin Port Company (DPC).
On foot of a query from this Office during the review, the Department identified three additional records relating to part 4 of the applicant’s request. These comprise attachments to record 4 and I will refer to them as records 4a, 4b and 4c. The Department initially indicated that it also considered these records to be exempt from release and I will consider this matter below.
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 submissions made by the applicant, the Department, and the third parties that made submissions during this review. 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.
The Department has identified 19 records as coming within the scope of the review. It refused access to 16 records, in whole or in part, on the basis of a combination of sections 29, 30, 33, 35, 36 and 37 of the FOI Act. During the course of the review, it revised its position in respect of certain records. It agreed to release two further records in full (records 4 and 4c). I expect the Department to release records 4 and 4c to the applicant if it has not done so already. It said that it was willing to release part of record 4a but said that certain sections remain exempt. In respect of records 6 and 8 (which I understand to also include reference to relevant attachments at records 6a, 6b, 8a, 8b, 8c and 8d), it said that as both recruitment campaigns are now complete, it no longer considered section 29(1) to apply. However, it noted that the records contain information relating to third parties and referenced sections 30(1), 35(1) and 37(1). Accordingly, I understand that the Department is maintaining its refusal of the records.
In sum, the Department’s current position in respect of the records is as follows:
• Record 1 (State Board appointments) released in full
• Record 1a (State Board appointments) released in full
• Record 2 (EU Security Inspection) refused in part under section 33
• Record 3 (Low-emission bus trials) released in full
• Record 4 (Rescue 116 Review Board costs) to be released in full
• Record 4a (Rescue 116 Review Board costs) refused in part under sections 30(1)(c), 36(1)(b) and 37(1)
• Record 4b (Rescue 116 Review Board costs) refused in full under section 37(1)
• Record 4c (Rescue 116 Review Board costs) to be released in full
• Record 5 (SAG) refused in full under sections 35(1) and 36(1)
• Record 6 (DB) refused in full under sections 30(1), 35(1) and 37(1)
• Record 6a (DB) refused in full under sections 30(1), 35(1) and 37(1)
• Record 6b (DB) refused in full under sections 30(1), 35(1) and 37(1)
• Record 7 (DAA dispute) refused in full under sections 35(1) and 36(1)
• Record 8 (DPC) refused in full under sections 30(1), 35(1) and 37(1)
• Record 8a (DPC) refused in full under sections 30(1), 35(1) and 37(1)
• Record 8b (DPC) refused in full under sections 30(1), 35(1) and 37(1)
• Record 8c (DPC) refused in full under sections 30(1), 35(1) and 37(1)
• Record 8d (DPC) refused in full under sections 30(1), 35(1) and 37(1)
• Record 9 (DAA dispute) refused in full under sections 35(1) and 36(1)
This review is concerned solely with whether the Department was justified in refusing access, in full or in part, to the relevant records above under the various exemptions cited.
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 the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of many of the records is limited.
I also wish to note that under section 22(12)(b) the onus is on the FOI body to satisfy this Office that its decision to refuse access to the records withheld was justified. However, in its judgment inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet case), the Supreme Court described the presumption in section 22(12) of the Act as “a starting point” for a review by the Commissioner. The Commissioner’s review functions are inquisitorial in nature. Therefore, the parties’ failure to provide detailed submissions in support of their arguments is not the end of the matter. 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. However, while clarifications may be required, this does not mean that this Office must, or will, continue to ask a body for sufficient details and arguments until the threshold for an exemption is met. If an FOI body believes that the record discloses matters that are not apparent from its face, it is for the FOI body, as the subject matter expert, to explain to me how the record discloses such matters. Neither do I believe that I am required to construct arguments to support an FOI body's broad assertions.
It is also important to note that a review by this Office is considered to be “de novo", which means that, in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Finally, I wish to acknowledge and apologise for the delay in completing our review of this case. This delay was due, in part, to staff resourcing issues as well as the complexity of the request at issue. While there is nothing to preclude such an approach, I would note that the inclusion in an FOI request of sub-parts relating to nine separate issue areas will necessarily require considerable work and potential engagement with multiple third parties, as happened in this case. While this is not an attempt to excuse the delay in completing the review, I believe it is important context. Regardless, this Office endeavours to progress reviews as efficiently and expeditiously as possible.
The Department refused access to this record in part, solely on the basis of section 33 of the FOI Act. In its submissions to this Office, the Department clarified that it was relying on subsection (1)(a) of section 33 to refuse access to the information withheld from record 2. Section 33(1)(a) provides that an FOI body may refuse to grant an FOI request if it considers that access to the record concerned could reasonably be expected to affect adversely the security of the State. There is no public interest test in section 33.
For an FOI body to succeed in its arguments that section 33(1)(a) applies, the FOI body must satisfy this Office that granting access to the record in respect of which the exemption is claimed could reasonably be expected to affect adversely the security of the State. 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. We expect the FOI body to show how access to the record could reasonably be expected to give rise to the harm identified.
Record 2 is an e-submission entitled “EU Security Inspection at Dublin Airport”. While the Department has purported to release this record in part, virtually all of the substantive contents of the record have been withheld. It released the headings, a list of recipients/read receipts, an Action Log, a short final comment and a brief note of the action required. The full content of the Executive Summary of this submission has been withheld.
In its submissions to this Office, the Department said that aviation safety and security at Dublin Airport could be adversely affected by the release of the record. It said release would provide information on the position of aviation security at Dublin Airport and could be expected to be used to adversely impact on security at the airport. It said there were individuals and groups that would use the information contained in the record to impact the secure running of the airport for their own aims/purposes.
While I am constrained by section 25(3) of the FOI Act from describing the information contained in record 2 in detail, I can say that it relates to a security inspection that was undertaken at Dublin Airport where a “serious deficiency” was identified in respect of a named security procedure. While the specific deficiency is not detailed, it is possible to draw inferences as to its nature from the description of the temporary remedial action identified.
The Investigator sought further information from the Department in respect of the relevant deficiency and its current status. In response, the Department said that the primary purpose of aviation security is to counter the risk of an unlawful act of interference in civil aviation. It said that aviation remains a highly attractive target for bad actors. It referenced a particular programme and the sensitivity of same. It said that aviation security is highly regulated at European level and that airport operators and national authorities are subject to inspections by the European Commission. It said that the results of these inspections are highly confidential and form a vital part of regulatory oversight and are used to identify weaknesses and strengths, to identify trends, and to improve security processes. It said that effective aviation security requires co-ordination with national security actors. It said that, essentially, its position is that it does not disclose information about the effectiveness of security measures as this may be useful to bad actors. It said that the safety and security of the travelling public is best served by robust, effective and confidential aviation security apparatus. It said that the testing, audit and inspection of these systems are central to how it addresses issues in terms of regulation, oversight, training and practice and the results are never disclosed. The Department said that the public interest is not served if such reports are shared. It said that the broader concern, even if the issues identified have been resolved, is that the suggestion of a weakness would potentially identify vulnerability in the aviation security system. It said that release would be contrary to the best interests of the State and the European Union.
As a general proposition, I would accept that the disclosure of the details of a deficiency in security procedures could reasonably be expected to affect adversely aviation security at Dublin Airport and, indeed, the security of the State. However, I note that the record indicates that immediate action would be taken on the finding and it is also relevant that the inspection took place more than three years ago. While the Department has not directly confirmed that the issue identified has been resolved, neither has it suggested otherwise. Indeed, its overall position is that harms will flow from release even if issues identified have been resolved. Noting the contents of the record and the passage of time, it is reasonable to assume that the issue has since been resolved.
The Department has effectively argued that its policy is not to release records relating to aviation security measures. It has said that a suggestion of weakness could potentially identify vulnerability in the system. It seems to me that the Department is essentially seeking to exempt records relating to security measures as a class, regardless of their contents. Section 33(1)(a) is a harm-based exemption. The question at issue is whether access to the record could reasonably be expected to affect adversely the security of the State. As such, the contents of the actual record at issue are relevant. The Department has not explained how bad actors might make use of the information in the record to adversely affect aviation security, particularly in circumstances where the inspection took place more than three years ago and where the record indicates that immediate action would be taken to rectify the serious deficiency. Moreover, I do not consider it reasonable to expect that the mere suggestion of a weakness would potentially identify vulnerability in the aviation security even if the issues identified have been resolved. Having carefully considered the matter, I find that the Department has not satisfactorily shown that the release of the record could reasonably be expected to affect adversely the security of the State. I find, therefore, that section 33(1)(a) does not apply to record 2.
As noted above, the Department has said that it is willing to release records 4 and 4c to the applicant. Therefore, the records remaining at issue in respect of this part of the request are records 4a and 4b. These records were only identified at a late stage of the review, following a query raised by this Office. The Department’s position is that record 4a should be released in part on the basis of sections 30(1)(c), 36(1)(b) and 37(1) and that record 4b should be refused in full on the basis of section 37(1). It made submissions to this Office in respect of the application of the relevant exemption provisions. However, the submissions received were high-level in nature and did not deal with relevant public interest tests. Given that the records were not considered during the Department’s initial decision-making process and given that it is willing to release certain information from record 4a, I consider that the most appropriate course of action is to annul the FOI body’s effective refusal of the records and direct it to consider this part of the request afresh and make a new first instance decision in accordance with the provisions of the FOI Act. I understand that this will result in further delays for the applicant but I consider it to be the appropriate course of action. The applicant will have the right to an internal review and to a review by this Office if he is not satisfied with the new decision issued.
The Department refused access to record 5 on the basis of sections 35(1)(a) and 36(1)(b) and/or (c). In its submissions to this Office, SAG also indicated that it considered sections 35(1)(a) and 36(1)(b) to apply. Record 5 is an e-submission which includes copies of correspondence from SAG to the Minister as well as a draft letter in response for the Minister’s approval.
Section 35 of the FOI Act provides as follows:
1. Subject to this section, a head shall refuse to grant an FOI request if –
a. 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 (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
b. disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.
2. Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
Having regard to the arguments of the parties and to the contents of the record at issue, I propose to consider the applicability of section 35(1)(b) to the record.
In his internal review request, the applicant argued that the Department had provided no reasons for its decision and that it had just recited the relevant exemptions. He did not make any submissions to this Office during the course of this review in relation to section 35. In its submissions, the Department effectively restated the requirements of section 35(1)(a).
SAG made more substantive submissions on the matter. It said that the release of the record would be severely prejudicial to its future relationship with the Department. It said the record includes part of a communication that was submitted to the Board Committee of SAG and is highly confidential. It said the information contained in the record includes highly confidential material pertaining to the organisational and commercial position of SAG. It said that such information is commercially sensitive and should not be visible to the public. It said that the information was shared on the basis that it would be held confidentially by SAG and by the Department. It said that if the information contained in the record was released it would be extremely damaging and would severely undermine the relationship between the parties. It said that there is an understanding that communications between the Department and relevant entities within SAG are treated with the utmost confidentiality and would not be subject to release under the FOI Act. It said that release would create a deep reluctance on the part of SAG and the Department to supply confidential or commercially sensitive information openly and freely. It said that the effect would be far-reaching as it would result in both SAG and other commercial semi-state bodies adopting a conservative and narrow view of their communications with the Department, leading to less openness.
Separately, I note that SAG also expressed dissatisfaction with the fact that the Department refused to provide it with a copy of the record at issue for the purpose of making a submission. It said that if the Commissioner is minded to release a record, the affected party must have the benefit of sight of that record. I must admit that I cannot understand why the Department would not provide SAG with copies of the substantive correspondence that forms the majority of record 5 in circumstances where the correspondence was with SAG. However, it was simply not open to this Office to provide copies of the correspondence given the Department’s claim that the record is exempt. As I have outlined above, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. Nevertheless, I note that this Office did, indeed, inform SAG of the fact that the record included two pieces of its correspondence with the Minister/Department and the dates of the correspondence. I am satisfied that SAG was in a position to provide submissions in support of refusal notwithstanding the fact that it did not receive a copy of the record at issue.
For section 35(1)(b) to apply, I must be satisfied that disclosure of the information in the record would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).
In the Supreme Court decision in the case ofMahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J inCoco v A.N. Clark (Engineers) Ltd [1969] R.P.C. 41, at 47: “Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself… must ‘have the necessary quality of confidence about it’. Second, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it”.
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
1. “the information must in fact be confidential or secret: it must… ‘have the necessary quality of confidence about it’;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
In order to establish that an equitable duty of confidence exists, it should be shown that the information has the necessary quality of confidence. Factors relevant for consideration in this regard include, for example, whether the information is confidential or secret or concerns private matters. As set out above, section 25(3) precludes me from revealing the content of an exempt record. Therefore, while I cannot describe the information in detail, I believe that I am not in breach of section 25(3) by stating that the record essentially concerns an internal matter relating to the corporate governance of SAG. Having considered the content and context of the record, I am satisfied that the information contained therein relating to SAG has the necessary quality of confidence. I am satisfied that the information concerns private matters relating to the internal governance of SAG that is not publicly available.
In addition, the circumstances in which the information is communicated must be such that a duty or obligation of confidence is imposed. Relevant matters for consideration in this regard may include, for example, the expectations of the parties and the reasonableness of any such expectation; the nature of the information; the purpose for which the information was provided; the functions being performed by the FOI body and the relevance of the information to those functions; and the broader context in which the information is provided and may be disclosed. Again, while I believe I am limited in the extent to which I can give reasons for my findings, I am satisfied that the information contained in the record was communicated in circumstances which impose an obligation of confidence. In arriving at that position, I have taken into consideration the nature of the information and the purpose for which it was provided, as well as the broader context. I consider that the information in question was communicated by SAG for a limited and particular purpose and it reasonably expected that its correspondence would be treated as confidential and that the Department reasonably accepted the correspondence as confidential.
The third ‘contour’ of the equitable doctrine relates to wrongful communication. Where disclosure of the information would result in an unauthorised use to the detriment of the party who communicated it or where it is wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence, the third requirement of establishing breach of an equitable duty of confidence is met. Noting that both the Department and SAG object to the release of the record and bearing in mind the submissions advanced by the third party, I am satisfied that relevant detriment could arise should the record be disclosed without the consent of SAG and that the third ‘contour’ is therefore met.
In light of the above analysis, I am satisfied that disclosure of the record would constitute a breach of an equitable duty of confidence owed to SAG. I find, therefore, that section 35(1)(b) applies.
I should acknowledge at this stage that as part of the record was created by the Department, section 35(2) provides that section 35(1) cannot apply to that part unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider. I have already found that the release of the entire record would constitute a breach of an equitable duty of confidence owed to SAG. SAG is not an FOI body and is, in fact, an exempt agency for the purposes of the Act. I am also satisfied that it was not providing a service for the purposes of section 35(2). Accordingly, I find that section 35(2) does not serve to disapply section 35(1).
It is important to note that section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence and that this Office may consider the public interest defence in the context of section 35(1)(b). I consider that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. I would also note that while certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily mean that there is a public interest in disclosing the information. Having considered the specific content and context of record 5, I am not satisfied that any resultant breach of confidence could be successfully defended on the basis of a public interest defence.
Accordingly, I find that the Department was justified in refusing access to record 5 under section 35(1) of the FOI Act. As I have found record 5 to be exempt under section 35(1), I do not need to consider the Department’s reliance on sections 36(1)(b) or 36(1)(c) to withhold access to the same record.
The Department refused access to records 6, 6a, 6b, 8, 8a, 8b, 8c and 8d in full under sections 30(1), 35(1) and 37(1). Having regard to the contents of the records, DB, DPC and the NTMA were notified of this Office’s review and given an opportunity to comment. DB indicated that it had no objection to the release of relevant records and DPC did not reply. The NTMA made submissions in support of the Department’s reliance on sections 30 and 37. The NTMA also stated that, having considered matters, it was of the view that section 36 of the FOI Act was more relevant than section 35. While the Department did not rely on section 36 to refuse access to the records in question, this is a mandatory exemption, which I will consider further below.
By way of background, both CEOs have since been appointed and details of their respective remuneration packages are now in the public domain. In the circumstances of this case, I am satisfied that section 30(1)(c) is of most relevance. Accordingly, I will consider its application in the first instance.
In its internal review decision, and in its submissions to this Office, the Department indicated that it was relying on section 30(1)(c) to refuse access to records 6, 6a, 6b, 8, 8a, 8b, 8c and 8d in full. The NTMA also argued that section 30(1)(b) applied to certain information contained in the records relating to its own functions. However, section 30(1)(b) is a discretionary exemption, and the Department did not rely on it to refuse access to the records sought. Accordingly, I will not consider the applicability of section 30(1)(b) to the records concerned.
Section 30(1)(c) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. The section is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body.
Unlike sections 30(1)(a) and 30(1)(b), this exemption does not contain a harm test. It is sufficient that access to the records concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
The Department stated that at the time the request was received, both recruitment processes were ongoing and negotiations between the Department, the state bodies concerned and potential candidates for the posts were in train. In its submissions to this Office, the NTMA indicated that it agreed with the Department’s position on section 30(1)(c). By way of background, when performing its statutory functions comprising the provision of financial and commercial advisory services to relevant Government Ministers in relation to designated bodies, the NTMA is known as the New Economy and
Recovery Authority (NewERA). The NTMA stated that the NewERA reports in the records contain information that could reasonably be expected to disclose positions taken and procedures used in relation to ongoing negotiations.
The first question I must consider is whether the matters referenced in the records and submissions comprise negotiations for the purpose of section 30(1)(c). Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body’s negotiations would also be exempt.
In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, where there is:
• any proposal for settlement or compromise
• any indicators of ‘fall-back’ positions
• information created for the purpose of negotiations
• the FOI body’s negotiating strategy
• an opening position with a view to further negotiation.
The wording of section 30(1)(c) extends to negotiations carried out by an FOI body other than the body making the FOI decision. However, it does not extend to negotiations carried out by a person or body that is not an FOI body.
While I am limited in the extent to which I can describe the contents of the records at issue, I believe it is important to note that in respect of both DB and DPC and pursuant to relevant legislation, the remuneration of the CEO requires the approval of the Minister and the consent of the Minister for Public Expenditure and Reform. The records relate to engagements between DB, DPC, the Department and NewERA in respect of proposed terms and conditions and remuneration. In short, and in respect of both companies, the Minister’s approval is being sought in respect of certain terms and conditions of appointment.
I am not satisfied that the decision-making process in relation to whether to approve the relevant proposals is a negotiation. Both companies requested approval from the Minister in respect of proposed terms and conditions of appointment. The Department requested that NewERA provide a review of the submissions received by the companies. NewERA duly provided background information, key considerations and observations. While the reports provided likely informed the Minister’s position, the grant of approval is within the Minister’s power. I do not accept that the Ministerial approval or otherwise of a proposal constitutes a negotiation. There is no settlement or compromise required. While it might be in the Minister, Department and State’s interest to arrive at a mutually agreeable position, the fact remains that the Minister can determine whether to approve any such proposals received. While I accept that negotiations in respect of the actual appointment of the CEO may occur, those negotiations would be between any candidates and their perspective employer, in this case either DB or DPC, both of which are exempt agencies for the purposes of the FOI Act. Neither do I accept that any negotiations relating to NewERA are or were ongoing. As noted above, NewERA provides financial and commercial advisory services to Ministers. In the context of the records at issue, the body is not engaged in any negotiations on its own behalf.
On the basis of the above, I am not satisfied that the Department has identified negotiations carried on by or on behalf of the Government or an FOI body. In my view, release of the records could not reasonably be expected to disclose positions taken by the Department or any other FOI body. I find that the records are not exempt under section 30(1)(c) of the FOI Act. In light of this finding, it is not necessary for me to consider the application of section 30(2).
The Department also relied on section 37 in relation to the records concerned. Its position is that these records contain personal information relating to the now previous occupants of those posts.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, (v) information relating to the individual in a record falling within section 11(6)(a), (xii) the name of the individual where it appears with other personal information
relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual holds or held
“(A) office as a director of,
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in,
an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid”
In its submissions to this Office, the Department identified the following specific information in the records which it considered to comprise third party personal information:
• Record 6: paragraphs 2.2, 2.3, 4.1, 4.2, 4.3, 4.5, 5.1, 7.1 and 7.2
• Record 6a: paragraphs 1, 2, 3 and 10
• Record 6b: paragraphs 1 (first bullet point), 2.2 and 2.3 (third bullet point)
• Record 8: paragraphs 2.2 and 5.3
In its submissions to this Office, NTMA provided a copy of each of the records concerned with proposed redactions. It stated that the information concerned would come within the definition of personal information in the FOI Act, in particular, categories (ii) and (iii) above. It indicated that it also considered section 37 to apply to the following additional information:
• Record 6b: the third bullet point in section 3.1.2
• Record 8c: the third item and third and fourth figures in the table and the last sentence in section 3.1
In its internal review decision, the Department noted that State bodies, including commercial State companies, are required to publish details of CEO remuneration in their annual reports under the Code of Practice for the Governance of State Bodies. However, the Department was also of the view that the information identified above comprised details of both individuals’ remuneration packages and how they were arrived at, and that this was exempt under section 37 of the FOI Act.
As set out above, DB and DPC are both listed in Schedule 1, Part 2 of the FOI Act as exempt agencies. None of the parties have argued that either body is acting as a service provider to the Department, and I am satisfied that this is not the case. Accordingly, I am also satisfied that the exclusion to the definition of personal information outlined above does not apply as DB and DPC are not FOI bodies or service providers for the purposes of the FOI Act.
Having considered the information identified by the Department and the NTMA, it seems to me that the majority of the information is information that essentially relates to the terms and conditions of the post of CEO in each of the relevant bodies, as opposed to information relating to identifiable individuals. Nevertheless, as the identities of the former and current holders of the relevant CEO posts is in the public domain, I accept, on balance, that the disclosure of the information at issue would disclose information relating to both the financial affairs and the employment or employment history of identifiable individuals. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) provides that section 37(1) does not apply if -
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,"
I am satisfied that subsections (a), (b), (d) and (e) do not apply in this case, nor have any of the parties argued that they do. On the matter of the applicability of subsection (c), I note that details of the CEOs’ salary and pension contributions are published in the relevant bodies’ annual reports each year. Furthermore, details of the salary, pension, car allowances and other benefit in kind payments for the CEOs of commercial semi-state bodies under the aegis of the Minister for Transport were placed in the public domain by way of information provided in response to a parliamentary question (PQ) raised in July 2023 ( 2023-07-13_pq250-14-07-23_en.pdf ) and more recently in June 2024 ( Departmental Bodies: 19 Jun 2024: Written answers (KildareStreet.com) ). The information so provided was reported on and discussed in the national print media.
It therefore seems to me that the relevant information is in the public domain and is thus not subject to section 37(1). In this regard, I am informed by the judgment of the High Court in the recent case ofIndustrial Development Agency (Ireland) v The Information Commissioner [2024] IEHC 649, in which Phelan J. stated as follows:
“…[E]ven if information was considered to constitute personal information within the meaning of s. 37(1) by disclosing the identity of a natural person as opposed to a company, the fact that the information is publicly available triggers the operation of s. 37(2) to permit disclosure of the information in question. I do not read ss. 2 and 37 of the 2014 Act as precluding the disclosure of information already in the public domain and a matter of public record”.
Accordingly, I find that section 37(2)(c) applies to this information, which disapplies the Department’s reliance on section 37(1). I would add that even if section 37(2) had not served to disapply section 37(1), I would have found that section 37(5)(a) would have served to do so. That section provides for the release of a record where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. It seems to me that individuals who hold the position of CEO in State Bodies could not reasonably have any expectation that the salary details for the post would remain confidential. Indeed, there is a significant public interest in ensuring that State Bodies comply with the Code of Standards for the Governance of State Bodies. Under the Code, State Bodies are required to publish in their annual reports the salary of the CEO. Moreover, Chairpersons and Boards of all State bodies are required to implement Government policy in relation to the total remuneration package (including basic salary, allowances, and all other benefits in cash or in kind), and in relation to other provisions for superannuation and termination benefits, of the CEOs/Managing Directors of the State bodies.
The Department did not rely on section 36(1) of the FOI Act to refuse access to records 6, 6a, 6b, 8, 8a, 8b, 8c and 8d. However, in its submissions to this Office, NTMA argued that section 36(1)(b) applied to certain information contained in the records in question. Section 36 is a mandatory exemption. As such, I will consider its application to the information identified by the NTMA.
Section 36(1)(b) provides for the mandatory refusal of a 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 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 that could occur must be specified with a reasonable degree of clarity.
The relevant information identified by the NTMA falls within three broad categories, as follows: information relating to DPC’s strategy and projected revenue, expenditure and activity levels; information relating to the previous/incoming CEOs’ remuneration packages; and details of the NTMA’s analysis and comparisons of other CEO salary packages.
In its submissions to this Office, the NTMA stated that NewERA’s role was to “provide financial and commercial advice to Ministers of the Government” in relation to certain State bodies and that, as part of this role, it received information from State Bodies who operate in a commercial market. It said that such information was provided in order for NewERA to perform its functions as set out in the National Treasury Management Agency (Amendment) Act 2014. The NTMA stated that NewERA treats all such information as information obtained in confidence and “where relevant, commercially sensitive”. It argued that the information identified was “commercially sensitive” to DB and DPC and “other named companies” in the records, and that its release “could reasonably be expected to prejudice the competitive position of the companies in the conduct of their business”.
As noted above, DB indicated that it had no objection to the release of the records sought and DPC made no response to this Office’s invitation to make a submission. As also noted, the Department did not rely on section 36 in respect of these particular records.
I have carefully examined the particular information which the NTMA has argued is exempt under section 36(1)(b). I am satisfied that the information relating to the final remuneration packages of the then incumbent and incoming CEOs is mostly in the public domain at this point. I am also satisfied that the information relating to DPC’s projected figures is also in the public domain by way of its published business plans. I am also satisfied that the remaining calculations and analysis of the proposed CEO salary figures against those in similar organisations are mostly factual and do not reveal any details of the bodies’ commercial activities over and above what is already in the public domain. I consider it relevant that the NTMA is the only party arguing that the information concerned is commercially sensitive. I have also had regard to the fact the much of the NTMA’s calculations are based on publicly available information. In the circumstances of this case, it is not clear to me how the release of the particular remaining information identified could prejudice the competitive position of any of the parties concerned. Nor have any of the parties satisfied me that this is the case.
Accordingly, having carefully considered the matter, I find that section 36(1)(b) does not apply to the information contained in records identified by the NTMA as commercially sensitive.
Section 35(1)(a) provides for the mandatory protection of information given to an FOI body in confidence. For the exemption to apply, it is necessary to show the following:
• that the information contained in the record was given to an FOI body in confidence;
• that it was given on the understanding that it would be treated by the FOI body as confidential;
• that the disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to it.
As noted above, DB has no objection to the release of the records sought and DPC made no submissions. As also noted above, while the NTMA stated that it treats all information such as that concerned in this case as information obtained in confidence, it made no arguments regarding confidentiality. It also stated that it considered section 36 to be of more relevance than section 35.
In its submissions to this Office, the Department noted that the NewERA reports (records 6b and 8c) “state that they are “Strictly Confidential and Commercially Sensitive for the Purposes of the FOI Act”. It made no other substantive comments in relation to the application of section 35 to the records in question. As previously noted, the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought was justified. While I must also adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, I do not believe that I am required to construct arguments to support an FOI body’s broad assertions.
Nonetheless, I accept that the records concerned, may, when they were submitted, have had a certain sensitivity, insofar as the parties could reasonably have expected that details of the matters being considered before a final chief executive salary package was agreed upon were submitted to the Department in confidence on the understanding that they would be held as confidential.
However, I do not accept that the release of such information this long after the fact could be expected to prejudice the flow of similar information to the Department in future. I have found above that the release of the information contained in the records concerned could not reasonably be expected to cause the harms identified by the parties in respect of sections 30(1)(c) and 36(1)(b). I also consider it relevant that the chief executive salary packages have been agreed and that much of the information contained in the records is already in the public domain, especially in relation to the remuneration packages of other semi-state CEOs, which are published online. Of note, it appears that this information was collated by NewERA from publicly available sources. While the NTMA made broad assertions in respect of information it obtains as part of its functions being treated in confidence, I do not accept that information about commercial State body remuneration packages, even if provided by the bodies in question, could be considered to have been given on the understanding of confidence. Nor do I accept that disclosure could prejudice the future provision of such information. In any event, I would again note that the majority of the information in question is publicly available.
Furthermore, I consider it relevant that neither DB nor DPC objected to release or argued that the information relating to their organisations was confidential. In the absence of any substantive argument to the contrary, I simply cannot accept that the release of the records in question would be likely to mean that the parties in question would refuse to provide the same type of information to the Department in the future. Accordingly, I find that the Department was not justified in refusing access to the records concerned under section 35(1)(a) of the FOI Act.
In conclusion, therefore, I find that the Department was not justified in refusing access to records 6, 6a, 6b, 8, 8a, 8b, 8c, or 8d under any of the exemptions cited.
In its original and internal review decisions, the Department refused access to records 7 and 9 under sections 35(1) and 36(1). In its submissions to this Office, DAA argued that sections 35(1)(a) and 36(1)(b) applied. I consider section 36 to be of most relevance, so I will consider its application in the first instance.
In its original decision the Department cited 36(1)(b) and (c), although I note that it simply quoted the exemptions in question and stated that the records contained commercially sensitive information. In its internal review decision, the Department again quoted sections 36(1)(b) and (c) and stated that the records concerned “relate to the commercial affairs of commercial State companies” and that they were refused partly on that basis. In response to queries from this Office in relation to the application of section 36(1)(c), the Department stated that the questions were “n/a”. I note that section 36(1)(c) was cited by DAA in its submissions and I will consider the arguments advanced below.
I have set out the requirements of section 36(1)(b) above and I do not need to repeat them here. Section 36(1)(c) provides that access to a record shall be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
Records 7 and 9, in broad terms, comprise correspondence from DAA to the Commission for Aviation Regulation (CAR) (which was copied to the Minister), a brief summary of matters arising prepared by the Department for the Minister, a draft letter to DAA for the Minister’s approval (record 7), a brief cover note, a letter from DAA to the Department and a draft response (record 9).
The Department’s submissions
This Office asked the Department to identify the particular information contained in the records (financial, commercial, scientific or technical or other) which it considered to fall under section 36 and to whom it relates. In its submissions, the Department stated that records 7 and 9 related to DAA plc and CAR, and that they contained “commercial” information. It did not elaborate on this point or identify any specific information which it considered to be commercially sensitive.
When asked to identify the material financial loss or gain which was expected to result to DAA, and to show how disclosure of the relevant information in the records could reasonably be expected to cause that result, the Department stated that the disclosure of the information in the records “could reasonably be expected to cause damage to the relationships between the [D]epartment, DAA plc” and CAR. It did not explain or elaborate in any way. The Department was also asked to describe how the competitive position of the person to whom the information relates could be prejudiced by the disclosure of the relevant information. It stated that “[a]s the records contain commercially sensitive information [its release] could have an adverse impact” on DAA.
DAA’s submissions
In its submission to this Office, DAA stated that given the subject matter of the records and the financial matters referred to therein, they are commercially sensitive. It also stated that the release of the information at issue could prejudice its competitive position and its relationship with various stakeholders. DAA argued that disclosure could prejudice the conduct or outcome of future negotiations between it and existing and prospective airlines, were the records to be viewed in a particular way.
As set out above, both the Department and DAA were asked to indicate what specific information in the records concerned was commercially sensitive, to describe the harm likely to arise from its release and to explain how that harm might arise. While the parties made various assertions, it seems to me that neither the Department nor DAA made detailed or specific arguments as to the likely harms arising from the release of the records concerned, except in the most general terms.
However, that is not the end of the matter. While the presumption set out in section
22(12)(b) as described above provides that a decision to refuse a request is presumed not to
have been justified unless the FOI body satisfies this Office that it was justified, I must also
have regard to the findings of the Supreme Court in the Enet Case. In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered.
I have considered the arguments of the parties and have had regard to the contents of the records. In essence, the records concern a dispute between DAA and CAR as to how DAA proposed to treat in its accounts Exchequer funding received in connection with compensation payments for damage suffered by Irish airports directly linked to the Covid-19 pandemic. I understand from the Department that the matters set out in the records have since been resolved. It seems to me that DAA’s arguments for the withholding of the records amount to nothing more than a concern that the records might be interpreted in a particular way that might damage future negotiations with airlines, although it did not identify specific upcoming negotiations, or explain how they could be prejudiced by the release of the information sought.
This Office has explained in many previous decisions that the possibility that information once released will be misinterpreted is not generally a good cause for refusing access to the information, in circumstances where the FOI body should be capable of presenting the information in a way which will allow any objective observer to draw accurate and balanced conclusions. In any event, I understand that the funding itself and its treatment was subsequently reported by DAA in its relevant annual report.
Moreover, it is wholly relevant, in my view, that the matter in dispute concerns the accounting treatment of Exchequer funding that was provided in exceptional and unique circumstances and it is not apparent to me that the manner of the DAA’s treatment of such funding might prejudice future, unidentified, negotiations. In the circumstances, I am not satisfied that the release of the records might give rise to the harms identified in sections 36(1)(b) or 36(1)(c) and I find, therefore, that the exemptions do not apply.
I would add, for the avoidance of doubt, that even if I had found section 36(1)(b) to apply, I consider that section 36(3) would serve to disapply section 36(1)b) in this case. Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.
I accept that there is a public interest in commercial State bodies being able to communicate with their shareholder Minister about sensitive matters without their business or commercial position being prejudiced. However, in the circumstances of this case, it seems to me that this public interest is of a lesser weight in this case, as I simply do not accept that DAA’s competitive position could be prejudiced to any real extent by the release of the records sought at this point in time. On the other hand, I am satisfied that the release of the records in question would shed significant light on the Department’s role in such matters and the steps it took to resolve the dispute in question. The Minister plays an important part in relation to governance matters concerning DAA. In the circumstances of this case, it seems to me that there is a strong public interest in knowing how the Department is carrying out its functions in relation to the governance of a State body with regards to its treatment of Exchequer funding.
The Department also relied on section 35(1)(a) to refuse access to the records in question. Section 35(1)(a) provides for the mandatory protection of information given to an FOI body in confidence. As I have set out above, for section 35(1)(a) to apply, it is necessary to show the following:
• that the information contained in the record was given to an FOI body in confidence;
• that it was given on the understanding that it would be treated by the FOI body as confidential;
• that the disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to it.
The Department stated that while records 7 and 9 “did not make specific reference” to confidentiality, they were “given in confidence with the understanding that they would be treated as confidential” and that the disclosure of the information “would likely prejudice the giving of similar information in future”. It also stated that it was of importance to the Department that such similar information should continue to be given.
In its submissions to this Office, DAA said that the records contain confidential information relating to proposed regulatory accounting treatment and includes legal advice received from legal advisers. It said that the correspondence at issue was shared in the strictest of confidence and forms part of an exchange of correspondence conducted on the understanding it was a confidential exchange with the Minister as shareholder. It referenced the information contained in the records as well as the context and circumstances and said that it was evident that the information was given and received in confidence. It said that it is very important that the Minister and relevant officials are well-informed on issues that have certain implications for the company and that the confidentiality and legal privilege of such communications is respected. It said that should such information be disclosed, it would discourage DAA from engaging with the Department and sharing information and that it is crucial that such information be shared in the future.
As I have explained above, records 7 and 9 concern a dispute between DAA and CAR as to how DAA proposed to treat, in its accounts, Exchequer funding received in connection with damage compensation payments for damage suffered by Irish airports directly linked to the Covid-19 pandemic. The Department’s views on the matter and the purpose for which the funding was provided were key issues in the dispute. As such, it seems to me that the information in the records is such that DAA would simply not be in a position to refuse to provide similar such information to the Department in future, regardless of its assertion that it would be discouraged from engaging with the Department and sharing information were the records at issue to be released. I accept that in certain circumstances, DAA might provide the Department with commercially sensitive information in order to ensure that the Minister had a full picture of the situation whilst simultaneously expecting that such information would be treated as confidential. However, in circumstances where the dispute in question has been resolved and the relevant funding has since been reported on by DAA in its relevant annual reports and given the nature of the subject matter of the records at issue, I do not accept that the release of the records concerned could give rise to DAA refusing to provide such information in future. Accordingly, I find that section 35(1)(a) does not apply to records 7 and 9.
For the avoidance of doubt, while DAA has referenced legal advice contained in the records, I am not satisfied that section 31(1)(a) of the FOI Act serves to exempt any of the information. That section protects record which would be exempt from production in proceedings in a court on the ground of legal professional privilege. To be clear, none of the parties have claimed that the exemption applies. In any event, I do not accept that the records at issue, including communications between potential parties to a dispute, could be considered confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice.
In summary, I find that section 33(1)(a) does not serve to exempt record 2 and I direct its release.
I annul and remit the Department’s effective refusal of records 4a and 4b and direct it to consider this part of the request afresh and make a new first instance decision in accordance with the provisions of the FOI Act.
I find that the Department was justified in refusing access to record 5 under section 35(1)(b) of the FOI Act.
In respect of records 6, 6a, 6b, 8, 8a, 8b, 8c and 8d, I find that the Department was not justified in refusing access on the basis of sections 30(1)(c), 35(1), 36(1)(b) or 37(1) of the FOI Act and I direct the release of same.
In respect of records 7 and 9, I find that the Department was not justified in refusing access under sections 35(1) or 36(1) and I direct their release.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its decision to refuse to release record 5 under section 36(1)(b). I annul its effective refusal of records 4a and 4b and direct it to carry out a new decision-making process on these records. I annul its decision to refuse records 2, 6, 6a, 6b, 7, 8, 8a, 8b, 8c, 8d and 9 on the basis of sections 30(1), 33(1), 35(1), 36(1) and 37(1) of the FOI Act and I direct the release of those records in full.
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