Decision
Organisation X and Screen Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-53258-P1X9J0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-53258-P1X9J0
Published on
Whether Screen Ireland was justified in its decision to grant access to certain information contained in its correspondence with the applicant relating to funding
19 September 2019
This review arises from a decision taken by Screen Ireland to release certain records on foot of a request to which section 38 of the FOI Act applies. Section 38 applies where the FOI body concerned has, at some stage in the decision-making process, considered that the record(s) in question qualify for exemption under any of sections 35, 36 and 37 of the FOI Act (regarding, respectively, confidential, commercially sensitive, or personal information) but that the record(s) should be released in the public interest.
Where section 38 applies, the body is required to notify affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the FOI body, may apply directly to this Office for a review of that decision.
In this case, Screen Ireland received a request on 6 June 2018 for copies of all records relating to funding requests for the applicant and its associated companies. On 27 June 2018, Screen Ireland notified the applicant of the request and provided copies of redacted records that it proposed to release in the public interest. In its submission of 17 July 2018, the applicant argued that additional redactions should be made to seven of the records and that certain parts of five records that Screen Ireland proposed to redact should not be redacted.
Having considered the applicant's submission, Screen Ireland notified the applicant of its decision to part-grant the request on 8 August 2018. It stated that it had decided to part-grant the request subject to some further redactions to information that could be considered commercially sensitive by the applicant as well as some “un-redactions” to information that the applicant requested to be released.
The applicant sought a review by this Office of that decision on 23 August 2018. Following review, I issued a decision on 4 September 2018 (Case 180343 available at www.oic.ie) wherein I found that Screen Ireland had not properly complied with the requirements of section 38 in the case. In particular, I found that it had not correctly adhered to the timelines set out in section 38(2) which provides that public bodies shall, no later than two weeks after the receipt of the request, notify any relevant third parties of the request, indicating those records which it was considering releasing in the public interest and providing such third parties with an opportunity to make a submission within three weeks. I annulled the decision of Screen Ireland and directed it to conduct a new decision-making process which complied with the requirements of section 38.
On 17 September 2018, Screen Ireland once again contacted the applicant and provided copies of the redacted records which it proposed to release in the public interest. In its submission of 8 October 2018, the applicant argued that 11 further redactions should be made to a number of the records and that certain information that Screen Ireland proposed to redact should not be redacted.
Having considered the applicant's submission, Screen Ireland notified the applicant on 22 October 2018 of its decision to part-grant the request. In refusing access to parts of the records it relied on the provisions of sections 30, 35, 36 and 37.
On 6 November 2018, the applicant sought a review by this Office of Screen Ireland’s decision in respect of 10 of the 11 redactions it had sought in its submission of 8 October 2018 and in respect of two pieces of information it sought to unredact.
During the course of the review, the applicant made a submission wherein it identified nine pieces of information it wished to be redacted and two pieces of information it wished to have unredacted.
I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the contents of the records at issue. I have also had regard to correspondence between the Screen Ireland and both the applicant and the requester on the matter, and to communications between this Office and the applicant, Screen Ireland, and the requester in relation to this review.
Screen Ireland was previously known as the Irish Film Board (IFB), having adopted its new name in June 2018. All references in the relevant records refer to the IFB. However for the sake of coherence all references in this decision will refer to Screen Ireland. For ease of reference, I have adopted the numbering used by Screen Ireland when processing the request to refer to the relevant records.
I should say at the outset that the question of whether or not information contained in records to which access has been sought by way of an FOI request is exempt from release is a matter of the public body in the first instance. If the body decides to withhold information, it is open to the requester to exercise his/her appeal rights in respect of such a decision. It is important to note that a number of the exemptions in the Act serve to protect certain interests of the public body.
Where an application for review has been submitted by an affected third party who was notified of a request in accordance with the provisions of section 38, the role of this Office is to review the decision taken by the public body that the information sought qualifies for exemption under any of sections 35, 36 and 37 of the FOI Act but that it should be released in the public interest.
If the body decides to withhold certain information in such cases, the rights of appeal in respect of a decision to withhold information rest with the requester who sought access to the information in the first place, not with the affected third party.
As such, this Office will not consider the applicant’s arguments that certain information should be unredacted. In any event, it is worth noting that the record containing the information that the applicant wishes to be unredacted is a letter that it wrote to Screen Ireland. As such it is open to the applicant to place that record in the public domain if it so wishes.
This review is therefore concerned solely with whether Screen Ireland was justified in its decision to grant access to the nine pieces of information contained in the records sought by the requester as identified by the applicant in its submission of 24 January 2019.
There are a number of preliminary matters which I wish to address at the outset.
First, under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant of satisfying this Office that Screen Ireland's decision to release the relevant parts of the records at issue was not justified.
Secondly, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the applicant's arguments for seeking the redaction of certain information under sections 35 and 36 and of the reasons for my decision on that matter are somewhat limited in this case.
The records at issue in this case comprise correspondence between Screen Ireland and the applicant between February 2017 and February 2018 relating to funding arrangements for the applicant. In its submission of 4 January 2019 to this Office, the applicant argued that the following parts of the relevant records should be redacted under sections 35 and 36.
1. SI/FOI/120/0014A – Letter from Screen Ireland to the applicant, 12 May 2017, page 1, paragraph 1
2. SI/FOI/120/0014A – Letter from Screen Ireland to the applicant, 12 May 2017, page 1, paragraph 4
3. SI/FOI/120/0025A – Letter from Screen Ireland to the applicant, 26 October 2017, paragraph 3
4. SI/FOI/120/0027A – Letter from Screen Ireland to the applicant, 23 November 2017, paragraph 4
5. SI/FOI/120/0031A – Letter from Screen Ireland to the applicant, 19 December 2017, paragraph 4
6. SI/FOI/120/0034A – Letter from the applicant to Screen Ireland, 23 January 2018, paragraph 4
7. SI/FOI/120/0035 – Email from Screen Ireland to the applicant, 8 February 2018, page 1, paragraph 2
8. SI/FOI/120/0035 – Email from the applicant to Screen Ireland, 7 February 2018, page 2, paragraph 3
9. SI/FOI/120/0035 – Email from Screen Ireland to the applicant, 2 February 2018, page 3, paragraph 2
The applicant argued that the information in question is exempt from release under sections 35 and 36 and that the public interest would be better served by withholding that information. Of the nine specific parts of the records referred to above, the applicant has relied on section 36 with respect to all of them. In essence, its argument is that the release of the information would harm the commercial interests of the applicant, particularly in relation to future funding or sponsorship opportunities. In addition, the applicant has argued that section 35 is applicable to parts of three records (SI/FOI/120/0025A, SI/FOI/120/0031A and SI/FOI/120/0034A).
The original requester in this case also made a submission to this Office wherein he recalled that while the relevant parts of the records may contain some commercially sensitive information, the overriding purpose of the FOI Act is transparency and this is particularly important in cases relating to the use of taxpayers funds. The requester further argued that allowing a private entity to determine which documents should be withheld from inspection would go against the spirit and letter of the FOI Act.
As the applicant has sought to rely on the provisions of section 36(1) with respect to all of the records at issue, I propose to examine that exemption first.
Section 36(1) states that (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains—
(a) trade secrets of a person other than the requester concerned,
(b) 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The applicant's arguments relate to its views that subsections (b) and (c) apply. As it has made no argument that subsection (a) applies, I do not need to consider the applicability of that subsection.
The essence of the test in subsection (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 subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The test to be applied is whether the decision maker's expectation of the identified harm arising is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection (1)(b).
Subsection (1)(c) provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. This Office takes the view that a party seeking to rely on subsection (1)(c) should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
However, subsections (1)(b) and (1)(c) do not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).
SI/FOI/120/0014A
This record comprises a letter from the Chief Executive of Screen Ireland to the applicant dated 12 May 2017. The applicant sought the redaction of part of paragraph 1 and part of paragraph 4 of this record on the basis that the information contained therein is commercially sensitive.
The information at issue in paragraph one comprises Screen Ireland’s opinion as to the effect of a specified matter on the 2017 IFTA Film and TV Drama Awards that was outside the control of the applicant. The applicant disagrees with the opinion.
Having regard to the provisions of section 25(3) I cannot recite the applicant’s detailed arguments or address them comprehensively in this decision. Its argument generally is that the release of the information would have a very serious negative impact commercially and would prejudice the conduct outcome of its future negotiations with sponsors.
Having considered the applicant’s arguments, I am not satisfied that subsections 1(b) or (1)(c) of section 36(1) apply. In coming to this conclusion, I have had regard to the fact that the specified matter about which Screen Ireland expressed an opinion is a matter that is in the public domain and that was outside its control. I do not accept the applicant’s arguments as to the potential harm arising from the release of Screen Ireland’s opinion as to the effect of the specified matter.
With regard to paragraph 4 the applicant sought the redaction of one sentence on the ground that it is commercially sensitive and would affect future negotiations with potential sponsors. It essentially argued that the sentence is misleading and could be wrongly misinterpreted by future potential sponsors, thereby affecting future negotiations with potential sponsors.
This Office does not generally accept that the possibility that information once released will be misinterpreted is a good cause for refusing access to the information, nor is there any provisions in the Act to exempt the release of information on the grounds that it is factually inaccurate. It seems to me that the applicant should be capable of presenting the information to potential sponsors in a way which will allow any objective observer to draw accurate and balanced conclusions.
Having considered the matter I am not satisfied that subsections 1(b) or (1)(c) of section 36(1) apply. I therefore find that section 36(1) does not apply to the relevant sentence in paragraph 4 of record SI/FOI/120/0014A.
SI/FOI/120/0025A
This record comprises a letter from Screen Ireland to the applicant dated 26 October 2017 in which Screen Ireland notified the applicant that its application for funding for 2018 was successful. The letter stated that a further amount of funding would be offered based on two conditions. The applicant argued that the first condition, which is concerned with a corporate governance matter relating to the applicant, should be redacted.
While the applicant argued that the release of the information in question would be commercially damaging, its arguments are primarily concerned with the confidentiality of the information, an argument that I will consider separately below.
In essence the applicant argued that the condition imposed was, in fact, something that the applicant had been planning to do in any event and had previously informed Screen Ireland of its intentions to do so. It argued that the inclusion of the information gives the false impression that it was forced to meet the condition instead of it being something it had already intended to do.
Yet again, it appears that the applicant’s argument is that the release of the information would be open to misinterpretation. It argued that such a misinterpretation might impair its ability to retain and recruit new board members. For the same reasons as I have set out in respect of the relevant sentence in paragraph 4 of record SI/FOI/120/0014A, I do not accept that that argument.
In any event, the applicant has not explained how the release of the information might cause any of the harms set out in subsections 1(b) or (1)(c) to arise, nor can I see how such harms might arise. I find that section 36(1) does not apply to paragraph 3 of record SI/FOI/120/0025A.
SI/FOI/120/0027A
This record is correspondence from Screen Ireland to the applicant dated 23 November 2017 in connection with Screen Ireland’s offer of funding for 2018. The applicant has sought the redaction of paragraph 4 of this record on the basis that the information contained therein is commercially sensitive.
It stated that it is currently in negotiations with a key organisation and that the release of the information at issue could prove detrimental to those discussions. However, it has not explained how such harm might arise, nor is it clear to me how such harm might arise. For example, the disclosure of the information would not disclose previous or current negotiating positions or tactics that might serve to undermine ongoing negotiations. Having considered the matter I find that section 36(1) does not apply to paragraph 4 of record SI/FOI/120/0027A.
SI/FOI/120/0031A
This record is correspondence from Screen Ireland to the applicant dated 19 December 2017. The applicant has sought the redaction of paragraph 4 of this record on the basis that the information contained therein is commercially sensitive.
The information at issue includes information that is similar to the information at issue in record SI/FOI/120/0025A, concerning a corporate governance matter. While the applicant argued that the release of the information in question would be commercially damaging, its arguments are primarily concerned with the confidentiality of the information, an argument that I will consider separately below.
For the same reasons as I have set out in respect of the information at issue in record SI/FOI/120/0025A, I find that section 36(1) does not apply to paragraph 4 of record SI/FOI/120/0031A.
SI/FOI/120/0034A
This record comprises correspondence from the applicant to Screen Ireland dated 23 January 2018. The applicant sought the redaction of paragraph 4 of this record on the basis that the information contained therein is both confidential and commercially sensitive. Yet again, the information at issue relates to the corporate governance matter that arose in respect of records SI/FOI/120/0025A and SI/FOI/120/0031A.
While the applicant’s arguments are primarily concerned with the confidentiality of the information, it argued that the release of the information at issue could be falsely misinterpreted and that this could prejudice its competitive position but it did not explain how such harm might arise. I find that section 36(1) does not apply.
SI/FOI/120/0035
This record comprises a chain of email correspondence between representatives of Screen Ireland and the applicant in February 2018. The applicant has sought three redactions under section 36(1), namely (i) paragraph 2 of the email dated 8 February from Screen Ireland to the applicant, (ii) paragraph 3 of the email dated 7 February from the applicant to Screen Ireland, and (iii) paragraph 2 of the email dated 2 February from Screen Ireland to the applicant.
The relevant paragraphs all refer to potential additional funding and related conditions, and is similar to the information at issue in records SI/FOI/120/0025A, SI/FOI/120/0031A, and SI/FOI/0034A. The applicant’s arguments are similar to those made in respect of record SI/FOI/120/0025A. For the same reasons as I have set out in respect of that record above, I find that section 36(1) does not apply to any of the three relevant paragraphs.
In summary, therefore, I find that section 36(1) does not apply to any of the information the applicant sought to be redacted under that provision.
As set out above, the applicant argued that section 35 is applicable to parts of three records (SI/FOI/120/0025A, SI/FOI/120/0031A and SI/FOI/120/0034A).
Section 35(1) states that "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.
The confidentiality exemption generally does not apply to a record prepared by a staff member of an FOI body or a service provider "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" (section 35(2) refers). In addition, section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers)
SI/FOI/120/0025A & SI/FOI/120/0031A
Records SI/FOI/120/0025A and SI/FOI/120/0031A were prepared by Screen Ireland. As such, section 35(1) cannot apply unless disclosure of the information at issue 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 its staff.
The applicant has not pointed to any agreement or enactment which provides for a duty of confidence to a person other than an FOI body or its staff. I have also considered whether an equitable duty of confidence might exist.
In Mahon v. Post Publications [2007] IESC 15, 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 in Coco 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’. Secondly, 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 restated the requirements of the equitable doctrine of confidence as follows:
I. "The information must in fact be confidential or secret: it must, to quote Lord Greene, 'have the necessary quality of confidence about it';
II. 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;
III. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence."
As outlined above, the information at issue in records SI/FOI/120/0025A and SI/FOI/120/0031A concern a corporate governance matter relating to the applicant.
The applicant argued that the corporate governance proposal was, in fact, something that it had been planning to do and that it had previously informed Screen Ireland of its intentions to do so. It argued that it provided that information in confidence.
It is worth noting that the redacted information refers to the governance mater at a very high level only. It contains little or no specific detail relating to the matter. In my view, the proposal itself does not have the necessary quality of confidence about it. Given the nature of the funding relationship between the applicant and Screen Ireland, I do not accept that the applicant could reasonably have expected that the proposal itself was being communicated in circumstances which impose an obligation of confidence on Screen Ireland.
I find, therefore, that the release of the information at issue would not constitute a breach of an equitable duty of confidence owed to the applicant. I find, therefore, that section 35(1) does not apply.
SI/FOI/120/0034A
The information redacted from this record also concerns the same corporate governance matter. As the record was prepared by the applicant, the provisions of section 35(2) do not apply. I must therefore consider whether the provisions of section 35(1)(a) apply to the relevant information. All four of the requirements set out above must be satisfied in order for a record to be considered exempt under section 35(1)(a).
It is the circumstances in which the information was imparted and received that is important in determining whether these first two requirements of section 35(1)(a) are met. The fact that the applicant may have submitted the record in confidence does not, of itself, mean that they were given to Screen Ireland on the understanding that they would be treated by it as confidential. I take the view that an understanding of confidentiality has to be mutual. In considering this point, a number of factors are relevant, including, but not limited to, whether any assurances were given at the time the information was given, the purpose for which the information was sought or provided, and the nature of the relationship between the provider of the information and the FOI body receiving it.
In line with my findings in respect of records SI/FOI/120/0025A & SI/FOI/120/0031A, I do not accept that the applicant could reasonably understood that the general information it provided concerning its corporate governance proposals that such information would be treated as confidential by Screen Ireland.
Furthermore, I do not accept that the third and fourth requirements of section 35(1)(a) are met in this case. I do not accept that the disclosure of information of the type at issue would be likely to prejudice the giving to Screen Ireland of further similar information from the same person or other persons in circumstances which relate to the allocation of grant aid. It is also not clear to me that it is of importance to Screen Ireland that such further similar information should continue to be given to it. Rather, it is in the applicant’s interest that such information should be given to Screen Ireland. I therefore find that section 35(1)(a) does not apply to paragraph 4 of record SI/FOI/120/0034A.
In conclusion, therefore, I find that section 35(1) does not apply to any of the information at issue.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the decision of Screen Ireland to grant access to certain additional parts of the relevant records as identified by the applicant.
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