Decision
Mr Y and Department of Defence
From Office of the Information Commissioner (OIC)
Case number: OIC-147903-K7B9Z7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147903-K7B9Z7
Published on
Whether the Department was justified in redacting, under sections 35, 36 and/or 37 of the FOI Act, certain information from records relating to a meeting between the Chief Executive of the European Defence Agency (EDA) and the Irish Defence and Security Association (IDSA)
22 January 2025
According to its website, the mission of the Irish Defence and Security Association (IDSA) is to ensure Ireland develops appropriate capabilities in order to protect Ireland’s security. Its members include Irish and Ireland-based SMEs, research organisations, and multinational corporations. The European Defence Agency (EDA) is an intergovernmental agency of the Council of the European Union. According to its website, it was established in 2004 under a joint action of the European Council of Ministers, to support member states and the Council in their effort to improve European defence capabilities.
According to published Parliamentary Questions, prior to a visit by the EDA Chief Executive to Ireland in September 2023, the Department was asked by the EDA to facilitate a meeting between the Chief Executive and Irish Industry. The Department passed that request to the IDSA. The meeting was chaired by the Chief Executive and the Chair of the IDSA attended with a number of representatives from the IDSA.
On 11 January 2024, the applicant submitted a request to the Department for all records relating to a meeting between the Chief Executive of the EDA and the IDSA during the Chief Executive’s visit to Ireland in 2023.
Following consultation with the IDSA under section 38 of the FOI Act, the Department granted partial access to three records it identified as coming within the scope of the request. It redacted certain information from the records under sections 35(1)(a) and 37(1) of the Act. On 2 April 2024, the applicant sought a review by this Office of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the Act. In carrying out my review, I have had regard to the communications between this Office and the applicant, the Department, and the IDSA on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The three records at issue comprise email chains concerning the Department’s facilitation of the meeting between the Chief Executive of the EDA and the IDSA. The redacted information comprises certain identifying details of IDSA and EDA representatives, including the names of the representatives of both organisations, biographies of proposed IDSA attendees, email accounts, social media and email details concerning the IDSA, a proposed alternative meeting venue, proposed EDA attendees, and details of the Chief Executive’s schedule for his visit to Ireland other than the meeting with the IDSA.
I am satisfied that the information concerning the Chief Executive’s schedule for his visit to Ireland other than the meeting with the IDSA that has been redacted from record 2 falls outside the scope of the applicant’s request and I have not, therefore, considered that information in this review. The Department redacted the remaining information under sections 35(1) and 37(1) of the Act. During the review, the IDSA argued that the information was also exempt under section 36(1) of the Act.
Accordingly, this review is concerned with whether the Department was justified in redacting the information at issue under sections 35(1), 36(1), and/or 37(1) of the FOI Act.
It is 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.
Having regard to the nature of the information at issue, I consider section 37 to be the most relevant exemption to consider first.
Section 37(1)
Section 37(1) of the Act provides, subject to the other provisions of the section, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of third party personal information. Personal information is defined in section 2 of the Act as information about an identifiable individual that either (a) would in the ordinary course of events be known only to the individual or members of the family or friends of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above. Included in the 14 categories is (iii) information relating to the employment or employment history of individuals and (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.
In his correspondence with the Department and with this Office, the applicant argued that the disclosure of a name alone does not constitute personal information for the purpose of the Act. However, the disclosure of the names of the representatives of the organisations would disclose more than merely their names. It would also disclose the fact that they were representatives of the organisations in question. I am satisfied that the names of IDSA and EDA representatives, their email addresses and their biographies comprises personal information for the purposes of the FOI Act and that section 37(1) apples to that information. On the other hand, I am not satisfied that section 37(1) applies to the social media and email details for the IDSA, or the proposed alternative meeting venue redacted from record 2.
Section 37(2)
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 the circumstances set out in sub-sections (a), (b), (d) and (e) do not apply in this case. I find, however, that section 37(2)(c) applies to the name of the Chief Executive of the EDA and to the name of the Chair of the IDSA. The identities of both individuals and the fact that they attended the meeting in question is already in the public domain, in a record of a Dáil debate from 21 March 2024. In its correspondence with this Office during the review, the Department said that information was not in the public domain at the time of the FOI request. However, as noted above, this review is considered to be de novo, and is based upon the facts that pertain at the time of the decision. In a recent judgement inthe Industrial Development Agency (Ireland) and the Information Commissioner & Ors [2024] IEHC 649, the High Court found that the fact that information is publicly available triggers the operation of section 37(2) to permit disclosure of the information in question. It found that sections 2 and 37 of the Act do not preclude the disclosure of information already in the public domain and a matter of public record. Accordingly, I find that section 37(2)(c) disapplies section 37(1) in relation to the name of the Chief Executive of the EDA and the name of the Chair of the IDSA.
Section 37(5)
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where (a) the public interest that it be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, (‘the Enet case’). In that case, the Supreme Court found that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act, the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the records. The Court also found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions to this Office, the Department said it was asked by the EDA to facilitate a meeting between the EDA Chief Executive and Irish industry, as would be the norm during such visits to EU Member States by the Chief Executive. It said it passed the request to the IDSA. It said a meeting, which was not organised by the Department, was held between the EDA Chief Executive, the IDSA and some IDSA members. It said that while some public officials attended the meeting, they did not participate in the meeting. It said the objective of the meeting was for the EDA to provide a brief to the IDSA on its role and how it could support the IDSA and IDSA members in European engagements.
The Department said that in considering the public interest in favour of release of the records, it considered the necessity for public bodies to be open and transparent in the performance of their duties, obligations and functions and in members of the public exercising their rights under FOI. In considering the public interest in favour of withholding the information, it said it considered the protection of the right to privacy of the various third party individuals, the ability of third parties to engage privately with other bodies without fear of disclosure, and third parties not being unduly impeded in the effective pursuit of their business and the wishes of the third party to keep the information confidential.
In his correspondence with the Department and with this Office, the applicant said any expectation that the identities of the individuals in question would be treated as confidential “would be entirely unreasonable given that said individuals were attending a meeting with a public official.”
In considering where the balance of the public interest lies in this case, I accept the Department’s submission that its role in relation to the meeting in question was solely as a facilitator of the meeting. As such, the release of the information at issue would not, in my view, serve to enhance the transparency of the Department in respect of its role in facilitating the meeting. Moreover, neither the EDA nor the IDSA are subject to the provisions of the FOI Act.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
Having considered the matter, I can think of no public interest factor in favour of the release of the information at issue that would outweigh, on balance, the strong public interest in the protecting the privacy rights of the individuals in the records. I find that section 37(5)(a) does not apply.
Accordingly, I find that the Department was justified in withholding, under section 37(1) of the FOI Act, the names and email address of representatives of the IDSA and their various biographies, and the name of the EDA representative who attended the meeting along with the Chief Executive. I find that it was not justified in withholding, under section 37(1), the social media and email details for the IDSA, the proposed alternative meeting venue redacted from record 2, or the names of the EDA Chief Executive and the Chair of the IDSA.
Having found section 37(1) to apply to the names and email address of representatives of the IDSA and their various biographies, and the name of the relevant EDA representative, I need only consider the applicability of section 35(1)(a) to the information that I have found not to be exempt under section 37(1), namely the social media and email details for the IDSA, the proposed alternative meeting venue redacted from record 2, or the names of the EDA Chief Executive and the Chair of the IDSA.
Section 35 of the Act provides for the mandatory refusal of certain information given to an FOI body in confidence. For the exemption to apply it is necessary to show the following;
• that the information was given to an FOI body in confidence and,
• that the information was given on the understanding that it would be treated by the FOI body as confidential and,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• that it is of importance to the body that such further similar information should continue to be given to the body.
All four of the above requirements must be satisfied for section 35(1)(a) to apply. However even if all four requirements have been met, the section is subject to the public interest balancing test set out in section 35(3).
In its submissions to this Office, the Department noted that while the records in question did not contain a reference to the confidentiality of the data, it was known in the Department that the membership of the IDSA was private and that membership information received was intended to be confidential. It said the IDSA clearly stated that the information provided to the Department was provided on the understanding that it would be treated as confidential. It said there is an ongoing requirement to examine new and innovative means of improving capabilities in the security and defence domain, so that the Defence Forces are in a position to undertake the roles assigned by Government. It said the IDSA creates linkages between industry, academia and defence at home and across Europe and these linkages benefit the Department and the Defence Forces. It said the information or support that the IDSA provides to Defence also assists the evaluation of technology, research and innovations that influences and informs the direction of particular technology developments, which can support defence capabilities and on-going operations. It said that if the IDSA provides information about its members to the Department on the basis that it will be kept confidential, the disclosure of said information would likely harm the trust that exists between the two entities but also between the Department and the IDSA members whose names were released. It said it is likely that some information supplied by the IDSA in the future may be reduced or withheld at the advice of its members.
The Department added that the IDSA assists Defence in engaging with Irish Industry and Academia that are engaged in the development of technologies that enhance the capabilities of the Defence Forces and keep them safe, whether they are on missions and operations overseas or undertaking their range of duties at home in Ireland. It said it is important for the Department to continue to work with the IDSA in this manner and, in particular, to have access to the research and technologies that is been developed in the security and defence domain and the exploitation of dual use technologies.
The Department has also acknowledged, however, that since the decision was made on the FOI request, the IDSA has published details of its membership on its website, it said the information that is available on the IDSA website includes the names of organisations that are members or associate members of the IDSA and has hyperlinks to the individual organisation webpages.
In its submission to this Office, the IDSA said it has no issue with the vast majority of the content of any of the correspondence they had with the Department. It argued, however, that the personal identifier information of IDSA staff and IDSA members were provided in confidence and on the understanding that such information would be treated as confidential. It said none of the IDSA staff or IDSA members consent to the release of personal identifier information or product/service provision information.
Having regard to the nature of the information at issue, I fail to see how it can reasonably qualify for protection under section 35(1)(a) in circumstances where the information is now publicly available. The details of the IDSA website and its X account are publicly available as is the identity of the Chair of the ISDA and the fact that he met with the EDA Chief Executive. I also note that the alternative venue redacted from record 2 comprised the Offices of one of the IDSA’s members and that details of that organisation’s membership are now published on the IDSA’s website. I do not accept that the release of such information that is already publicly available could possibly prejudice the giving to the Department of further similar information from the same person or other persons. For the sake of completeness, I note that the IDSA email address redacted from the records does not appear to be on the public domain. Nevertheless, it is simply a general email address and I see no reason why the release of that email address could possibly prejudice the giving to the Department of further similar information from the same person or other persons. I find that section 35(1)(a) does not apply to the information at issue.
I will now proceed to consider whether the information to which I have found neither sections 35 nor 37 to apply might qualify for exemption under section 36(1). The IDSA referenced sections 36(1)(b) and 36(1)(c) in its correspondence with this Office. Section 36(1)(b) provides for the refusal of a request if the record concerned contains financial, commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
The harm test in section 32(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 is whether disclosure of the information “could reasonably be expected to result in material financial 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 subsection (1)(b) is whether the 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 36(1)(b). However, this Office takes the view that in invoking “prejudice”, the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case ofWestwood club v The Information Commissioner [2014] IEHC375, the Court made it clear that it is not sufficient for the party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. The FOI body or the third party opposing release should explain why disclosure of the particular records could prejudice the competitive position of the third party.
Section 36(1)(c) provides for the refusal of a request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, this Office expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations
In its correspondence, the IDSA said “The personal identifier information of IDSA Staff and IDSA Members (personal names, emails, company names, company bio's and product or service information) were provided to the Department in confidence and on the understanding that it would be treated as confidential”. It said that “should the information above be released it may prejudice the conduct or outcome of contractual or other negotiations of those involved that are currently underway and others that will occur in the future”.
It is worth restating that the information at issue is limited to the social media and email details for the IDSA, the proposed alternative meeting venue redacted from record 2, and the names of the EDA Chief Executive and the Chair of the IDSA. I fail to see how any of this information could possibly give rise to the harms identified in sections 36(1)(b) or 36(1)(c), nor has the IDSA explained how such harms might arise. I find, therefore, that section 36(1) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision.
I affirm the Department’s decision to refuse access, under section 37(1) of the Act, to the names and email address of representatives of the IDSA and their various biographies, and the name of the EDA representative who attended the meeting along with the Chief Executive. I find that it was not justified in withholding, under sections 35(1), 36(1) or 37(1), the social media and email details for the IDSA, the proposed alternative meeting venue redacted from record 2, or the names of the EDA Chief Executive and the Chair of the IDSA. I direct the release of that information.
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