Decision
Mr J and The Competition and Consumer Protection Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-117242-M9S1X8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-117242-M9S1X8
Published on
Whether the CCPC was justified in refusing access to various records relating to correspondence with external legal providers and transcripts of witness hearings, both relating to an Investigation by the CCPC into the private motor insurance industry, on the basis of sections 30(1)(a), 31(1)(a), 35(1)(a) and 36(1)(a) and (b) of the FOI Act
30 September 2022
In a request dated 9 September 2021, the applicant sought access to records relating to the CCPC’s investigation into suspected anticompetitive practices in the provision of private motor insurance in the State (the Investigation), including correspondence between the CCPC and two named external legal advisors, as well as transcripts and/or audio recordings of interviews with two named insurance company executives.
In a decision dated 6 October 2021, the CCPC identified 18 relevant records, which it refused to release on the basis of sections 31(1)(a), 35(1)(a) and 36(1) of the FOI Act. The applicant applied for an internal review of the CCPC’s decision on 12 October 2021. On 9 November 2021, the CCPC affirmed its original decision and refused access to records 1-13 on the basis of section 31(1)(a), and records 14-18 on the basis of sections 35(1)(a) and 36(1)(a) and (b) of the FOI Act. It also relied on section 30(1).
On 13 December 2021, the applicant applied to this Office for a review of the CCPC’s decision.
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 correspondence between the parties as set out above, the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the CCPC was justified in refusing access records 1-13 on the basis of section 31(1)(a) and records 14-18 on the basis of sections 30(1)(a), 35(1)(a) and 36(1)(a) and (b) of the FOI Act.
Before I address the substantive issues arising, I would like to comment upon the manner in which the CCPC engaged with my Office during the course of the review in relation to the records at issue.
As is general practice during a review by this Office, copies of all of the subject records were sought from the CCPC. However, it only initially provided copies of records 14-18. The CCPC stated that it had “serious concerns” about “releasing records which were created in the context of an investigation of a potential infringement of competition law and which are considered to be legally privileged and would be exempt from production in proceedings in a court” (i.e. records 1-13). Nonetheless, it stated that it sought to cooperate and to comply at all times with this Office’s process and suggested that it could provide redacted versions of the records, or an opportunity for the records to be reviewed in hard copy at the offices of the CCPC.
Following this, the CCPC provided redacted versions of records 1-13. It stated that it was not waiving privilege over the records and that the records were being provided to this Office solely for the purpose of its review. The redacted copies of the records were accepted, but this Office reserved the right to request unredacted versions for the purpose of conducting the review.
During the course of the review, this Office’s Investigator requested access to the unredacted copies of the records concerned in order to assess whether the CCPC was justified in refusing to grant access to records 1-13 on the basis of section 31(1)(a). When they were not provided, as an exception in this case, the Investigator and I agreed to attend the Offices of the CCPC in order to view the records in situ.
I would remind the CCPC that this Office is entitled to review a decision to refuse to grant a request pursuant to any of the provisions of the FOI Act. In order to carry out such a review, we must consider the nature and, quite often, the contents of the records to determine if they are captured by the relevant provisions of the exemption claimed. While it is occasionally possible to progress a review without having sight of the records, by having regard to the description of the type of records sought, this is not usually the case. The important point to note is that it must be open to this Office to examine records, if the Commissioner deems such an examination appropriate, in circumstances where he is entitled to review decisions to refuse access to records under the FOI Act.
It is also important to note that under section 45 of the Act, the Commissioner may, for the purposes of a review, require any person who is in possession of information or has a record in his or her power or control that is considered to be relevant to the review to furnish any such information or record to the Commissioner. I would ask the CCPC to have due regard to the powers of the Commissioner in future reviews and to ensure that any future requests for information are dealt with promptly and in accordance with the provisions of the FOI Act.
As a final preliminary point, while this Office is required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that we take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.
The CCPC
The CCPC is an independent statutory body whose mandate includes the enforcement of competition law and consumer protection law in Ireland. In August 2016, the CCPC initiated its Investigation, which involved an assessment of whether there was evidence to suggest that multiple operators in the Irish insurance sector had engaged in conduct which was potentially in breach of competition law. During the Investigation, the CCPC issued witness summonses to senior managers of a range of industry participants, and held witness interviews under oath.
On 17 September 2020, the CCPC issued its preliminary findings to the parties under investigation, which was that certain parties made public announcements and/or engaged in contacts with one another that reduced strategic uncertainty between them as to whether there would be increases in private motor insurance premiums during the period investigated. The CCPC said that all of the parties under investigation strongly disagreed with the preliminary findings and denied that they had breached competition law. Nevertheless, following extensive engagement with the parties, the CCPC entered into legally binding agreements with six of the seven parties involved, wherein they committed to reform their internal competition law compliance programmes. On 8 February 2022, a full report into the CCPC’s investigation was published on its website, www.ccpc.ie .
The CCPC’s functions as set out in section 10(1) of the Competition and Consumer Protection Act 2014 (the CCP Act), include the following:
In its submissions to this Office, the CCPC stated that having investigated allegations of anti-competitive behaviour in this case, it then had to determine whether there was sufficient evidence of a breach of competition law to warrant the initiation of civil or criminal proceedings in the Irish courts against the firm(s) and/or individual(s) concerned. The CCPC referred to section 18(1) of the CCPC Act, which gives it a number of powers in support of its investigative function, including the power to:
It further stated that under section 18(4) of the CCP Act, failure to comply with the exercise of the CCPC’s powers under section 18(1) is a criminal offence, for which fines and/or a term of imprisonment may be imposed following conviction by the criminal courts.
The records at issue in this case comprise email correspondence and attachments between the CCPC and the two legal professionals named in the applicant’s request (records 1-13) and transcripts of witness summons hearings with two named insurance executives (records 14-18).
Section 31(1)(a) - Records 1-13
The CCPC relied solely on section 31(1)(a) to refuse access to records 1-13.
Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
The concept of “once privileged always privileged” applies to advice privilege, and therefore, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice.
The CCPC was of the view that legal advice privilege applies in respect of the records concerned. Its position was that the records comprise confidential communications between a client (the CCPC) and its named professional legal advisors for the purpose of obtaining and/or giving legal advice. The CCPC stated that records 1 -13 are connected to requests for legal advice and opinion, or are themselves records of such advice and opinion. It also argued that records which may not, on an individual basis, satisfy the criteria for legal advice privilege under section 31(1)(a), form part of a continuum of correspondence resulting from the original request for advice. It further contended that privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which “detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice”.
In his application for a review to this Office, the applicant suggested that part of records 1-13 may contain legal assistance rather than legal advice. The CCPC’s view was that the records concerned “manifestly contain legal advice from legal professional advisors” relating to the Investigation. It described the Investigation as “complicated and lengthy… involving protracted interaction between client (the CCPC) and its legal advisors”. It also stated that the legal advice given to the CCPC “clearly goes far beyond mere communication of fact”.
Having carefully examined the records in question, I am satisfied that the majority of the information in records 1-13 comprises confidential communications between the CCPC and its professional legal advisors, and/or forms part of a continuum of correspondence resulting from the original request for advice. Accordingly, I find that section 31(1)(a) applies and that the CCPC was justified in refusing access to records 1, 2, 4, 5, 6, 8, 10, 11, 12 and 13 in full and records 3, 7 and 9 in part on the basis of section 31(1)(a).
However, I am not satisfied that all of the information withheld from release comprises legal advice. Some of the content of the email threads concerned appear to be administrative in nature rather than legal advice. Accordingly, I find that the CCPC was not justified in refusing to grant access to records 3, 7 and 9 in part on the basis of section 31(1)(a).
As the CCPC has not relied upon any other exemption in relation to these records, I direct their release to the applicant as follows:
Records 14-18
Records 14-18 are transcripts of witness summons hearings attended by two insurance company executives, which took place under oath. The CCPC has relied on sections 30(1)(a), 35(1)(a) and 36(1)(a) and (b) to refuse access to records 14 -18 in full. The CCPC said that it gathered the relevant oral testimony as part of its Investigation by way of witness summons hearings using its powers under section 18(1)(a) of the CCP Act. In the circumstances, it seems to me that section 35(1)(a) is most relevant, so I shall consider the CCPC’s reliance on this exemption in the first instance.
Section 35 – Information obtained in confidence
Section 35(1)(a)
Section 35(1)(a) of the FOI Act provides a mandatory exemption for certain information given to an FOI body in confidence. In order for the section to apply, it is necessary to show the following:
All four of these requirements must be satisfied for section 35(1)(a) to apply. Even then, the section is subject a public interest balancing test set out in section 35(3).
It is the circumstances in which the information was imparted and received that is important in determining whether the first two requirements of section 35(1)(a) are met. Macken J in her judgment in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011 IESC 26 ] (the Rotunda case), stated that what is protected under section 26(1)(a) – now section 35(1)(a) of the 2014 Act - "stems from the circumstances in which the material is given, and not from the nature of the material itself". Therefore, the information itself does not necessarily have to be private, secret or confidential.
Macken J also stated that the exemption “does not impose an obligation that the information in question should have the characteristic of being “confidential information” or “private and secret” or subject to a “duty of confidence” ... or to have any so-called necessary “quality of confidence”, as defined, other than as to the circumstances in which it was imparted and received”. She further stated that it may be that the information given is, in fact, secret, but the section does not require it to be so. Therefore, it is the circumstances in which the information was imparted and received which should be considered.
In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, a number of factors may be relevant. These include: the expectations of the person giving the information to the FOI body; any assurances sought or given regarding the information; the purpose for which the information was sought or provided; the practice, procedure or policy of the FOI body with regard to such information; any action which the FOI body may be expected to take in relation to the information; and the nature of the relationship between the provider of the information and the FOI body receiving it. The understanding of confidentiality may be express or implied.
The CCPC stated that records 14 to 18 are transcripts of witness hearings which were conducted in private and were not open to the public. It stated that the witnesses were issued with summonses before the hearings, which compelled them to attend, to produce documents or records as required by the CCPC and to answer questions under oath. The CCPC also stated that it was general practice before such hearings to inform potential witnesses of the provisions of section 25 of the CCP Act, which prohibits the unauthorised disclosure of confidential information by staff of the CCPC gained through the performance of their duties.
The relevant parts of section 25 of the CCP Act provides as follows:
“25. (1) A person shall not, unless authorised by the Commission or by a member of the staff of the Commission duly authorised in that behalf so to do, or required by law, disclose confidential information obtained by him or her in his or her capacity, or while performing duties as—
I have carefully considered the circumstances surrounding the provision of the information in the records concerned. I am satisfied that the information was sought for a specific purpose, i.e. for the CCPC to carry out an investigation under section 10(1)(c) of the CCP Act, and that the parties provided the information pursuant to their obligation to cooperate under section 18 of that same Act. I accept that such hearings are held in private and are not open to the public to attend. I also accept that the witnesses were informed before the hearings that the staff of the CCPC were prohibited from any unauthorised disclosure of any information gathered during the hearings. I am satisfied that there was an implied mutual understanding that the information at issue was provided in confidence, on the understanding that it would be treated as confidential by the CCPC. Accordingly, I find that the first two requirements of section 35(1)(a) are met.
In order for the third requirement of section 35(1)(a) to be met, it should be shown that disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons. It is not necessary that disclosure would definitely prejudice the supply of information; rather what is required is that disclosure would be likely to prejudice the supply of similar information.
I note that section 35(1)(a) explicitly includes information “that a person was required by law, or could have been required by the body pursuant to law, to give to a body”. The inclusion of this type of information in the provision shows that it cannot be assumed that where a person provided information, which they were required by law to so provide, and that the same or other persons could be required by law to supply similar information in the future, this means that disclosure of the records could not prejudice such a supply. The contents of the records at issue and the particular circumstances of the case must therefore be carefully considered. In that context, this Office’s Investigator asked the CCPC to explain the basis for its assertion that the release of the records at issue could prejudice the giving of further similar information to the CCPC in the future, given that it has statutory powers to compel persons or undertakings to provide information to it and that non-cooperation is an offence.
The CCPC acknowledged that the witnesses were under a duty to respond to questions put to them by the CCPC pursuant to sections 18(1)(a) and 18(1)(b) of the CCP Act. It also acknowledged that it would be a criminal offence to fail to answer a witness summons, to give false or misleading evidence, or to fail to answer any question put to the witness by the CCPC. However, it was the CCPC’s view that, notwithstanding the legal requirement to answer such questions, a party under investigation could be less cooperative with the CCPC if it believed that confidential material would ultimately be disclosed to the world at large through the FOI process, thus prejudicing the giving of such information in future.
The CCPC contended that witnesses in future hearings may be less forthcoming for fear of public disclosure through FOI. It stated that such witnesses are entitled to the same immunities and privileges as witnesses before the High Court. The CCPC said that it considers that the “immunities and privileges” in this context include the constitutional right to silence and the privilege against self-incrimination. It stated that it was reasonable to consider that witnesses in future hearings could instead adopt a “highly defensive position”, rather than answer questions in a cooperative manner.
The CCPC’s position is that the disclosure of the records of witness hearings would have a detrimental effect on the effectiveness of its investigations in future. It contended that the disclosure of records 14 -18 would prejudice the integrity of its evidence-gathering powers in future witness hearings and/or negotiations, and prejudice the effectiveness of its ability to carry out its statutory functions in investigating suspected breaches of competition law under section 10(1)(c) of the CCP Act. The CCPC stated that this would be greatly damaging to its core statutory functions in undertaking investigations into conduct that may be to the detriment of “competition and consumers alike”. It argued that it is of vital interest to the statutory remit of the CCPC that such information continues to be given to it on foot of section 18(1).
While the CCPC has statutory powers to compel bodies to provide it with the information it requires to carry out its investigations, I accept that it is a reasonable belief that the release of these records would likely have a negative impact on the engagement of private companies with the CCPC’s investigations in the future. I also accept that this could result in a lack of co-operation, a reliance on the right to remain silent and/or a lack of full and frank testimony by individuals in response to witness summonses. I am satisfied that this would constitute prejudice to the giving to the CCPC of further similar information and I find that the third requirement of section 35(1)(a) has been met.
I am also satisfied that in order for the CCPC to exercise its statutory powers and functions, it is important for individuals summonsed to give evidence, including executives employed by private commercial enterprises, and to give the CCPC similar information to that contained in the records at issue. On this basis, I find that the fourth requirement is met. Accordingly, I find that section 35(1)(a) applies to records 14-18.
Section 35(2)
In his request for internal review, the applicant effectively referred to section 35(2) of the FOI Act. Section 35(2) provides that section 35(1) does not apply to a record prepared by an employee of an FOI body or a service provider in the course of the performance of their 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". The applicant was of the view that no evidence had been provided to show that disclosure of the records concerned would constitute a breach of a duty owed by way of any existing agreement or statute or otherwise.
During the course of this review, the CCPC confirmed that the records at issue were prepared by a stenographer service on its behalf. As the records appear to have been prepared by a service provider in the performance of their functions, pursuant to section 35(2), section 35(1) will not apply to the records at issue unless disclosing them would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider, etc., under an agreement or statute or otherwise by law.
Essentially, the CCPC indicated that it considered that a duty of confidence was owed to the witnesses who gave evidence at the relevant hearings by way of a statute. It stated that the stenographer signed a non-disclosure agreement (NDA) in relation to the content of the hearings and the transcripts. It said that disclosure of the information contained in the records by the service provider would constitute a breach by the stenographer of the NDA with the CCPC. It also stated that disclosure of the information contained in the witness transcripts would constitute a breach of a statutory duty owed to the relevant witnesses by virtue of the obligations arising from section 25 of the CCP Act, which makes it an offence for CCPC staff to make an unauthorised disclosure of confidential information obtained by them while performing their duties.
The CCPC submitted that its witness summon hearings are held subject to the provisions of the CCP Act. It contended that the hearings are held in private and that the witnesses are informed beforehand that it is an offence for staff members of the CCPC to disclose any information obtained during such hearings. As briefly noted above, the CCPC says that it is general practice on the day of a hearing, before the recording equipment is switched on, to “verbally refer to the provisions of section 18 relating to the summons hearing itself”, as well as section 25 related to unauthorised disclosure in order to “put witnesses at ease before the formal process commences”.
I have found above that the information in the records at issue was provided in confidence, on the implied mutual understanding that it would be treated as by the CCPC as confidential. This is, in part, based on the provisions contained in section 25 of the CCP Act. In the circumstances, I am satisfied that the CCPC owes a duty of confidence to the witnesses and the private companies concerned on foot of section 25 of the CCP Act, and that accordingly, section 35(2) does not disapply section 35(1)(a) in this case.
Public interest
That is not the end of the matter, however, as 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 FOI request concerned (section 35(3) refers).
In considering the type of public interest factors that might support the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020 IESC 5 ] (the eNet case). In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the FOI Act. She said 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 record. She said there must be a “sufficiently specific, cogent and fact-based reason” in order “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in the Rotunda case, in which it drew a distinction between private and public interests.
I therefore consider that, if I am to direct the release of the records at issue, I am required to identify a specific public interest, identifiable following an analysis of relevant records in this case, which is sufficiently strong as to outweigh the interests of protecting information that was given in confidence.
The Applicant
In his request for internal review, the applicant stated that it was clear that the records concerned were of “immense public interest”, given the importance of the motor insurance market to citizens. He argued that, unlike other forms of insurance, motor insurance is not optional and that every driver must take out a policy before being allowed to drive. He contended that this puts it in a “different category of public importance” to all other insurance products. He stated that the CCPC had acknowledged this itself in its communication of its preliminary findings on September 17 2020. He referred to the CCPC’s comment that “[p]rice signalling and other types of anti-competitive cooperation between competitors ultimately lead to increased prices for consumers" and indicated that he considered that this illustrates the public interest at stake in this case.
The applicant also noted that the CCPC stated that it had "gathered a substantial amount of electronic material from relevant parties, as well as extensive oral testimony and documentary evidence through witness summons hearings and meetings", which led it to arrive at a position whereby it had "reasonable grounds to suspect that a breach of the law has occurred". However, he further noted that the CCPC ultimately “did not take legal recourse available to it to prove this assertion”. He considered that “no satisfactory explanation” has been provided as to why it took this course of action. His view was that it is of great public interest that the content of the "extensive oral testimony" gathered from those named in his request is released to the public to “provide transparency regarding the work and decision-making of a public body, which is funded by the taxpayer”, as well as “providing insight into what led the CCPC to publicly assert that it had "reasonable grounds to suspect that a breach of the law has occurred"”.
The CCPC
The CCPC was of the view that the public interest would not be better served by releasing the records at issue. It stated that although there was a public interest in ensuring transparency and openness, this would not be achieved by releasing records 14-18. It stated that, as set out above, the information contained in the records was obtained in accordance with a duty provided for by law, and that disclosure of such records would have a detrimental effect on the effectiveness of the CCPC’s investigations in future. It argued that this would prejudice its ability to carry out its functions under section 10(1)(c) of the CCP Act.
The CCPC further contended that there was no specific public interest identifiable in the records in question which was sufficiently strong as to outweigh the interests of protecting the information that was given to the CCPC on foot of its investigation. It stated that, in particular, it considered that disclosing information provided in confidence to the CCPC by parties under investigation would significantly harm the public interest in obtaining appropriate enforcement outcomes (including settlement agreements with parties under investigation by the CCPC). It contended that such disclosure would undermine public confidence in the integrity of the CCPC’s investigations under section 10(1)(c) of the CCP Act. It also argued that in light of the “publication of the outcome of its Investigation, for the purpose of ensuring transparency and openness as to the steps taken by the CCPC during its Investigation and its preliminary findings”, there could be “no reasonable public interest justification” for releasing these records.
Having regard to the applicant’s arguments, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Since the applicant first made his FOI request and since he applied to this Office for a review of the CCPC’s decision on it, as stated above, the CCPC has published its report on the investigation. This report provides more detail explaining why it made the preliminary findings that it did and why it decided to take the enforcement actions that it did, including why it decided not to pursue litigation.
It seems to me that there is a significant public interest in the CCPC being in a position to carry out its functions to investigate and enforce breaches of Irish and EU competition law, as set down in section 10 of the CCP Act. In order to do this, it must be able to obtain and then review and assess relevant witness testimony given by executives and staff of entities under investigation, including information that the entities consider to be highly confidential and sensitive, which they might not otherwise make available externally. I accept the CCPC’s argument that to release records of such witness testimony given to it in confidence risks undermining the effectiveness of future investigations in terms of obtaining information that it needs to carry out its functions effectively.
I have carefully reviewed and considered the content of records 14-18. As noted above, I am satisfied that the records concerned comprise transcripts of witness hearings carried out under oath, in private and on a mutual understanding of confidence. It is not apparent to me, having carefully considered the content of each record, that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case. Accordingly, I consider that the public interest would, on balance, be better served by refusing to release the records at issue. I find therefore that the CCPC was justified in refusing to release records 14-18 on the basis of section 35(1)(a) of the FOI Act.
As I have found records 14-18 to be exempt from release under section 35, I do not need to consider the application of sections 30 or 36 to these records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the CCPC’s decision. I affirm its decision to refuse access to records 14-18 on the basis of section 35(1)(a). I find that the public interest, on balance, does not warrant their release. I also affirm its decision to refuse access to records 1, 2, 4-6, 8 and 10-13 in full and records 3, 7 and 9 in part on the basis of section 31(1)(a) of the FOI Act. I annul its decision to refuse access to records 3, 7 and 9 in part on the basis of section 31(1)(a) and direct their release to 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 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.
Deirdre McGoldrick, Senior Investigator