Cinneadh
Mr G and The Department of Environment, Climate and Communications
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-102295-W9J7R4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-102295-W9J7R4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to a 2009 concession agreement (the agreement) between Enet and the Department concerning the provision of broadband services on the basis of sections 36 and 37 of the FOI Act
4 October 2024
By way of background, the State is the owner of the fibre optic cable infrastructure known as the Metropolitan Area Networks (MANs), developed under the Regional Broadband Programme. The main goal of the MANs programme is to provide communications infrastructure and wholesale services in towns outside Dublin. As I understand it, the MANs are intended to bridge a gap between local loop and regional networks which was not being served by the market.
The 88 MANs currently in place cover 94 regional towns and cities, and constitute an important State-owned asset. The MANs were co-financed by central Government, Local Authorities and the EU's European Regional Development Fund. They are independently managed, maintained and operated for the State by a Management Services Entity (MSE).
Telecom operators enter into service agreements with the MSE for the provision of MANs services such as managed services, dark fibre, duct space and co-location facilities. This can include providing connectivity between sections of their own networks, whether owned directly or leased from other third parties, or between their own networks and individual customers.
Enet is a provider of high capacity open-access fibre and wireless network and related products and services on a wholesale basis to retail service providers in Ireland. Retail service providers in turn provide mobile phone and broadband services to business and residential customers. Enet was granted the rights to act as the MSE on behalf of the Department under two long-term concession agreements (in July 2004 for the MANs Phase 1 and July 2009 for the MANs Phases II and III). Ownership of the 88 MANs remains with the State.
This review concerns a request made in January 2015 for access to records relating to the 2009 Mans II agreement between the Department and Enet. The applicant initially sought access to four categories of records, however, following the Department’s decision on his request, the applicant applied to this Office on 2 March 2015, for a review of the Department's decision solely in relation to the third and fourth categories. The third category of records sought comprised an itemised record of individual payments made to Enet in 2012-2014 under various headings and the fourth category concerned contracts from 2009 between the Department and Enet in relation to the provision of broadband services via MANs.
My Office issued a decision on 30 November 2015 (OIC Case 150062 , available on our website www.oic.ie). My predecessor annulled the Department’s refusal to confirm or deny the existence of any records relating to the third part of the applicant’s request under section 36(4) of the FOI Act and directed it to conduct a new decision making process in relation to the record(s) if they were confirmed to exist. He also directed the release of the record relating to the fourth category sought (the agreement) in part. The then Commissioner found that section 35(1) did not apply to the agreement and that, while it contained commercially sensitive information for the purposes of section 36(1)(b), having considered the public interest balancing test in section 36(3), he found that, on balance, the public interest would be better served by releasing the agreement.
The Department appealed my predecessor’s decision in relation to the agreement to the High Court. It did not appeal the decision in relation to records relating to the third part of the applicant’s request. Accordingly, that part of my decision remains legally binding on the Department. In its submissions on foot of my draft decision, the Department stated that the existence of payments within scope of part 3 of the applicant’s request was now in the public domain. However, I also understand that the Department has not yet made a new decision whether to release the details of the actual payments made. I would expect the Department to make arrangements to make a decision on the release of the actual records sought in part 3 of the applicant’s request straightaway, as directed in my previous decision. It should inform the applicant and Enet of its decision in line with the provisions of the FOI Act.
The High Court upheld my Office’s decision on 6 April 2017 ( The Minister For Communications, Energy And Natural Resources and The Information Commissioner & anor [2017 IEHC 222 ]). The Department appealed to the Court of Appeal, which delivered its judgment ( The Minister For Communications, Energy And Natural Resources and The Information Commissioner & anor [2019 IECA 68 ]) on 6 March 2019, allowing the Minister’s appeal. My predecessor appealed to the Supreme Court, which delivered its judgment ( The Minister for Communications, Energy and Natural Resources v Information Commission & anor [2020 IESC 57 ] (the Enet case)) on 25 September 2020.
The Supreme Court found that my Office was correct in its approach that the onus was on the FOI body to justify an assessment that records are exempt under section 22(12) of the FOI Act. It also upheld my predecessor’s approach in relation to section 35 of the FOI Act. However, the Supreme Court concluded that the analysis in the decision of where the public interest lay in relation to section 36 was flawed. Accordingly, the matter was remitted to my Office to conduct a new review in light of the Supreme Court’s judgment.
During the course of this review, this Office’s Investigator contacted the applicant and outlined what she considered to be new and material arguments made by the Department in its submissions to this Office. She invited the applicant to comment. In response, the applicant indicated that he was not in a position to make a meaningful submission without sight of the Department’s submissions in full.
Generally speaking, this Office does not exchange submissions made during the course of a review. Among other things, submissions made by one or more parties to a review are likely to contain sensitive information that may not be appropriate for disclosure to others. Section 25(3) of the FOI Act requires this Office to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or information which if included in a record would cause the record to be an exempt record. However, in the particular circumstances of this case, and following consultation with the Department, a copy of the Department’s submission was provided to the applicant. He was invited to comment on particular arguments made by the Department in respect of the harm it expected to arise from the release of the contract.
During the review, this Office also contacted Enet and gave it an opportunity to make submissions. Enet confirmed during the review that, while it remained of the view that the entirety of the agreement should be withheld, in its view certain parts of the contract comprised particularly sensitive information.
In its submissions to this Office, the Department stated that in the previous case, it offered a redacted version of the records to the applicant, who had “refused same”. It stated that, in principle, the Department could re-examine this possibility, if there was “a prospect of concluding matters and avoiding further litigation”. However, in his subsequent submissions to this Office, the applicant did not appear to be willing to settle the case on foot of a partial release of the record sought. His view was that as the Department had indicated its willingness to do so, it was required to release the record in part whether or not he agreed to withdraw his application for review. Section 45(6) of the FOI Act provides that subject to this Act, the procedure for conducting a review under section 22 shall be such as I consider appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of my functions. In the circumstances of this case, I decided against pursuing an informal resolution.
In the particular circumstances of this case, I considered it appropriate to issue a draft of this decision to the parties prior to concluding matters. All three parties were informed that it was open to them to make a further submission on foot of my draft decision, but that any such submission should be confined to an additional point of fact, an error of fact or an error of law. All three parties made additional submissions. I sought further clarification on some points from the Department, which provided further information to this Office. I also notified the applicant that section 37 appeared to be relevant to certain information contained in the record. He made further submissions in response.
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 all of the submissions made by the applicant, Enet, and the Department. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
As set out above, this Office’s original review solely concerned records relating to the third and fourth parts of the applicant’s request. As also noted above, the Department did not appeal my Office’s decision in respect of any records relating to the third part of the request. Accordingly, the Department’s decision in relation to the third category of records in the applicant’s request does not form part of this review.
During the course of the previous review, the applicant agreed to exclude schedule 3 to the fourth record from the scope of his request. My predecessor found that paragraphs 2.12.3.4 of schedule 4, schedule 16 and schedule 21 of the agreement were exempt from release under section 15(1)(d) of the Act. This finding was not appealed by any of the parties.
As also noted above, the Department appealed the then Commissioner’s finding that it was not justified in refusing access to the agreement on the basis of section 35 of the FOI Act. The Supreme Court found in this Office’s favour in this regard.
In their submissions on foot of my draft decision, both the Department and Enet referred to information contained in the record sought which they considered to relate to the personal information of third party individuals (section 37 refers). Section 37(1) is mandatory exemption which provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. As noted above, the applicant was put on notice of the relevance of section 37. In response, he confirmed that he was not seeking access to telephone, fax and mobile numbers or the first part of email addresses contained in the record. The applicant also clarified that he sought access to the rest of the information being considered under section 37 and indicated that he did not agree that the remainder of the information identified was personal information for the purposes of section 37. Having carefully examined the information concerned, I accept that section 37 is relevant and I will consider the particular information identified by both parties under section 37 below.
Accordingly, this review is solely concerned with whether the Department was justified in its decision to refuse to grant access to the agreement dated 8 July 2009 between the Department and Enet in relation to the provision of broadband services via the MANs, other than schedule 3, paragraphs 2.1-2.3.4 of schedule 4, schedule 16 and schedule 21, on the basis of sections 36 and 37 of the FOI Act.
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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record concerned is limited.
It is also important to note that disclosure under FOI is accepted as equivalent to publication to the world at large.
In its submissions to this Office, Enet’s view was that “regardless of thede novo nature” of this review, I was “bound by the findings of the Supreme Court on that matter”. Its position was that my Office cannot take an approach to the agreement “which is contrary to the position adopted by it in the previous decision of the 30th November 2015, and maintained before the Superior Courts”. Its view was that taking any other approach in this review would be “unlawful and unreasonable” and “amenable to being quashed by the Superior Courts on that basis alone”. Enet’s view was that nothing had changed concerning the nature of the record sought since this Office’s decision and the litigation before the Courts to change the character of the document itself.
Similarly, in its submissions to this Office, the Department stated that “[i]t has always been common case” that the record at issue “contain[s] commercially sensitive information”. It further stated that whether the record sought falls within the exemption at section 36(1) of the Act “is not in issue”. It also referred to this Office’s decision, which it said “correctly concluded” that section 36(1)(b) applied. The Department’s position was that the finding that section 36(1)(b) applied “was not disputed by any party in the High Court, Court of Appeal or in the Supreme Court, nor could it have been because it is correct”.
Additionally, I note that in his submissions to this Office, the applicant’s position appears to be that the correct procedure in this case was for the Department to make a new decision in this case in the first instance based on the Supreme Court’s judgment. He believed that it is up to the Department as the FOI body concerned to give specific reasons by reference to the content of the requested record to justify the engagement of an exemption, to carry out the public interest test and to provide cogent reasons to explain the decision. The applicant was therefore of the view that I could not make a decision on the matter at this point, as, in his view, the Department hadn’t updated its position and did “not appear to have taken on board the Supreme Court judgment by making a new decision”. He concluded that in the absence of a new decision by the Department, it was “not appropriate for the Commissioner to carry on with the review” as I have a review jurisdiction rather than a first instance jurisdiction.
With regard to the applicant’s position that it is not appropriate for me to carry out a review, I note that the Supreme Court gave specific consideration at paragraph 223 of the appropriate next step in relation to the request. The Court concluded that the matter should be remitted to the Office to conduct the review in light of the conclusions in the judgment, so that is what I must do.
While I note the parties’ comments in respect of the nature of the review to be conducted, it is well established that my review of a FOI body’s decision under section 22 of the FOI Act is considered to bede novo , based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Ó Caoimh J in the case ofThe Minister for Education and Science v Information Commissioner [2001] IEHC 116. Similarly, inThe National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, the High Court (Quirke J) stated as follows: "[t]he Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]". I also note Clarke J’s description of ade novo appeal inFitzgibbon v Law Society [2014] IESC 4 at paragraphs 4.1-4.9.
It is also important to note that this Office’s original decision issued in 2015. The historical nature of documents has often been a significant factor when considering whether records contain information which is commercially sensitive under the FOI Act. The context and background concerning the creation of the record at issue, as well as the pertaining circumstances at the time of a review by this Office are very much relevant. If I were to conduct this review on the basis that the matter of whether section 36 applied to the record was already settled, this would not in fact be ade novo review, which is what I am required to carry out under the FOI Act.
While I accept that the Department is required to satisfy me that its decision to refuse access to the record at issue was justified under the FOI Act, the matter was not remitted to the Department to carry out a new, first instance decision. I am satisfied that the matter was remitted to this Office to conduct a review of the Department’s decision to refuse access to the record, by the Supreme Court’s judgment. I am also satisfied that I am entitled to take the prevailing circumstances into account as part of my review.
The Department refused to grant access to the agreement sought on the basis of section
36(1)(b) of the FOI Act. Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI 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 the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take 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. I do not have to be satisfied that the adverse effect will definitely occur. It is sufficient for the FOI body to show that it expects such an outcome and that its expectations are reasonable, in the sense that there are adequate grounds for them.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, I take the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. While an FOI body may have particular expertise in an area, unless it is readily apparent how or why a harm could occur, I expect an FOI body making the claim to provide a specific and coherent explanation in support of its position. Relevant factors include whether information is in the public domain or is otherwise available, the circumstances in which the record was compiled and developments since the date it was created.
Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).
The record
The record at issue is a contract between the parties in relation to the provision of services by Enet. The agreement was signed in 2009 and was intended to last for 15 years, with an option to extend the agreement by up to 10 years. Since the previous review, the concession agreements between the State and Enet for both contracts have been extended to 2030. I understand that the contracts cannot be extended a second time and that any retendering process would begin in 2028. From a media report 1 cited by the applicant, it would appear that in 2017, at least one other company expressed an interest in participating in any upcoming tender process in relation to the MANs.
While section 25(3) of the FOI Act precludes me from revealing the content of an exempt record, I think that I can say that the record in question is not a standard tender contract. That is to say, Enet is not simply providing MANs-related services in return for a payment from the State. As referred to at various meetings of the Public Accounts Committee and other Oireachtas Committees, Enet received no payment from the State in respect of Phase
I. Instead, Enet invested its own funds in maintaining, commercialising and enhancing the MANs assets it manages and operates, from which it sells wholesale services to its customers. It is also in the public domain that, among other things, the MANs Concession Agreement provides that Enet pay the State a share of its revenue based on various negotiated factors.
The Department’s submissions
The Department relied in part on Enet’s arguments against the release of the agreement, set out in a letter to the Department dated 3 February 2015, a copy of which was provided to my Office for the purposes of this review. Among other things, it stated that release would disclose Enet’s final price for the services in the relevant tender competition(s) as well as its pricing strategy and that it would affect pricing on any retendering. It also stated that Enet’s competitors could use the information contained in the record when retendering and that release would disclose Enet’s Phase II business case, both of which it considered likely to cause material harm to Enet.
The Department stated that Enet was a private company managing assets on behalf of the State on a commercial basis. It was of the view that the release of the contractual or financial information in this case could prejudice Enet’s competitive position. It also stated that the release of the record at issue would reveal an “unprecedented level of detail” regarding Enet’s commercial business with the State and with its suppliers and customers.
The Department further stated that the State’s position in any future similar contracts could be seriously undermined if potential bidders were aware that commercial information of the nature requested could be released in response to an FOI request. It was of the view that the potential release of such contracts under FOI could cause serious harm to the State’s ability to attract bidders for infrastructure projects.
The Department also stated that disclosure might result in “less remunerative revenue share bids by the market, to the detriment of the public and the State”, which could be considered to be an argument that the Department (or the State) could suffer a material financial loss from the release of the information concerned. It said that making details of the current agreement available to companies who might tender for the MANs service would “undermine the competitive nature of the process”. The Department contended that one of the reasons that procurement works to the benefit of the public is that “tenderers do not know each other’s bids or commercial strategies”. Its position was that the revenue share element of the contract was an important part of the agreement. Essentially, the Department argued that if Enet’s competitors became aware of the details of the revenue share agreement currently in place, i.e. what percentage or level of payment from Enet the State had agreed to, they would know where to pitch their own tenders in future competitions and that this would be less advantageous to the State.
In its submission to this Office, the Department also made some comments in relation to the information sought by the applicant in relation to the existence of a third record, which concerned payments (if any) made to Enet by the Department under the agreement. While the Department’s decision in relation to documents concerning the third category of records sought is not under review in this case, I consider the Department’s comments about some related information now being in the public domain to be relevant to my review of the Department’s decision on the contract, as it contains information relating to payments. In this regard, the Department referred to published correspondence in 2015 and records released in response to an FOI request in 2016. It also stated that information related to the agreement was effectively placed in the public domain in response to various Parliamentary Questions (e.g. 2 , 3 , 4 ) and in briefings provided to Oireachtas Committees( 5 & 6 ) .
Enet’s submissions
As set out above, Enet was of the view that it was common case that section 36 applied to the contract in full and stated that it adopted and endorsed the Department’s submissions in this case. It also stated that it continued to rely on the arguments set out in the letter it provided to the Department on 3 February 2015.
In the 2015 letter, Enet made various arguments in support of its view that the record should not be released. The arguments which I consider to be most pertinent are as follows:
• it stated that the services concerned were subject to a tender process and that the release of the agreement would reveal the final price agreed for the services as well as Enet’s own pricing strategy.
• it argued that its competitors could potentially use this information in a subsequent tendering process which could cause a material financial loss to Enet.
• it stated that the pricing information contained in the agreement was “of significant commercial value” to Enet.
• it was also of the view that release of the agreement may allow the terms of the Phase 1 (2004) agreement to be deduced, thereby revealing further financial information which could be expected to result in a material financial loss to Enet.
Enet further argued that the inclusion of a confidentiality clause in the agreement between it and the Department demonstrated a mutual understanding that the information concerned was commercially sensitive and/or confidential and that its release could potentially cause material financial harm to the company.
As noted above, Enet indicated during this review that, without prejudice to its position that the entire agreement was “commercially sensitive and should remain confidential”, it agreed with the position taken by its Financial Director in 2015, who identified particular information in the agreement as being the “most commercially sensitive”.
Applicant’s submissions
In his submissions to this Office, the applicant was of the view that the Department should provide an updated justification in support of its decision to refuse access to the contract if its position remained the same. He stated that the Department should also provide “a cogent and reasoned decision with reference to the record [and its] content” setting out why the section 36 exemption was engaged, as well as detailing the public interest matters at issue.
In a later submission, the applicant queried why the release of details of a specific aspect of the contract, which was agreed in 2009, could have a harmful effect now or in 2030 when the contract is to be renewed. Furthermore, he essentially argued that if a part of the contract was held to be exempt, the Department was obliged to grant partial access to the remainder.
The applicant was also of the view that it had not been adequately explained to him how the release of the record at this time would cause a material financial loss to the State and the public at large, or harm to Enet’s competitive position. The applicant’s position was that the Department’s arguments only applied while a tender process was being run. He considered that this argument did not apply in the circumstances of this case, where the tender competition in question had been run more than 13 years ago and was “not due to run again until 2030”. Furthermore, the applicant contended that while the Department’s argument might favour refusing access to an unsuccessful tenderer’s bid, that it did not apply to a request for access to an awarded contract.
In respect of the Department’s argument that release of the agreement could lead to future tenderers knowing at what level to pitch their own tenders in relation to a particular aspect of the agreement such that the State would be disadvantaged, the applicant was of the view that this harm could only arise if there was “unlawful collusion between tenderers”. He stated that a reasonable tenderer would not assume that all other tenderers would pitch their level at the level accepted in the past, but that they would pitch their bid at a level that was the most economically advantageous. He also stated that, in any event, Enet as the successful tenderer in 2009 would be aware of the details of the agreement.
Analysis
I have carefully examined the record sought, which was finalised on foot of a tender competition. The agreement contains various details including financial and technical arrangements and obligations on both parties. In general, it is reasonable to consider that current pricing information is of much more use to a competitor, and therefore more sensitive from the contractor’s perspective, than historic pricing information. However, while the record at issue was created in 2009, I must have regard to the fact that the contract is still in force. In the circumstances of this case, I am satisfied that the release of the agreement would disclose the amounts, terms and arrangements agreed between the parties for the services being provided currently, and up to 2030.
I note Enet’s arguments about the potential harms to its competitive position due to its competitors becoming aware of the details of its agreement with the Department. I also note the Department’s contention that if details of the relevant revenue share arrangements were to be placed in the public domain, this could reasonably be expected to prejudice the State in any subsequent related tender competition, as companies tendering would be aware of the level the Department had been willing to accept in 2009 (and beyond), and would be likely to pitch their tenders accordingly.
I also note the applicant’s argument that the information was not commercially sensitive at this juncture, due to the historic nature of the agreement. I also consider that his arguments concerning Enet’s knowledge of the contract terms might be construed as an argument that Enet may be the sole tenderer in the future or the most likely to be awarded the concession again, although I note that this argument could be made in relation to any case where there is an incumbent service provider.
The details in the contract of the services to be provided and the various payment arrangements range from quite detailed to general in nature. Regardless of the extent of detail, however, I am satisfied that an analysis of the amounts involved and the descriptions of the services/arrangements concerned could reveal details of matters negotiated and agreed between the Department and Enet. I am also satisfied from my examination of the record, and the information available publically, that the details set out in the contract are above and beyond that already in the public domain by way of published answers to Parliamentary Questions and Oireachtas Committee debates.
In the circumstances, where there could well have been more companies interested in tendering for any new tender competition for the same service, and indeed, as noted above, it would appear that at least one other company demonstrated such an interest, I accept that the publication to the world at large of the details of the negotiated elements of the existing agreement could reasonably be expected to enable Enet’s competitors to use that information to their advantage and to Enet’s detriment should the Department seek tenders for similar services. Having regard to the low bar required to meet the second part of section 36(1)(b), I also accept that this could prejudice the competitive position of the incumbent service provider in the conduct of their business.
While section 36 enables the protection of third party commercially sensitive information, previous decisions from my Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests. While the Department’s arguments concerning its and the State’s own position may fall more comfortably under the exemption at section 36(1)(c), I am willing to accept that the release of the details of the agreement to the world at large could inform prospective tenderers as to other negotiated parts of the contract, such as the revenue share arrangements the State was willing to accept. I also accept that this could reasonably be expected to result in a material financial loss to the State in circumstances where the agreement concerns a substantial amount of public funds and the same matters are likely to be the subject of a re-tendering process.
However, I do not accept that the entire agreement comprises commercially sensitive information. Having carefully considered the version of the agreement as provided by Enet with specific information identified which it considers to be particularly sensitive, it seems to me that some of this information comprises standard definitions which would usually be found in contracts of this nature. It also seems to me that some of the information highlighted by Enet is generic in nature, and does not appear to be the result of particular negotiations between the parties. Nor has any party made a specific argument to that effect or explained how that might be the case. Given the general nature of some of this information, I am not satisfied that it could all be said to be commercially sensitive such that its release could reasonably be expected to result in a material financial loss or gain to Enet (or the Department), or that it could prejudice Enet’s competitive position. Furthermore, I note the Investigator’s comments in her letter to Enet dated 26 October 2022, as follows:
“… It also seems to me that much of the content of the contract could not be said to fall under the definition of commercially sensitive information set out in the FOI Act. That is to say, it seems unlikely to me that the release of what appears in many places to be standard clauses and typical contract language could reasonably be expected to result in a material financial loss or gain to Enet or to result in prejudice to Enet’s competitive position. Bearing the above in mind I would be grateful if you could examine the attached highlighted version of the contract and let me know if Enet agrees with the previous position taken in relation to the material identified. … it is very important that you identify the particular information in the contract that you consider to be commercially sensitive and that you explain why , with regard to section 36(1)(b) of the FOI Act.” [my emphasis]
I note that Enet’s response on 28 November 2022, merely stated that without prejudice to its position that the entire concession agreement was commercially sensitive and should remain confidential, it was “in agreement with the previous position taken by [its] Finance Director […] on 24 August 2015 such that the redacted version of the concession agreement Enet provided at the time to [the Commissioner] … highlights the information that Enet deem to be the most commercially sensitive. Enet would want to have the highlighted information redacted from any potential disclosure should it be decided to disclose.” However, Enet provided no explanation or reasoning as to why it considered the particular information concerned to be commercially sensitive under section 36(1(b) of the FOI Act, or otherwise. Nor did it make any arguments in relation to the remainder of the information in the contract, other than in general terms and to state that it considered the entire document to be commercially sensitive.
In the absence of any detailed explanation from the parties involved and on foot of a close examination of the record concerned, I am not satisfied that disclosure of all of the information identified by Enet would amount to the disclosure of commercially sensitive information, nor as noted above, has Enet made any specific arguments to that effect. However, I am willing to accept that the release of certain information would reveal details of the contract above and beyond what is already in the public domain, and which could reasonably be expected to be of use to Enet’s competitors in a future tender competition. I am also satisfied that the release of certain negotiated details could reasonably be expected to result in a material financial loss for the State in related tender competitions. Therefore, I find that section 36(1)(b) applies to the following information contained in the agreement. In order to ensure compliance with section 25(3) of the FOI Act, I have taken care to ensure that exempt information is not disclosed in this decision.
• Definitions:
• Page 9: first, fifth and sixth paragraphs
• Page 14: sixth paragraph
• Page 15: fifth paragraph
• Page 17: seventh paragraph
• Page 18: second last paragraph
• Page 22: third last paragraph
• Clauses 7.1 to 7.8, 15.4.2, 15.8.2, 25(1)(b), 30.3.1, 30.4, 30.4.1, 30.4.2, 30.6, 30.6.1, 30.6.2 and 30.6.3
• Schedule 2, Parts 1 and 2
• Schedule 3
• Schedule 8 hardcopy and printout from CD-Rom in full
• Schedule 13
• Schedule 14 hardcopy and printout from CD-Rom in full • Schedule 17, Parts 1, 2 and 3
It seems to me that the parties have not identified a specific harm that would arise from the release of the remaining information contained in the contract, other than to assert in general terms that it is commercially sensitive. As noted above, I have carefully reviewed the record in question, and I am satisfied that the contract is quite generic in content, apart from some specific terms and figures. I do not accept that the release of the information contained in the contract, other than that listed above, could reasonably be expected to result in a material loss or gain to Enet or the State, or could prejudice Enet’s competitive position.
Accordingly, I find that the Department has not justified its reliance on section 36(1)(b) to refuse access to the remainder of the information contained in the agreement.
Section 36(2) and 36(3)
However, that is not the end of the matter, as sections 36(2) and 36(3) provide for the release of information to which section 36(1) is found to apply in certain circumstances. Accordingly, I must consider whether sections 36(2) or (3) disapply section 36 to the information which I have found to be commercially sensitive above.
I am satisfied that none of the circumstances identified at section 36(2) arises in this case. Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request. The question I must consider is whether the public interest would, on balance, be better served by granting than by refusing access to the information to which I have found section 36(1)(b) to apply.
The Department’s position
The Department stated that, on foot of the Supreme Court judgment, it could not identify a public interest in favour of the release of the record. In terms of the public interest against release, it stated that Enet should be able to carry out its business with the State, its customers and its suppliers in an effective manner without being impeded. The Department also referred to a confidentiality clause in the agreement, which provided that the parties keep the agreement and all related matters confidential, which could be taken as an argument that there is considerable weight to the public interest in protecting Enet’s commercial interests. The Department further referred to its arguments set out above in relation to the harm expected to the State’s financial position if prospective tenderers were in possession of details of commercially sensitive negotiated positions.
Essentially, the Department was of the view that there was no overriding public interest in favour of the release of what it considered to be commercially sensitive information.
Enet’s position
In terms of the public interest in withholding access to the agreement, Enet relied in detail on paragraphs 181-203 of the Supreme Court’s judgment in the Enet case. While I won’t repeat all of the points here, essentially Enet reiterated the Supreme Court’s view that there was a public interest in the protection of commercially sensitive information which was normally served by the operation of the exemption itself. It stated that the FOI Act makes the refusal of certain records mandatory, unless the public interest could rationally be said to lead to the conclusion that the disclosure of the records was in the public interest.
Enet stressed the importance of engaging with the specific content of the record sought for the purposes of analysing whether release or refusal would better serve the public interest. It repeated the Supreme Court’s comments that the public interest analysis required by section 36(3) cannot be the same public interest as that broadly stated in the FOI Act, or the general public interest in disclosure and transparency in public undertakings. Enet also set out the Court’s comments that the balancing process must be between identified competing interests and the balancing of those rights to ascertain where the public interest genuinely lay. It stated that the test was whether the public interest that might be gained or lost by the release of the particular record(s) sought might, for reasons relevant to the content, be better served by either release or refusal. Enet concluded that no reason had been identified to it in favour of the release of the record concerned in the public interest.
The applicant’s position
In his submissions to this Office, the applicant stated that there was a public interest in access to the terms of the agreement in order to assess whether it was fit for purpose in relation to relevant policy objectives. He also stated that there was a public interest, as identified by the Supreme Court, in public verification that there were no “fundamental errors in the tendering process, fraud or any other illegality associated with the contract”.
The applicant was also of the view that there was a public interest in transparency concerning the pricing model adopted by Enet, and whether value for money had been obtained in relation to the relevant public policy objectives. In particular, he said that questions had been asked as to why prices had not “reduced over time as happens naturally in telecoms”. He also referred to the publication of a report by Analysys Mason ( 7 ) into Enet’s operations and stated that prices were reduced by 50% in response. He argued that this meant that there was a public interest in reviewing the commercial terms of the agreement. He also contended that the degree of harm likely to arise from the release of the information sought would be “very low” due to the age of the agreement and the time before a new tender competition would be likely to be held.
The applicant’s position was that any information relating to the agreement which had been placed in the public domain since my predecessor’s decision in this case was irrelevant to this review. He stated that the function of the FOI Act was not to “meet various public interests and to go no further”. He argued that the purpose of the FOI Act was to provide access to information as of right without having to give a reason for the request, “subject only to exceptions which are to be construed narrowly”.
The applicant also argued that the extension of the term of the agreement in 2017 without a further tender competition had “drawn controversy” and referred to a Parliamentary Question on the matter in this regard ( 8 ). He concluded that it was in the public interest to be able to examine the terms of the contract, on the basis that it had first been agreed in 2009 and was to continue to 2030 “without apparent renegotiation or a new tender”, in order to ascertain whether it was reasonable for the term to have been extended. He also indicated that he did not accept the Department’s submissions in support of its decision to refuse access to the record sought.
It is clear from the submissions received from the parties that there are different interpretations of how the Supreme Court’s decision in the Enet judgment concerning the public interest test should be applied in this case. It is also the general experience of this Office that FOI bodies and requesters do not always have a common understanding of what the judgment requires. While I acknowledge and sympathise with the challenges inherent in any change of approach that is required following a judgment, I consider that my analysis below is consistent with what the Enet judgment requires.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI 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 the 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 in the Enet case. In that case, the Supreme Court 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”. Moreover, the Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and that this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request.
As set out above, the applicant was of the view that there was a public interest in ensuring that the agreement comprised value for money, that it met the relevant policy objectives, that the contract’s extension and Enet’s pricing was appropriate, and that any “fundamental errors… fraud or any other illegality” could be identified. His position was that this could only be met by the release of the record in question. In his submissions to this Office, the applicant referred to an Irish Times article ( 9 ) concerning the extension of the contract concerned, which referred to the publication of a report into Enet’s operation of the MANs. My understanding is that a number of independent reviews of certain aspects of the operation of the MANs by Enet have been carried out since my predecessor’s decision in 2015. I understand that the first review was commissioned by the Department in 2017 ( 10 ) and was carried out by Analysys Mason consultants, before being referred to the Commission for Communications Regulation, which carried out a subsequent review in 2019/2020 ( 11 ) . I also understand that a consultancy firm Norcontel was commissioned to carry out an independent report in 2016, in advance of the decision to extend the MANs agreements to 2030 ( 12 ). The applicant also referred to a reduction of 50% in Enet’s prices following the publication of the Analysys Mason report, in support of his view that the contract should be subject to external scrutiny to gauge value for money.
The applicant also argued, essentially, that in order for the release of the details of the contract to prejudice Enet’s competitive position or result in a material loss to Enet or to the State, future tenderers would have to act in collusion. He was of the view that it would require Enet’s competitors to “all simultaneously make the same proposal” in a future tender competition. I do not agree with his argument. I accept that a prospective tenderer’s bid as to what revenue share percentage or other negotiated element of the contract it proposed or would agree to could reasonably be expected to differ if it was aware what terms were agreed on by Enet and the Department. I do not agree that this would require collusion. It seems to me that the Department’s argument in this regard is that the release of the terms agreed would mean that any prospective tenderer in future competitions would know what level of say, revenue share, the Department had previously accepted and would be unlikely to go beyond that. To take that further, prospective tenderers who were unaware of the current agreed terms may well arrive at figures that would be more advantageous to the taxpayer. I am willing to accept that this may be the case.
I also note the applicant’s arguments that successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied once a contract is awarded, and that the public interest usually favours the release of such information. However, while this may be accurate in many cases, I am satisfied that exceptions may arise and each case must be considered on its own particular facts.
Bearing all of the above in mind, and having carefully considered all matters, I note that many of the public interests identified by the applicant reflect the general principles of openness, transparency and accountability, which do not suffice to direct release of records in the public interest. However, I consider that in this case there is a specific public interest in assessing the financial information contained in this particular contract in terms of value for money, due to the fact that the contract was extended in 2017 for a further 13 years with no apparent tender or renegotiation. I also note that a review of the contract found that some prices should be reduced, which I consider to support the public interest in release. I accept that the release of the information at issue would, by its nature, enable public debate and analysis of the financial decisions made in relation to the MANs project. This would address the specific public interest in ensuring value for the taxpayer in relation to the specific decision to extend the agreement without another tender competition.
Having identified a public interest in granting the request, I must balance that public interest against the interest underpinning the exemption. Section 36(1) reflects the public interest in the protection of commercially sensitive information. It recognises that there is a public interest in protecting the commercially sensitive information of third parties. It also recognises that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. In respect of this particular record, the interest underpinning the exemption is that of enabling a third party company, Enet, to deal with the State without suffering commercially. As stated above, the document in question is not simply a list of services or products to be supplied with the relevant prices. I accept that the agreement in question is unusual in that it is based on a private company investing in what remains a public asset, and the negotiated terms which would allow both parties to be satisfied with this arrangement.
I have accepted above that there are a number of aspects of the agreement that were arrived at following negotiations between the parties and that the release of these details could reasonably be expected to prejudice Enet’s competitive position and to cause a material loss or gain to Enet and/or the State in future negotiations. It is not possible for me to forecast with any accuracy the precise impact of release, but I consider that the nature of the interest that could be affected by the information in question carries significant weight in respect of this particular record. Conversely, in respect of the public interest in release, I note that three independent reviews of various aspects of the agreement have taken place, which could be said to have examined or assessed at least some of the issues raised by the applicant, which, in turn, could be said to reduce the weight of the specific public interest that I have identified in the release of the record sought. I further note that certain details contained in the contract have since been published 13 , for example in relation to Oireachtas debates or Oireachtas committee meetings. It also seems to me that the release of the information which I have found not to be commercially sensitive above will address the public interest in favour of the release of agreement to some extent.
While the applicant has stated that the Department extended the contract in question without a tender, which “has drawn controversy”, and I note his comments in relation to the possibility of identifying errors, fraud or illegality, there is no evidence in the record or submissions before me to suggest that the agreement reveals such matters. Furthermore, I do not believe it is appropriate for me to direct the release in the public interest of commercially sensitive information, effectively to the world at large, on the basis that the applicant is of the view that release is necessary to verify there are no fundamental errors in the tender process. Neither do I have any remit to consider, or make findings on, the merits of the extension of the contract.
Having carefully considered the matter and weighed the interests in the balance, I am satisfied that the interest in maintaining the exemption is very significant, specifically the interest in the State being able to achieve optimal contractual terms in the future if/when it conducts another tender competition for the management and operation of the MANs. I am also satisfied that there is a strong interest in maintaining the exemption so that Enet, a private company, does not suffer financially from its dealings with the State in relation to this contract. I consider both of these factors together to weigh strongly against the release of the remaining information at issue, notwithstanding the specific public interest in release that I have identified above.
In the particular circumstances of this case, I do not consider that the public interest in assessing the value for money in the contract, which arguably has been done to some extent as part of the independent reviews referenced above, would be enough to outweigh the significant public interest served by withholding the remaining information. Accordingly, I find that the public interest, on balance, would be better served by refusing to grant access to the parts of the contract to which I have found section 36(1)(b) to apply, which are listed above.
Having regard to the above, I vary the Department’s decision to refuse access to the record sought. I affirm its decision to refuse access to certain information, which I have found to be exempt under section 36, as set out above. I find that the public interest, on balance, does not favour its release. I annul the Department’s decision to refuse access to the remaining information contained in the agreement on the basis of section 36(1)(b) of the FOI Act.
As noted above, in their responses to the draft decision, the Department and Enet both argued that certain information contained in the record at issue relates to the personal information of identifiable third party individuals. Having carefully examined the records in question, I am satisfied that Schedule 5, Parts 1 and 2, and Schedule 6, Parts 1 and 2 contain information relating to a number of identifiable individuals. Accordingly, I shall consider this information under section 37 of the FOI Act.
Schedule 5, Part 1 lists two individuals who represented the Department in relevant matters, Part 2 lists the equivalent representatives for Enet. Both parts contain the name, work address, telephone, fax and mobile numbers and email address of each individual. Schedule 6, Part 1 contains the names of Enet’s directors and secretary at the relevant time, and a list of named shareholders and details of their shareholdings (the shareholders include companies and individuals). Part 2 contains the names of the directors, secretary and members of a third party shareholder company (Company X) and the value of each individual’s shareholding in Company X.
As noted above, the applicant is not seeking access to any telephone, fax or mobile numbers, or the first part of email addresses. He has also indicated that he does not consider the information set out above to comprise personal information as defined in section 2 of the FOI Act.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
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 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual and (iii) information relating to the employment or employment history of the individual.
In addition, Paragraph (I) of section 2 excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public 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 ...".
Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not exclude the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. Individual staff members are still entitled to the right to privacy generally.
Schedule 5, Part 1 - The Department’s staff
In its submissions to this Office, the Department said that the names and contact details of all the individuals listed in Schedules 5 and 6 should be redacted “under GDPR rules”. This
Office has commented upon the interplay between the FOI Act and data protection legislation in a number of previous decisions. For the benefit of the Department, I will repeat those comments here.
Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.
In short, data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue. I note that the Department has not made such arguments here.
Nonetheless, Schedule 5, Part 1 contains the names, office addresses and email addresses of the Department’s own staff, which I will consider under section 37. Having regard to the exclusions at Paragraph I of the definition of personal information in section 2 of the Act, I do not accept that the names, partial email addresses and office addresses of these staff members comprise personal information. On the basis of the exclusion from the definition of personal information provided for in Paragraph (I) of section 2 of the Act, I find that the names, office addresses and the last part of the relevant email addresses (i.e. from @ onwards) of the Department’s staff contained in Schedule 5, Part 1 are not personal information and as such, section 37(1) does not apply.
Schedule 5, Part 2 - Enet’s staff
In its submissions on foot of my draft decision, Enet stated that the details of its employees set out in Schedule 5, Part 2 comprised their personal information. It also stated that the individuals in question were no longer employed by Enet. The applicant, on the other hand, is of the view that the individuals concerned were senior staff members representing Enet, and that it followed that their names were not personal information for the purposes of the FOI Act. He also stated that the identities of the employees of a company were “not generally secret or personal” and noted that employees often put their names on LinkedIn and referred to previous employment on their CVs, etc.
I have carefully considered the information concerned and the submissions made by the parties in this case. I am satisfied that Enet is acting as a service provider to the Department, as set out in my predecessor’s decision. While the applicant argues that information relating to Enet’s staff does not comprise personal information, my Office has found previously that the exclusion to the definition of personal information relating to service providers applies to the relevant service providers, not to individual staff members who represent the organisation in correspondence with an FOI body.
I have considered the limited information at issue. I note that the names of the staff members do not reveal anything in particular about the individuals other than they worked for Enet at the relevant time. That said, section 37 is not a harm-based exemption. In addition, as noted above, the exclusion does not deprive staff members of the right to privacy generally. In the circumstances of this case, I am satisfied that the exclusion does not apply and that the names of the Enet staff contained in Schedule 5, Part 2 comprise their personal information within the meaning of the FOI Act. However, I am also satisfied that the work address and partial email addresses contained in the same page do not comprise the personal information of identifiable individuals.
Schedule 6, Parts 1 and 2 – Enet’s Directors, Secretary and Shareholders
As set out above, Schedule 6 contains the names of third party individuals that acted as directors or as secretary to Enet at the relevant time, and/or who were shareholders of Enet and/or Company X, including details of the shares held.
Section 37(2) provides that section 37(1) does not apply if, as follows:
“(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 to any of the information being considered under section 37, nor have any of the parties argued as such. However, the applicant has argued that section 37(2)(c) applies in relation to the information relating to the secretary, directors and shareholders of Enet and Company X contained in the records.
In his submissions on foot of my draft decision, the applicant argued that the names of Enet’s directors and secretary are in the public domain on the company’s register. He further argued that the identity of the secretary, directors, shareholders, their shareholdings and other details comprised information that companies are required to maintain on a register at their registered offices, as per section 169(1) of the Companies Act 2014. He stated that this information was open to inspection by the public under section 216(9) of the same Act, and that therefore, it was all in the public domain and should not be withheld.
I accept that section 169(1) of the Companies Act 2014, as amended, requires registered companies to keep a register of their members (shareholders) which contains the names and addresses of the members, a statement of the shares held by each member, the amount paid or agreed to be considered as paid on the shares of each member and the date at which each person was entered in/removed from the register as a member. I also accept that section 149(1) of the same Act requires registered companies to keep a register of their directors and secretaries. I further accept that sections 216(7), (8) and (9) of the Companies Act 2014, as amended provides that the registers mentioned above shall be open to inspection of any member (shareholder) of the company without charge and to any other person on payment of the relevant fee. I understand that the registers in question can also be accessed by way of the Companies Registration Office, in return for a nominal fee.
Having carefully considered the matter, I am satisfied that the names, roles and/or shareholding details of the individuals set out in Schedule 6, Parts 1 and 2 are in the public domain as they can be accessed by the general public as set out above. Accordingly, I find that section 37(2)(c) applies and that section 37(1) cannot apply to this information.
As noted above, some companies are also listed as shareholders (four in total). The definition of personal information can only apply to natural persons, not to companies or other legal persons. Accordingly, I am satisfied that the names of the companies listed in Schedule 6 are not exempt under section 37(1) of the FOI Act.
Having regard to the above, I find that section 37(1) does not apply to the majority of the information contained in Schedules 5 and 6.
Public interest
As I have found section 37(1) to apply to the names of Enet’s staff members contained in Schedule 5, Part 2, I must consider sections 37(2) and 37(5).
Section 37(2)
As set out above, section 37(2) provides that section 37(1) does not apply in certain circumstances. The applicant has argued that information as to where many individuals work is available online by way of LinkedIn profiles or CVs, which could be construed as a reference to section 37(2)(c). However, I am not satisfied that this is always the case or that it would serve to disapply section 37(1). Having carefully considered the matter, in the circumstances of this case, I am satisfied that none of the provisions of section 37(2) apply in this case.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I am satisfied that section 37(5)(b) does not apply.
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 the 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 in the Enet case in relation to the public interest test, as set out above.
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).
The applicant is of the view that the names of Enet’s staff members are already in the public domain and has argued that their names in this context do not comprise personal information. He further argued that even if their names came within the definition set out in section 2 of the FOI Act, it is not private or confidential information such that there would be no public interest in withholding this information from release. I have carefully considered the applicant’s arguments. While I accept that the names of two staff members, who no longer work for Enet, in a contract from 2009 is not inherently sensitive information, it is nonetheless personal information regarding individuals, the release of which has some impact on the right to privacy. The information in the record discloses not just the employment status of the individuals but the nature and content of the work that they were engaged in during the course of their employment.
In relation to the public interest in disclosure of the information, the appellant pointed to his earlier submissions regarding the public interest in release, which have been set out in detail in respect of section 36, above. As I noted above, many of the public interests identified by the applicant reflect the general principles of openness, transparency and accountability, which do not suffice to direct release of records in the public interest. However, I accepted above that in this case there is a specific public interest in assessing the financial information contained in this particular contract in terms of value for money in relation to the specific decision to extend the agreement without another tender competition. However, I do not accept that the release of this particular information would serve that public interest. Release of the names of these individuals would not shed any light on the contract itself or the Department’s role in these matters. Nor would it contribute to the public’s ability to assess this contract in terms of value for money.
In the circumstances of this case, while I accept the appellant’s submission that release of the information would not have a significant impact on the individuals’ right to privacy, I do not accept that there is a public interest in the release of this particular information sufficient to outweigh the right to privacy of the individuals concerned.
On balance, I am not satisfied that the public interest in releasing the names in question outweighs the right to privacy of the individuals concerned. I find that section 37(5)(a) does not apply and that the information concerned is exempt from release under section 37(1) of the FOI Act.
In the interests of clarity, I direct the release of the record to the applicant, subject to the redaction of the information identified above under section 36(1)(b), the names of Enet’s staff, the telephone, mobile phone and fax numbers and the partial email addresses contained in Schedule 5.
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 access to certain information contained in the record under sections 36(1)(b) and 37(1) of the FOI Act. I find that the public interest, on balance, does not favour its release. I find that the Department has not justified its decision to refuse access to the majority of the remaining information in the agreement under sections 36 and 37, and I annul its decision in this regard. I direct the release of the information set out above 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 requester 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.
Ger Deering
Information Commissioner