Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147110-N8S6Z4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to records relating to the use of a particular property to accommodate international protection applicants on the basis of sections 30(1)(c), 32(1)(b), 35(1), 36(1) and 37(1) of the FOI Act
12 February 2025
In a request dated 21 September 2023, the applicant sought access to copies of all contracts and correspondence between the Department and a named company and/or individual, created between March 2022 and the date of his request, regarding the use of a property in a specified location to accommodate refugees. He also sought copies of all correspondence between the Department and any other State agencies, including but not limited to the NTMA, NAMA and Revenue, regarding the same property. In a decision dated 23 November 2023, the Department part-granted the request. Of the seven records it identified as coming within the scope of the request, it refused access to two records under section 36(1) of the Act (records 2 and 3) and redacted information from the remaining five records under sections 32(1) and 37(1) of the FOI Act. It refused the second part of the request under section 15(1)(a) of the Act on the ground that the records requested do not exist.
On 4 December 2023, the applicant sought an internal review of the Department’s decision. He requested a “de novo review” but asked that the Department consider certain matters. He noted that the names of civil servants are redacted in the records and said that the names of office holders/civil servants may not be refused as personal information. He said that the names of service providers and persons remunerated from public funds should not be redacted. On 27 December 2023, the Department varied its original decision and granted access to some information that had been redacted from records 1, 4, 5, 6, and 7. On 6 March 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, and in light of the contents of the records at issue, the Investigator notified the third party company (Company X) named in the request and invited it to make submissions, which were duly received. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In his application to this Office, the applicant said that he was seeking a review of all aspects of the original and internal review decisions but said that the “most important point” was the Department’s redaction of the name or names of “a service provider”. In light of the submissions received, the Investigator contacted the applicant to confirm the scope of the review. In response, the applicant said that he accepted the Department’s reliance on section 15(1)(a) in respect of his request for copies of correspondence between the Department and other State agencies. Accordingly, I will not consider this matter further.
In its submissions to this Office, the Department referenced its refusal of record 2 on the basis of section 36(1). It said that the document contains detailed information relating to the offering at the property in question. It said that the publication of such details would severely undermine the Department’s ability to negotiate effectively and ensure value for money. However, it said that, on review, section 30(1)(c) was a “more appropriate exemption in this scenario”. It said that it was putting forth the same argument in respect of record 3. I am satisfied that the Department has revised its position and is no longer relying on section 36(1) in respect of the records at issue and instead relies on section 30(1)(c) as a basis for refusing access to records 2 and 3.
The Department also referenced the names withheld from the records. It said that Department staff names have been redacted on the basis of section 32(1)(b). In its submissions, it said that “the work carried out by staff in [a particular] division in providing accommodation to those seeking international protection has been a matter of public interest and has prompted much discussion and significant instances of protest and criminality”. Its position is that the safety of staff members would be at risk if their names and contact details are released. In light of the applicant’s reference to third party service providers as opposed to staff of the FOI body in his submissions, the Investigator contacted him to confirm whether he was seeking information relating to staff members of the Department. In response, while noting that he believed that staff names should not be redacted, he said that he has “no personal interest in these details in the current case” so has “no problem with this [information] being removed from the scope of the review”. While he also referenced his belief that the public body has misapplied and misunderstood the relevant section, I am satisfied that he has clearly removed the information from scope. Accordingly, I will not consider information in the records relating to staff members of the Department and/or their contact details.
The Department also said that the records contain the name and contact information of the facilities manager of the property in question. It said that the relevant contract is between the Department and a named company and while it has no argument against release of the company name, it believes that section 37(1) should apply to the facility manager’s personal details. While the Department had not referenced section 37 in its internal review decision, I note that it relied on the provision in its original decision. For the avoidance of doubt, this Office notified the applicant that the provision is a mandatory exemption which would need to be considered.
In submissions received, Company X said that the Department was correct in declining the request. It also argued that the information sought was exempt on the basis of sections 35, 36 and 37 of the FOI Act. As sections 35 and 36 are mandatory exemptions, I will consider their application to the information and records at issue.
Accordingly, the scope of this review is concerned with whether the Department was justified in refusing the records, in whole or in part, on the basis of sections 30(1)(c), 32(1)(b), 35(1), 36(1), and 37(1) of the FOI Act, excluding the information I have described above as having been removed from the scope of the review.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. Firstly, I note that the Department’s original decision issued to the applicant some five weeks after the statutory timeframe. While the FOI Act provides for an extension of time for the consideration of requests in certain circumstances, it does not appear that the Department issued such an extension. I would remind the Department that the administration of FOI is a statutory function which should be afforded due weight. I expect it to have regard to these comments and ensure that it complies with relevant timeframes in future.
Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is somewhat limited. It also means that I must be circumspect in my description of the submissions received.
Thirdly, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.
Finally, a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in the FOI body’s decisions on the request.
Record 1 is a premises briefing document for public representations and has been part-granted. Record 2 is a proposal document which has been refused in full. Record 3 is a contract between the Department and Company X. It was sent to this Office in two parts but I am satisfied that it comprises one record. It was refused in full. Records 4, 5 and 6 comprise correspondence between the Department and representatives of Company X. The records were part-granted. Finally, record 7 is an inspection report relating to the property in question which was also part-granted.
Section 30(1)(c) of the FOI Act provides that an FOI request may be refused if access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(2) provides that section 30(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines “negotiation” as “the action or business of negotiating or making terms with others”. It goes on to define the verb “negotiate” as “to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise”. Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. This Office also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c). In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is any proposal for settlement or compromise, any indications of 'fall-back' positions, information created for the purpose of negotiations, the FOI body’s negotiating strategy, or an opening position with a view to further negotiation.
In its submissions, the Department said record 2 contains detailed information relating to the offering at the property in question. It said that the document includes detail on the catering arrangements, the available space, the room dimensions and the overall rate paid to the provider on a per head basis. It said that the publication of such details would severely undermine its ability to negotiate effectively in future with other providers and to ensure value for money. It said record 3 comprises a copy of the contractual agreement between the Department and the accommodation provider and that the same arguments against release apply. It said that by releasing a copy of the contract signed by the accommodation provider, others may then become aware of the rates the Department pays to providers for certain property types. It said that this information, read in conjunction with the purchase orders of over €20,000 which are published to its website each quarter, would result in the Department’s negotiating position being undermined.
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that the exemption does not contain a harm test and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiating positions, plans etc. A distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc. used for the purpose of a negotiation. While a record might reveal the outcome of negotiations, it may not necessarily be reasonably expected to disclose the positions taken or reveal plans etc. used for the purposes of negotiations. In addition, the Commissioner has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.
While I must be circumspect in my description of the records at issue, I believe it would be useful to provide some high level detail in respect of their contents. Record 2 is a proposal document authored by an individual on behalf of Company X. It includes a number of appraisal questions, details of the property, and copies of certain inspection reports, certifications and insurance documents. Record 3 is a copy of the agreement between the Department and Company X.
The majority of the information contained in record 2 relates to the nature of the property at issue and the accommodation services offered by Company X. This is effectively factual information. I note that information relating to the accommodation on offer, the condition of the property, the owners and operators and supports available to residents has been released to the applicant. The majority of the information contained in record 3 comprises standard contractual clauses which do not appear to relate specifically to the accommodation agreement at issue. I do not accept that release of the above information could disclose positions taken or to be taken, or plans, etc. for the purpose of any negotiations.
I note that both records 2 and 3 contain reference to a daily rate of payment. While it is a close call, I am willing to accept, on balance, that the release of that daily rate could disclose positions to be taken for the purposes of ongoing or further negotiations. It seems to be that the release of such information could be seen to disclose the daily rate that the Department would be willing to pay in the particular circumstances. Accordingly, I find that section 30(1)(c) applies to the following information:
• Record 2, page 8, section 18.a
• Record 3, page 33, monetary amount headed “Single Occupancy Rate per person per day (inclusive of VAT)
My finding, on balance, that the above is captured by section 30(1)(c) is not the end of the matter as I must also consider whether section 30(2) serves to disapply section 30(1)(c). As I have outlined above, section 30(2) provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the “ENet 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”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions, as noted above, the Department’s position is that release of the records would hamper its ability to negotiate effectively in future with other providers. It said that it does not believe that the public interest would be better served by releasing the document. It said that the premises briefing released (record 1) contains all the relevant information that releasing record 2 would provide “minus the sensitive information that would affect our negotiating position”. It said that the release of the record would not be in the public interest as any additional transparency gained from is release would be outweighed by the negative consequences that release would have on the Department’s ability to ensure value for money. In respect of record 3, it said that release of the signed contract would enable others to “become aware of the rates the Department pays to providers for certain property types”. It said that this information, in conjunction with the Purchase Orders of over €20,000 which are published to its website each quarter, would result in its negotiating position being undermined.
In essence, the Department’s position is that release of the information would undermine its ability to negotiate effectively in the market and ensure value for money. I have accepted that the disclosure of the daily rate could reasonably be expected to disclose positions taken or to be taken. While section 30(1)(c) does not contain a harm test and makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not, such a distinction is relevant to a consideration of the public interest test.
Section 30(1)(c) is itself reflective of the public interest in protecting the negotiating positions of FOI bodies. In this case, a certain amount of information concerning the accommodation offering in question has already been released to the applicant. In addition, and as noted by the Department, certain information in respect of purchase orders is publicly available. The information at issue is the daily rate of payment made to Company X in respect of the relevant property. The rate of payment relates to the specific contractual engagement. While the Department has referenced its ability to negotiate in future with other providers, it is not clear to me that disclosing a rate of payment in respect of one specific property could reasonably be expected to result in the harms outlined. It seems to me that any future negotiations with perspective providers will be dependent on the specific circumstances of the negotiation and the particular specific details of the accommodation on offer. I accept that a prospective provider who is aware of the daily rate paid to Company X could use that information to frame their opening negotiating position. However, it seems to me that the final negotiated outcome will depend on a variety of factors that are likely to be unique to the particular property and offering that is the subject of the negotiations. As such, I consider that the public interest in protecting the information at issue is to be afforded a lesser weight than it might otherwise attract if, for example, directly comparable offerings were at issue.
On the other hand, there can be no doubt that international protection and the measures being taken by the State to ensure that applicants are safely accommodated are matters of enormous public interest. The increase in international protection applications has given rise to a significant and unprecedented demand for accommodation. The State has acknowledged that there are significant shortages in accommodation. There is a strong public interest in allowing for public scrutiny of how accommodation services are delivered; the nature and the costs associated. It seems to me that the release of the information at issue would allow for more detailed scrutiny of how the Department is addressing that demand.
Moreover, there is a strong public interest in allowing members of the public to be in a position to scrutinise the expenditure of public monies, including the manner in which relevant agreements are negotiated. The provision of international protection accommodation through the private sector has given rise to significant levels of public expenditure. The accommodation service referenced in the records is State-funded and the amount of public monies that has been expended and continues to be expended on the provision of international protection accommodation is very significant, as evidenced by the published Purchase Order details. In the case ofIndustrial Development Agency (Ireland) v the Information Commissioner [2024] IEHC 649, the Court found the public interest in ensuring the proper management and use of public funds to be a legitimate public interest.
Moreover, it seems to me that the increased demand for international protection accommodation and the well-documented difficulties the State has experienced in meeting the needs of applicants means there is a need for increased scrutiny in respect of the State’s engagement with providers and resultant expenditure. Openness in relation to the provision of such services is an important additional safeguard against abuse.
Having carefully considered the matter, I am satisfied that any harms which could flow from the release of the daily rate of payment would be, at best, minimal. As such, I consider that the weight to be afforded to the public interest in refusing the information is lessened. On the other hand, I have identified a number of strong public interest factors in favour of release. Accordingly, I am satisfied that the public interest in disclosing the information outweighs, on balance, the public interest in refusal. Accordingly, I find that section 30(1)(c) does not serve to exempt the information at issue.
Section 35 protects certain records containing information obtained in confidence. In its submissions to this Office, Company X said that any information contained in the relevant files was given in confidence and is exempt under section 35 of the Act. It provided no further submissions in respect of the application of the exemption provision. The Department has not sought to rely on section 35. However, given the mandatory nature of the exemption, I will consider its application to the records at issue.
Section 35(1) contains two separate provisions, paragraph (a) and paragraph (b). Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. A number of conditions must be met in order for the exemption to apply. It is necessary to show that the information was given to an FOI body in confidence, that the information was given on the understanding that it would be treated by the FOI body as confidential, that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and that it is of importance to the body that such further similar information should continue to be given to the body. All four of the requirements must be satisfied in order for the record to be considered exempt. Section 35(1)(b) provides a mandatory exemption for records where disclosure of the information would constitute a breach of a duty of confidence.
As noted, the company made no substantive submissions in respect of the exemption provision. It did not specify whether it was seeking to rely on subsections (a) or (b). It was informed that if it wished to make submissions in support of the Department’s decision to refuse release, it should provide full, coherent and fact-specific reasoning as to why the information sought should be considered exempt. It was directed to previous decisions, guidance notes and sample questions. While section 35 is a mandatory exemption, I do not believe that I am required to construct arguments to support a party’s broad assertions. Nonetheless, I have considered the requirements of the provision and the contents of the records.
The company in question entered into a contract with the Department to provide accommodation. Information was provided to the Department by the company in that context. I am not satisfied that the information was given to the FOI body on the understanding that it would be provided in confidence. The contract in question involves the spending of public funds. Having considered the specific contents of the records in question, I cannot accept that a third party could reasonably consider that such engagements with a Government department regarding a contract would be confidential. Nor do I believe that release of the information would be likely to prejudice the giving to the Department of further similar information from the same person or other persons. The company evidently benefitted from the contract established between the parties. Failure to provide the Department with relevant information would likely preclude any company from entering into future contracts. Accordingly, I do not accept that section 35(1)(a) applies to exempt the information withheld from the records.
Nor do I accept that section 35(1)(b) applies. A record is exempt under section 35(1)(b) where disclosure of the information would constitute a breach of a duty of confidence provided for by agreement, enactment or otherwise by law. While I am limited in the extent to which I can describe the records at issue, I believe I must note that record 3 constitutes a copy of a contract between the Department and the company and contains a section pertaining to confidentiality. Having considered the specific contents of the record and section 7.4, I do not accept that the contract provides for a duty of confidence such that release of the records in question would constitute a breach. Section 7.4 references the FOI Act and states that in the event of a request, the Client (in this case the Council) will consult with the Contractor (in this case Company X). The Contractor is expected to specifically identify information not to be disclosed and provide reasons in support of its position. The provision states that the Client accepts no liability in respect of information provided which is subsequently released “irrespective of notification”. I do not accept that the wording of the provision gives rise to a duty of confidence provided for by agreement. No other arguments have been advanced in respect of the application of the subsection nor are any apparent to me.
Accordingly, I find that section 35(1) does not serve to exempt release of the withheld information and records.
Section 36 protects certain records containing commercially sensitive information. In its submissions to this Office, the third party company said that the information contained in the records is commercially sensitive and exempt by virtue of section 36. Again, it provided no further submissions in respect of the application of the exemption nor did it identify a particular subsection as relevant. Section 36 contains three separate provisions, paragraphs (a), (b) and (c). Subsection (a) protects records containing trade secrets while subsection (c) protects records containing information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The company has made no submissions in this regard and, having considered the records at issue, it is not apparent to me that subsections (a) or (c) serve to exempt the information.
Section 36(1)(b) provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 the person in the conduct or his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information “could prejudice the competitive position” of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower that the “could reasonably be expected” test in the first part of this exemption. However, this Office takes the view that, in invoking “prejudice”, the damage that could occur must be specified with a reasonable degree of clarity. Again, the third party company has made no submissions in respect of the application of this provision. However, in light of the nature of the exemption provision, I have considered the contents of the records at issue.
The information withheld from records 1, 4, 5 and 6 concerns the names and contact details of particular individuals. The information is either outside scope, as referenced above, or will be considered in my section 37 analysis below. I do not accept that the release of the information could reasonably be expected to result in the harms envisaged by section 36(1)(b). The names of certain individuals have also been redacted from record 7 and I do not accept that their release could reasonably be expected to result in material financial loss or gain or prejudice the competitive position of Company X. Record 7 also contains certain images of the property which have been withheld. No arguments have been made by the Department or Company X in respect of why such images should be withheld and it is not evident to me that release could result in the relevant harms.
In respect of records 2 and 3, I acknowledge that the contents relate to the commercial activities of Company X and its engagements with the Department. However, records containing commercial information are not subject to either release or exemption as a class. Each record must be examined on its own merits in light of the relevant circumstances. Furthermore, section 36(1)(b) is a harm-based exemption. In order to find that the exemption provision applies, I must be satisfied that release of the particular information at issue could reasonably be expected to result in the relevant harms.
I have carefully considered the contents of records 2 and 3. Record 2 is a proposal document which includes responses to appraisal questions, details of the property, and copies of certain inspection reports, certifications and insurance documents. It is not evident to me that release of the record could reasonably be expected to result in relevant commercial harms. Certain pages of the record relate to insurance quotations and include financial amounts. However, the fact that a record contains financial information does not, of itself, mean that section 36(1)(b) applies. The essence of the test is not the nature of the information, but the nature of the harm which might be occasioned by its release. Having carefully considered record 2, I do not accept that its release could prejudice the competitive position of Company X, or indeed any of the companies referenced in the inspection reports or insurance documents.
Record 3 is what I would consider to be a standard contractual template document. Apart from certain information in Appendix II, there does not appear to be any substantive provisions which are tailored to the specific accommodation being provided by Company X. It is not evident to me that the release of standard clauses could conceivably result in any of the relevant harms. In respect of Appendix II, the information therein comprises high-level information about the rate of payment agreed between the Department and Company X. The Department has noted that purchase orders over a certain threshold are published on its website. I note that payments made to Company X are publically available. It seems to me that this information, coupled with the detail in respect of the accommodation released in record 1, would provide third parties with as much insight as the release of the high-level information in Appendix II. As such, I do not accept that the release of that information could reasonably be expected to result in relevant commercial harms. I would again stress that no substantive arguments have been advanced in this regard.
In light of the above, I find that section 36(1) does not serve to exempt release of the withheld information and records.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, by known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (iii) information relating to the employment or employment history of the individual.
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 include 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.
As noted above, the Department has redacted the names and contact details of certain individuals from the records. In its submissions, the Department said that the relevant contract is between the Department and Company X. It said that while it has no argument against the release of the company name, it believes that section 37 applies to a relevant staff member’s personal details. Having considered record 3, I am satisfied that the contractual agreement in question is indeed between the Department and Company X. It appears to me that Company X is therefore the service provider and that individuals named in the records in relation to that company are staff members or representatives, rather than service providers for the purposes of the FOI Act.
In addition, the name of a third party individual has been redacted from record 7. The individual in question authored a report provided by a separate third party company. For the same reasons as above, it seems to me that the third party company is the service provider and that the named individual is a staff member of that company. Records 2 and 3 also contain the details of another staff member of Company X. That individual completed the proposal document in question and section 19 of record 2 includes further information in respect of their employment history and personal accommodation.
In the circumstances of the case, I accept that the organisations listed are the relevant service providers, not the individual staff members who represented the organisations in correspondence with the Department. I therefore find that the exclusion to the definition of personal information does not apply and that the names and details of individual staff members comprise personal information and that section 37(1) of the Act applies.
Separately, record 2 contains the names of staff members who completed periodic inspections and tests on behalf of a third party company as well as the names of individuals providing certain quotations. Those individuals appear to have been working for companies providing services to Company X, as opposed to the Department. Accordingly, there is no suggestion that such information is excluded from the definition of personal information. I am satisfied that the names and details of any third party individuals contained in pages 20-58 of record 2 comprise personal information and I find that section 37(1) applies.
While I have found that the names and details of third party individuals referenced in the records comprise personal information such that section 37(1) applies, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if:
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that sections (a), (b), (d) and (e) do not apply in this case. In respect of subsection (c), I wish to consider and address comments made by the applicant in his application to this Office. With reference to the part-granted records, he said that “the name that has been redacted is that of a service provider, providing accommodation for Ukrainian refugees at a property in [named county]. The name of the company providing this service [Company X] has not been redacted, and the names, addresses and dates of birth of its shareholders and directors is publicly available information.”. He said that “the name of the company’s manager at the property is also in the public domain”. His submissions in this regard related to the public interest in release but I consider them to be relevant to the question on whether subsection (c) applies.
I have considered the information to which I have found section 37(1) to apply. I am not satisfied that the majority of the information can be said to be of a type that is available to the general public. While the applicant has drawn my attention to a particular media article in support of his position that a manager’s identity is in the public domain, I do not accept that the existence of such media reports is sufficient to engage subsection (c). For the subsection to apply, information of the same kind as that contained in the record in respect of individuals generally must be available to the general public. I am not satisfied that information of the same kind is generally available to the general public
I note, however, that the director and secretary of Company X are named in section 19(d) of record 2. I accept that the names of company directors and secretaries is information which must be notified to the Companies Registration Office (CRO) and is available to the public for inspection on payment of a small fee. It therefore seems to me that such information is in the public domain, and is thus not subject to section 37(1). In this regard, I am informed by the judgment of the High Court in the recent case ofIndustrial Development Agency (Ireland) v The Information Commissioner [2024] IEHC 649, in which Phelan J. stated as follows:
“…[E]ven if information was considered to constitute personal information within the meaning of s. 37(1) by disclosing the identity of a natural person as opposed to a company, the fact that the information is publicly available triggers the operation of s. 37(2) to permit disclosure of the information in question. I do not read ss. 2 and 37 of the 2014 Act as precluding the disclosure of information already in the public domain and a matter of public record”.
On the other hand, I am satisfied that the disclosure of the other responses at section 19 of record 2 would involve the disclosure of personal information about the individual referenced and that section 37(1) applies.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply in this case.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right to privacy of the individual to whom the information relates.
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 inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
As noted above, I must take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. In the current case, this impacts the extent to which I can refer to particular submissions made by the applicant. He said that the most important aspect of his request relates to the redaction of a particular name from the records. In his application to this Office, he said that the name that has been redacted is that of a service provider. He said that the name of the company providing the service (Company X) has not been redacted and he said that the names, addresses and dates of birth of shareholders and directors is publicly available information. He said that the name of the company’s manager at the property is also in the public domain. He said that “while it may seem insignificant, there is considerable public interest in establishing the identity of the correspondent in emails with the department”. In light of his reference to the public interest in release but the limited submissions received, the Investigator queried whether he wished to make more detailed submissions in this regard. The applicant made further submissions in response. He said that the State spent considerable sums of public money on accommodation for international protection applicants last year. He said that there is a significant public interest in establishing the identity of those benefiting from this investment. He referenced the owners and ownership of the property in question. He made submissions in respect of a particular individual and provided supporting documents. I am limited in the extent to which I can refer to the submissions made by the applicant. However, I confirm that I have considered them in full.
The Department was notified of the submissions advanced by the applicant and provided with an opportunity to comment. I note that it did not make any submissions in respect of the public interest test at section 37(5). Company X did not refer to the public interest test in its submissions but I note that it did provide certain assurances in respect of the ownership of the property and who derives financial benefits from same. Again, I am limited in the extent to which I can reference the submissions received.
I accept that there is a strong public interest in openness and accountability in the use of public funds. However, I note that I have found that section 36 does not serve to exempt from release information in the records relating to the service proposal or the agreement between the Department and Company X. I also note that the Department itself released the name of the company in question and has referenced the public availability of purchase orders.
On the other hand, 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, therefore, will be set aside only where the public interest served by granting release (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).
I have carefully considered the relatively limited information to which I have found section 37(1) to apply. I note that the public interest submissions received relate solely to individuals said to be associated with Company X. It seems to me that the Department has endeavoured to strike a balance by releasing information relating to Company X while withholding information relating to staff members, representatives or those communicating with the Department on behalf of the company. Having considered the specific arguments advanced by the applicant, and noting the level of detail he was able to provide and reference in his submissions, it seems to me that the release of the personal information at issue would do little to enhance transparency in respect of the accommodation provided or the expenditure of State funds. The information which has been refused is personal information relating to third parties and I must regard its release as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant individuals. In particular, I am not satisfied that a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure has been advanced, nor is any such reason evident to me. I find, therefore, that section 37(5)(a) does not apply.
Section 32(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to endanger the life or safety of any person. This exemption is not commonly used. This Office takes the view that section 32(1)(b) should not be applied without careful consideration having been given as to whether the expectation is a reasonable one in all the circumstances. It is not necessary, or indeed possible, to establish that such harm will occur, but the FOI body should show that there is a reasonable expectation of such harm arising. In order for the exemption to be upheld, it should be possible to clearly link the expectation of harm arising to the content and context of the records.
The Department relied on section 32(1)(b) to redact all names and contact details of Department officials that appeared in the records. As noted above, following communications with the applicant, such information is outside the scope of this review. I note that information relating to a third party has also been withheld from the relevant records. I have found such information to be exempt under section 37, as noted above. Photographs of the interior and exterior of the property in question have also been withheld from record 7. The Department made no submissions in respect of such information. The name and address of the property has been released. In that context, and in the absence of submissions to the contrary, I do not accept that release of the relevant photographs could result in the harms envisaged by section 32(1)(b). I find that section 32(1) does not serve to exempt the limited information remaining at issue.
In summary, I find that the Department was justified in refusing access to the following information on the basis of section 37(1):
• The name and contact details of a third party withheld from record 1
• The names, contact details and information in respect of third parties where they appear in record 2, with the exception of the names of Directors and Secretaries in section 19.d
• The name and contact details of third parties where they appear in record 3
• The name and contact details of a third party withheld from records 4, 5 and 6
• The name and details of a third party withheld from record 7
I find that the Department was not justified in refusing access to the remaining withheld information. I therefore direct the release of records 2, 3 and 7 subject to the redaction of the information to which I have found section 37(1) to apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that it was not justified in refusing access to the relevant information withheld from the records under sections 30(1)(c), 32(1)(b), 35(1), 36(1) and/or 37(1) of the FOI Act, apart from the small amount of information to which I have found section 37(1) to apply as described above.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator