Cinneadh
Mr. X Charities Regulatory Authority (CRA)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148114-M9H0P5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148114-M9H0P5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the CRA was justified in refusing access to records relating to concerns raised about charities on the basis of sections 29, 30, 35, 36, 37, 41 and 42 of the FOI Act
29 July 2025
In a request dated 9 January 2024, the applicant sought access to an extract from the database used to record “concerns” logged by the CRA. He sought certain information relating to concerns closed in 2022 under six specified reasons for closing, as follows:
• Case manager satisfied based on assurances provided by entity;
• Unregistered organisation is engaging with registration process;
• Issues already addressed/being addressed by entity;
• Entity complied with actions requested by case manager;
• Entity now in compliance with the Charities Act 2009;
• Relevant advice/guidance issued to entity.
He sought the following information in respect of those concerns:
• A description of each closed concern (as presumably recorded in the database)
• The name of the associated charity
• The date the concern was opened
• The date the concern was closed
• The category of each concern (as recorded in the compliance reports)
• The reasons for the closing of the concern in question (as listed above)
• Any other column headings that are recorded in the CRA’s database on concerns (other than those that refer to the identification of the person who raised the concern)
He made a number of further points clarifying his request and the information sought. He also requested access to copies of two internal audits/reviews which were referenced in CRA annual reports.
On 8 February 2024, the CRA contacted the applicant and advised him that it was necessary to extend the period for consideration of the request by 20 days. It cited section 14(1)(a) of the Act which provides for an extension if the request relates to such number of records that compliance with the statutory timeframe is not reasonably possible.
In a decision dated 8 March 2024, the CRA part-granted the applicant’s request. It released the two audit reports requested in full. It refused access to the database extracts on the basis of sections 29(1), 30(1)(a), 35(1)(a), 36(1)(b), 37(1) and 42(m) of the FOI Act. The applicant sought an internal review of the CRA’s decision and made submissions in support of his position that the withheld records should be released. On 10 April 2024, the CRA affirmed its original decision. In addition to the above exemption provisions, the CRA also cited section 41(1)(a) in support of its decision. It did not reference section 36(1)(b) in its internal review decision.
On 11 April 2024, the applicant applied to this Office for a review of the CRA’s decision.
In its submissions to this Office, the CRA sought to rely on section 36 in respect of its refusal of the database extracts. Brief submissions were received in this regard and the CRA did not specify which subsection of section 36 it was relying on. However, having considered the submissions received, the CRA’s initial reliance on section 36(1)(b), and the nature of the records, it seems to me that subsection (b) is the most relevant. The applicant was notified of the CRA’s revised position and provided with an opportunity to make submissions. Submissions were duly received and are considered below.
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 CRA and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In respect of the database extracts requested, the CRA identified two records as coming within the scope of the applicant’s request. Record 1 is an Excel spreadsheet which contains relevant extracts from the database in question. Record 2 is a document which contains longer sections of text extracted from record 1 where including the information in the Excel document would have rendered it difficult to read.
This review is concerned solely with whether the CRA was justified in refusing access to records 1 and 2 on the basis of sections 29(1), 30(1)(a), 35(1)(a), 36(1)(b), 37(1), 41(1)(a) and/or 42(m) 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 records at issue is limited.
The role of the CRA and the records at issue
The CRA is an independent statutory body responsible for registering and regulating charities operating in Ireland. Its key functions include maintaining a public register of charities and ensuring compliance with the Charities Acts. It also deals with concerns about charities and has the power to appoint inspectors to investigate the affairs of any charity.
The CRA’s Concerns Policy, which is available on its website, states that anyone can raise a concern about a charity with the body. It states that it is a matter for the CRA to decide how to deal with concerns raised and that all concerns are risk rated upon receipt, with resources targeted accordingly. The policy also states that in making a decision in respect of a concern raised, the CRA will weigh up all of the information obtained during the course of its enquiries and will consider any ongoing risk to the charity including its assets and beneficiaries. The policy states that the CRA may need to take action in terms of using its formal powers or may determine that it is more appropriate and proportionate for it to provide support to the charity trustees. There may be cases where the CRA decides that it is not proportionate or necessary to take a matter forward. The policy also states that in some cases, it will publish a report on its website explaining what has happened and the actions taken in a specific case.
In its submissions to this Office, the CRA provided further background information in respect of its relationship with the third parties referenced in the records. It said that the entities identified within the records are organisations that have either been granted charitable status and are included on the register of charities or are organisations that may have put themselves forward as charities without the proper authority to do so.
The CRA said that while it has powers under sections 53 and 68 of the Charities Act 2009 to direct charities to produce information, documents and/or records, it generally operates on a voluntary submission basis. It said that this creates a more amicable working relationship with the relevant organisation and minimises the administrative burden for both the charity and the CRA.
As noted above, record 1 comprises an Excel spreadsheet which details concerns submitted to the CRA and certain actions taken by the body. Over 250 concerns are listed in the record. Each row corresponds to a concern and the record contains a variety of columns. The columns detail information relating to the identification of the concern, the CRA case owner, the organisation in question and its registration status with the CRA, the concern at issue, the risk rating and status of the concern, the case result and the reason the concern was closed, categorisation and dating information, as well as administrative fields. Record 2 comprises extracts from the column entitled “Complaint Detail/Main Issues” relating to 14 concerns submitted. The information contained in record 2 is considerably more detailed than the information contained in that column in respect of the remaining concerns listed in record 1. As noted above, the record comprises longer sections of text extracted from record 1 where including the information in the Excel document would have rendered it difficult to read.
Having reviewed the specific content of the records at issue, I consider it appropriate in this case to commence with a consideration of section 36 of the FOI Act.
36(1)(b) – commercially sensitive information
Section 36(1)(b) of the FOI Act 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 of 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 or their business or profession. The standard of proof to be met here is lower than the “could reasonably be expected” test in the first part of the 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.
In its submissions to this Office, the CRA said that it took into account the negative impact that disclosure of the fact that one or more concerns were raised could have on a charity. It referenced a negative impact on a charity’s ability to fundraise, regardless of the outcome of the concerns process. It said that, in addition, certain concerns raised against charities reference the amounts paid to individuals for professional fees. It said that it would classify the above information as being commercially sensitive and said that it should be withheld on the basis of section 36 of the Act. While section 36(1)(b) was not referenced in the internal review decision, I note that in its original decision, the CRA said that release of the information contained in the records could cause material financial loss to the named organisations. It said that release could have a negative impact on a charity’s ability to operate commercially as the provision of the information could be misinterpreted or presented in a manner that could lead to relevant harms.
As noted above, the applicant was notified of the potential relevance of section 36(1)(b) and invited to make submissions. In submissions received, the applicant said that he does not believe the subsection applies to the records in question. He said that charities are not commercial or competitive entities and that they exist to serve specific societal needs and operate on principles of transparency and accountability. He said that they are not commercial enterprises engaged in competition but are organisations that depend on public trust to fulfil their missions. He said that refusal to release the requested records undermines public confidence in the regulatory framework governing charities and contradicts the ethos of transparency espoused by both the FOI Act and the CRA.
He noted that his request expressly excluded concerns which were closed for reasons such as “case cannot be progressed”, “no breach of Act or best practice apparent following assessment”, and “issues outside of the Charities Regulator’s remit”. He said that such exclusions ensure that the records sought pertain only to concerns that were validly raised and addressed. He said that consequently, any suggestion that release of such records would unfairly harm a charity’s reputation or fundraising ability is unwarranted, as the concerns in question clearly have validity.
In respect of the publication by the CRA of reports following investigations into the affairs of charities, the applicant said that published reports pertain to a very small subset of charities. He said that the requested records relate to closed concerns addressed through compliance mechanisms, not statutory investigations. The applicant also referenced the CRA’s expressed concerns that release of the records could negatively impact a charity’s ability to fundraise. He said that applying this logic over the years would have prevented the exposure of governance issues and misuse of public money by certain charities. He said that transparency is critical to ensuring public trust and confidence in the sector. He noted that many charities receive public funding from the State in addition to public donations and that this reliance on public money further underscores the importance of releasing the records, as they relate directly to how public funds are managed and regulated.
The applicant also made certain specific arguments in respect of the public interest test at section 36(3) of the Act. I will consider these further below as relevant.
While I am limited in the extent to which I can describe the record and its contents, I believe it would be useful to provide some further information about the type of information included in the records. The concerns submitted relate to named organisations and charities. The level of detail included in respect of the concerns varies. Certain concerns are described at a high-level while considerably more detail is included in respect of others, including information in respect of named individuals as well as assertions and allegations. It is important to note that record 1 also contains the reasons that the concern was closed by the CRA. The relevant column contains references to steps taken by the CRA in processing the concern. While it could be argued that the inclusion of such information reduces any potential harm associated with the release of the records, it seems to me that even in circumstances where the CRA is satisfied that a concern has been resolved, the fact that a concern was raised at all could arguably prejudice the competitive position of the organisation in question.
The applicant’s position is that because certain closure reasons were excluded from the scope of his request, the records pertain only to valid concerns raised. He said that this undermines any argument that release would “unfairly harm a charity’s reputation or fundraising ability”. However, section 36(1)(b), and in particular the test in the second part of the exemption, is not concerned with the fairness or otherwise of harms expected to occur though I note that such arguments may be relevant to the consideration of the public interest. The question at issue is whether disclosure could prejudice the competitive position of the organisations.
The applicant also argued that the organisations and charities listed in the records are not commercial enterprises engaged in competition. While it may be the case that the organisations are not profit-driven, it seems to me that competition nevertheless exists in the charity sector, particularly in the context of public fundraising. It seems to me that a member of the public considering donating to a particular cause or charity may well be influenced by the contents of the records at issue.
Having considered the contents of the records at issue and noting the low standard of proof required for the relevant harm to apply, I am satisfied that the release of information about concerns submitted in respect of named organisations could prejudice the competitive position of those organisations.
As noted above, the spreadsheet at record 1 contains a number of columns pertaining to categorisations, dating information and other administrative matters relating to the CRA’s internal processes. I accept that the release of such columns, devoid of organisation-identifying detail, would not result in relevant harms. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). In addition, the Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. Having carefully considered the administrative information at issue and the nature of the request made by the applicant, I am not satisfied that it would be meaningful or “practicable” to direct its release. Accordingly, I find that section 36(1)(b) applies to records 1 and 2 in their entirety.
Having found that section 36(1)(b) applies, I must proceed to consider whether sections 36(2) or 36(3) serve to disapply subsection (1).
Sections 36(2) and 36(3)
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise 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.
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. In doing so, I have also had regard to the judgment of the Supreme Court in The 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”.
The CRA did not make any specific submissions in respect of the public interest test at section 36(3). However, it did reference the public interest in its original decision. In favour of release, it noted the right of the public to have access to information, openness and transparency, and the public interest in accessing material to enhance understanding of an issue. In favour of refusal, it referenced the public interest that relevant parties are not unduly impeded in the pursuit of their business or commercial interests. It also said that the information in question relates to funding, negotiations and contracts concerning organisations which are not government bodies.
More generally in its submissions to this Office, the CRA referenced inspectors’ reports which name the charity under investigation. It said that there are established grounds for the publication of such reports under section 66(3)(c) of the Charities Act 2009. It said that there is no obligation to publish the reports or name the relevant charity. It said that the reports are produced following a full investigation under section 64 of the Charities Act. In contrast, it said that the concerns listed within the records at issue are concerns brought to the attention of the CRA by third parties or through internal processes. It said that in regard to the concerns raised, its aim is to work with the organisation to bring it back into compliance on a voluntary basis so that it can continue its charitable purpose. It said that the CRA may deem it in the public interest to publish the findings of an inspectors’ report given the potential impact of the findings. However, in respect of other concerns that are raised, it said that only limited intervention may be required from the CRA. It said that the vast majority of information and documentation is provided to the CRA on a voluntary basis. It said that a concern is opened in relation to every submission received.
The applicant also made submissions in respect of the public interest. His position is that the public interest strongly favours release. In respect of promoting transparency and accountability, he said that the CRA’s stated mission includes fostering public confidence in the charity sector. He said that the release of records demonstrating how concerns are resolved aligns with this mission. He said that transparency reassures the public that charities are effectively regulated and comply with statutory obligations. In respect of enhancing public understanding, the applicant said that the requested information, “limited to high-level descriptions, dates, and categories” – provides valuable insights into the CRA’s regulatory processes. He said that this fosters a more informed public discourse about the standards applied to charities and reinforces trust in their operations. He also referenced protecting public trust and said that in its 2016 annual report, the CRA’s CEO emphasised the importance of transparency. He said that denying access to these records risks eroding public trust in both the charity sector and its regulator. He said that public access to the records ensures accountability and demonstrates that valid concerns are addressed effectively. Finally, the applicant said that release of the records would involve a minimal risk of harm. He said that given that the records pertain only to resolved concerns and exclude sensitive or ill-founded cases, the risk of reputational damage or financial harm to charities is negligible. He said that, on the contrary, disclosure underscores their compliance with regulatory requirements, which may enhance public confidence.
In addition, I consider that some of the submissions made by the applicant in respect of section 36(1)(b) more generally also relate to the public interest. I will not repeat the submissions in full, but I note the applicant’s position that charities are not commercial entities and that they rely on public funding as well as donations, his reference to the limited scope of published inspectors’ reports, and his position that applying the same logic over the years would have prevented the exposure of governance issues and misuse of public money by certain charities.
I have carefully considered the submissions received and the content of the records at issue. Section 36(1) is an express recognition of the fact that there is a public interest in the protection of commercially sensitive information. As a general principle, the Commissioner takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and that the Act was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. While the applicant has argued that there is a minimal risk of harm associated with the release of the records, I do not agree. The applicant is of the belief that the records contain “high-level descriptions” but, as noted above, the level of detail included in respect of the concerns submitted varies. As noted, it seems to me that a member of the public interested in donating to a particular cause and considering multiple potential charitable organisations may well be influenced in their decision should the contents of the records become public. While the applicant’s position is that charities are not competitive entities, it seems to me that they are competing for donations and funding in a small market. I do not accept that the risk of reputational damage and harm is “negligible”, as advanced by the applicant.
That said, I have also carefully considered whether information in the record relating to the closure of the concern serves to limit the harm associated with disclosure. While I am limited in the extent to which I can reference the specific information in question, I will say that the reasons for closure and the actions taken by the CRA vary considerably. It seems to me that in many cases the information in the relevant column does evidence good practice and engagement on the part of relevant charities. In that context, I am willing to accept that the inclusion of this information in the record does serve to limit the potential harm to a certain extent. However, I am mindful of the nature of the sector in which the relevant organisations operate. The applicant himself acknowledged that the organisations “depend on public trust to fulfil their missions”. It seems to me that release of the records could reasonably be expected to negatively impact public perception, rightly or wrongly, and that charities rely heavily on their reputation to secure donations and support from the public. There is a strong public interest in protecting commercially sensitive information, the release of which may harm third parties.
While the charities and organisations listed in the records are independent third-party entities, I accept that they are engaging in, or are believed to be engaging in, statutorily regulated activities. The disclosure of the information at issue would disclose concerns raised about those organisations and resultant actions taken by the CRA. The CRA has a number of statutory functions, including ensuring that charities comply with their legal obligations, investigating the affairs of charities and issuing relevant guidance. I accept that there is a public interest in the public knowing that regulated entities are complying with their legislative requirements. However, in this particular regard, I consider that the level of insight provided by the records is quite limited. As noted by the CRA, a concern is opened in respect of every submission received. The records do not detail comprehensive findings in respect of the compliance of the relevant bodies; they detail specific concerns raised and actions taken in respect of those concerns. It seems to me that the records do not provide a clear picture of the organisations’ overall levels of compliance.
I accept that there is also a public interest in the public knowing how the CRA handles concerns submitted and in understanding the manner in which the body fulfils its statutory obligations. However, I note that the CRA publishes information in respect of its compliance and enforcement activities. Information relating to same is included in the body’s annual report. In addition, the CRA publishes annual compliance reports. The 2022 compliance report included 8 pages of analysis in respect of concerns received. The CRA also publishes inspectors’ reports, as referenced above. It seems to me that the public interest in openness and transparency in the way in which the CRA conducts its operations is largely served by its proactive publication of such information and reports.
Having carefully consider the content of the records in this case, my view is that release of the information will serve the public interest to a limited degree. On the other hand, it seems to me that release would negatively impact the public interest reflected in section 36(1)(b), namely the protection of commercially sensitive information. In the circumstances, I am satisfied that the public interest would, on balance, be better served by refusing access to the records at issue. I find, therefore, that section 36(1)(b) applies to exempt the records from release.
As I have found section 36(1)(b) to apply to the records at issue, I do not need to consider the CRA’s reliance on any other exemption provisions.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the CRA’s position. I find that it was justified in refusing access to the records on the basis of section 36(1)(b) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator