Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-126588-S5G6P7 and OIC-126589-V8G6W9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to records relating to submissions made in respect of a National Broadband Plan mapping consultation process on the basis of sections 29(1), 30(1)(a), 30(1)(c), 35(1)(a), 35(1)(b) and 36(1)(b) of the FOI Act
28 August 2023
This decision has its background in submissions the applicant made to the Department in response to a 2019 mapping consultation the Department undertook in connection with the National Broadband Plan (NBP). The applicant made submissions both as an individual network operator, and on behalf of a group of network operators. This decision is a composite decision relating to two of four similar FOI requests the applicant made on 11 October 2021 concerning those submissions and the consultation process.
In the first request (case OIC-126588), the applicant sought access to all correspondence between the Commission for Communications Regulation (ComReg) and the Department (including its advisors) relating to the 2019 mapping consultation that references a specific mapping submission he made in respect of his company. He provided the specific file names of the relevant submission and he specified that the request covered the time period between 26 July 2019 and 15 December 2019. In the second request (case OIC-126589), he sought access to all correspondence between ComReg and the Department (including its advisors) relating to the 2019 mapping consultation that references the group submission he submitted on behalf of the group. He again provided a specific file name and specified that the request covered the time period between 26 July 2019 and 15 December 2019.
The Department issued its decisions on both requests on 8 December 2021. It identified the same 18 records as relevant to both requests and refused access to all 18 records under section 30(1)(a) of the FOI Act. On 14 December 2021, the applicant sought an internal review of the Department’s decisions. In correspondence dated 21 January 2022, the Department affirmed its original decisions. On 21 July 2022, the applicant applied to this Office for a review of the Department’s decisions.
During the course of the review, the Department informed this Office that it had decided to re-examine the records identified in respect of the applicant’s requests. In correspondence dated 13 January 2023, the Department informed the applicant of its view that 14 of the 18 records fell outside the scope of the requests and that it had decided to grant partial access to the remaining four records (numbered 5, 14, 17, and 18 in the schedule of records it provided to the applicant on 10 February 2023). It said certain parts of the four records were being withheld under sections 29(1), 35(1)(a), 35(1)(b) and 36(1)(b) of the FOI Act.
Subsequently, this Office engaged with the applicant in respect of the scope of the review. The applicant indicated that he wished the review to proceed. The Investigator confirmed with the applicant that he wished the review to consider whether the Department was justified in redacting certain parts of the four records to which access had been part-granted and whether it was justified in refusing access to record 9 on the ground that it does not come within the scope of the request. The applicant made further submissions in respect of the additional exemptions cited by the Department for redacting certain information. This Office sought and received further submissions from the Department in respect of its application of relevant exemptions cited.
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 had regard to follow-up communications and engagement with the parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
As I have outlined above, the Department redacted certain information from records 5, 14, 17 and 18 under sections 29(1), 35(1)(a), 35(1)(b) and 36(1)(b) of the FOI Act. In subsequent submissions, it also sought to rely on sections 30(1)(a) and 30(1)(c) of the FOI Act.
The Department appears to have also redacted information in the records on the basis of section 37(1) of the FOI Act, which relates to personal information. Certain names and contact details have been redacted, including the names of staff members of third-party service providers. The Department has not claimed section 37(1) in respect of any of the records but acknowledged this oversight in communications with this Office. This Office engaged with the applicant in respect of same. The applicant confirmed that he is not seeking any personal information which might be contained in the records and which could be considered exempt under section 37(1) of the FOI Act. Accordingly, I consider this information to be outside the scope of this review.
During the course of the review, the applicant also confirmed that he is not seeking information in the records that relates solely to third parties and submissions they made in respect of the mapping consultation. He said that he is only seeking information relating to third parties if such information could be anonymised and considered “materially relevant” to his own submissions and the Department’s analysis of same. Accordingly, I am satisfied that certain information within all four records falls outside the scope of the review as it comprises information which relates solely to third parties and is not, in my view, relevant to the Department’s assessment of the applicant’s submissions. The information includes assessments in respect of third party submissions. I am satisfied that such findings could not be extrapolated to provide any insight in respect of the applicant’s submissions. The following information is therefore outside the scope of this review:
Accordingly, this review is concerned with (i) whether the Department was justified in finding that record 9 falls outside the scope of the applicant’s request, and (ii) whether the Department was justified in refusing access to the remaining redacted information from records 5, 14, 17 and 18 under sections 29(1), 30(1)(a), 30(1)(c), 35(1)(a), 35(1)(b) and 36(1)(b) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments in respect of the progress of this review and the Department’s approach to the case.
Firstly, while the records that were released in part by the Department in respect of the two requests that are the subject of this decision are the same, I note that minor differences exist in terms of the redactions made. This is because the requests relate to different submissions made by the applicant. For example, information relating to the individual submission is withheld in the records released in respect of the request for access to the group submission records. For the sake of clarity and to avoid unnecessary and confusing duplication, I am issuing a composite decision and excluding any information in the records that was released on foot of either of the requests.
Secondly, I wish to state that the manner in which the Department engaged with this Office resulted in significant delays. Considerable extensions were provided and not met. Subsequent extensions were sought. Repeat follow-up engagement was required. Notwithstanding the reasonable extensions provided by this Office, limited submissions were received by the Department in respect of exemptions claimed and further information had to be sought. Almost two months elapsed between the Department’s indication that it intended to grant access to certain records and the release of same to the applicant. Almost a month passed between the release by the Department of certain records and the provision of a revised schedule. In his submissions, the applicant also referenced considerable delays in respect of his engagements with the Department prior to the matter coming before this Office. The manner of the Department’s processing of the request and of its engagements with this Office during the review has been unsatisfactory. I would remind the Department that both this Office and the Central Policy Unit of the Department of Public Expenditure and Reform publish guidance in respect of the processing of FOI requests. I urge the Department to ensure that its decision-makers familiarise themselves with such guidance.
Thirdly, it is important to note that 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 is limited.
Finally, it is also important to note that under section 22(12)(b) of the Act, a decision to refuse to grant a request is presumed not to have been justified unless the FOI body satisfies this Office that its refusal was justified. This means that the onus is on the Department to satisfy this Office that its decision to redact information from the records at issue was justified. Nevertheless, it is also relevant that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59], the Supreme Court found that a failure by an FOI body to justify its refusal does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse through an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
The records at issue
As noted above, the records at issue in this case relate to a mapping consultation undertaken by the Department as part of the NBP and, in particular, to the assessment of mapping consultation submissions.
In its submissions, the Department provided background information in respect of the NBP. It said that the NBP process must comply with the requirements of the European Commission’s Guidelines on the application of the State aid rules to broadband networks. It said the guidelines require Member States to carry out a detailed mapping exercise and public consultation process to identify areas where State intervention is required. It said that the mapping exercise commenced in 2013 and involved a number of public consultations. It said the 2019 consultation “concluded the Mapping Exercise”. It said the consultation sought submissions from network owners and operators who wished to have their network represented on the NBP map. In respect of the current status of the NBP, the Department said it entered into a contract in November 2019 with National Broadband Ireland to deliver the plan’s objectives.
Record 9
As I have outlined above, the applicant has requested that this Office consider the Department’s claim that record 9 falls outside the scope of his requests. In essence, his requests were for communications between ComReg and the Department relating to the 2019 mapping consultation in so far as they concern the submissions he made in respect of his company or on behalf of the group. Record 9 comprises an email from ComReg to the Department with an attachment. The attachment comprises a document submitted by a service provider to ComReg that contains comments on the contents of a draft assessment report in respect of the submissions received that was prepared by a third party service provider to the Department.
While the substance of the attachment is concerned with the contents of the draft assessment report, the contents upon which comments are made relate, in part at least, to a number of the submissions made, including those made by the applicant. While the applicant’s submissions are not directly referenced, I am satisfied that the record can reasonably be described as concerning the submissions made. In the circumstances, I find that record 9 does, indeed, fall within the scope of the applicant’s request. However, having regard to the contents of the record, it would not be appropriate for me to simply direct its release. Neither is it appropriate for this Office to effectively act as a first instance decision maker in relation to the record. In the circumstances, the most appropriate decision for me to make is to annul the Department’s effective refusal of record 9 and to direct the Department to undertake a fresh decision making process in respect of the record.
Records 5, 14, 17, and 18
The records at issue comprise documents relating to the assessment of mapping consultation submissions. Record 5 is an email and an attached presentation relating to the assessment of mapping consultation submissions. Record 14 is an email and an attached summary report. Record 17 is an email and a document outlining questions in respect of the assessment. Record 18 is an email and an update presentation.
The Department has cited sections 29(1), 30(1)(a), 30(1)(c), 35(1)(a), 35(1)(b) and 36(1)(b) in support of its redaction of the four records in question. Having considered the contents of the records, I propose commencing my analysis with section 36 of the FOI Act.
Section 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 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, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.
The Department has relied on section 36(1)(b) in respect of all four records. In its submissions it identified the specific information in the records to which it was applying relevant exemption provisions. I note that a significant amount of information which the Department withheld on the basis of section 36(1)(b) falls outside the scope of this review and a limited amount of information remains at issue. This includes high-level information about the number and type of submissions received and general collective assessments of same. It includes information about particular assessment criteria used. It includes high-level conclusions in respect of the consultation and additional considerations. It includes some general commentary about operator engagement. The remaining information also includes a URL. I should note that it appears that the Department released the URL to the applicant directly following queries raised. However, for the avoidance of doubt, I have considered the information in line with submissions received by this Office.
The main thrust of the Department’s concerns relates to the disclosure of third party information which is no longer within scope. It argued that the records contain information relating to other operators that was submitted in confidence to support assessing the mapping process. It said the mapping exercise was “entirely dependent on the voluntary participation and engagement of network operators during the process and that the network information and commercial business case data provided was “commercially sensitive and extremely confidential information”. It said that “the utmost care was taken to anonymise operators’ network coverage as far as practicable to avoid disclosing network operators’ infrastructure or network upgrade plans on the NBP Map and thus placing a network operator at a competitive disadvantage by participating in the process”. It argued that release is not in the public interest as there is a strong possibility that releasing such information could affect the operator’s competitive advantage and reduce the effectiveness of any future consultations within the industry.
Having carefully reviewed the records, I am not satisfied that section 36(1)(b) applies to exempt the remaining information at issue. The information is high-level in nature and I do not accept that its release could result in the relevant harms. Its disclosure, in my view, would not involve the disclosure of sensitive commercial information about any identifiable
third party operator that could reasonably be expected to result in a material financial loss or gain to any third party operator to whom the information relates, or that could prejudice the competitive position of any such third party operator.
I also do not accept that section 36(1)(b) applies to information in the records relating to a particular network requirement. However, I will consider this information under further exemption provisions below. There are also certain instances in the records where conclusions are outlined in respect of operator groupings. The names of the relevant providers are outside the scope of this review. When such names are removed, I am not satisfied that the remaining high-level collective assessments meet the harm requirements of subsection (b). Aspects of these assessments relate to the applicant’s submissions. For the avoidance of doubt, the names of his company/group should also be released where they appear in connection with such assessments.
In sum, I find that the Department was not justified, under section 36(1)(b), in refusing access to the remaining information in records 5, 14, 17 and 18.
Section 29(1) – deliberative process
Section 29(1) of the Act provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. The exemption does not apply in so far as the records contain any of the information or matter referred to in section 29(2). Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it is very important to go on to consider whether section 29(2) applies in relation to the record concerned.
A ‘deliberative process’ as envisaged by section 29(1)(a) may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the FOI Act, which require that, on balance, the public interest would be better served by granting than by refusing to grant the request. The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to, or against, the public interest. Where a body wishes to rely on section 29(1) to refuse access to records, this Office expects it to be in a position to explain how release of the records would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in section 29 itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. What I must consider is whether release at this point in time is contrary to the public interest.
The Department cited section 29(1) in respect of the four records in question. Very limited submissions were received from the Department in respect of the specific application of the exemption. It referenced the deliberations of public bodies. In its submissions more generally, it outlined the NBP process and the various consultations undertaken. It provided detail in respect of technical advisors and assessment criteria produced. It said that there is a public interest in protecting the details of the investigations or the procedures or methods employed for conducting the consultation. It further said there is a public interest in the ability of the Department to arrive at a “particular conclusion and the best possible outcome, for the purposes of all its mapping consultations and exercises”.
In providing background information in respect of the mapping consultation process, the Department referenced the possibility of “further intervention in the market”. It said that “this is very likely as new areas of market failure are identified for example for mobile blackspots, for international connectivity or for broadband blackspots in suburban or urban areas that are not currently covered by the NBP intervention”.
In further submissions, the Department said that the records contain matter relating to the deliberative processes of the Department. It said that the mapping process was key to supporting the NBP strategy and if the records are released, they have the “potential to harm the existing NBP and reduce the effectiveness of any future consultations and exercises”.
In his submissions, the applicant said that the application of section 29(1) is “significantly weakened” due to the passage of time since the deliberative process took place. He said that the deliberative process is over as a contract has been signed. He said there “is no further conceivable future deliberative process” that the Department could use to justifying withholding the documents. He said that the Department has “not demonstrated in any way why release of the documents would be contrary to the public interest”. He further said that the records contain information outlined in subsections 29(2)(a), (b) and (c) and that section 29(1) therefore does not apply. Section 29(2)(a) relates to matters such as rules, procedures, guidelines, interpretations and precedents used while subsection (b) relates to factual information and subsection (c) to the reasons for the making of a decision by the FOI body.
Having considered the matter and having examined the content of the records, I accept that they contain information relating to a deliberative process and that section 29(1)(a) applies. Accordingly, I must consider whether release of the records would be contrary to the public interest as required by section 29(1)(b). For release to be contrary to the public interest, this Office would generally expect the FOI body to identify a specific harm to the public interest flowing from release. Furthermore, a mere assertion of harm without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.
I am not satisfied that the Department has provided sufficient evidence to support any claim that release of the records in question would be contrary to the public interest. Nor is this evident from an examination of the records. While the Department said that it continues to engage operators in respect of broadband developments across the country, it seems to me that the deliberative process relating to the 2019 mapping consultation is largely complete. Specific information about the Department’s assessment of operator submissions is outside scope. The remaining information is high-level and I do not accept that the release of such information would be contrary to the public interest. While the Department has referenced the need for potential further market interventions, it has not satisfactorily explained how the release of high-level information in respect of the 2019 mapping process could be considered contrary to the public interest in the context of future possible deliberations.
While the Department has outlined limited harms which may occur, it has not shown to my satisfaction how granting access to the records in question would be contrary to the public interest, nor is this apparent to me following careful consideration of the remaining information. Accordingly, I find that the Department was not justified in refusing access to the records on the basis of section 29(1) of the FOI Act.
Section 30(1) – functions and negotiations of FOI bodies
Section 30(1)(a) 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 prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged.
A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that 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 subsection (1) shall 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 FOI request concerned.
The Department cited sections 30(1)(a) and 30(1)(c) in respect of each of the four records. In further submissions requested by this Office, it identified the specific information within the records which it believes to be exempt under section 30. This includes information which I have already found to be outside the scope of this review. Accordingly, I will consider the application of sections 30(1)(a) and 30(1)(c) to the remaining information in the records.
In its submissions, the Department said that sections 30(1)(a) and 30(1)(c) are “very applicable” to the records. It said that access to the records could allow individuals to prepare and frame responses in such a way as to achieve a certain outcome, essentially undermining the effectiveness of future consultations and exercises. It said that there is a “concern in relation to the extent to which disclosure of the records would divulge procedures or methods employed in conducting mapping consultations or exercises, or otherwise undermine the control functions of the Department or those of any FOI body in relation to ongoing investigations”. It said that the effectiveness of future mapping consultations and exercises within the industry “could be reduced greatly” if the records are released.
In his submissions, the applicant argued against the withholding of information from the records under section 30(1) of the FOI Act. He said decisions in respect of the NBP have been made and the Department has entered into “the largest contract in the history of the state”. He said that there are no further negotiations regarding the mapping submissions and analysis. He said that disclosing information about the mapping process would not be reasonably expected to prejudice a further exercise as no equivalent exercise is planned or envisaged. He said that the rules for mapping as prescribed by the European Union are being reformed, making any methods and procedures adopted in the past irrelevant going forward. He also referenced a complaint before the “EU Commission” in respect of the Department’s conduct during the mapping exercise. He said that releasing the information could improve understanding of the Department’s approach and could result in a resolution of the complaint.
In respect of the remaining information at issue in the records, very limited submissions have been received by the Department. FOI bodies relying on section 30 must show how the harm anticipated (subsection (a)) or the disclosure anticipated (subsection (c)) could reasonably be expected to result from the release of the records. In its limited submissions, the Department said that release could allow individuals to frame future responses to achieve an outcome. It said that disclosure would divulge procedures or methods employed in mapping exercises or “otherwise undermine the control functions of the Department or those of any FOI body in relating to ongoing investigations”. I am not satisfied that the Department has sufficiently explained how the harm or disclosure could be expected to result from the release of the specific information at issue.
While the onus to justify a refusal rests with the Department, I have also undertaken an analysis of the contents of the records. Much of the remaining information is high-level and includes table headings and footnotes. The Department appears to have applied section 30(1)(a) to withhold names and contact details within email correspondence. I consider that section 37 would have been a more appropriate provision and note the applicant’s confirmation that he is not seeking information that would be covered by this exemption. However, the Department appears to have also redacted the names of staff members of another FOI body, the Commission for Communications Regulations (ComReg). Such information is not exempt from release under section 37 by virtue of the exception to the definition of personal information in section 2, paragraph (I). I will consider this information below.
Section 30(1)(a)
Section 30(1)(a) refers to “tests, examinations, investigations, inquiries or audits”. While the Department has not made specific submissions on this point, I am satisfied that the process to which the records relate forms part of a system of inquiry that the Department has undertaken as part of the NBP development process. However, in respect of subsection (a), I must also be satisfied that the relevant harms could reasonably be expected to occur as a result of the release of the information at issue. Having considered the submissions made and the content of the records in question, I do not accept that section 30(1)(a) applies. It is not apparent to me how disclosure of the remaining information could prejudice the effectiveness of the process or procedures or methods employed for the conduct of the process. As noted, the records contain high-level detail in respect of the mapping consultation process; the majority of information contained in the records relates to an assessment of third party submissions, which is outside scope. The Department’s position is that release of the information would allow individuals to prepare and frame responses. However, when information in respect of other operator submissions is removed, I am not satisfied that the cited harms could reasonably be expected to occur. Nor am I aware of any harms that could flow from the release of the names of staff members of an FOI body communicating with the Department in the course of the performance of their functions.
Certain information in the records relates to a capacity analysis undertaken and a particular requirement. While I accept that the release of same would disclose information in respect of the mapping consultation process and the system of inquiry established, I am not satisfied that it could reasonably prejudice that same process. Nor has the Department made any specific arguments in that respect. The information contained in the records in respect of this requirement is high-level and lacking in specific detail. Furthermore, it appears that information relating to this requirement was disclosed to the applicant in a report provided to him by the Department in respect of one of the submissions he made.
Having reviewed the records, I find that the Department has not justified its decision to withhold the remaining information on the basis of section 30(1)(a) of the FOI Act.
Section 30(1)(c)
An FOI body relying on subsection (c) should identify the relevant negotiations at issue. The Department said that release of the records could prejudice the effectiveness of future mapping consultations and exercises. It appears that its position is that such future consultations and exercises comprise negotiations.
In its submissions, the Department said that it developed the assessment criteria that were used to evaluate all the data supplied by network operators. It said that the criteria were “subsequently published and consulted on in October 2015”. It also provided this Office with detail in respect of future mapping processes which it expects to undertake or which may be required. It said that such mapping processes will use a similar methodology and approach to the NBP mapping exercise.
While I accept that future mapping consultations may be required and may involve negotiations, I am not satisfied that release of the remaining information in the current records could disclose positions taken or to be taken, or plans, procedures, criteria or instructions used or to be used. As noted above, the Department said it has already published the criteria used in respect of the NBP mapping consultation. In addition, and as I have noted above, the information in the current records is high-level. Having considered the contents of the records, I am not satisfied that any of the remaining information could reasonably be expected to reveal information in respect of negotiations. I find that the Department has not justified its decision to withhold the remaining information in the records on the basis of section 30(1)(c) of the FOI Act.
As I have found that neither section 30(1)(a) nor 30(1)(c) apply to the remaining information in the records, I do not need to consider the public interest at section 30(2).
Section 35(1) – information obtained in confidence
Section 35(1)(a) of the FOI Act applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a):
All four requirements must be satisfied for a record to be considered exempt.
Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (see section 35(3)).
Section 35(1)(b) provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
As section 35(1) does not apply where the records fall within the terms of section 35(2), I deem it appropriate to consider the applicability of section 35(2) at the outset. The records at issue in this case were created by an FOI body or a service provider and I am satisfied that they were created in the course of the performance of their functions. Accordingly, for section 35(1) to apply, release of the record must constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or a member of the staff of, an FOI body or of such a service provider.
No argument had been made that the release of the record would constitute a breach of a duty of confidence that is provided for by an agreement or statute. However, a duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity.
In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
1. “the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
The Department has sought to apply sections 35(1)(a) and 35(1)(b) to the four records it question. It made no reference to section 35(2) in its submissions. It has applied section 35(1) to the same specific information to which it applied section 36(1)(b). I have already found that the majority of that information is outside the scope of this review. I will consider the application of the subsection to the remaining information in the records. This includes general information in respect of the number of submissions received and their format, a URL, certain collective information relating to the submissions and information relating to a capacity analysis and particular network requirement.
In its submissions, the Department said that the records contain other operators’ information “that was submitted in confidence to support assessing the mapping process”. It said that release is not in the public interest as there is a strong possibility that releasing such information could affect the operator’s competitive advantage and reduce the effectiveness of any future consultations within the industry.
The Department said that the mapping exercise was “entirely dependent on the voluntary participation and engagement of network operators during the process”. It said that the network information and commercial business case data provided was “commercially sensitive and extremely confidential information”. It said that “the utmost care was taken to anonymise operators’ network coverage as far as practicable to avoid disclosing network operators’ infrastructure or network upgrade plans on the NBP Map and thus placing a network operator at a competitive disadvantage by participating in the process”.
The applicant’s submissions in respect of section 35(1) are largely based on an assumption that the exemption is being applied because the records comprise reports from third-party consultants engaged by the Department. He said that it is unreasonable for a consultancy firm to refuse to release reports when they are contracted to produce them and paid accordingly. He makes a number of further submissions in this regard which I have duly considered. However, it seems to me that the Department’s reliance on the exemption is based on the fact that the records contain information relating to third party network operators, rather than arguments in respect of any service provider involved in the drafting of the records. As noted above, the applicant has clearly stated that he does not oppose the redaction of commercially sensitive information relating to his competitors.
It seems to me that the substance of the Department’s submissions relates to information contained in the records which concerns third party operators and comprises information provided by those operators. I have already found such information to be outside scope. I am satisfied that the records in question were prepared by the FOI body or a relevant service provider in the course of their functions. In respect of the remaining information in the records, I find that its release would not give rise to a breach of a duty of confidence owed to any of the operators that made submissions, in circumstances where, in my view, no single third party operator is identifiable through the release of the information. As such, I find that section 35(2) serves to disapply section 35(1) in respect of the records. Accordingly, I find that sections 35(1)(a) and 35(1)(b) of the FOI Act do not apply to the remaining information in the records.
I find that the Department was not justified in refusing access to record 9 on the grounds that it is outside the scope of the applicant’s request. I direct the Department to undertake a fresh decision making process in respect of the record.
In respect of records 5, 14, 17 and 18, I find that the following information should be protected as outside scope:
I find that the Department was not justified in refusing access to the remaining withheld information in the records on the basis of sections 29(1), 30(1)(a), 30(1)(c), 35(1)(a) and 35(1)(b) of the FOI Act. I direct the release of the same.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that certain refused information is outside the scope of this review. I find that the Department was not justified in refusing access to the remaining information on the basis of sections 29(1), 30(1)(a), 30(1)(c), 35(1)(a), 35(1)(b) and 36(1)(b) of the FOI Act and I direct the release of same. I annul the Department’s effective refusal of record 9 and direct it to undertake a fresh decision making process in respect of the record.
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