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Case 98100. Commercially sensitive information - section 27(1)(b) and 27(1)(c) - information received from third parties - whether information received in confidence - section 26(1)(a) - the public interest.

Case Summary

Facts

Ms McHugh applied to the Department of Enterprise, Trade and Employment for records listing high-risk companies or companies which might be forced to make staff redundant. She subsequently amended her request and sought access only to lists prepared by Forbairt, IDA and Shannon Development detailing "companies in which jobs are at risk". The Department refused access to these records on the basis that they contained commercially sensitive information and information given in confidence.

Decision

The Commissioner found that the records contained, with one exception, information which comes within section 27(1)(b) or 27(1)(c). He decided that the mere disclosure that the company was on such a list would disclose commercially sensitive information which could prejudice its competitive position as envisaged in section 27(1)(b). He considered that the public interest favoured withholding this information.

The exception to the application of section 27 concerned material relating to a number of companies which had already announced that they were considering redundancies or taking steps to address current difficulties. The Commissioner found that this information did not satisfy the requirements of section 27.

The Commissioner accepted that much of the information in the records was supplied to the agencies in confidence and on the understanding that it would be kept confidential. He accepted that disclosure would prejudice the giving to the agencies of similar information in the future and this, in turn, would prejudice the ability of the Department to acquire the information. He found that section 26(1)(a) applied to much of the information in the records and that the public interest did not favour disclosure.

The Commissioner also found that section 26(1)(a) did not apply to parts of the reords. This was because the information in those parts were in the public domain and the agencies were unable to explain the precise way in which the information came into their possession.

The Commissioner varied the decision of the Department and directed the release of the material in the records which did not satisfy section 26 and 27.

Date of Decision: 05.05.1999

Background:

Ms Fiona McHugh of the Sunday Times applied to the Department of Enterprise, Trade and Employment on 1 July 1998 for access under the Freedom of Information Act to "any documentation on companies which might be forced to make staff redundant/List of high risk companies". This was amended by agreement to "Records listing high-risk companies/companies which might be forced to make staff redundant".

The records at issue in this case can be divided into two categories as follows:-

1. "Stat 3" Reports (Records 2 and 3) which are prepared by the Department on a monthly basis and are lists of proposed redundancies supplied to the Department under section 17 of the Redundancy Payments Act 1967. This section requires an employer who proposes to dismiss, by reason of redundancy, an employee who has not less than 104 weeks service with that employer, to give the employee notice of the proposed dismissal and to send a copy of the notice so issued to the Minister. This must be given to the employee at least two weeks before the date of the dismissal. This data is then used by the Department to generate the monthly "STAT 3" Reports which lists the names and addresses of employers who proposed to make employees redundant.
2. Lists entitled "companies in which jobs are at risk" (Records 4 to 9) are prepared by Forbairt, the IDA and Shannon Development in the course of the ongoing operation by the Department of an early warning system in relation to firms where job losses may occur. The lists contain, as well as details of the company, the number of jobs which are at risk and details of the circumstances giving rise to the possible job losses.

A decision was made by the Department on 31 July 1998 to release one record and refuse access to the others under section 26 (Information obtained in confidence) in relation to records scheduled 4 to 9 and section 27 (Commercially Sensitive Information) in relation to records 2 and 3. This was appealed on internal review and the decision on review was to uphold the original decision and to seek to apply section 27 to records 4 to 9 also.

Ms McHugh then applied to my Office for a review of the decision of the Department. This application was received by me on 5 October 1998.

This Office sought submissions from the Department and from Ms McHugh in relation to this matter. Ms McHugh declined to make a submission in this case but I received a submission from the Department on 9 November 1998. In its submission, the Department invoked section 27 (Commercially Sensitive Information) in relation to all the records to which access had been refused and section 26 (Information obtained in confidence) in relation to records scheduled 4 to 9.

Following discussions with the requester in relation to the review, it was agreed that she would withdraw her request in so far as it relates to records 2 and 3.

Having examined the records in detail, I decided to seek submissions also from the agencies from which the records originated, Enterprise Ireland, IDA Ireland and Shannon Development (SFADCO).

Submissions

The Department

In relation to the records 4 to 9, the Department states that the "primary purpose of the "Early Warning System".....is to give advance warning of company difficulties and to allow the Agencies and the Department to co-ordinate an appropriate response and initiate any necessary corrective action to help firms address their problems". The Department argues that these records are exempt under section 26 in that the information contained therein is provided by the companies to the agencies in confidence and the agency forwards that information to the Department in confidence also. They consider that the success of the early warning system depends on the willingness of companies experiencing difficulties to contact the Department or the relevant agency. It states that "it is the firm belief of the Department, that, should lists of the kind described at records nos. 4 to 9 in the present request now become open to public inspection, by means of an FOI request or otherwise, it will seriously diminish the likelihood that firms experiencing difficulty will divulge this fact to the Department or its agencies".

For the sake of clarity, I should say that although the Department refers to companies with difficulties, this does not necessarily accurately describe the situation of all of the companies on the list. For example, some of the companies on the list are clearly engaged in planned rationalisation programmes, designed primarily to cut costs and enhance existing profitability. It appears that the interest of the Department or the agencies in such cases may not necessarily be in trying to maintain the existing jobs but rather in identifying replacement employment. It follows that no inference can correctly be drawn from the inclusion of a company in the list that it is in difficulties.

The Department also argues that the information contained in these records comes within the provisions of section 27 and is of such a nature that its release could be highly prejudicial to the competitive position of the companies involved and could also have serious implications for parent or associate companies.

Having examined the records, it is clear to me that some of the information contained therein had been reported in the media or was a matter of public record. In order to obtain some clarity as to the origin of the information forwarded to the Department from the agencies, a meeting was held with representatives of the relevant agencies and submissions sought on a number of specific issues. My preliminary view was that the bulk of the information contained in the records is commercially sensitive and/or information that was given to the agencies in confidence and passed to the Department in confidence. However, certain elements of the records were in the public domain and the agencies were asked to explain the precise circumstances in which the information came to be in the possession of the agencies, who gave the information and to outline any understandings of confidence which were reached at the time. They were also asked to address the basis on which any such confidence must be respected having regard to the fact that this information was reported in the media.

Enterprise Ireland

Enterprise Ireland notes that my Office accepts that the bulk of the information contained in the records at issue contains commercially sensitive information and/or information which was given in confidence. It states that "We accept that the information highlighted by you on the list does appear to be information which is properly in the public domain....We also accept the point...that the normal duties of confidentiality no longer apply where information, which originally had this quality, comes into the public domain".

The agency points out that information is collected from various sources for this list. "It is not possible at this remove in time to say precisely where the particular information you have highlighted was sourced. However, it would appear to us that the provisions of section 26(1) could be said to apply in this case because the information we collect is, as a matter of custom and practice, given to us in confidence and is then inputted onto a list called the Projects in Difficulty List which is in turn given to the Department of Enterprise, Trade and Employment in confidence. Although we accept, therefore, that although not all of the information on the list is necessarily confidential, such non-confidential information is not created in isolation on the list......Furthermore, the fact that the information comes into the public domain through another source does not mitigate our duty of confidentiality under this section".

IDA Ireland

The IDA expresses concern that unconfirmed newspaper articles would be deemed to fall outside the scope of the Act because a report in a newspaper was equated with being in the public domain. It argues that release of the information at this time could have the effect of "rubber-stamping" speculation in the media and that the IDA would be identified as the source. It is the IDA's contention that this information cannot be released solely on the basis that it is deemed to be in the public domain.

It argues that "It is held by both the IDA and the Department of Enterprise, Trade and Employment that the record concerned and any information contained therein fall within the section 26 protection mechanism as it complies with the four criteria contained in section 26(1)(a)..... The information was certainly given by the IDA to DETE in confidence and on the expectation that it would be treated as confidential....It must be emphasised that for the purposes of the Act, the IDA is the person who made the information available to the DETE and to whom the duty of confidence is owed".

The IDA argues that the public interest favours non-disclosure as the mere acknowledgement of the names of companies in the context of the list, not to mention any information contained therein, would result in the withholding of vital information and thus undermine the ability of the State agencies to respond to emerging difficulties in companies. Such is the sensitivity of the issue that even the knowledge that their names and information relating to them are considered in the context of an FOI request would cause a spiral of reaction from the companies.

The IDA also contends that this information falls within the provisions of section 27(1)(b) and (c). It argues that disclosure could reasonably be expected to result in material financial loss to the companies and could prejudice the competitive position of the companies as suppliers would refuse to supply essential services, existing orders would be cancelled, financial institutions would call in loans and employees would seek alternative employment because they believe their jobs are at risk. It also contends that disclosure could prejudice the conduct or outcome of contractual or other negotiations such as potential takeover, potential joint ventures and future orders for products/services. It also claims that the public interest arguments outlined earlier are also relevant under section 27.

It also argues that section 31 applies to these records also. It claims that disclosure would impact on the ability of the Department of Enterprise, Trade and Employment to work behind the scenes and take remedial action in these cases; that closures and cutbacks would result in a drain on the Exchequer through loss of PAYE income tax, increases in dole payments and loss of corporate tax; that there could be a knock on effect to other companies; that IDA's statutory function of job maintenance would be impugned; that foreign investment could be affected and expansion plans for existing industry would be affected.

In conclusion the IDA states that "it cannot be overemphasised or over stated that the IDA has spent many years working closely with companies in building up the bond of trust. That bond of trust which the IDA has acquired has been one of the major selling points of the IDA over the years".

Shannon Development

Shannon Development consider that the information provided was provided in confidence and is commercially sensitive.

Findings

I have examined the records in question and they all contain similar information although received from different agencies. Records 4, 5 and 6 are lists prepared by Forbairt (Enterprise Ireland) of companies employing more than twenty people where it is considered by a company that jobs are at risk. Record number 7 is a list, prepared by the IDA, of companies with jobs at risk. Record number 8 is a similar list prepared by Shannon Development. Record number 9 is a list compiled from the IDA/Forbairt list and prepared for a Department/Inter-agency meeting.

The information on each record includes the name of the company, the location, the number of employees, the product concerned and a comment on the current position in relation to the company by the agency. The information given is a brief comment on the history of the matters giving rise to possible job losses and the measures proposed by the company or the agency in seeking to address them. It is clear that information such as employee numbers, products and proposals in relation to job losses is commercial information. All of the information contained in these records is of a commercial nature. Accordingly I will address the application of section 27 (commercially sensitive information) to these records.

Section 27

Section 27 provides as follows: 27.(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains

(a) trade secrets of a person other than the requester concerned,

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

(2) A head shall grant a request under section 7 to which subsection (1) relates if

(a) the person to whom the record concerned relates consents, in writing or in such other form as may be determined, to access to the record being granted to the requester concerned,

(b) information of the same kind as that contained in the record in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public,

(c) the record relates only to the requester,

(d) information contained in the record was given to the public body concerned by the person to whom it relates and the person 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 concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the environment.

(3) Subject to section 29, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

For the purposes of the present review, I do not find it necessary to address each individual entry in these records. It is sufficient for me to note that the records contain a wide variety of commercial information including details of losses incurred, financing arrangements, future plans in relation to the purchase and sale of assets, future plans for development and a range of trading and financial difficulties. I am satisfied that the information contained in these records, with one exception which I will deal with later, comes within section 27(1)(b) or (c). The Department argues that the release of any of this information could prejudice the competitive position of the companies concerned (section 27(1)(b)) and could also prejudice the outcome of contractual or other negotiations in accordance with section 27(1)(c).

I am satisfied that financial and commercial information such as losses incurred or trading and financial difficulties, which are not already in the public domain, are matters which if disclosed could prejudice a company in the conduct of its business. Section 27(1)(b) applies to such information. In relation to information such as future purchases, sales of assets or future development plans, I accept that section 27(1)(c) applies.

I have considered whether it might be possible to identify the company in each case - without disclosing the information which is contained in these records. However, I have decided that the mere disclosure that a company is on such a list will disclose commercial information - that it is considering reducing its workforce - which could prejudice its competitive position as envisaged in section 27(1)(b).

I have considered the exceptions to section 27(1) and find that section 27(2) does not apply to the records in this case.

Having accepted that section 27(1) applies, I am required to consider the public interest in accordance with section 27(3). I consider that the public interest in this instance is better served by withholding this information than in releasing it. I have come to this view having considered the following.

The Department argues that having regard to the nature of the information and its purpose in providing an early warning system, there is no public interest in the release of this information. I accept that there is a strong public interest in the Department and the agencies being in a position to intervene on behalf of the State to minimise job losses in private industry. The compilation of this information provides the State with an opportunity to ensure that all possible avenues are explored in attempting to maintain employment. The premature release of this information could significantly damage the operation of the early warning system and limit the opportunities available to the State to take action and prevent job losses. I also consider that the harm that could result to vulnerable companies by the premature release of commercially sensitive information of this kind is a significant factor to be taken into account in considering the balance of the public interest.

On the other hand, I consider that there is a strong public interest in the public being aware of how public bodies are carrying out their functions, particularly in circumstances that could involve the expenditure of public monies. There is also a public interest in requesters exercising their rights of access under the Freedom of Information Act. Important though these latter two factors are, they do not, in my opinion, tilt the balance of the public interest in favour of disclosure. Accordingly, I find that section 27(3) does not apply in this case.

The exception to the application of section 27, which I mentioned earlier, concerns material relating to a number of these companies which have already announced that they are considering redundancies or are taking steps to address current difficulties. I noted earlier that the Department and the agencies refer to companies in difficulties although this does not accurately describe the situation of all the companies on this list. For example, as is the case with most of the material under consideration here, some of the companies on the list are clearly engaged in planned rationalisation programmes either as a result of a successful takeover or with a view to enhancing existing profitability.

As this information is already in the public domain, it can no longer be considered to be commercially sensitive within the terms of section 27(1)(b) or 27(1)(c), because such harm (if any) as might be occasioned by its release must already have occurred. In coming to this view I have considered the comments of the IDA about the effect of "rubberstamping" speculation in the media through the release of material from the IDA. I accept that were the commercial affairs of a company to be the subject of public speculation then the release of information from an authoritative source which seemed to confirm the speculative comments could cause the harms envisaged in section 27(1)(b) and 27(1)(c). I should make it clear that I am satisfied that, having examined the records concerned, nothing of this kind arises in the present case.

Accordingly, I find that with regard to records 4 to 9, section 27 applies and the public interest would be better served by withholding this information. However, I am of the view that information contained in these records which is already in the public domain cannot be withheld under section 27. I have described that material in Schedule 1.

Section 26

The Department claims that section 26 applies in this case and it is clear from its arguments that it relies on section 26(1)(a).

Section 26(1)(a) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body,or......"

For section 26(1)(a) to apply, it is necessary for the Department to show four things, viz.

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• that the 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 in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Taking the first two requirements together, I accept that much of the information in these records was supplied in confidence to the three agencies Forbairt (Enterprise Ireland), IDA and Shannon Development and was given on the understanding that it would be kept confidential. It will be clear from the description of the contents of the records which I gave in considering the possible application of section 27 that the companies concerned expected that the matters revealed by them would not be disclosed to the public at large.

In relation to the third requirement, I accept that disclosure, in this instance, would prejudice the giving to the Department of further similar information from the three agencies in the future. I accept this, not because I believe that any of the agencies would refuse to co-operate with the Department, but because the agencies can only supply the information to the Department if they have received it themselves. The Department has stated, and I accept this to be the case, that experience has proved that the major problem in detecting companies in difficulty is the reluctance of such companies to let this be known to outsiders. I accept that if such material were released under the Freedom of Information Act, then some companies will not supply this information to the agencies, and that, as a consequence, the Department's ability to obtain the information will be prejudiced.

As regards the fourth requirement of section 26(1)(a), I accept that the Department plays a role in co-ordinating the response of the State and its agencies to impending job losses. I accept that this is an important function and that it is of importance to the Department that it have continued access to the kind of information contained in these records. Therefore, I find that the exemption in section 26(1)(a) applies to much of the information in these records.

I have already considered the application of the balance of the public interest in my consideration of section 27(3) and I find that the same argument applies with regard to section 26(3).

However, as I indicated when dealing with the possible application of the exemption contained in section 27, some of the information in the records is already in the public domain. Having examined the contents of that information it is far from obvious to me that it was information of the kind which might be expected to be the subject of a confidence.

I asked the relevant agencies who supplied the information to the Department to detail the circumstances in which it was obtained and also to address the basis on which any such confidence must be respected in relation to information already reported in the media. Enterprise Ireland (Forbairt) states that "It is not possible at this remove in time to say precisely where the particular information you have highlighted was sourced". I consider that, in the ordinary course of events, if information is given in confidence, the confidant would be in a position to recall its origins and the circumstances surrounding its receipt.

IDA Ireland replied that the matter at issue is whether the information was passed to the Department by IDA in confidence rather than the circumstances of its receipt by the IDA. If, by this is meant that the IDA and the Department can characterise information passing between them as confidential, regardless of the content of that information, then I must disagree.

Section 26(1)(a) deals with information given in confidence. In interpreting this term I have had regard to the following quotation from the decision of the Queensland Information Commissioner in the case of "B" Vs Brisbane North Regional Health Authority (Decision no 94001) at paragraph 45: "In the context of s.46(1)(a) the word "confidence" must be taken to be used in its technical, legal sense, thus: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose. (F Gurry "Breach of Confidence" in P Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.)" While the definition is concerned with the technical meaning of confidence in the context of the law relating to breach of duty of confidence, it does provide some valuable guidance to how the first two requirements of section 26(1)(a) should be interpreted. In the first place, information given in confidence is concerned with private or secret matters. It is not possible for parties to exchange information which is trite or which is already legitimately in the public domain and to establish that such information is given in confidence. Put another way, it is necessary to establish that the information has the necessary quality of confidence. This is something that can only be judged by reference to the content of the information. The second point which the definition brings out is that the communication must be for a restricted or limited purpose. The third point which the definition deals with is the need for an understanding that the information is being communicated for a restricted purpose. As I have already explained in decision numbers 9849, 9856 and 9857, I interpret understanding in the context of section 26(1)(a) as meaning a mutual understanding between the confider and the confidant.

As outlined above, I accept that most of the information contained in these records was given in confidence. However, having examined certain of the material which is already in the public domain, I am not convinced that it has the necessary quality of confidence to come within section 26(1)(a). The agencies have not been able to advise me as to how the information came to be in their possession nor to direct me to any understanding which might pertain to this material. It has not been established that the information was not in the public domain at the time of its receipt by the agencies or at the time that it was imparted to the Department. Accordingly, I do not accept that section 26(1)(a) applies to this material which is described in Schedule I.

In relation to the application of section 31 to this material, the Department has not sought to rely on this exemption and, having regard to the arguments put forward by the IDA in relation to this exemption, no evidence has been provided that the harms identified as resulting from disclosure could reasonably be expected to have a serious adverse affect on the financial interests of the State. I do not consider that section 31 applies in this case.

Since I have found that the Act requires the disclosure of certain material in this case, despite the objections of the parties, I wish to comment on the IDA's assertion that even the knowledge that their names and information relating to them might be considered in the context of an FOI request would cause companies to withhold information from the IDA. In my view there is no need for such concern. The FOI Act provides detailed safeguards in section 26 and 27 to protect information the release of which might be damaging to the companies concerned. The proper way for agencies to protect such information is to establish the confidential nature at the time of its receipt, rather than by seeking to apply a blanket exemption to the confidential and non-confidential alike.

Decision

Having carried out a review of the decisions of the Department, I have decided to vary the decision of the Department in so far as it relates to records nos. 4 to 9.

I consider that the records contain commercially sensitive material within the terms of section 27. I also consider that the records contain information which is confidential within the terms of section 26(1)(a).

However, insofar as some of this information was in the public domain at the time of the request, I consider that this information cannot be considered exempt under either provision. Accordingly, I direct that the records listed in Schedule I be released to the extent shown in the Schedule. The format for doing so, having regard to section 13, is set out in Schedule II.

SCHEDULE I

SCHEDULE II - APPLICATION OF SECTION 13

Information Commissioner

05 May 1999