The Senior Investigator varied the Department's decision and decided that parts of the record should be released.
Case Summary
Whether the Department is justified in its decision to refuse a request for a record made under section 7 of the FOI Act on the basis that it is exempt from release under the provisions of the FOI Act, in accordance with sections 20, 21, 22, 26 and 27 of the FOI Act.
Date of Decision: 10.11.2010
Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner
Background:
The FOI request was made on 15 May 2008 to the Department. The Applicant sought:
"a copy of the report or reports in relation to telecommunications assets of the state or state-owned bodies, one of which report we understand is also known as or relates to Project Dingle"
In its decision of 20 June 2008 the Department, having identified one report entitled "Potential for Enhancing and Augmenting Semi State Telecommunications Assets", refused the request in accordance with sections 20, 21, 26 and 27 of the FOI Act and found that the balance of the public interest lies against release of the report. On 25 June 2008 the Applicant sought an internal review of the Department's decision, which, in its internal review decision of 11 July 2008, the Department upheld.
The Applicant applied to this Office on 31 July 2008 seeking a review of the Department's decision.
Both the Applicant and the Department were informed on 12 August 2008 that the Commissioner had decided to accept the application. In response the Department provided the Office with a copy of the record involved and a submission outlining the reasons behind its decisions to refuse access to the report in its entirety.
Mr Brian Murnane, Investigator of this Office, issued initial views to the Department on 7 September 2009 setting out his views that parts of the report would be potentially releasable. The Department in responses dated 2 and 19 November 2009 objected and contended that the report was properly withheld from release in accordance with sections 20, 21, 26 and 27 of the FOI Act. In subsequent correspondence it also cited section 22 as a basis for exemption of the Annex to the report which it had not done in either its original or internal review decisions.
Mr Murnane in a letter dated 6 January 2010 advised the Applicant of his view that the Department's decision to refuse access to the report was justified on the basis of the exemptions on which it had based its initial decision but that parts of the report might be releasable in the public interest. On 2 March 2010 the Applicant indicated to this Office that it was not in agreement with Mr Murnane's approach and wished for full access to all of the parts of the report with the possible exception of the annex (concerning legal issues) that Mr Murnane had indicated to them was, in his view, potentially exempt from release.
Mr Murnane subsequently advised the Department that the Applicant wished for full access to the report. He also advised it that failing agreement the case would proceed to a formal binding decision. I also note that Mr Murnane, following a further review of the contents of the report, on a chapter by chapter, sub-section by sub-section basis, indicated to the Department those parts of the report that were, in his view, potentially releasable. In the same correspondence he also indicated the other parts of the report were, in his view, exempt from release.
In response the Department informed this Office that it did not agree that any parts of the report were releasable and remained of the view that the entire report should be withheld from release having regard to its confidential status. It also advised that the report continues to form the basis for policy formation and that the Department had recently announced the establishment of a "Next Generation Broadband Taskforce" to examine the possibility of collaborative approaches in broadband network investment.
Before I go further, I think I should explain the Commissioner's approach to the granting of access to parts of records. Section 13(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempted information removed, where it is practicable to do so. However, section 13(2) provides that "subsection (1) shall not apply in relation to a record if the copy provided for thereby would be misleading". In this case I would agree with Mr Murnane that it is feasible to consider part release of portions of the report which do not qualify for exemption and where it is practicable to do so provided it is not misleading.
The Applicant contend that the entire report should be released and that any consideration of the public interest favours such release. Accordingly, I am therefore proceeding to a formal binding decision in this review.
Scope of Review
The scope of the review is confined to the question of whether the Department's decision to refuse access to the report is justified under the FOI Act.
Conducted in accordance with section 34(2) of the FOI Act by Mr Seán Garvey, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.
Submissions
.
Findings
Preliminary Matters
In conducting this review I have had regard to the Applicant's request, the provisions of the FOI Acts, the relevant submissions of the Department as well as those of the Applicant and the contents of the report. I also have regard to the additional information and clarifications provided by the Department at the request of this Office, including supporting correspondence from other parties who contributed information included in the report. I wish to emphasise that, under section 34(12)(b) of the FOI Act, a decision by a public body to exempt a record from release is not justified unless it can be demonstrated to the Commissioner's satisfaction that the decision was, in fact, justified. This places the onus in the Department to justify its decision to refuse access to the report under sections 20, 21, 22, 26 and 27 of the FOI Act.
Before dealing with the exemptions claimed by the Department, I wish to make the point that, while the Commissioner is required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that she takes all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that I am somewhat constrained in the references I can make to the content of the record at issue. However, I do not feel that it would be revealing exempt information in violation of section 43(3) of the FOI Act by stating that the report comprises a consideration of the Irish regional backhaul telecommunications market, with a review and analysis of the telecoms assets of a number of semi state bodies ("SSBs") and an examination of the potential to enhance and/or augment those assets with an analysis of the commercial feasibility of such actions. Dated 23 December 2005 the report consists of 4 sections and 9 appendices with proposed connection overviews, and contains a separate Annex setting out legal advice on legal issues arising in progressing the matters referred to in the report. The SSBs included in the report are (name withheld "A"),(name withheld "B"), (name withheld "C"), (name withheld "D"), (name withheld "E") and (name withheld ("F").
The review will now concentrate on the Department's refusal to provide access to the report on the basis of the exemptions set out in sections 20, 21, 22, 26 and 27 and whether the public interest warrants their release. I am therefore proceeding to a formal binding decision in this review.
Analysis and Findings
Section 20 - Deliberations of Public Bodies
This section provides as follows:
"20 -(1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)."
Section 20(2)(b) provides that subsection (1) does not apply to a record if and so far as it contains, inter alia, "factual information".
This section of the Act allows a public body to refuse to grant a request if the contents of the record concerned relates to the deliberative process of the public body concerned and the granting of the request would be contrary to the public interest. Deliberative processes involve the consideration of various matters with a view to making a decision on a particular matter. Section 20(2)(b) of the Act excludes from exemption under section 20(1) factual information or analyses thereof.
The Department has made a number of submissions to this Office in support of its contention that the application of section 20(1) to the report is justified and contends this on the basis that the information in the report continues to form an integral part of the deliberative process on Next Generation Broadband (NGB). The Department further contends that the process has not been overtaken with the passage of time since the report was produced in late 2005. It specifically contends that it continues to use the report to inform opinion on its policy decisions, including deliberations being undertaken by a task force recently set up to examine the possibility of collaborative approaches in Next Generation Broadband network investment.
Section 20(2)(b)
Mr Murnane informed the Department of his view that certain factual information in parts of the report fell for release in accordance with section 20(2)(b). The Department does not agree that such specific information should be released.
I wish to firstly address the question of what constitutes "factual information". This is defined in section 2(1) of the FOI Act, as amended, as follows:
"factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof".
In previous decisions of this Office (decisions numbered
030714,
030414 and
050381), the view was taken that the use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering a case for review. Accordingly, this Office sees factual information as including material presented to provide a factual background to the central topic in a record.
I consider the approach taken by the Queensland Commissioner as to what constitutes factual matter or information, as set out below, to be a reasonable approach and it is one which I have adopted in this case. In the case of Hudson (on behalf of Fencray Pty Limited) and Department of the Premier, Economic and Trade Development (1993) 1 Q.A.R. 123 at 134, the Queensland Commissioner commented that:-
".. a common-sense approach should be taken to the task of characterising matter as factual matter or otherwise, according to its substance (i.e. its substantive nature or character) rather than merely to semantics (i.e. merely by reference to the particular terms in which it is couched). Material which contains elements of judgement or opinion concerning purely factual matters may still be capable, depending on its context and its purpose in that context, of properly being characterised as merely factual matter."
Furthermore, I am satisfied that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
The Department was informed on 24 September 2010 by Mr Murnane and in subsequent discussions, of his view that certain specified parts of the report were not exempt as the harms previously identified by the Department were unlikely to emerge from release of those parts. In his view the parts of the report, which he identified in an accompanying schedule, contained information that was factual and the Department should consider release on an administrative basis outside of FOI. The Department was invited to make a submission in response to that view. In its response, the Department did not agree that the information is of a kind that is generally available and contents that the specific information was exempt because it was presented on request for the Department for the specific project leading to production of the report.
Having examined the report and the response of the Department, and applying the reasoning in section 20(2)(b), I find that the following elements of the report amount to "factual information" and fall to be released further to section 20(2)(b) of the Act:
- Cover of Report,
- Acknowledgements,
- Table of Contents, Preface,
- Executive Summary (part) and all of Section 1 (subparagraphs 1.1-1.8 inclusive), and
- part of section 3.
Details are set out in the Schedule attached to this decision.
I do not consider that any other parts of the report amount to "factual information" for the purpose of section 20(2)(b) and will consider the application of section 20(1) as applied by the Department to the remainder of report.
Section 20(1)
I accept that the Department's deliberations, that were ongoing at the time of the original request, have recommenced and that final decisions have yet to be made. Therefore the question for this Office to consider is whether or not the Department's contention that release of the information would adversely effect those deliberations is justified. The deliberative process can be described as a thinking process that refers to the way a public body makes decisions. 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. In the circumstances of this particular review, the Department contends that disclosure would have the effect of interfering with those deliberations and disclosing confidential sensitive information that would be detrimental to its policy making process.
I recognise that deliberations naturally involve stages and that pubic bodies need to be free to bring matters to conclusions. Also I think it is reasonable that certain sensitive information should not be prematurely released before the deliberative process, relevant to that information, has been completed.
While I am satisfied that the provisions of section 20(1) apply to the report under review and from reviewing the contents of the report, I agree with Mr Murnane’s views and accept, notwithstanding the passage of time, that parts of the report contain information which relates to the Department's deliberative process. However that of itself does not mean the report is automatically exempt as a class of document as section 20(3) provides that it is necessary to consider the public interest before making a final decision to exempt a record.
I do this below.
Public Interest Test
Section 20(3)
This section provides that "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."
In deciding whether or not to release a record on public interest grounds, the FOI Act requires a balance to be struck between the competing public interest factors in favour of release of a record against those favouring exemption of a record.
Public Interest arguments for Release
In summary I consider the following to be the main public interest factors in favour of the release of information in relation to this case:
- the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for courses of actions taken by a public body, in this case the Department;
- the public interest in members of the public having a reassurance and knowledge that public bodies in their provision of a high level of service can disclose certain information, in the public interest, relation to deliberations; and
- the public interest in increasing the openness, transparency and accountability in the conduct of public business including the reasons for the decisions behind such activities.
Public Interest arguments against Release
I consider the following to be the main public interest factors which favour withholding parts of the record having regard to the submissions made to this Office:
- the public interest in ensuring that FOI is not used to release information relating to sensitive deliberations;
- the public interest in the ability the Department to able to properly develop policies in the communications area; and
- the public interest in supporting the requirement for the Department to continue to monitor the position and keep its deliberations confidential until the deliberative process is completed.
Assessment and Conclusion
From reviewing the submissions and the contents of the report, and having regard to the circumstances of this case, I am satisfied that the Department has demonstrated that there is a strong public interest in maintaining its ability to develop appropriate policy responses in the best interest of the Irish broadband communications sector without such responses being made public before they have been properly formulated. I accept that section 20 does not require, as a matter of principle,that material should be withheld until the conclusion of a deliberative process. However, in the circumstances of this case, I am satisfied that release of those parts of the report listed in the Schedule would reveal matters on which the Department has yet to conclude its deliberations, and that such release could prejudice the Department's ability to properly conclude those deliberations. Accordingly, I find that the public interest is, on balance, better served by refusing to grant than by granting the request for the parts, and that they have been properly exempted in line with section 20 of the FOI Act.
Section 21 - Functions and Negotiations of Public Bodies
Mr Murnane initially informed the Department of his view that it was not certain how the effects envisaged in section 21(a), (b) or (c) would apply in the circumstances of this particular case. In response the Department contented that the exemptions in section 21 were inextricably linked to an undertaking given by it to the SSBs that material supplied by them would be treated in confidence, and that release would severely undermine its reputation and working relationships with the SSBs who contributed to the report.
In further correspondence Mr Murnane indicated that, in his view, the undertaking given by the Department to the SSBs is more appropriately considered in the context of sections 26 and 27 of the FOI Act and that he did not propose to consider the application of section 21 any further as part of the review in the absence of any views to the contrary from the Department. In its response of 26 October 2010, I note that the Department simply advised that it considered that section 21 was relevant but did not elaborate any further beyond those reasons it had previously submitted.
I agree with Mr Murnane's views that section 21 does not apply to the report and that the points made by the Department in the context of that section are more appropriately considered under sections 26 and 27 below.
As the Department has declined to make any further substantive submission to satisfy the Commissioner that its decision to exempt the report under section 21 is justified, I find that, in keeping with the provisions of section 34(12)(b), the Department has not shown to my satisfaction that its decision is justified. Therefore I do not consider it necessary to consider section 21 any further.
Section 22(1) and Annex to Report
The Department claims is exempt on the basis of section 22(1) of the FOI Act on the basis that the Annex relates to legal advice.
This section provides that a request shall be refused if the record concerned (a) "would be exempt from the production in proceedings in a court on the grounds of legal professional privilege". Legal professional privilege ["LPP"] enables a client to maintain the confidentiality of two types of communications a) confidential communications made between a client and his/her professional legal advisors for the purpose of obtaining and/or giving legal advice, and b) confidential communications made between a client and a professional legal advisor or the legal advisor and a third party or between a client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.
Mr. Murnane in his preliminary views set out this Office's understanding of LPP and in his view that the Department's claim for withholding the information in the Annex, from release is supportable. I also note that the Applicant's solicitors in their response to this Office, indicated acceptance of Mr Murnane's view that the Annex may be exempt from release in accordance with section 22(1)(a) of the Act. From reviewing the contents of the Annex, I agree with Mr Murnane that it contains legal advice and that the Department's reliance on the exemption in section 22(1) of the Act is justified. I find accordingly.
Unlike many of the exemptions in the FOI Act, the LPP exemption in section 22(1)(a) contains no public interest balancing test. Accordingly, there are no public interest issues for me to consider.
Section 26 - Information Obtained in Confidence
This section provides as follows:
"26.-(1) 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 a public body 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
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".
In considering this section, I have firstly considered whether sub-section 26(1)(b) is dis-applied by section 26(2) of the FOI Act, as this would have an impact on whether the Department is justified in its reliance on section 26(1)(b).
Section 26(2) provides that "(S)ubsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of duty of confidence that is provided by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".
In brief, the effect of section 26(2) is that it precludes public bodies from invoking section 26(1)(a) or (b) to exempt records prepared by bodies subject to FOI on the grounds that such records cannot be regarded as confidential as provided for in the Act. The result of this in this case is that I see no basis for accepting the Department's claim for exempting, on the basis of section 26(1)(b), the information supplied by either "D", "E" or "F", since those particular bodies are public bodies subject to FOI Act. I find accordingly.
In relation to the information contained in the report that relates to "A", "B"or "C", this Office can consider the exemption claimed by the Department in accordance with section 26(1)(b) because those bodies are not subject to FOI.
I would add that where parts of the report contains information that relates to consideration of FOI and non FOI bodies together, the Commissioner adopts the approach that it would be meaningless to try and extrapolate the latter information. The above views in relation to the application of section 26(2) in the context of FOI public have been elaborated upon by the Commissioner in her decision in case number
000528 (Sunday Times & North Eastern Health Board)Subsection 26(1)(b)
In correspondence to this Office the Department submitted that the report was exempt from release in accordance with section 26(1)(b) on the basis that disclosure would constitute an equitable breach of duty of confidence supported by an agreement. The Department supplied this Office with copies of "letters of understanding" dated 17 May 2005 to each of the semi-state bodies involved in the study which indicated to the parties involved in the report that:
"information transmitted to the Department or its officials or advisors ...will be treated by us (the Department) as strictly confidential and commercially sensitive. It will be treated as being transmitted on foot of an agreement between us (the Department) as to its confidential status within the meaning of section 20(1)(a) and 26(1)(b) of the Freedom of Information Act, 1997."
The Department also informed this Office as a further evidence of the confidential nature of the report that the report in its entirety has not been disclosed to any of the parties who provided information in relation to the development of the document. The report also had very limited circulation within the Department and there is no intention to publish it.
The Applicant contends that it is not sufficient for the Department to merely claim that the information is private and confidential and have questioned whether the Department has properly applied the exemption in section 26(1)(b) to justify refusal on these grounds.
As indicated above, section 26(1)(b) provides that a public body shall refuse access to a record if disclosure of the information concerned would constitute a breach of a duty of confidence. The previous Commissioner has found in cases Mark Henry (
Case No 98098) and Henry Ford (
Case No 98049) that 3 tests must be met to establish a duty of confidence as provided for in section 26(1)(b). These tests stem from the technical, legal meaning of the term "confidence" which he adopted, and with which I agree. They are set out in the case of Coco v. A. N. Clark (Engineers)Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited[1984] I.R 611) and require that:
(1) the information contained in the record has the necessary quality of confidence about it; and
(2) the information was imparted in circumstances imposing an obligation of confidence; and
(3) there must be an unauthorised use of that information to the detriment of the party communicating it.
In relation to the first test I am satisfied that the information contained in the withheld parts of the report has the necessary quality of confidence about it for the purposes of establishing a duty of confidence. I am also of the view, in the particular circumstances of this case, that the Department has demonstrated that the necessary level of confidence has not diminished with the passage of time. Therefore I find that the first test for the existence of a duty of confidence has been met.
Turning to the second test, in light of the evidence that express assurances of confidentiality were sought by and given to the affected parties in this case ("A", "B"and "C") I can accept, from reviewing the correspondence, the Department's contention that it is under an obligation of confidence in relation to the information contained in the withheld parts of the report. Given the commitments given by the Department I can accept, in line with a previous decision of this Office in Mr X and the Department of Environment, Heritage and Local Government (
Case No 030361) that the second test has also been met in respect of information provided under those assurances by "A", "B" and "C". I find accordingly.
Turning to the third test, the Department contends that release of the information in the report would be to the detriment of the parties involved. In considering whether detriment can be said to occur to those parties, the Queensland Information Commissioner observed at paragraph 111 in "B" v Brisbane North Regional Health Authority (S4 of 1993 Decision No. 94001) that "It appears, however that detriment is fairly easily established. In particular, it is not necessary to establish that threatened disclosure will cause detriment in a pecuniary sense: 'detriment can be as ephemeral as embarassment...loss of privacy or fear...'. Moreover in Attorney- General v Guardian Newspapers, Lord Keith of Kinkel said : 'I would think it is sufficient detriment to the confider that information given in confidence is to be disclosed to persons to whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way."
From reviewing the contents of the report and the copies of correspondence made available to this Office, I can therefore accept that, in light of the nature of the information and the circumstances in which it was given to the Department, that disclosure would be to the detriment to those parties as the information would reveal specific details about their commercial operations that are not otherwise publicly available. I therefore find that the third test has also been met. Accordingly, I find that the information in the report provided by "A", "B" and "C" is exempt from release in accordance with section 26(1)(b) of the FOI Act.
Public Interest
While section 26(1)(b) does not contain a specific public interest clause, it is well established that there are certain limited circumstances where the duty of confidence may be breached in the public interest, for example, to reveal crimes, wrongdoing or danger to the public. Thus, the Commissioner found in case 060030 that the public interest in vindicating the Constitutional rights to fair procedures of the Applicant justified release of information. In my view, no such analogous factors exists in this case that support a contention that general public interest factors may be taken into account in determining whether or not the withheld information is subject to a duty of confidence. I therefore conclude that section 26(1)(b) applies to the parts of the report listed in the Schedule on the basis that those parts contain information that was supplied under a duty of confidence by the "A", "B" and "C". I find accordingly.
Regarding those semi-state bodies that supplied information, which did not qualify for exemption in accordance with section 26 of the FOI Act for the reasons stated above, it is necessary for me to consider whether the information would be considered commercially sensitive in accordance with section 27 of the Act which is addressed below.
Section 27 - Commercially Sensitive Information
This section is relevant to the information in the report provided by public bodies subject to the FOI Act. It provides as follows:
"Section 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."
As none of the parties involved cited the exemption in section 27(1)(a) regarding trade secrets, I consider that it has no relevance to this case and that the only provisions I need to consider are those in sections 27(1)(b) and (c).
In his preliminary views, Mr. Murnane informed the Department that the exemption in section 27(1)(b) and 27(1)(c) did potentially apply but raised questions as to whether disclosure of the information in the report could give rise to the possible harms as envisaged in the exemption. He informed them that the essence of the test in section 27(1)(b) or (c) is not the nature of the information but the nature of the harm which might be occasioned by its release.
In response, the Department contended that release of specific information in relation to the 3 SSBs involved had the potential to cause serious harm because those parts of the report contained commercially sensitive information the release of which could damage the business of those bodies or undermine the trust that the bodies place in the Department. The Department also advised this Office that it had engaged in further consultation with the SSBs involved and that all of them contend that the information contained in the report remains commercially sensitive. They consider that release at this time would damage their competitiveness and have adverse consequences on their business and stakeholders.
The Applicant submitted that, inter alia, it is up to the Department to satisfy the Commissioner that "firstly the information is of value and secondly that there are, on an objective view of the evidence, real and substantial grounds for expecting prejudice to the competitive position of the body or material financial loss to follow from the disclosure." In addition they contend that the public interest would be better served on a number of grounds by release of the entire report.
Conclusions
From reviewing the remaining parts of the report as supplied by "D", "E" and "F" I am satisfied that the information provided by those bodies is a mixture of financial, commercial and technical and that could at this time damage their competitiveness and have adverse consequences on their business and stakeholders. Accordingly, I am satisfied that the information is potentially exempt from release in accordance with section 27(1)(b) and (c). However, that is not the end of the matter because in finding that the provisions of section 27(1) apply, it is necessary for the Commissioner to consider the application of the public interest override in the context of section 27(3) of the FOI Act.
The Public Interest Test and Section 27(3)
The public interest test at section 27(3) of the FOI Act, is similar to that at section 20(3). It provides that the exemptions contained in section 27(1) do not apply 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...".
As I set out my view in my consideration of section 20(3) as to how the public interest test should in general be applied, I do not need to repeat that view here as I consider the same general matters to be relevant in considering the application of section 27(3). The Department contends that on balance the public interest is better served by refusing to grant the request for access to commercially sensitive and related information of SSBs, rather than by granting it. The Applicant contends that the public interest is better served by granting the request rather than by refusing to grant it. I summarise below what I consider to be the factors most relevant to addressing the public interest in the context of section 27(3) in this case.
Public Interest Arguments for Release
- the public interest in members of the public having reassurances and knowledge that public bodies, in the provision of a high level of service, can disclose certain sensitive and commercial information, that relates to bodies providing services for the State; and
- the public interest in increasing the openness and transparency of the process by which the obligations of public bodies, to release commercial information in relation to the development of the Irish broadband telecommunications sector.
Public Interest Arguments against Release
- the public interest in the need to ensure that FOI is not used to release highly sensitive commercial information of public bodies,
- the public interest in the ability of a public body to be able to provide a high level of public reassurance that they fully protect from disclosure information that is actually highly commercially sensitive, and
- the public interest that the requirements of the Department to be in a position to continue to be in a position to conduct its business and monitor the position across the public and private sector until matters are finalised.
Assessment and Conclusions
In the particular circumstances of this case and as set out in my comments on section 20(3), I consider that there is a strong public interest in safeguarding against release commercial and sensitive financial information that could reasonably inhibit the parties from continuing to engage with the Department in the best interests of the development of next generation broadband and that this factor outweighs the facts favouring release of the information. I therefore agree with Mr. Murnane that on that basis the public interest would be better served by refusing to grant than by granting the request to those parts of the report listed in the Schedule. I find accordingly.
Decision
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department in this case I direct the release of certain information contained in the report and confirm the decision in relation to other parts of the report as set out in the accompanying Schedule.
Right of Appeal
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Seán Garvey
Senior Investigator
10 November 2010
