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Whether the Department was justified in its decision to grant a request to which section 29 of the FOI Act applies, involving access to correspondence between the Department and the applicant's client in relation to the current approval that was granted by the Minister for the Environment, Community & Local Government under Article 19(1) of the Waste Management (Packaging) Regulations 2007 (as amended).

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

This review arises from a decision made by the Department on 9 January 2012 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has considered at some stage in the decision making process that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), considered to apply, should be overridden in the public interest. The applicant or affected parties, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to the Office of the Information Commissioner directly.

On 30 November 2011, the original requester sought information from the Department in relation to "The current approval that was granted by the Minister for the Environment, Community and Local Government to [the applicant's client] under Article 19(1) of the Waste Management (Packaging) Regulations 2007, as amended."

While processing the FOI request, the Department's decision maker identified three records which he thought may contain "commercially sensitive" information (section 27 of the FOI Act) in relation to the applicant's client and he formed the view that, notwithstanding any commercial sensitivity, it would be in the public interest under section 27(3) of the FOI Act to release the records to the requester. As the decision maker was of the view that the three records should be released under section 27(3), the request was deemed to be one to which section 29 of the FOI Act applied. Therefore, on 12 December 2011 the Department proceeded to notify the affected third party (the applicant's client) of its right to make a submission if it did not wish the records to be released.

On 22 December 2011, the applicant's client made a submission to the Department in which it said that it did not agree that two of the three records (Records Nos. 1 and 3) should be released. The applicant's client claimed exemption under section 26 (confidentiality) and section 27 (commercial sensitivity) of the FOI Act for these two records. The applicant's client had no objection to the release of Record No. 2.

On 9 January 2012, the Department wrote to the applicant's client with its decision in relation to the 3 records. The Department indicated that it had decided to release Record No. 2 in its entirety and noted that the applicant's client had consented to its disclosure. In addition, the Department indicated that it was of the view that neither section 26 nor section 27 of the FOI Act applied to Records Nos. 1 and 3. It decided to release one sentence of Record No. 1 (in relation to the period of the approval granted to the applicant's client) but redact the remainder of the record as it was the Department's view that the remainder of the record did not fall within the scope of the request. The Department decided to release Record No. 3 in its entirety.

On 20 January 2012, the applicant (on behalf of her client) made an application to the Information Commissioner for a review of the Department's decision in relation to Records Nos. 1 and 3. I note that Ms Rachel Dunn, Investigator, wrote to the applicant on 9 August 2012 informing her of her preliminary view that the decision of the Department was justified in this case. As the applicant indicated that she would not be issuing a response to Ms Dunn's letter, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the submissions which were provided by both the applicant and her client, to the Department's submission and to the provisions of the FOI Act. I have also carefully examined the records which have been provided to this Office by the Department for the purposes of this review. While I do not intend to address every comment which each party has made in their submissions, I have taken them all into account in conducting this review.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified, in terms of the provisions of the FOI Act, in its decision to grant partial access to Record No. 1 and full access to Record No. 3.

Analysis and Findings

Under section 34(12)(a) of the FOI Act, a decision to grant a request to which section 29 applies is presumed to have been justified unless the person concerned shows to the Information Commissioner's satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the applicant to show that the decision of the public body to release the records concerned is not justified. Following the notification process provided for in section 29 of the FOI Act, the Department decided that neither section 26 nor section 27 of the FOI Act applied to Records Nos. 1 and 3.

Applicability of Section 26
It is noteworthy that the Department did not consider section 26 to be of relevance when it conducted the notification process as provided for in section 29 of the FOI Act. Rather, the decision maker considered the provisions of section 27, concerning the protection of commercially sensitive information, to be of relevance. In her submission of 22 December 2011 to the Department, the applicant argued that access to the information at issue should be refused under sections 26(1)(b), 27(1)(b) and 27(1)(c). On the applicability of section 26(1)(b), she relied upon the three pronged test supporting the characterisation of confidence and confidentiality as set out in what are commonly referred to as the Coco tests.

In its decision letter of 9 January 2012, the Department explained that section 26(2) of the FOI Act provides that section 26(1) shall not apply to records prepared by officials of a public body 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 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.

The records at issue in this case comprise a letter from an Assistant Secretary of the Department to the applicant's client and a letter from the Minister to the applicant's client. This means that section 26(1) shall not apply to either record 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 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.

I am not aware of any agreement or statute that provides for a duty of confidence in this case. However, in considering whether the disclosure of the information sought would constitute a breach of a duty of confidence provided for "otherwise by law", I have considered whether an equitable duty of confidence might exist having regard to the Coco tests cited by the applicant.

The Department has explained that it does not regard the information at issue in this case as confidential and that it has always regarded information concerning approvals issued to compliance schemes as non-confidential. It explained that the licencing regime for packaging compliance schemes, or those who wish to apply to become a packaging compliance scheme, is open and transparent and that the conditions for entry to the market are set out in the Waste Management (Packaging) Regulations, 2007. Furthermore, it does not consider that the information at issue was imparted in circumstances imposing an obligation of confidence. It notes, for example, that there is no confidentiality agreement covering communications between the two parties either in legislation or in the approval granted to the applicant's client. For these reasons alone, I accept that the release of the information at issue in this case would not constitute a breach of a duty of confidence owed to the applicant's client. I find, therefore, that section 26(1) cannot apply in this case.

Applicability of Section 27
Section 27(1) of the Act provides that a request shall be refused 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."

Section 27(1)(b)
Section 27(1)(b) protects 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. The applicant has argued that the records must be protected due to their commercial sensitivity and that the Department is entitled to take the view that the records are commercially sensitive as between the Department and the applicant's client and as between the Department and third parties.

Having regard to the contents of the information at issue in record 1, I see no basis on which it might be argued that the release of the information could reasonably be expected to result in a material financial loss or gain to the applicant's client or could prejudice her client's competitive position. Record No. 3 contains details of additional conditions associated with the approval of the applicant's client as a compliance scheme under Article 19 of the Waste Management (Packaging) Regulations and a schedule of the revised conditions. As with record 1, I see no basis on which it might be argued that the release of the information could reasonably be expected to result in a material financial loss or gain to the applicant's client or could prejudice her client's competitive position. The applicant's arguments for refusing access to the records at issue are based primarily on the fact that the release of confidential and commercially sensitive information could give rise to significant commercial harms for her client. She has not, however, explained how any particular harms might arise from the release of the contents of the records at issue in this case. Accordingly, I am satisfied that section 27(1)(b) does not apply in respect of Records Nos. 1 and 3.

Section 27(1)(c)
Section 27(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The applicant did not put forward any specific arguments as to how the release of the records at issue could give rise to such harm, nor do I see how such harm might arise. Accordingly, I am satisfied that section 27(1)(c) does not apply in respect of Records Nos. 1 and 3.

For the sake of completeness, I would add that I have considered the arguments advanced by the applicant as to why the Commissioner's jurisdiction should not be limited to a consideration of the exemptions contained in sections 26, 27 and 28. As Ms. Dunn explained in her recent letter, the Commissioner is satisfied that the restrictive nature of the section 29 provision means that her consideration in such cases is confined to whether the public body has applied the provisions of sections 26, 27 and 28 appropriately and has publicly stated her position on this matter on many occasions. Accordingly, I do not propose to consider the applicant's arguments for suggesting that the exemptions in sections 19, 20, 21, 23, 24, 30 and 31 might apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case that sections 26 and 27 of the FOI Act do not apply to the records in question.

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.

____________________
Stephen Rafferty,
Senior Investigator
5 October 2012.