Whether Pobal was justified under sections 36(1) and 37(1) of the FOI Act in refusing access to records comprising correspondence with consultants and advisers concerning a procurement process

3 December 2019

Background

On 16 July 2018, the applicant sought access to “an electronic copy of all correspondences relating to or with procurement consultants and other advisers concerning the Seniors Alert Scheme”. The request (prior to clarification) was broad in that it also sought to include “but not [be] limited to documents, reports, letters, emails, notes, invoices, other correspondences and memos”.

Pobal sought to clarify the scope of the original request. In a number of exchanges with Pobal, the applicant explained that she wanted access to “emails only”. She also requested access to correspondences dating from 1 January 2012 in respect of procurement advice received by Pobal about the transfer process of the Seniors Alert Scheme. Apparently, responsibility for the scheme was transferred from a government department to Pobal.

In a decision dated 11 September 2018, Pobal identified a large number of records and granted access to most of them. It refused access in part to the remaining records under section 35 (Information obtained in confidence) section 36 (Commercial sensitivity) and section 37 (Personal information) of the FOI Act. Pobal did not provide any detailed reasons in relation to the exemptions. However, it issued a schedule in which it stated the exemptions applied to withheld records and provided a brief note on them.  

Following a request for an internal review, Pobal affirmed its original decision on 26 October 2018.

On 24 April 2019 the applicant applied to this Office for a review of Pobal’s decision.

In the decision schedule Pobal listed records in numerical order and applied sub-section numbers, e.g. record no. 164, 164.1, 164.2 etc. In total, Pobal listed approximately 370 records, of which 305 were listed as having been released in full.  During the review Pobal granted access to additional records and information that had previously been withheld. Access to all of the remaining records within the scope of the request was granted in part with relatively small parts redacted.

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 Pobal and the applicant. I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the decision of Pobal to refuse the applicant's request for access to withheld information in records under sections 36(1) and 37(1) of the FOI Act was justified. A key question in this review and a major contributory factor to the time it took this Office to bring this case to a conclusion is the identification of which records held by Pobal fall within the scope of the applicant’s FOI request as amended. The analysis below goes into more detail about the scope of the request and of my review as the applicant disputed Pobal’s interpretation of what records were captured by the terms of her request.

Preliminary matters

Pobal explained that it sought to refine the scope of the original request as otherwise it would have been refused under section 15(1)(c) of the FOI Act as a voluminous request. However, Pobal did not advise the applicant of section 15(1)(c) and 15(4) of the FOI Act. 

The administrative refusal provisions of section 15 envisage that where, by reason of the nature or number of the records sought, retrieval and examination of them would cause substantial and unreasonable interference with or disruption of the work of the FOI body, an offer of assistance to the requester to amend the request must be made and, ultimately, refusal of the request may be an option. Pobal stated that the refinement of the request was made in consultation with the applicant and that accordingly, it understood the request to be for access to all emails including “associated emails” concerning the transfer of the Seniors Alert Scheme from 1 January 2012.

Pobal acknowledged that it should have been more clear about the provisions of section 15 and said that in future it would seek to inform a requester when considering section 15(1)(c) of the Act.

Analysis and Findings

Withheld information outside the scope of the review

Pobal stated that certain records contained information which is not within the scope of the request or of this review. Pobal listed other records in the schedule which it described as ‘Removed-not relevant’. In addition, a number of records were listed as ‘grant with redaction’ but Pobal did not provide any information about which section of the FOI Act applied. Pobal later stated that the withheld information in those records was not within the scope of the review.

It seems to me that a significant issue in this review is whether certain records identified and listed by Pobal in the schedule come within the scope of the review and the fact that those records were scheduled inevitably led to the applicant being unclear about what records were captured by her request as made.

Pobal said that while certain records identified in the search related to the Seniors Alert Scheme, they were concerned with the administration, operation and review of the scheme. It said that these records were not released as they were not associated with the procurement process. For example, some records concerned an operations review as opposed to the procurement the subject of the FOI request. Pobal acknowledged that in scheduling those records that were not within scope, it contributed to a degree of confusion and that, in hindsight, it ought not to have scheduled records that were outside of scope of the original request. It said that its email search system captured all records covered by the applicant’s request but also captured other records that related to schemes or programmes which did not fall within the request as made.  

Pobal said and that on this occasion it accepted that it caused some confusion to the applicant.

It seems reasonable to me that the wording of the request and subsequent exchanges between Pobal and the applicant resulted in Pobal concluding that the request was confined to emails between Pobal and procurement consultants and other advisers. The request does not extend to all aspects of the Seniors Alert Scheme.

The applicant had informed Pobal at an early stage that she was not seeking access to records relating to information about Pobal’s legal advisers, although in her application to this Office, she requested a review of all parts of the decision. I am satisfied that correspondence between Pobal and its legal advisers was taken out of the request by the applicant and cannot now be  within the scope of my review. 

Access to record 208 was refused in part by Pobal under section 35 and part of record 201.2 was withheld under section 37. During the review Pobal stated that this reference to record 208 was a mistake that should have been amended at internal review and that the subject matter of record 208 was not within the scope of the original request.

Having examined records 208 and 201.2, I am satisfied that their content is not within the scope of the review and consequently, there is no need for me to consider them. In addition, having examined the records listed in the schedule as ‘outside scope’, ‘information specifically excluded from the request’, ‘grant with redaction’ and ‘Removed-not relevant’, I am satisfied that they do not come within the scope of the request as made by the applicant and, accordingly, I will not deal with them in this review.  

Are further records held?

The applicant queried whether further email correspondences existed. She referred to further records that might exist and queried why certain record numbers were not listed in the schedule.

The Investigator advised the applicant that, on the basis of her queries, it may be that section 15(1)(a) of the FOI Act applied and she was invited to make a submission on the matter. Pobal was similarly advised.

Pobal stated that, having consulted with the applicant in the early stages of the original request, an extensive electronic search was performed using broad search criteria on the ‘Mailmeter’ archive system. It said that searches were conducted by applying lists of relevant consultants, Pobal staff, the Seniors Alert Scheme and its initials (SAS), between 1 January 2012 and 1 March 2018. Pobal said that further word search criteria were applied and its ICT Unit searched related email addresses.

Missing record numbers

Pobal stated that it numbered all the records in sequence and removed certain records which no longer existed as they had been deleted. Pobal explained that the deleted records were email threads which were the same as a previous numbered record but contained less information. In other words, the extant email record number contained additional information in its thread. Pobal said that the record was deleted in order not to issue the applicant with what would amount to copy records with less information.

In other instances, Pobal explained that as the applicant had sought access to email records only, some records do not exist. For example, a query in an email may have been answered by phone or not answered at all.

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records.

I do not consider that this Office has any basis on which to find that Pobal holds further records falling within the scope of the request which it has withheld. If the applicant has identified specific additional records not covered by the request under review which she believes are held by Pobal, e.g. in relation to alleged monitoring problems referenced in her submissions, it is open to her to consider making a fresh request for access to those. 

Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. I consider that there is some onus on the requester to identify what specific records are actually being sought (section 12(1)(b) refers).

In summary, I find that section 15(1)(a) applies to Pobal’s effective refusal of access to further records within the scope of the request which do not exist or cannot be found after reasonable searches.

Section 36(1) - Commercially Sensitive Information
Pobal redacted a relatively small amount of information from a few remaining records in the schedule on the basis that these disclosed information concerning unsuccessful tenderers. It said that the names of those companies and other details were withheld because the information was obtained in confidence and its release could place companies at a disadvantage or prejudice them in future tenders, funding applications or contracts. It also said that if it was known that a particular company failed in the tender process, this could inhibit or prejudice future tenders. The applicant asked that this Office review the appropriateness of all the redactions.

Section 36(1) of the FOI Act is a mandatory exemption for certain types of commercially sensitive information (subject to section 36(2) and the public interest balancing test at section 36(3)). While Pobal made reference to section 36(1)(c) in its later submissions, I consider that that exemption is more concerned with protecting the conduct or outcome of negotiations in train or reasonably foreseen. The harms envisaged in section 36(1)(b) - cited in an earlier schedule - are more relevant in this case as the disadvantage or prejudice that might impact on unsuccessful tenderers as expressed in the Pobal submissions appears to me to cover the tenderers business generally. Section 36(1)(b) applies to certain types of information whose disclosure could reasonably be expected to result in 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". The Commissioner 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, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. I must also be mindful of the interests of the third parties to whom the information relates. As mentioned above, the standard of proof required in the second part of the section 36(1)(b) is relatively low, in the sense that the test is not whether prejudice is certain to materialise but whether it could do so.

Having examined the redacted names, pricing and other details, I am satisfied that this information is of a type that may be of use to competitors and as such, release of the record could prejudice the competitive position of the third parties. The Commissioner accepts, as a general proposition, that detailed information about a tenderer's approach to a particular project is commercially sensitive.

Accordingly, I find that section 36(1)(b) applies to the records at issue.

Section 36(1) is subject to section 36(2) and is also subject to a public interest balancing test as set out in section 36(3). Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances.  I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

This leaves me to consider, under section 36(3), whether the public interest would, on balance, be better served by the release of the records.

Section 36(3) The Public Interest
On the matter of whether the public interest would, on balance, be better served by granting than by refusing access to the records at issue, as provided for at section 36(3), this Office has previously drawn a distinction between successful and unsuccessful tenderers, particularly in relation to the benefits to be gained from tendering.  Where an offer has been rejected, no vendor/purchaser relationship exists, and no public funds are involved. The FOI Act is intended to enhance openness, transparency and accountability of public bodies. The Commissioner has stressed, however, that no tender-related records are subject to either release or exemption as a class; therefore, each record must be examined on its own merits.

The judgment of the Supreme Court, issued in July 2011, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26 (the Rotunda judgment), outlined the approach the Commissioner should take when balancing the public interest. Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest. 

In considering where the balance of the public interest lies, I accept that there is a legitimate public interest in persons being able to conduct commercial transactions without fear of suffering commercially as a result. 

On the other hand, there is, as Pobal acknowledged, a strong public interest in the enhancement of openness, transparency and accountability in public bodies. Indeed, I am conscious that section 11(3) of the FOI Act requires public bodies, in performing functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs, and to strengthen their accountability.

I note that a significant amount of information relating to the tender process itself has been made available in the records already released.  Thus, the public interest in openness and transparency has been served to some degree by the provision of that information. It seems to me that a balance must be struck between the competing interests and that the FOI Act is concerned with enhancing accountability and transparency of public bodies, not commercial entities.

In my view, the disclosure of detailed costs and projected savings and the identities of those who did not win the tenders would be of benefit to competitors such that release could unduly prejudice the commercial position of the third parties. I find that, on balance, the public interest would be better served by refusing access to the redacted parts of the records at issue.

I find that Pobal is justified under section 36(1)(b) of the FOI Act in refusing access to the withheld information in those remaining records identified in the schedule as commercially sensitive. The records are nos. 130.1, 139, 154.1, 172 and 244.1.

Section 37(1) (Personal information)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.

Section 2 of the Act includes an exclusion to the definition of personal information that relates to members of staff of an FOI body. It states that in a case where the individual holds or held a position as a member of staff of an FOI body, personal information does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. Similarly, where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service does not comprise personal information.

Pobal refused access to parts of two records (220.1 and 224) under section 37 of the FOI Act. The small amount of information withheld in the records relates to identifiable individuals other than the applicant. In record 220.1 the withheld information is the names and signatures of persons who signed a contract on behalf of Pobal and on behalf of the contractor providing the service. Pobal said that while it appreciated that the request was made under the FOI Act and that it made its decision accordingly, it had concerns about the implications of the provisions of the Data Protection Act 2018 in granting access to the specific nature of the withheld information. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.  Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. 

In record 224, it is not clear whether one of the named individuals is an employee of a contractor. In view of this, I will treat the reference to that person as personal information under section 37.   

Accordingly, I find that section 37(1) of the Act applies to the withheld information in record 224 but not to record 220.1 which falls to be released.  

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of these are relevant in this case.

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates, or (b) the grant of the information would be to the benefit of the persons to whom the information relates.

It has not been argued that releasing the withheld information in record 224 would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances.
Turning to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

In my view, the public interest in openness and transparency in how Pobal dealt with the applicant has been served to a large extent by the release of a large amount of information in records (including most of record 224) to the applicant.

On balance, I do not see how the public interest that access to the name etc. in record 224 should be granted outweighs the public interest that the right to privacy of the third parties should be upheld.

Accordingly, I find that section 37(1) of the Act applies to the withheld information in record 224.

Given my findings above there is no need for me to address section 35 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Pobal. I affirm its decision under section 36(1)(b) of the FOI Act. I affirm its decision under section 37 of the Act in relation to record 224. I annul its decision concerning record 220.1 and I direct the release of the withheld information in that record.

Right of Appeal

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.

 

 

Elizabeth Dolan
Senior Investigator