Whether ComReg was justified in refusing access to the locations of testing sites under section 36(1)(b) of the FOI Act

4 March 2021

Background

On 14 November 2019, the applicant made an FOI request to ComReg for specified information relating to testing sites for radio frequency. On 10 December 2019, ComReg issued a decision. It refused access to the records under section 36 of the FOI Act. On 4 January 2020, the applicant applied for an internal review in respect of part 1 of her FOI request, which concerned the location of the testing sites. On 27 January 2020, ComReg issued an internal review decision. It affirmed its original decision under section 36 of the FOI Act. On 3 June 2020, the applicant sought a review by this Office of ComReg's decision.

I have now completed my review of ComReg’s decision and have decided to bring the case to a conclusion by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the applicant and ComReg as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by ComReg for the purposes of this review. I have also had regard to submissions from third parties.

Scope of this Review

During the review, ComReg released information to the applicant, which falls outside the scope of this review. In her application for review, the applicant states that she wishes to appeal ComReg’s decision on “the location of testing sites for radio frequency in Ireland for the use of telephony and wireless broadband and any other products up to 300 ghz”. The scope of this review is confined to that information. The question for me is whether it is exempt under section 36(1)(b) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points.

First, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except insofar as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 36(1) - Commercial Sensitivity

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

Submissions

ComReg says that disclosing the locations of the testing sites will in most cases reveal the identity of the licence-holders, as the trials are usually conducted on their premises. It says that this is commercially sensitive information, the disclosure of which could prejudice the competitive position of the licence-holders. It says that some location details could provide an insight into the likely nature of the trials, or the likely nature of the products being tested, by virtue of the location concerned. ComReg submits that the public interest in withholding this information outweighs the public interest in transparency, as preserving commercial confidentiality encourages companies to test wireless services in the State, which benefits the economy. It also says that its website www.testandtrial.ie provides sufficient information on wireless testing. It says that although this website names some past licence-holders, it deliberately does not name current licence-holders, in order to preserve commercial confidentiality. Finally, it submits that the information concerned could not be of use to the applicant.

During the review process, this Office’s Investigator invited submissions from the licence-holders. They say that the locations of the testing sites will reveal their identities. They say that they request test and trial licences to assess new or enhanced network technologies and this is part of their competitive strategy. They say that their research and development activity is commercially sensitive information and competitors could work out who was working on what, where and when, based on the information requested. They say that industry competitors could use information about their research and development strategies for their own benefit.

Analysis and Findings on section 36

Section 36(1)(b)

I have examined the records and considered the parties’ submissions. I accept that disclosing the locations of the testing sites could in turn lead to identification of the licence-holders. I further accept that testing is part of the licence-holders’ research and development activity, which information would not otherwise be available and could be used by competitors, bearing in mind that disclosure under FOI is effectively disclosure to the world at large. I therefore consider that disclosing the records could prejudice the licence-holders’ competitive positions. I am satisfied that section 36(1)(b) applies to the information at issue.  

Section 36(2)

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) arise in this case.

Section 36(3)

Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. On one hand, section 36 itself recognises the public interest in protecting commercial sensitivity. In this case, I accept that there is a public interest in protecting the competitive positions of the licence-holders concerned, which also serves to encourage wireless testing in the State. On the other hand, I must consider whether there is a public interest in disclosing the specific content of these records.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”.

ComReg says that the information could not be useful to the applicant. Whether it is useful to the applicant does not determine if it is in the public interest to release it. In relation to weighing the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Furthermore, the High Court in F.P. v The Information Commissioner [2014 No. 114 MCA], which was subsequently upheld by the Court of Appeal, said that “the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances”.

As noted above, I am required to disregard the applicant's motives for seeking access to the record. Therefore, I can only take into account the purpose for which she seeks the information insofar as it reflects a true public interest factor in favour of release. The applicant says “my information request is for health reasons”. She says the public are entitled to know if they are exposed to radio frequency electromagnetic fields and gives details of her own personal health in explaining her request. I do not consider it necessary or appropriate to repeat those details here, but am satisfied that she has expressed, in essence, a private interest in releasing the information. I can appreciate the importance the applicant may attach to accessing this information. However, the above judgments make clear that in making this decision on the right of access under FOI, I cannot take into account the applicant’s private interests.

The records at issue disclose the testing sites of the licence-holders concerned. I find no relevant public interest in granting access to the specific content of this information which on balance outweighs the public interest in protecting its commercial sensitivity. I therefore consider that the public interest would be better served by refusing the request. I find that ComReg was justified in refusing access to the records under section 36(1)(b) of the FOI Act.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm ComReg’s decision to refuse access to the records under section 36(1)(b) of the FOI Act.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

                 

Deirdre McGoldrick

Senior Investigator