Whether the IDA was justified in refusing access, under sections 35, 36, and 40(1)(c) of the FOI Act, to a record containing a list of companies in respect of which Connect-Ireland Initiative Ltd received a fee for employment creation under the Succeed in Ireland initiative, and the number of new jobs associated with each of those companies

5 July 2023

Background

TheSucceed in Ireland initiativewas launched in 2012 by the Government, aiming to create 5,000 new jobs by targeting international companies who would not otherwise be reached by the State enterprise agencies. The initiative was managed by the IDA who entered into a contract with Connect Ireland to promote and deliver the initiative. The initiative ran from March 2012 to March 2017.

In a request dated 20 April 2022, the applicant sought access to:

1. A list of all payments made to Connect-Ireland Initiative Ltd from 26 November 2011 to 20 April 2022 under the Succeed in Ireland initiative;
2. A list of all companies in respect of which Connect-Ireland Initiative Ltd received a fee for employment creation under the Succeed in Ireland initiative and the number of new jobs associated with each of those companies;
3. A copy of any contract(s) between Connect-Ireland Initiative Ltd and the IDA pertaining to the Succeed in Ireland initiative

In a decision dated 19 May 2022, the IDA part-granted the request. It released a list of payments made to Connect Ireland in response to part 1 of the request. It refused parts 2 and 3 under sections 35 and 36 of the FOI Act. On 7 June 2022, the applicant sought an internal review of the IDA-�s decision. On 29 June 2022, the IDA varied its original decision. It affirmed its decision to refuse access, under section 35(1), to the list of companies in respect of which Connect Ireland received a fee for employment creation and the number of new jobs associated with each of those companies. However, it released, with some redactions, three records it deemed relevant to part 3 of the request. On 8 August 2022, the applicant applied to this Office for a review of the IDA-�s decision to refuse to release the record relevant to part 2 of the request.

During the course of the review, the IDA said that it also wished to rely on sections 36 and 40(1)(c) as a basis for refusing to release the record at issue. Connect Ireland was notified of the review and was given an opportunity to make a submission, as were the companies named in the record for which current contact details were provided by the IDA, or where such contact details were readily available online.

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 correspondence described above, to the responses received from the companies consulted, to the submissions made by the IDA, and to the applicant-�s comments made in the course of the review. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned whether the IDA was justified in refusing access, under sections 35(1), 36(1) and 40(1)(c) of the FOI Act, to a list of companies in respect of which Connect Ireland received a fee for employment creation and the number of new jobs associated with each of those companies.

Preliminary Matters                                                                                                         

Before I address the substantive issues arising, I wish to make a number of preliminary comments. First, it is regrettable that this review took longer than expected. However, the delay arose primarily because we considered it necessary to consult with the companies named in the record at issue and Connect Ireland and to give them an opportunity to make submissions. The practicalities of this proved challenging. The IDA provided contact email addresses for the companies for which they had up-to-date details. Some of the companies appeared to be no longer operational in Ireland, or at all. We sourced generic email addresses for some companies online. When the emails were issued, some of them returned undelivered. For those that generated automated responses with an alternative email address, the email was then sent to that alternative email address. Ultimately, responses were received from just a small number of companies, which will be discussed in the analysis section below. In the circumstances of the case, I am satisfied that reasonable efforts were made to notify the companies named in the record and which may be affected by this decision.

Secondly, a review by this Office is considered to be -�de novo-�, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the IDA initially reached its decision. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of the additional exemptions cited, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the record at issue at internal review stage.

Finally, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. Therefore in this case, the onus is on the IDA to satisfy this Office that its decision to refuse to grant access to the record at issue was justified.

Analysis and Findings

The record

In its submissions to this Office, the IDA described the record at issue as comprising -�a list of companies and the respective amount of jobs created by each under the Succeed in Ireland initiative-�.  The record is headed -�Mar 2012 -� Mar 2022-� and contains a table with two columns; a list of companies under the column label -�Company-�, and an associated number for each company under the column label -�No of Jobs paid-�. During the review we sought to clarify if our understanding of the nature of the record at issue was correct, i.e. that the record comprises a list of companies and the associated numbers of jobs for which the IDA paid a fee to Connect Ireland under the Succeed in Ireland initiative. The IDA did not dispute that description of the record.

Third party Submissions

Connect Ireland confirmed to this Office that it did not object to the release of the record. The challenges of consulting with the companies named in the record have already been outlined above. Of those companies for which we had a working email address and we managed to notify, we received responses, either by phone or by email, from just five. Despite the fact that we provided the companies with a detailed explanation of the relevant issues, there appeared to be some confusion with a small number of companies, responding that they held no records relevant to the request or querying why they were being asked for records when they themselves were not a public body and not subject to the FOI Act. No substantive submissions were made or arguments put forward in relation to the exemptions of relevance to the companies, namely sections 35 and 36. Ultimately, only one company stated that it objected to the record at issue being released, on the basis that it didn-�t want its company name included in a negative press article that could potentially damage its company image or brand.

Section 35: Information obtained in confidence

Section 35 of the Act provides as follows:

-�(1) Subject to this section, a head shall refuse to grant an FOI request if-�

1. the record concerned contains information given to an FOI 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
2. 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) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions 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 an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.-�

As subsection (2) provides that subsection (1) does not apply to certain records prepared by an FOI body or its staff, and as the record at issue in this case was prepared by IDA staff, I deem it appropriate to consider the applicability of section 35(2) at the outset. In its submissions, the IDA confirmed that the record was created by IDA staff in the course of the performance of their functions. It also said it accepted that Connect Ireland was a service provider for the purposes of the FOI Act. Accordingly, for section 35(1) to apply, subsection (2) requires that the release of the record 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 personother thanan FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. It is the IDA-�s position that such a duty of confidence, provided for -�otherwise by law-�, is owed to the companies listed in the record.

A duty of confidence provided for -�otherwise by law-� is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 IR 338, Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

-�[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Fennelly J. summarised or restated the requirements of what he called -�the contours-� of the equitable doctrine of confidence as follows:

1. -�the information must in fact be confidential or secret: it must ... -�have the necessary quality of confidence about it-�;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.-�

I have adopted this approach in considering whether the disclosure of the record at issue in this case would constitute a breach of an equitable duty of confidence owed to the various companies referenced in the record.

The applicant-�s submissions

In its request for internal review, the applicant argued that section 35 did not apply to the record in question as it was not confidential, and had been heavily publicised by Connect Ireland. It provided a link to the press release section of the Connect Ireland website. It also argued that the public interest in publishing details of companies in respect of which Connect Ireland has received significant taxpayer funds far outweighs any perceived confidentiality concerns under section 35.

The IDA-�s submissions

The IDA said that in order to generate the record, it was in direct contact with the relevant companies in order to validate the payments made to the -�connectors-� (the individuals who linked the hiring companies with the then prospective employees) under the Succeed in Ireland Initiative. It said that in engaging with the IDA in this manner, the companies provided it with confidential and commercially sensitive information with respect to their employees and employment practices. It said there is an implied obligation of confidence between the IDA and all third parties it deals with. It said many of the relevant companies only provided this information to it on the express understanding that it would not be circulated by the IDA. It also said that some of the information in relation to companies listed in Record 2 who are also IDA client companies was initially gathered via the IDA Ireland Employment Survey. It said the IDA Ireland Employment Survey is accompanied by an invitation letter which includes an express undertaking that the IDA will treat the completed survey form with the utmost confidentiality.

On the matter of whether the information at issue has the necessary quality of confidence about it, the IDA argued that it does as, notwithstanding the applicant-�s references to press releases on the Connect Ireland website which provided regular updates about named companies and their creation of new jobs in Ireland, including the number of such jobs,

the IDA said it is not, as a whole, in the public domain. It said it has never published the list in the record at issue and that it did not verify the information published on the Connect Ireland website. Furthermore, it said that the information published on the Connect Ireland website does not correspond with the information held by IDA Ireland, which, it said, further emphasises that the information retains its confidentiality. Finally, the IDA said that even if some elements of the information are in the public domain, which it did not accept, this does not mean that all of the information is public. It referred toUnderwater Welders & Repairers Ltd v Longthorne[1967] F.S.R 194 in support of this argument.

As regards the second part of the test, the IDA, again referring to the measures taken in order to generate the record, said the information was imparted in circumstances imposing an obligation of confidence. It said the amount of employment created by the companies as a result of the Succeed in Ireland Initiative, as listed in the record, is not in the public domain. It said it is well known in the market that the IDA takes great care to protect the confidentiality of information which it develops or receives from third parties and that there is a clear expectation on the part of the organisations it deals with that any such information is treated in confidence by the IDA.

In relation to the third part of the test, the IDA said that the disclosure of the information in and of itself would constitute unauthorised use to the detriment of the parties involved. It said the disclosure of the information goes beyond what is permitted having regard to the scope of the obligation of confidence. It noted that this Office has previously accepted that the release of information without consent is enough for detriment to arise.

My analysis

In order to establish that an equitable duty of confidence exists, it should first be shown that the information has the necessary quality of confidence about it. Factors relevant for consideration in this regard include, for example, whether the information is confidential or secret or concerns private matters.

I have carefully considered the IDA-�s arguments. For the reasons set out below, I do not accept that the information in the record at issue has the -�necessary quality of confidence-� about it. Its disclosure would disclose the identities of certain companies and the associated numbers of jobs for which the IDA paid a fee to Connect Ireland under the Succeed in Ireland initiative at an unspecified date at some point between 2012 and 2017.

On the matter of the availability of similar information, it seems to me that the IDA-�s argument that the information at issue has the necessary quality of confidence about it is based on its argument that the precise information in the record is not in the public domain. In support of that argument, it cited the following extract from referencedUnderwater Welders & Repairers Ltd v Longthorne[1967] F.S.R 194

-�The fact that all the individual units of equipment that are employed in a particular operation may be articles that can be obtained in the general market and the fact that systems are well known to those concerned in whatever sort of activity is involved, does not mean that there cannot be some degree of confidentiality about the way in which they are used to achieve a particular result. The fact, if it be the fact, as Mr. Street says is the case, that all the several components which make up the Gardella equipment, or equivalents of them, can be freely obtained on the market is not inconsistent with the view that there may nevertheless be something in the process employed by Gardella and by the plaintiff companies, as their licensees, which incorporates something of a confidential nature which, if disclosed to competitors of the plaintiff companies, would severely damage the value of the plaintiffs' business, and Mr. Street seems to have taken the view that when international Paints Limited set up their underwater cleaning division the likelihood would be that they would take away many customers from the plaintiff companies.-�

I consider the circumstances of this case to be distinguishable from the information at issue in case referenced by the IDA. The case referenced supports a principle that information can retain a quality of confidence notwithstanding the fact that some of the information or similar might be publicly available. Such a principle is often referred to as a mosaic effect. In other words, information that might, when considered in isolation, be regarded as trite or publicly available may, when combined with other seemingly trite or publicly available information, result in information that has the necessary quality of confidence about it. No such issues arise in this case. The fact that the record at issue may display a different number for a named company than the number previously published by Connect Ireland does not, of itself, mean that the number in the record at issue is confidential.

While I accept the IDA-�s statement that the information on the Connect Ireland website does not correspond with its own figures, the fact remains that Connect Ireland previously regularly published the identities of companies and the number of jobs created under the Succeed in Ireland initiative. I consider that the information at issue is of a type that cannot reasonably be described as secret or private in circumstances where such information was regularly made publicly available, through Connect Ireland, a company that was operating under a contract for services for the IDA.  I accept that the Connect Ireland website appears to be no longer available, but it remained online at the beginning of this investigation and contained press releases providing regular such updates. 

It is also relevant, in my view, that none of the companies we consulted with expressed concerns about any information in the record it may have provided to the IDA being made public or that the release of the information would be to its detriment. Only one company objected to the release of the record which was on the basis of a generalised concern about its company name being mentioned in potentially negative media coverage, rather than any specific concerns about the information in the record.

In the circumstances, I find that the information in the record does not have the necessary quality of confidence about it. This finding, of itself, is sufficient, for the IDA-�s claim that the release of the record would constitute a breach of an equitable duty of confidence to fail.

While it is not necessary for me to do so, I would add that it is also unclear to me how the IDA could reasonably claim that the names of the companies as contained in the record were communicated by the companies in circumstances which impose an obligation of confidence on the IDA. It seems to me that the details of the companies in respect of whom payments were sought by Connect Ireland were provided to the IDA by Connect Ireland and not by the companies. I note that the IDA drew attention to two previous decisions of this Office (140057and150419) where the names of companies were found to be exempt from release under section 35 and the equivalent provision of the FOI Acts 1997 & 2003. Both cases, which were related, were concerned with the question of access to records relating to confidential discussions the Department of Finance had with certain companies in relation to international tax matters. I am satisfied, therefore, that both cases are entirely distinguishable from this case.

In conclusion, as I am not satisfied that the information in the record has the necessary quality of confidence about it, I find that the IDA has not satisfactorily shown that the release of the record would constitute a breach of an equitable duty of confidence owed to the companies listed in the record. I find, therefore, that section 35(1) cannot apply in this case by virtue of the exclusion in section 35(2).

While it has no bearing on my findings in this case, I also note the IDA-�s argument that -�there is an implied obligation of confidence between IDA Ireland and all third parties it deals with-�. I must say I am quite surprised at the broad nature of this assertion given that the IDA is subject to the provisions of the FOI Act and has been for many years. The IDA is no doubt aware that it would be wholly inappropriate to seek to provide a blanket protection under section 35 for all records of it engagements with third parties, regardless of the nature of the records and/or their contents. Section 35 requires the FOI body to have regard to the contents of each record sought.

Section 36: Commercially sensitive information

The IDA said that it also considered the record to be exempt from release under section 36(1)(b) of the FOI Act. Section 36(1)(b) provides for the mandatory refusal of a 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 subsection (1)(b) is whether disclosure of the information -�could reasonably be expected to result in material financial 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 nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

The harm test in the second part of subsection (1)(b) is whether disclosure of the information -�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 standard of proof necessary to meet this test, namely -�could prejudice-�, is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the standard of proof to meet this test is reasonably low, this Office nonetheless takes the view that, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

The IDA argued that the release of the record at issue could prejudice the competitive position of the organisations listed in the record in the conduct of their business by revealing the quantity of their workforce which was recruited as a result of the Succeed in Ireland Initiative which, it argued, may have a material impact on negotiations with existing employees and new employees that they wish to hire. However, it did not explain why it considered the such release could cause the harm identified, nor is it apparent to me how the release of the numbers of jobs created as a result of an initiative which concluded in 2017, might cause that harm.

The IDA also argued that the release of the record could be expected to result in material financial loss or gain to the IDA in the context of negotiations to attract foreign direct investment into Ireland. It said that making this information publicly available would give competitors in other countries an insight into the State-�s position and strategy in this area, potentially reducing the State-�s competitiveness for new business and expansions. It said that this would threaten the State-�s competitive position vis-à-vis other countries who are seeking inward investment and could result in a material financial loss to the economy of the State.

Again, the IDA did not explain how it envisaged such harms occurring. In my view, the release of the record would not give competitors any additional insight into the State-�s position or strategy in attracting inward investment in circumstances where the initiative to which it relates was launched publicly by the Government, where the record simply lists companies and numbers of jobs created (and no further detail as to the approach taken to secure these jobs in Ireland), where the initiative ended more than 6 years ago, and where the service provider that was given the contract for delivering on the initiative had, until recently, a website providing regular updates on the jobs created under the initiative.

Having carefully examined the IDA-�s arguments, it seems to me that they amount to little more than an assertion that the release of the records could give rise to certain harms identified in section 36(1)(b). It has not, in my view, explained how such harms could arise and having carefully examined the record, it is not evident to me how they could. I find that section 36(1)(b) does not apply.

Section 40: Financial and economic interests of the State

The IDA claimed that the record was also exempt under section 40(1)(c). That section provides for the refusal of a request where the FOI body considers that access to the record could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states. Section 40(2) sets out a list of the types of records to which section 40(1) may apply. An FOI body may invoke section 40(2) only in conjunction with section 40(1). Thus, the relevant requirements of section 40(1) must still be met.

Where a body seeks to rely on section 40(1), it should identify the potential harm specified in the relevant paragraph of subsection (1) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 40(1) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

In its submissions, the IDA said the record relates to industrial development in the State (section 40(2)(k) refers). It said that release of the record was likely to have a negative impact on decisions by enterprises to invest or expand in the State, where such foreign enterprises could be subjected to having confidential information disclosed to the world at large. It said that in order for it to meaningfully compete with other jurisdictions to attract foreign direct investment, it must be able to protect confidential information and to deal on a confidential basis with foreign enterprises in order to promote the industrial development strategy of the State adequately.

I accept that section 40(2)(k) applies to the record, but the relevant requirements of section 40(1)(c) must also be met in order for the IDA to justify its decision. The essential thrust of the IDA-�s argument is that enterprises would be less likely to invest or expand in the State if they might be subjected to having their confidential information disclosed to the world at large. This argument is based on the proposition that enterprises might regard the release of the information at issue in this case as confidential. I do not accept that proposition. As I have already outlined above in respect of the applicability of section 35, I do not accept that the information in the record has the necessary quality of confidence about it or that release would involve a breach of a duty of confidence owed to the companies in question. The IDA has not, in my view, satisfactorily shown that the release of the identities of certain companies and the associated numbers of jobs for which the IDA paid a fee to Connect Ireland under an initiative, details of which were publicly available and which concluded over six years ago, could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State. I find that section 40(1)(c) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the IDA-�s decision. I find that it has not justified, under sections 35(1), 36(1) or 40(1), its refusal to release the record at issue, and I direct its release.

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.
 

Stephen Rafferty
Senior Investigator