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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, for access to correspondence between the applicant and the Department relating to funding by the Department, in particular in relation to records considered to be commercially sensitive by the applicant.

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 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 13 January 2014 the original requester sought the following information from the Department

1. All letters, emails, notes of telephone conversations between the applicant and the Department relating to the applicant's request for funding for 2014 which was granted last month...
2. Copies of the quarterly reports submitted by the applicant in connection with the 2013 funding and copies of the Department's responses to the applicant and it's internal correspondence on the matter.

While processing the FOI request, the Department's decision maker identified a number of records which she thought may contain "commercially sensitive" information (section 27 of the FOI Act) in relation to the applicant and she 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 these 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 22 January 2014 the Department proceeded to notify the affected third party (the applicant) of her right to make a submission if she did not wish the records to be released.

On 10 February 2014, the applicant made a submission to the Department agreeing with the release of some records and identifying a number of records which she considered should not be released.

On 18 February the Department informed the applicant that it decided to part-grant the requester access to the records requested, following consultation with the applicant as an affected third party. In its decision the Department decided that some information should be redacted which it accepted to be commercially sensitive information or personal information.

On 24 February 2014, the applicant made an application to the Information Commissioner for a review of the Department's decision in relation to records numbered 15 and 17 in the schedule of documents released by the Department, which consist of consumer polls conducted by the applicant.

In carrying out my review, I have had regard to copies of records 15 and 17 (all records of relevance to the modified request were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Department and the applicant; to the original decision notification to the applicant regarding this FOI request; and in particular to submissions made by the applicant and the Department. I have also had regard to the relevant provisions of the FOI Act.

As the submissions of the applicant and the Department fundamentally differ, I have decided to conclude this review by way of a formal binding decision.

Scope of the Review

The scope of this review is concerned solely with the question of whether the Department was justified, under the provisions of the FOI Act, in its decision to grant access to the consumer polls information contained in records 15 and 17.

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.

Section 27(1)(b) of the FOI Act provides that a request shall be refused if it contains:
Financial, commercial, scientific, 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.

Section 27(3) qualifies this exemption by providing that a record to which 27(1) applies may be released if the public interest in its release outweighs the public interest in withholding it.

In conducting this review this Office invited submissions from both the Department and the applicant. The applicant was requested to outline to this Office how the records in question constitute commercial information; and, how disclosure of these records could reasonably be expected to cause loss to the applicant.

The Department in their submission to this Office of 14 April 2014 outlined that these consumer polls were commissioned as part of the work to be carried using a grant from the Department and so fall within the remit of the request. The Department outlined their view that:

Contrary to the view of the applicant that the outcome of the polls would form the basis for research, comparative analysis and PR purposes, the Decision Maker noted that the polls as carried out are not robust enough in terms of breadth or representative sampling to warrant either research or comparative analysis and could not see how they could be used for PR purposes.

The Department endorsed the decision maker's view that the references to consumer polls are not of a commercially sensitive nature and accordingly should be released. The Department further noted the significant public funding which the applicant has been in receipt of over the last number of years and the rules and guidelines recipients of such funding are expected to comply with. The Department concluded that certain commercially sensitive information and personal information such as membership numbers and personal phone numbers should be redacted from these records but that the remaining information relating to consumer polls contained in these records was not commercially sensitive and so should be released.

In her submission to this Office of 09 May 2014 the applicant considered that releasing the results of these polls will have a detrimental impact on the interests of her organisation. The applicant outlined her opinion that:

• Release of the records would disclose areas of policy that will be pursued by her organisation over the coming months which may diminish the overall effectiveness of their campaigns.
• Publicising these polls and results interferes with research that is currently being undertaken by the applicant throughout 2014. A current survey being completed is a follow up to the mobile phone poll of July/August.
• By publishing these polls now, the comparative analysis between polls and surveys will have less impact, resulting in lost opportunities for the applicant in PR and Media exposure, and will benefit well resourced commercially focussed third parties. This will result directly in a financial loss to the applicant as this currently is the most effective means that enables the applicant to recruit new members.
• The applicant believes that the benefit of the funding from the Department will be damaged and potentially eroded in terms of impact and value to the Consumers for whom it is intended to benefit.

It seems to me that the applicant's principal argument is that publication of the results of the polls now will lessen the impact of the intended publication of the results of a more detailed survey at a later date, resulting in lost opportunities for media exposure, and that this, in turn, will impact on the ability of the applicant's organisation to recruit new members thereby causing financial loss to that organisation. In previous decisions, this Office has explained its approach to interpreting the words "could...reasonably be expected to...." in the context of section 24 of the FOI Act. In determining whether access "could reasonably be expected to affect adversely" one of the interests outlined in section 24(1), this Office takes the view that there must be adequate grounds for any such expectation at the time the decision to refuse access is made. The mere possibility of some adverse effect is not sufficient. In my view, it is appropriate to adopt this approach in relation to section 27(1)(b), which provides for the refusal of a request where access "could reasonably be expected to" result in a material financial loss or gain to the person to whom the information relates.

In this case, while I accept that applicant has outlined a potential harm arising from the release of the records at issue, I am not satisfied that it is reasonable to expect that the release of the information at issue will result in the harm identified. In my view, the link between the premature release of the polls and the impact that release might have on the ability of the applicant's organisation to attract new members is, at best, tenuous. For this reason, I find that the records are not exempt under section 27(1)(b) of the FOI Act.

While, in these circumstances, it is not necessary for me to consider the public interest test at section 27(3) of the FOI Act, it is my view, that even if I had accepted that the information is commercially sensitive, that the public interest test would have required the release of these records. This is because, in my view, having examined the records, I consider the public interest in transparency surrounding the allocation and use of public funds to outweigh the public interest in ensuring that the potential harms identified by the applicant do not arise. Accordingly, I find that the Department was justified in its decision to release records 15 and 17, subject to the redaction of membership numbers and personal phone numbers, as outlined in its decision of 18 February to the applicant.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's decision to grant access to records 15 and 17.

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.

Sean Garvey
Senior Investigator