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Whether the Department was justified in its decision to refuse access to records, concerning the hosting of American Football events in Ireland, under various provisions of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 June 2013, the applicant made an FOI request to the Department for "all records which contain mention of, reference to, or concern the Irish American Football Association (the "IAFA") dating from 2009 to the present day." In its decision of 21 August 2013, the Department found that 15 records fell within the ambit of the request of which seven records should be released and eight records withheld. The applicant sought an internal review of the Department's decision. In its internal review decision, the Department considered that two of the refused records were outside the scope of the request. The Department upheld its decision in relation to the other six records originally refused. The applicant applied for a review of the Department's decision. In its submissions to this Office, the Department stated that, without further detail from the applicant it was not possible for it to comment on the applicant's claim that it had failed to disclose certain relevant records. The Department did disclose that after the internal review decision was taken, it had discovered two additional records (A and B) which were relevant to the applicant's request. The Department however claimed that these records were also exempt.
On 16 December 2014, Ms Mary Byrne, Investigator with this Office, wrote to the Department noting that 15 records were originally identified as relevant to this request. Records 1, 11, 12, 14, and 15 were made available to the applicant. Records 2, 3, 4, 6, 7, 8, 9 and 10 were duplicates of records currently under review in case 130271. The applicant agreed that the duplicated records could be excluded from this review. The records remaining in scope were parts of records 5 and 13 and records A and B. Ms Byrne asked the Department a number of questions in relation to these records and also in relation to specific records identified by the applicant as being omitted from the Department's schedule of records. Ms Byrne also raised further queries with the Department in relation to the existence of records concerning an application by the IAFA to the Department under the 2012 Capital Grant Scheme.
On 29 January 2015, the Department confirmed that it had no difficulty with the release in full of records 5 and 13. However, it was not prepared to release records A and B. The Department also provided submissions in relation to the searches it had carried out to locate the records identified by the applicant. This Office wrote to the third party whom the Department had identified as being potentially affected by release of records A and B. The third party confirmed its objection to the release of these records. The Investigator notified the applicant of the steps the Department said it had taken to search for any additional records held. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.
In conducting my review, I have had regard to the above correspondence and also to the submissions of the applicant, the third party and the Department. I have also had regard to the contents of the records at issue, copies of which were provided to this Office for the purposes of this review. Finally, I have had regard to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
Scope of the review
This decision is concerned with whether section 10(1)(a) of the FOI Act applies to certain records sought by the applicant. This decision is also concerned with whether the Department was justified in refusing to release records A and B on the basis that sections 27(1)(b), 31(1)(a), 31(1)(c), 31(2)(k), and 31(2)(n) of the FOI Act apply to these records.

Analysis and Findings

At the outset, it is relevant to note a number of preliminary matters.

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

The release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of Mr. Justice O'Caoimh in Minister for Education and Science v Information Commissioner [2001] IEHC 116. Furthermore section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).

Finally, I wish to make clear that it is not this Office's function to adjudicate on the merits of the issues in the records or to comment on the Department's handling of these matters.

Section 10(1)(a)
In cases such as this, where an applicant claims that relevant records are held by a public body which have not been released, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on this Office's website at www.oic.ie).

The applicant provided lists of emails which he claimed were omitted from the Department's schedule of records. One of these emails was sent by the applicant to "DM" who is an official of the Department, two of the emails were sent by "MS", (an official of IAFA) to DM. The other emails were sent by DM to either the IAFA or the Irish Sports Council. This Office asked the Department to account for these records. In response, the Department provided details of its records management practices in relation to emails and of its searches. The applicant has been provided with these details by the Investigator. I do not propose to repeat them here. The Investigator also told the applicant that some emails corresponded with records already dealt with in this review or under a previous FOI request (FO1 2013/0031 and review number 130271). The Department found one email dated 13th June 2012 which falls within the scope of the review and as it has not argued that it is exempt, I direct that it be released.
One of the applicant's concerns was that records existed which were not released concerning the IAFA's application under the 2012 Capital Grant Scheme. The Investigator's email of 11 March 2015 explained to the applicant the position regarding records already released by the Department that he had identified in relation to the IAFA's application. It also explained the position concerning other records of the funding process, some of which do not refer to the IAFA and, are therefore, outside the scope of this review. I accept the Investigator's view that, having regard to all the circumstances and the information produced by the Department in response to numerous queries from this Office, reasonable searches have been carried out. I find that the Department has justified its reliance on section 10(1)(a) in the circumstances of this case.
Records A and B
As stated above, the Department located two additional relevant records after its internal review decision. Record A is an email of 4 June 2013; record B is an email of 10 June 2013. Both emails are sent from the same American Football promoter to officials within the Department. Both emails concern the IAFA. The Department refused to release these records on the basis that they were exempt under sections 27(1)(b), 31(1)(a), 31(1)(c), 31(2)(k), and 31(2)(n) of the FOI Act.
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.

In its submissions to this Office, the Department stated that the third party is the owner and operator of a company which organises competitive events for young American Football athletes worldwide. According to the Department, release of information, which concerns the third party's experience of dealing with the organisation of games in Ireland, could influence future clients of the company and so harm any future plans which the company might have in attracting further college games to Ireland.

The third party outlined his views in relation to the release of these records in an email dated 30 January 2015. He stated that he runs a small business and believes that these emails are "personal" and "private" communications which should not be released.

The first harm test provided for under section 27(1)(b) exempts the disclosure of records whose disclosure "could reasonably be expected to" result in a material financial loss or gain to the person to whom the information relates. This test is not concerned with probabilities or possibilities, but rather the question of whether or not the decision maker's expectation is reasonable. The second harm test provided for under section 27(1)(b) exempts records the disclosure of which "could prejudice" the competitive position of the person to whom the information relates, in the conduct of his or her profession or business. The standard of proof required i.e. "could prejudice" is lower than that required under the "could reasonably be expected" test. In case 98144 (Eircom Plc and Henry and the Department of Agriculture and Food available on www.oic.ie), the former Commissioner said:-

"It seems to me that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so..."

Thus, the standard of proof in relation to section 27(1)(b) is not a particularly onerous one. I accept that the third party's business relies to a certain extent on American teams travelling to Ireland. For the purposes of this review, I also accept that if American teams were less inclined to visit Ireland this could prejudice the competitive position of the third party. I consider that section 27(1)(b) applies to records A and B.

Section 27(2) goes on to set out five specific sets of circumstances in which section 27(1) will not apply, none of which appear to me to be relevant to this case.

The Public Interest

Section 27(3) provides that the exemption contained at 27(1) will be subject to a public interest test, in the following terms:-

"... subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

The Department said that the public interest would not be better served by the release of these records. The applicant's position is that there is a public interest in shedding light on the Department's processes.

There is a public interest in ensuring openness, transparency and accountability in how public bodies perform their functions and in ensuring the right to exercise one's entitlements under the FOI Act. In this case, I must balance those considerations against the public interest in businesses being able to protect their competitive position and not being unduly disadvantaged through the release of contacts they had with the Department. In this case, I consider that any disadvantage would not be particularly significant having regard to the content of the records and the purpose for which they appear to have been submitted to the Department. Having carefully considered the matter, including the views of the third party, I am satisfied, on balance, that the Department has not demonstrated that the public interest would be better served by a refusal to release the records in question than by their release.

Sections 31(1)(a), 31(1)(c), 31(2)(k), and 31(2)(n)
The Department claims that sections 31(1)(a), 31(1)(c), 31(2)(k), and 31(2)(n) apply to records A and B. These sections of the FOI Act provide as follows:

Section 31(1)

"A head may refuse to grant a request under section 7 in relation to a record (and in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if in the opinion of the head"-

(a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy.

(c) access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or a class of persons.

Section 31(2)

"This subsection applies to records in relation to"
...
(k) industrial development in the state
(n) information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body in relation to activities carried on by it on a commercial basis.

Section 31(1) does not apply, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 31(3) refers).

The onus is on the Department to identify any potential serious adverse effect on the financial interests of the state. In its submission, the Department argued that the release of records A and B would draw attention to alleged difficulties and thus make it more difficult for the Department and the tourism agencies which operate under it aegis to sell Ireland as a destination in a situation where it is competing with other countries. The Department also submitted that it is important to consider the economic value of these events. It said that, for example, the Notre Dame v Navy match saw 35,000 U.S. visitors visit Dublin. Reports have estimated that this one game generated an estimated boost of €100 million to the economy as a whole including €25 million in tax revenue. The Department submitted that, given the value of such events to the Exchequer as a whole and the value of such events to individual hoteliers and others involved in the tourism trade, the records fall to be considered under sections 31(1)(a) and 31(1)(c) of the FOI Act. The Department also considered that the records meet the description provided for in section's 31(2)(k) and (n). Finally, the Department submitted that there is no public interest by releasing records that could lead to loss of tourism earnings for the State, the loss of bed nights and other tourism expenditure to hotels and shops and businesses and thus impacting on support for badly needed jobs in the economy.

Records A and B clearly do not relate to industrial development in the state as envisaged by section 31(2)(k). Neither can I see how their disclosure could reasonably be expected to affect adversely the competitive position of a public body in circumstances where the Department is not competing for business. Even if a record does not fall into any of the classes at section 31(2), it could still be exempted under section 31(1); it is therefore necessary to consider sections 31(1)(a) and 31(1)(c) in relation to the records in their own right having regard to the Department's arguments and section 34(12) which places the burden of proof on the public body. I accept that the Notre Dame v Navy game generated a boost to the economy. There were clearly issues between the Navy and the applicant's organisation. Despite publicity about these issues, another high profile game took place in 2014 which also generated a boost to the economy. It is hard to see how release of records A and B could reasonably be expected to have a serious adverse affect on the financial interests of the State, or on the ability of the Government to manage the national economy or could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I do not accept that, having regard to their content and the apparent purpose of their submission to the Department, the release of the records could reasonably be expected to have anything like the affects feared by the Department. A fear of adverse publicity is not, in itself, sufficient to engage this exemption. I find that the Department has not justified its refusal of the records at issue on the basis of section 31(1)(a), 31(1)(c), 31(2)(k), and 31(2)(n) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department. I direct that the Department release the email dated 13 June 2012 and I direct that records A and B also be released.

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.

Elizabeth Dolan
Senior Investigator