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Whether the decision of the Department to which section 38 of the FOI Act applied, to grant access to records relating to the capture and release locations of hares was justified

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review arises from a decision made by the Department to grant access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the public body has decided that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - 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 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

On 9 February 2015 the Department received a request from the original requester under the FOI Act for access to records concerning hare coursing meetings in Ireland, to include information about returns to the Department detailing the capture and release of hares. The Department's decision maker formed the opinion that sections 35 and 36 of the FOI Act applied to some of the records coming within the scope of the request, as their release could potentially disclose confidential, or commercially sensitive information relating to a third party. The decision maker concluded however, that the request was one to which section 38 of the FOI Act applied and undertook a process of formal consultation with the applicant in this review, on the basis that the Department was considering whether the records should be released in the public interest.
In his response to the Department, the applicant opposed release and stated that he considered information in the records to be commercially sensitive: The applicant did not comment on the Department's position insofar as it related to the provisions of section 35. The Department issued a decision on 8 June 2015 and informed the applicant that it had decided to grant access to the records, including those details which related to the locations of where hares were captured and released. On 11 June 2015, this Office received an application from the applicant for a review of the Department's decision.
I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the applicant's application to this Office and to correspondence between the applicant and the Department. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. The original requester was notified of the review but did not make a submission.

Scope of the Review

The scope of this review is confined to whether the Department was justified in its decision to release those parts of the records about which the Department notified the applicant of its intention to release. Specifically, I must consider whether the records are exempt from release pursuant to section 36 of the FOI Act on the basis that they contain information that is commercially sensitive concerning the applicant and, if so, whether the public interest would be better served by release of that information.

Analysis and Findings

The Department decided to release the records in the public interest, in accordance with the provisions of section 38 of the FOI Act. In this regard, section 22(12)(a) of the FOI Act provides that a decision to grant a request to which section 38 of the Act applies is presumed to have been justified unless the person appealing that decision shows to the satisfaction of the Commissioner that it was not justified. It is not clear whether the applicant is seeking to rely on one or more of the provisions within section 36(1), in arguing against release. Neither did the Department indicate the basis for its view that the information in the records was commercially sensitive. Therefore, I have decided to consider all the provisions within that section in this review.

Section 36 - Commercially sensitive information
Section 36(1) provides that

Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains-

(a) trade secrets of a person other than the requester concerned,

(b) 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, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
Section 36(2) provides for various circumstances in which commercially sensitive records may be granted.

Section 36(3) provides that

Subject to section 38, 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 FOI request.

Section 36(1)(a)
Having reviewed the records in question, I am satisfied that they do not contain any information which would be considered the trade secrets of any person. The applicant did not provide any evidence or details of how this exemption might apply. In the circumstances, I find that section 36(1)(a) does not apply.

Section 36(1)(b)
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. For the exemption at section 36(1)(b) to apply, the only requirement that has to be met is that disclosure could reasonably be expected to result in financial loss or could prejudice the competitive position of the person concerned.

The applicant referred specifically to the commercial sensitivity of the information in the records at issue and stated that granting access to the information could lead to individuals seeking to identify local hare populations for the purpose of illegal hunting and "seek[ing] monetary gain from such information". However, the applicant did not explain how such an activity could reasonably be expected to result in a material financial loss to, or prejudice the competitive position of, the applicant, or those he represents. While the applicant may well have legitimate concerns about alleged illegal activity, the Commissioner's jurisdiction in this review is confined to considering the application of the exemption claimed.

Having examined the records, I am not satisfied that the release of the information could cause the type of harm envisaged in the exemption to the applicant or his organisation in relation to their profession or business. Accordingly, having considered the points raised by the applicant, I find that section 36(1)(b) does not apply.

Section 36(1)(c)
The applicant has not identified any contractual or other negotiations which could be prejudiced by the release of the records at issue. I find, therefore, that section 36(1)(c) does not apply.

I am satisfied that subsection 36(2) does not apply in this case.

I find that section 36(1) of the FOI Act does not apply to the records at issue. Consequently, it is not necessary for me to consider the public interest test at subsection 36(3) in relation to this exemption.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to release the records the subject of this review.

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 four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator