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Case Number: 160331

Whether the Department's refusal of access to records relating to a report of a statutory examination of the Irish Aviation Authority is justified under sections 30(1) and 35(1) of the FOI Act

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

Background

On 26 April 2016 the applicant made an FOI request on behalf of the Irish Air Line Pilots' Association (IALPA) to the Department for the report(s) relating to a recent examination of the Irish Aviation Authority (IAA) under section 32 of the Irish Aviation Authority Act 1993 (the 1993 IAA Act). By letter dated 1 June 2016, the Department refused access to the records, on the basis that they were exempt from release under sections 30(1)(a) and 35(1)(a) of the FOI Act. On 16 June 2016, the applicant applied for an internal review. By letter dated 13 July 2016, the Department issued its internal review decision, in which it affirmed the original decision under s30(1)(a) and s35(1)(a). The applicant applied to this Office for a review of the Department's decision on 10 August 2016.

In conducting this review I have had regard to the Department's decision; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Department, the applicant, the consultants who prepared the report, and the IAA; the content of the withheld records, provided to this Office by the Department for the purposes of this review and to the provisions of the FOI Act.

Scope of the Review

The question for this review is whether the Department is justified under sections 30(1)(a) and 35(1)(a) of the FOI Act in withholding access to record 1 (a report of a statutory examination of the IAA prepared by consultants) and record 2 (a letter from the consultants to the Department advising on future such examinations, which the Department deemed to come within the records requested).

I should mention that in correspondence with this Office, the Department provided an annotated version of record 1 which distinguished between information marked "factual" and information marked "refuse". However, it did not propose to release any of the information and therefore the scope of my review covers all of records 1 and 2.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.
Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner[2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Finally, 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.

Analysis and Findings

During the review, this Office obtained submissions from both the IAA and the consultants engaged by the Department to carry out the report, in addition to submissions from the applicant and the Department. I will refer to these submissions below.

Section 41 - Enactments relating to non-disclosure of records

Section 41(1)(a) of the FOI Act provides for the mandatory refusal of access to records where disclosing them is prohibited by EU law or any enactment (other than certain enactments named in schedules to the FOI Act). The Department does not expressly claim section 41. Nonetheless, having regard to the substance of its submissions and those of the IAA, I believe that it is necessary to consider the applicability of this provision.

During the review, the Department made submissions in which it referred to section 35 of the 1993 IAA Act. The Department says that should any member of the IAA voluntarily or otherwise provide confidential information to a body such as the consultants who prepared the report and the report is published, it is considered that those individuals are in breach of section 35. If the Department is claiming that disclosing the records is prohibited by the 1993 IAA Act for the purposes of section 41(1)(a), I note that Schedule 3 to the FOI Act expressly excludes section 35 of the 1993 IAA Act from the application of section 41 of the FOI Act. Accordingly, I will take this submission into account only insofar as it may relate to the Department's argument on confidentiality under section 35 of the FOI Act, which I deal with below.

The Department also said that "a breach of confidentiality through publication could most certainly be considered as an infringement of EU regulations". It referred to Articles 4 and 5 of Regulation (EU) No 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation etc. (EU Regulation). The EU regulation requires EU member states to establish procedures for mandatory and voluntary reporting of occurrences relating to aviation safety. The IAA also referred to the EU Regulation in its submissions. The applicant submits that the section 32 examination of the IAA does not fall within the scope of the EU Regulation.

When questioned by this Office, both the Department and the IAA agreed that the 1993 IAA Act was a separate legal régime to the EU Regulation. In that regard, I would note that although the Department alludes to "overlaps" between the requirements under the 1993 Act and the EU Regulation, it does not demonstrate how disclosing the records would be prohibited by the requirements of the EU Regulation itself. Indeed, the Department states that it is not its position that the section 32 report was a report under the EU Regulation. All of the parties' submissions and the content of the records make clear that the report was prepared pursuant to section 32 of the 1993 Act, rather than EU law. The Department has not pointed me to any other prohibition in any enactment which would engage the section 41 exemption.

Having regard to the above, to the extent that the Department purports to argue that disclosing the records would breach domestic or EU law for the purposes of section 41, I take the view that it has not discharged the burden of proof under section 22(12)(b) in this respect. I find that the Department is not justified in refusing access to the records under section 41 of the FOI Act.

Section 30(1)(a) - Functions and negotiations of FOI bodies

The Department invokes this exemption in respect of both records under review.

Section 30 of the FOI Act provides, among other things, that:

"(1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,

...

(2) Subsection (1) shall 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 concerned."

When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The FOI body must show that there are adequate grounds for its expectation. It should identify the potential harm or prejudice to the relevant test, examination etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc. It should then go on to consider the public interest test under section 30(2).

Submissions

The Department submits that the statutory examination process involved confidential interviews with individual stakeholders, who might be reluctant to furnish similar information if the information is released. It says that given the small size of the civil aviation industry in Ireland, the source of many comments in the report would be obvious to people in the industry. It submits that such reports rely on access to information supplied voluntarily on a confidential basis. In relation to the public interest, the Department submits that the process is tasked with ensuring that Ireland has a safe and reliable civil aviation system and the public interest would not be served by any diminution in the quality of future reports. It concludes that the executive summary of the report provides a good summary of the findings, while at the same time respecting its confidentiality. Finally, it submits that a redacted version of the report could result in an unbalanced and possibly misleading version of the report.

The applicant says that the IALPA and other stakeholders participated in the examination process under section 32 of the 1993 Act. He submits that both the travelling public and pilots operating aircrafts and regulated by the IAA are entitled to be aware of any deficiencies in the performance of the IAA. It says that redaction could remedy any legitimate concerns of the Department. Towards the end of this review, the applicant queried how stakeholders could make an informed contribution to a recent consultation process on section 32 reports given that the Department has refused access to record 1. As mentioned above, subject to the provisions of the FOI Act, I must disregard the reasons for the applicant's request and therefore I do not propose to consider this last point further, except insofar as it might be construed as a public interest argument.

Analysis & Finding

The relevant function in this case is the statutory examination into the IAA, which was conducted by consultants. In assessing whether this is a "function" for the purposes of section 30(1)(a) of the FOI Act, I have considered section 32 of the 1993 Act. Section 32(3) of that Act requires the Minister of the Department to appoint a person to carry out an examination of the performance of the IAA's functions and report the results of that examination to the Minister. Therefore, while the IAA itself is an exempt agency under the FOI Act, this examination is carried out "on behalf of" the Department, which is an FOI body. I therefore accept that this is a function for the purposes of section 30(1)(a), in that it involves an examination on behalf of the Department. I further accept that section 30(1)(a) is not aimed solely at investigations now in progress but may also cover similar exercises to be conducted in the future.

The harm which the Department identifies relates to the possible identification of the participants, which it says could hamper future examinations.

Record 1 (report)

Record 1 contains much factual and background information, in addition to the consultants' analysis. Without revealing its detailed content, it is fair to say that the report includes discussion of organisational structures, regulation, compliance with domestic and international standards, processes, operations etc. in the context of strengths and weaknesses and possible improvements identified. The factual and background information does not consist of participants' feedback and therefore, in respect of much of the report, I am not satisfied that the harm which the Department alleges could reasonably be expected to occur.

The report itself states that "specific information gathered is confidential and has been de-identified prior to its use in this report. Entities are referred to in generic terms and in stakeholder groups rather than individual organisations. The feedback provided has been blended in the text of the report to support the argument drawn in the subsequent sections". Certain sections of the report summarise participants' feedback. However, it does not necessarily follow that disclosing such information could reasonably be expected to prejudice future section 32 examinations.

The Department has advised this Office that it has no legal power to compel the IAA or other participants to provide information for a section 32 report. It says that it encouraged full cooperation from stakeholders, but that they were entitled not to co-operate. I have no reason to doubt this. However, I believe that it is in the interests of the stakeholders in the aviation industry to participate in examinations of the IAA. I do not accept that they would be reluctant to do so if the substance of their feedback were to be published. I believe that the position might be different if the applicant had sought, for example, specific "raw" information given by particular stakeholders or notes of the consultants' discussions with individual stakeholders. However, that is not what the applicant seeks. In reaching my conclusion, I have had regard to the fact that key stakeholders in the industry (the applicant organisation) wish to obtain the report under FOI. Moreover, I believe that it would be open to authors of future reports to take further steps to anonymise feedback, were that necessary or appropriate. I am therefore not satisfied that section 30(1)(a) applies to record 1.

Record 2 (letter)

Record 2 does not summarise the participants' feedback. Neither have the parties specified a harm which disclosing record 2 could reasonably be expected to cause to the Department's functions. Having regard to section 22(12)(b) of the FOI Act, I am not satisfied that the Department has made out a case that section 30(1)(a) applies to this record.

Section 30(2)

Having found that section 30(1)(a) does not apply to the records, I am not required to apply the public interest balancing test under section 30(2) of the FOI Act. Nevertheless, I would like to make observations on where I would consider the balance of public interest to lie in this case. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of its activities and to strengthen its accountability and improve the quality of its decision-making. In recognising the public interest in transparency around the way in which the Department performs its functions, I accept that this has been met to a limited degree by publishing an executive summary of the report. However, I believe that "greater openness" and transparency around the Department's examination of the IAA would involve releasing the entire report. Equally, I recognise the public interest in the conduct of an effective section 32 examination of the IAA. However, given that I do not accept the reasonableness of the Department's expectation of harm to future section 32 examinations, I would attach a low weight to this. If I were required to consider section 30(2) in this case, I would find that on balance, the public interest would be better served by releasing the records.

Accordingly, I find that the Department is not justified in withholding access to the records under section 30(1)(a) of the FOI Act.

Section 35(1)(a) - Information obtained in confidence

The Department claims this exemption in respect of both records.

Section 35 of the FOI Act provides, insofar as is relevant:

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

(a) 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...

(3) Subject to section 38, subsection (1)(a) shall 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 concerned."

Under section 35(2) the confidentiality exemption at subsection (1) does not apply to a record which was prepared by a head, director or staff member of an FOI body or its service provider in the course of the performance of his or her functions, unless disclosure would constitute a breach 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 etc.

As section 35(1) does not apply where the records fall within the terms of section 35(2), section 35(2) should be considered at the outset. As noted above, the records under review were prepared by consultants who were commissioned to prepare them by the Department. They have therefore been prepared by a "service provider". The Department claims that disclosing the information concerned would constitute a breach of confidence which is owed to a person other than the Department: specifically, the participants in the examination process. I will consider whether this is the case in relation to record 1 (the report), which summarises views expressed by participants in the examination process.

However, I will not consider this point in relation to record 2 (the letter) and note in any event that the parties' submissions appear to relate to record 1 rather than record 2. There is no person "other than" the Department or service provider to whom the duty of confidence is said to be owed in this regard. The consultants state that record 2 was provided in confidence between them and the Department; i.e., between a service provider and the Department. Accordingly, I find that section 35(2) disapplies section 35(1) of the FOI Act in respect of record 2.

Submissions

The Department submits that the information provided in the report was provided on a confidential basis and that its disclosure could have an adverse effect on the confidential reporting process both within the IAA and to the IAA by members of the public and regulated entities. It says that this could injure the overall level of safety in the Irish civil aviation sector. It further submits that even though no explicit assurance of confidentiality was given to the stakeholders, an obligation of confidentiality existed. It adds that publishing the report would betray the trust exhibited by participants who had engaged openly with the process. It says that if it had intended to publish the full report, it would have made this clear in its communications with the participants. In relation to the public interest, it makes the same submissions as discussed above under section 30.

The IAA submits that confidentiality is "core to the aviation industry" and that confidential reporting is standard industry practice and procedure. It concurs with the Department's submissions above that as the aviation sector in Ireland is small, the participants in the section 32 examination process would be easily identifiable through disclosure of the report. It further submits that redacting the report would cause information to be released out of context. It says that releasing the report may create undue safety concerns about aviation in Ireland.

The consultants submit that it was not their intention to object to releasing the records and that if the Department had published the records, they would have accepted that as the Department's decision. They go on to say that the opinions provided by stakeholders were obtained through bilateral meetings in which there was an expectation of confidentiality in order to allow the participants to contribute freely. They say that some stakeholders expressed reservations because of a fear of a loss of confidentiality and expresses the view that it would be possible for industry professionals to infer who made particular comments. They submit that undermining the confidential basis through public release of the material may make it more difficult in future to achieve in-depth input from a range of stakeholders.

I take these submissions to be an argument that a breach of duty of confidence vis a vis the participants (rather than the consultants) would arise by disclosing record 1. I should add here that while I have noted that the report is marked "Confidential", the Commissioner has generally taken the view that this does not determine the matter and is not sufficient, in the absence of other evidence, to impose an obligation of confidence with respect to the record's contents.

Analysis & Finding

Having regard to section 35(2), I am now required to establish whether there exists a duty of confidence in an agreement or statute or otherwise by law which is owed to a third party and which would be breached by disclosing record 1. If there does not, section 35(1) is disapplied. I should say that it is clear from the Department and the IAA's submissions that they did not proceed on the basis that the full report might be published. Indeed, their submissions attach a great deal of weight to this point. However, that of itself does not determine the issue under the FOI Act, although expectations of confidentiality may be relevant in the analysis of whether a duty of confidence exists.

The Department has pointed me to section 35 of the IAA Act 1993. This provides:

"A person shall not disclose confidential information obtained by him while performing duties as a director or member of the staff of, or an adviser or consultant to, the company or a subsidiary unless he is duly authorised by the company or the subsidiary, as the case may be, or by a member of the staff of the company or the subsidiary, as the case may be, duly authorised in that behalf, to do so."

I do not believe that the Department releasing record 1 under FOI would amount to a person disclosing confidential information for the purposes of this section, bearing in mind both the identities of the "person" and the nature of the confidential information referred to. I therefore do not see how a breach of a duty under section 35 of the 1993 Act could arise. Neither has the Department pointed me to an agreement which provides for a duty of confidence in the circumstances. I will therefore go on to consider whether a breach of confidence "otherwise by law" might arise.

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 of Mahon v Post Publications Ltd [2007] 3 IR 338, Fennelly J confirmed that the requirements for a successful action based on 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".

In relation to the first requirement, factors relevant for consideration in this regard include, for example, whether the information is confidential or secret or concerns private matters. In relation to the second requirement, relevant matters for consideration may include, for example, whether there were any assurances of confidentiality; the expectations of the parties and the reasonableness of any such expectation; the nature of the information; the purpose for which the information was provided; the functions being performed by the FOI body and the relevance of the information to those functions; and the broader context in which the information is provided and may be disclosed.

Although the Department says that no express assurance of confidentiality was given to the participants, the consultant's submissions echo the Department's submissions that there nevertheless existed an understanding of confidentiality. Moreover, as I have noted above, the report itself states that specific information gathered was confidential and has, in the words of the report's authors, been "de-identified". I therefore accept that the participants gave specific information on an understanding of confidentiality - in other words, information as to their identities and quotes attributable to them.

However, it does not follow that the report itself has a necessary quality of confidence or that it was imparted in circumstances importing an obligation of confidence. Again, I consider it relevant that the information concerned is not specific "raw" information given by particular stakeholders or notes of the consultants' discussions with individual stakeholders. What the applicant seeks is the final report of the Department's examination of the IAA, conducted on the Department's behalf by consultants, which is stated to have "de-identified" and "blended" the information which is confidential and specific to stakeholders. In those circumstances, I do not believe that the first or second requirements of the test set out above are met and therefore do not consider it necessary to address the third requirement.

In considering this matter, I have taken into account the Department's statement that the EU Regulation requires confidentiality in the reporting of occurrences relating to aviation safety. However, as noted above, the Department does not assert that record 1 was prepared pursuant to the EU Regulation. It states that record 1 "is not a report on civil aviation occurrences but rather a technical and safety examination of the IAA's performance as safety regulator of regulated entities". Accordingly, I do not see how the circumstances of its creation give rise to a duty of confidentiality on the basis of a requirement in the EU Regulation.

Having regard to the content of record 1 and the circumstances of its creation, I am not satisfied that a duty of confidence arises otherwise by law. I therefore find that section 35(2) disapplies section 35(1) of the FOI Act in respect of record 1.

Having regard to the above, I find that the Department is not justified in refusing access to the records under section 35(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision and direct the release of the records.

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.

Elizabeth Dolan
Senior Investigator