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Mr. H and Ms. M and Department of Housing, Planning and Local Government (FOI Act 2014)

Case Number: 160273


Whether the Department was justified in its decision to refuse access to information in a report on recommendations for funding in the community and voluntary sector, on the basis of section 36 of the FOI Act

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

In an FOI request of 4 April 2016, the applicants sought access to a report by POBAL to the Department on the "Scheme to Support National Organisations in the Community and Voluntary Sector 2014 - 2016 - Recommendations for Funding" (the report). In its decision of 29 April 2016, the Department released a redacted version of the report. On 17 May 2016, the applicants submitted an internal review request. The Department's internal review decision of 16 June 2016 affirmed its original decision. The applicants submitted an application for review to this Office, which was received on 27 June 2016.

In conducting this review, I have had regard to the submissions of the applicants, to the submissions of the Department, to the content of the record, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Department to refuse access to the withheld information in the report was justified.

Preliminary Matters

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

The report the subject of this review was also considered in another review by the Commissioner, Case No. 150272 (published on www.oic.ie), on which a decision issued in March 2016. In that case, the request was for different information, some of which was contained in the report. The Department informed this Office, when providing a copy of the record, that it had previously been considered in Case No. 150272. The Department did not inform the applicants in its decisions of the previous decision of this Office concerning the report. The Investigator informed the applicants of the previous decision and indicated that, in her view, there was no reason to depart from the previous decision in respect of the report.
I am satisfied that the differences between the scope of this review and the previous review were such that it was not appropriate to discontinue this review on the basis of section 22(9)(a)(iii) of the FOI Act.

Analysis and Findings

The withheld information is in the following sections of the report:
6 - List of Pobal recommendations by score (pages 5-9)
8 - Summary appraisal reports for applications recommended (pages 14-139)
9 - Summary report for applications not recommended for funding (pages 141-164)
The Department described the withheld information as follows:
Data in the Recommended Score column which provides the total score and percentage score in respect of all organisations that submitted an eligible application, pages 5 to 9 inclusive.
The rationale for funding and summary of scores for organisations recommended for funding, pages 14-139 inclusive
Total Score, Total Score Percentage and Recommendation Rationale columns in respect of organisations not recommended for funding, pages 141-164 inclusive.

Section 36(1)(b)

The Department refused access on the basis that section 36(1)(b) applied to the withheld information. Section 36(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. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified. The standard of proof required in the second part of the sub-section is relatively low in the sense that the test is not whether prejudice is certain to materialise but whether it could do so.

In its decisions, the Department referred to the likely negative impact on those organisations who failed to secure funding and whose future reputational and economic circumstances could be impacted. It also referred to the fact that while the organisations who applied for funding are not-for-profit organisations, they are competing for a limited amount of available funding. It said that the disclosure of the marks and rating comments could be used to discredit such organisations in the context of a very competitive donations or other funding environment. It noted that the failure of an organisation to secure funding under this particular scheme on this occasion does not of itself undermine the merits of the organisation across its full range of activities. The Department decided that there is a reasonable expectation that the release of the detailed information on marks awarded and rationale for funding could result in a material financial loss or gain to the organisations and could also prejudice its competitive position. Having examined the information at issue and considered the position of the Department, I am satisfied that its release could result in the harms envisaged by section 36(1)(b) and I find that section 36(1)(b) applies to the withheld information.

Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Having found that section 36(1)(b) applies to the information, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request.

The applicants' submission focussed on the public interest in releasing the information in the report, in relation to the need for organisations to better understand "how initiatives are funded" in order to assist them in future applications for such schemes and also, on the nature of the information redacted from the report.

On the first point, the applicants said that similar assessment materials were released in relation to earlier funding schemes and that they had identified inconsistencies in the assessment of funding applications and application of the criteria at that time. They referred to the importance for applicant organisations of understanding the decision making process and that this requires knowledge not just of the criteria but also of how they are applied in practice. According to the Department, the process followed in managing the scheme has been transparent in its provision of a clear scoring scheme and in its release of information summarising the individual funding applications and amounts sought. I understand that POBAL were not previously involved in the assessment of applications for funding under this scheme.

On the second point, the applicants have suggested that an alternative approach to the redactions might better serve the public interest identified. They suggested, for example, that only "negative" remarks be redacted or that the nature of the redactions could have been approached in a different way so that the information in which they are particularly interested would have been released. The issue to be considered in this review is whether the refusal of access to the withheld information is justified, not whether an alternative approach should have been taken by the Department.

I note that the organisations which received funding under this scheme are not subject to FOI. As set out in the decision in Case No. 150272, the FOI Act is concerned with the promotion of transparency and accountability in public bodies and while it is open to the Minister for Public Expenditure and Reform to extend the provisions of the Act to community and voluntary organisations, this has not been done to date. It seems to me that if there is a public interest in releasing the information sought, it arises in relation to the manner in which public funds are granted to those organisations by the Department.

I further note that the parts of the report which have been released contain details of the number of applicants, the names of the applicant organisations, information on those recommended by Pobal for funding and those not recommended, and for those recommended for funding, the amount recommended. It is also the case that the format of the information in sections 8 and 9 of the report are not the same and therefore, if the information were released, would not provide the applicants with comparable information for those organisations which received funding and those which did not.

I am also mindful of the opinion of Macken J. in the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"], that the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". No such public interest has been identified by the applicants nor am I aware of one.

Applicants for funding under the scheme were informed that any information provided was subject to the FOI Act as part of the application process. It seems to me that much of the information which has been released is information which was provided as part of the application process and the information which has been redacted relates to the analysis and assessment of the applications by Pobal.
Having considered the matter and examined the withheld information, I am satisfied that the public interest in openness and accountability and in the public knowing how the Department carries out its functions and disburses public funds is served to some extent by the information already released. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the withheld information, to which I have found section 36(1)(b) applies, to the extent that overriding the commercial sensitivity of that information to the applicant organisations would be justified.

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. I find that section 36(1)(b) applies to the withheld information in the report, and that the public interest would not be better served by the release of such information.

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