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Mr Justin McCarthy of RTÉ Morning Ireland and Department of Justice and Equality (FOI Act 2014)

Case Number: 160427

Whether the Department was justified in its decision to refuse access to records of contracts and associated documentation between An Garda Siochána, the Minister for Justice, Equality and Law Reform and Go Safe for the provision and operation of road safety cameras, on the ground that the records are exempt under sections 35 and 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 a letter received by the Department on 27 January 2016, the applicant made an FOI request for "a copy of all contracts and associated documentation entered into with the GoSafe consortium". By letter dated 22 March 2016, the Department refused access to the records sought on the ground that the contract concerned was subject to "conditions of confidentiality" and the records were commercially sensitive, under section 36 of the FOI Act. On 24 March 2016, the applicant applied for an internal review of the decision in respect of the withheld records, noting that the Department had not specified the subsection of section 36 on which it relied. The Department issued an internal review decision by letter dated 31 May 2016. It affirmed its original decision, on the ground that the withheld records were exempt under sections 35(1)(a) and (b) (confidentiality) and section 36(1)(b) (commercial sensitivity) of the FOI Act. On 3 October 2016 the applicant applied to this Office for a review of the Department's decision.

In conducting my review, I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and the provisions of the FOI Act. The contract under consideration involves two other parties in addition to the Department: An Garda Siochána (AGS) and GoSafe. During this review, this Office obtained submissions from both of these parties and I have had regard to these also.

Scope of this Review

The Department identified four records relevant to this request: a contract/services agreement, a supplemental agreement and two associated letters. The scope of my review concerns all four records. In this decision, I adopt the numbering which the Department uses in its schedule. Having regard to the parties' submissions, the question for me is whether the Department was justified in refusing access to Records 1-4 under sections 32, 35 or 36 of the FOI Act.

I should note that the applicant submits that it is difficult to believe that the Department has only four records in its possession "relating to the contract and subsequent extension". During this review, the Investigator asked the Department to confirm whether the four records comprised "all contracts and associated documentation entered into with the GoSafe consortium" and to comment on the applicant's submission. The Department says that the four records comprise "all contracts and associated documentation entered into with the GoSafe consortium" up until the date of the applicant's FOI request in January 2016. Subject to my comments below, I accept this. Moreover, I note that in his FOI request, the applicant did not seek records "relating to" the contract, but rather "contracts and associated documentation entered into" (my emphasis) with GoSafe.

Having said that, a question arises in relation to a further record to which GoSafe drew this Office's attention. I deal with this below, under section 11 of the FOI Act.

Preliminary Matters

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

First, 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 has been endorsed by the Courts.

Analysis and Findings

Section 11 - Access to records

During this review, GoSafe drew this Office's attention to a document which Record 1 (the contract) refers to, which I will call "Record 5" for the purposes of this review. The question arises as to whether Record 5 forms part of the "contract and associated documentation entered into with the GoSafe consortium". When the Investigator asked the Department about this record, the Department replied that it "is prepared by and belongs to GoSafe and is provided to AGS", but not to the Department.

Section 11(9) of the FOI Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body and the service provider shall, if so requested by the FOI body for the purposes of the FOI Act, give the record to the FOI body.

Section 2 of the FOI Act defines a "service provider" as a "person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person".

Record 1 itself defines GoSafe as the "Service provider" to the Department and AGS. On reviewing Record 1, it seems to me that Record 5 is part of the "contract and associated documentation entered into" with GoSafe. I therefore believe that the Department should have asked GoSafe for Record 5 and should have made a decision on that part of the applicant's FOI request in accordance with the provisions of the FOI Act. I intend to direct the Department to make fresh decision in relation to this record.

Section 32 - Law Enforcement and Public Safety

Section 32(1)(a) of the FOI Act provides that access to information may be refused if it could reasonably be expected to prejudice or impair various matters relating to enforcement and public safety. These matters include the prevention, detection or investigation of offences; the enforcement of, compliance with or administration of any law and the lawful methods, systems, plans or procedures for ensuring the safety of the public.

The Department does not rely on section 32, which is a discretionary exemption so that, strictly speaking, it is a matter for the FOI body to apply. Neither does AGS mention it in its submissions. Nevertheless, GoSafe, having been invited to make submissions, claims that section 32 applies.

A party relying on section 32(1)(a) should identify the potential harm to the matters specified in the relevant sub-paragraph which might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that any harm will occur. The party should show how releasing the particular record could reasonably be expected to result in the harm. A mere assertion of an expectation of harm is not sufficient. The actual content of the records is important and consideration should be given as to what the records actually reveal.

GoSafe does not refer this Office to a particular sub-paragraph of section 32(1)(a) on which it relies. I am limited in what I can say about the harms which GoSafe alleges, although I can say that in general terms they reflect security concerns. Having considered the submissions, I am not satisfied that disclosing the records could reasonably be expected to give rise to the harms alleged. I believe that the information concerned is general and is not specific enough to facilitate usage by unauthorised external parties in the ways in which GoSafe envisages. Moreover, if it were reasonable to expect such a harm in relation to security concerns, I would have expected the Department to have applied the exemption.

I therefore find that section 32 does not apply to the records.

Section 35 - Confidentiality

In its internal review decision, the Department claims section 35(1)(a) and (b) in respect of the records. In its submissions, GoSafe refers to section 35(1)(a) and (b). AGS does not make submissions under section 35. Section 35 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 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, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty 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 or head or a director, or member of the staff of, an FOI body or of such a service provider.

(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."

Submissions

The Department submits that the records fall within section 35(1)(a) given the confidential nature of the contract. It says that the Chief State Solicitor's Office advised that the contract with Go Safe is subject to conditions of confidentiality. It says that as Record 1 contains a confidentiality clause, section 35(1)(b) also applies. It adds that Records 2-4 form part of, or follow from, Record 1 and are therefore also covered by the confidentiality clause. GoSafe's principal objection to releasing the records under the FOI Act is that doing so would breach the confidentiality clause in Record 1 and that sections 35(1)(a) and (b) apply to all the records.

Analysis & Finding

As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. The records (the contract, the supplemental agreement and the two associated letters) were prepared by either an FOI body or by a service provider to an FOI body. As noted above, GoSafe is defined in the contract itself as the "Service Provider" to the Department and AGS.

Therefore, section 35(1) will not apply to the records unless disclosing them would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. The parties to the contract concerned, including its confidentiality clause, are the Department, AGS and GoSafe.

The Department has not identified an entity other than an FOI body or service provider to whom a duty of confidence is owed. Having considered their content, I do not see how disclosing the records would constitute a breach of a duty of confidence provided for under the contract which is owed to a person other than an FOI body or a service provider. I therefore find that section 35(2) disapplies section 35(1) and that the Department is not justified in refusing access to the records under section 35(1) of the FOI Act.

Section 36(1) - Commercial Sensitivity

The Department claims section 36(1)(b) in respect of the records. In their submissions, AGS and GoSafe refer to sections 36(1)(b) and (c). Section 36(1) provides, insofar as is relevant:
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -
... (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."
However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

Submissions

The Department submits that the public interest would be best served by not disclosing the records, as to do so could prejudice GoSafe's competitive position without countervailing benefit to the public. It says that while the FOI request may appear to relate to historic information, the contract applies until 1 May 2017 by virtue of a transitional arrangement. It says that the Information Commissioner recognises that there can be a valid commercial reason for not releasing tender information.

Unlike the Department, AGS does not argue that section 36 applies to all of the records. Instead, it identifies particular parts of Records 1, 3 and 4 which it says are commercially sensitive. It submits that releasing this information could prejudice GoSafe's competitive position, as it is a limited market and release of the commercially sensitive information could benefit GoSafe's competitors. AGS says that the number of hours to be provided by GoSafe could be used in conjunction with published information on the internet to estimate the hourly fees charged by GoSafe. It also says that GoSafe's customers may become aware of a difference in pricing offered to AGS, which could prejudice "any current or future negotiations" with GoSafe's customers. Having set out public interest factors for and against releasing this information, it submits that on balance, not prejudicing future financial endeavours by external service providers outweighs the public interest in the records being released.

GoSafe submits that disclosing the records could reasonably be expected to result in material financial loss to GoSafe, could prejudice its competitive position and will prejudice the outcome of existing contract negotiations. It identifies particular information which it says sets out years of refinement of GoSafe's business processes, methodologies and approaches. It says that competitors could use the financial information to undercut its business. In relation to the public interest, GoSafe submits that the number of businesses which submit bids to bodies subject to the FOI Act will fall if commercially sensitive information is released under FOI, which is not in the public interest. It says that alternatively, businesses will restrict the information which they supply when bidding. This, it says, will impair the government's ability to obtain necessary information, which is clearly not in the public interest.

The applicant submits that as the contract and extension have expired, he cannot see how the Department can successfully argue that their concerns are reasonable. In relation to the public interest, he says that there is very considerable interest in the public being made aware of the details of the contracts and associated documents. He submits that this interest, coupled with the importance of the GoSafe operation of the State's road safety campaign, override any commercial interests of a private company being paid public money.

Analysis & Finding

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. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

The High Court decision in Westwood Club v The Information Commissioner [2014] IEHC 375 makes it clear that it is not sufficient for the party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive.

The records concern a contract which was to terminate in November 2016, but was extended to 1 May 2017. The terms and conditions on which GoSafe is providing the service under this particular contract have therefore expired. For completeness, I note from the parties' submissions that GoSafe has entered into a new contract in this matter; however, the records concerning the new contract are not the subject of this review.

I have reviewed the records and considered the parties' submissions. I accept that the records contain certain information which would not otherwise be available to competitors and which competitors could use to their advantage and could prejudice GoSafe's competitive position. I find that section 36(1)(b) applies to the information listed below. This finding is subject to section 36(3), which I consider below.

Record 1

1. Clause 2.1
2. Clause 9
3. Clause 10
4. Appendix A - contract value amount specified in the definition of "Charges" on page 61 (after the words "an amount of" and before the words "or as otherwise agreed")
5. Schedule A Part III
6. Schedule A Part IV
7. Schedule A Part V
8. Schedule K Part I and Part II
9. Schedule L
10. Schedule M

Record 3

11. The percentage amount specified in point 1 of the letter.

Record 4

12. The percentage amount specified in point 1 of the letter.

As noted above, AGS submits that section 36(1)(b) applies to details of the enforcement and survey hours to be conducted by GoSafe. I accept in principle that this information could be used together with other information to estimate the fees payable to GoSafe. However, details of the minimum enforcement hours and maximum survey hours to be provided by GoSafe are already in the public domain, on www.garda.ie. In other words, it is already possible to use this information in conjunction with other publicly available information to estimate the fees payable to GoSafe. I therefore do not accept that section 36(1)(b) applies to this information. As regards the commercial sensitivity of the fees payable to GoSafe, I consider this below, in addressing section 36(3).

I find that section 36(1)(b) does not apply to the remaining information in Records 1, 2, 3 and 4 and the Department is not justified in withholding access to that information under section 36(1)(b) of the FOI Act.

Section 36(1)(c)

Section 36(1)(c) provides that access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

Both AGS and GoSafe refer to section 36(1)(c) in their submissions. GoSafe says that it is clear that disclosing the records could prejudice the conduct or outcome of contractual or other negotiations in which it is involved. AGS refers to "any current or future negotiations" with GoSafe's customers. However, neither the Department nor the other parties have pointed this Office to any specific negotiations and/or explained exactly how releasing the records could prejudice any such negotiations. The Department does not refer to section 36(1)(c) in its submissions to this Office. I therefore find that refusal on this ground has not been justified.

Section 36(2)

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

Section 36(3)

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.

Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result.

On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs.

I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure.

In relation to the positive public interest which would be served by disclosure, where records relate to the expenditure of public money, as in this case, I take the view that there is a strong public interest in openness and accountability. I consider this to be a significant aid in ensuring the effective oversight of public expenditure and that the public obtains value for money, and in preventing fraud and corruption and the waste or misuse of public funds.

In relation to the harm which might be caused by disclosure, first, I have already identified the potential prejudice to GoSafe's competitive position. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Secondly, I note GoSafe's submission that the number of businesses which submit bids to FOI bodies will fall if commercially sensitive information is released under FOI or that businesses will restrict information when bidding. However, FOI legislation has been in force for two decades and section 36(3) clearly permits the release of commercially sensitive information where, on balance, the public interest would be better served by this.

In deciding where the public interest lies in respect of the information concerned, I would make the following observations. First, I consider it appropriate to distinguish between on the one hand, information which primarily concerns GoSafe's business and on the other hand, information which primarily concerns the terms and conditions under which the Department and AGS agreed to contract with GoSafe for the provision and operation of road safety cameras. Secondly, and having regard to section 11(3) of the FOI Act, I believe that there is a strong public interest in transparency and accountability around the fees which are payable to a successful tenderer under a contract with an FOI body, as well as the criteria by which the FOI body measures that contractor's performance.

On balance, I believe that the public interest would not be better served by granting access to the information listed below. I find that the Department is justified in refusing access to the following information, under section 36(1)(b) of the FOI Act:

Record 1

Schedule A Part IV
Schedule A Part V

However, on balance, I believe that the public interest would be better served by granting access to the remaining items of information to which I found section 36(1)(b) to apply, as listed above. I find that the Department is not justified in refusing access to this information under section 36(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision as follows. I direct it to obtain Record 5 from GoSafe under section 11(9) and to make a decision on this part of the applicant's FOI request, in accordance with the provisions of the FOI Act. I affirm the Department's decision to withhold access to the two items of information which I have found to be exempt under section 36(1)(b) of the FOI Act, as listed above. I find that the Department is not justified in withholding access to the remaining information in the records, under sections 32, 35 or 36 of the FOI Act. I direct the release of that 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator