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Mr L and Department of Communications, Climate Action and Environment (FOI Act 2014)

Case Number: 160348

Whether the Department was justified in its decision to refuse access to information sought relating to funding of the Irish Environmental Network (IEN) and the Environmental Pillar (EP), and the distribution of this funding, on the basis that sections 35 and 36 of the FOI Act applied

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 11 June 2016, the applicant sought access to information relating to the funding of the Irish Environmental Network (IEN) and the Environmental Pillar (EP), and the distribution of this funding. The Department identified 82 records as relevant to the request. Following consultation with the IEN on 35 of the records, in accordance with section 38 of the FOI Act, the Department decided on 19 August 2016 to release 78 of the records in full and the remaining four records in part. These four records were among those on which the Department had consulted with the IEN, and the withheld information was refused on the basis that sections 35 and 36 of the FOI Act applied. As the Department's decision was one to which the provisions of section 38 of the FOI Act applied, the applicant applied to this Office for a review of the decision of the Department on 23 August 2016.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the content of the records, 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 to whether the decision of the Department to refuse access to the withheld information in the records 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." In this case, this is the relevant provision as the applicant is the original requester and not a third party who gave the information or to whom the information relates.

Section 12
Section 12(3) provides for the transfer of a request, where the FOI body receiving the request does not hold any records, but knows that another FOI body does hold relevant records. Section 12(4) provides for a requester to be informed if the FOI body receiving the request holds records, but knows that another FOI body also holds relevant records. Section 12(5) provides that a person shall be deemed to have the knowledge referred to in sections 12(3) and 12(4) if, by taking reasonable steps, he could obtain that knowledge. In the circumstances of this case, the applicant appears to have known that the Department of the Taoiseach may also hold relevant records. Therefore, there would have been no reason for the Department to transfer the request or inform the applicant that the Department of the Taoiseach may hold records. However, I understand that the Department did advise the applicant that certain records are held by the Department of the Taoiseach.

The FOI Act provides for a right of access to records held by an FOI body, subject to certain exemptions. The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

It is relevant to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Analysis and Findings

Section 15(1)(a)
While this exemption was not claimed by the Department, it is relevant as the applicant has identified certain information which, in his view, has not been provided. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.]( available on www.oic.ie)

The Department provided details of the records management practices it says are in place for the relevant areas of the Department. It also provided details of the searches it says were undertaken of electronic and hard copy records in its efforts to identify information relevant to the request. The Department also identified certain records which are available for some years but were not provided to it for other years.

In the absence of any further particulars from the applicant, which might assist me in identifying further potential "search" issues to be raised with the Department, and given the steps the Department says were taken to search for records, it seems to me that reasonable steps have been taken by the Department to search for the records. I am satisfied, on the basis of the information available to me, that the further information does not exist or cannot be found after all reasonable steps have been taken to search for it and I find that section 15(1)(a) applies to any such information which in the applicant's view should exist.

The Department withheld some information in records 1, 10, 29 and 35 on the basis that sections 35 and 36 applied. The withheld information in record 1 is the same as the withheld information in record 35.

Section 36(1)(b) - Commercial Sensitivity
The Department refused access to comments/observations on applications for funding from IEN member organisations in record 29, 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.

The Department referred to the limited nature of the information in relation to each organisation and the potential adverse impact on these organisations from the release of the information. The organisations, whose names have been released, are not-for-profit organisations competing for a limited amount of available funding. The amount of funding awarded to an organisation through this particular mechanism does not necessarily reflect on the merits of the organisation across its full range of activities. Having examined the information at issue and considered the position of the Department, I am satisfied that the release of the comments/observations could result in a material financial loss or gain to the organisations and could also prejudice their competitive position. 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.

According to the Department, the IEN is an independent umbrella organisation for Irish Environmental Non-Governmental Organisations, to which funding is allocated from the Environmental Fund on a non-statutory basis by the Department, to support their environmental work. The Department said that the IEN is constituted as a not for profit company with its own corporate governance structures and that it prepares audited annual accounts. I have not been able to identify any basis on which the IEN or its member organisations are themselves subject to FOI. 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 by the Department. The accounts of the Environmental Fund are prepared annually, audited and published by the Department. I note that the information which has already been released provides details of the allocation of funding to the IEN member organisations, and the overall scores awarded to each organisation.

In relation to the issue of the public interest, it is important to take note of the obitercomments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (" the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. No such public interest has been identified by the applicant nor am I aware of one.

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 and other publicly available information. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the comments/observations on the applicant organisations in record 29, to which I have found section 36(1)(b) applies, to the extent that overriding the commercial sensitivity of that information to them would be justified.

Section 37 - Personal Information
The Department refused access to the names of the independent assessors in records 1, 10, 29 and 35 and the marks awarded by the individual assessors in records 1 and 35 (same information) on the basis that section 35(1)(a) of the FOI Act applied. Having examined the records and the circumstances of the case, I consider that section 37 is the more appropriate exemption.

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information.

The Department has stated that the independent assessors are drawn respectively from a local authority, a third level institution and a non-environmental NGO, and that they carry out this function on a voluntary basis, receiving a small honorarium. The IEN does not release their names to ensure that they are not subjected to advance lobbying or post allocation criticism. Having considered the position of the Department and the submission made by the IEN to the Department, I am satisfied that the names of the assessors is their personal information. As set out above, the monies involved are allocated from the Environment Fund on a non-statutory basis to the IEN who then disburse them to the applicant organisations. As the assessors are not engaged by the Department and therefore are not service providers to the Department, the exceptions to the definition of personal information at (I), (II) and (III) are not relevant. As the IEN is not subject to FOI, the exception to the definition of personal information for staff of or service providers to FOI bodies are also not relevant. I find that section 37(1) applies.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.
Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the "Rotunda Hospital" case referred to above.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy"). It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that section 37(1) applies and that none of the exceptions under section 37 apply to the information.

As I have found all of the withheld information to be exempt under section 36(1)(b) or section 37, it is not necessary for me to deal with the application of section 35(1)(a).

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 15(1)(a) applies to any further information which in the applicant's view should exist. I find that section 36(1)(b) applies to the comments/observations in record 29 and that section 37(1) applies to the remaining withheld information in records 1, 10, 29 and 35.

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