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Ms X and Department of Housing, Planning, Community and Local Government (FOI Act 2014)

Case Number: 160198

Whether the Department was justified in its decision to refuse access to records/parts of records concerning the Seniors Alert Scheme (SAS) on the basis of sections 15(1)(a), 31(1) and 36(1)(b) 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

On 16 February 2016, the applicant made an FOI request to the Department seeking access to the following records regarding the transfer of the Seniors Alert Scheme (SAS) to Pobal, which acts as an intermediary for programmes funded by the Government:

Reports and briefings carried out in connection with the proposed transfer,
A copy of the contract between the Department of Environment and Pobal showing terms, conditions and costs of the transfer,
A copy of the document which lists stakeholders consulted as part of the proposed transfer (which [a named official] referred to as being "in his office" during a meeting which took place on 10th December at Leinster House between [the applicant's company] and the Minister of the Environment, Alan Kelly, at which [the named official] was present.

The Department issued a decision on 14 March 2016 and identified eight records relevant to the FOI request. It part granted the request and refused access to records/portions of records on the basis of sections 31(1) and 36(1) of the FOI Act. Regarding the record identified at three above, (the stakeholder record), the Department stated that its "trawl of documents relevant to this FOI request has not revealed such a document". It is assumed that the Department relied on section 15(1)(a) of the FOI Act to refuse access to this record that is that the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The applicant in her internal review request provided additional details to enable the Department to identify the stakeholder record. In its internal review decision of 25 April 2016, the Department upheld its original decision and did not refer to the additional details provided by the applicant regarding the stakeholder record.

The applicant wrote to this Office seeking a review of the Department's decision on 4 May 2016.

During the course of this review, the Department released additional records to the applicant. Using the numbering system adopted by the Department, the remaining withheld records/portions of records are 2, 3, 5, 6, 7 and 8. I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submissions from the applicant and the Department and to correspondence between them. I have examined the contents of the records provided to this Office for the purposes of this review by the Department and had regard to the provisions of the FOI Act.

Scope of the Review

I note that the Department's position now is that record number 7, a Service Level Agreement between the Department and Pobal and record number 8, an Underlying Framework Agreement between the Department of Community, Rural and Gaeltacht Affairs and Pobal are not specific to any particular scheme such as the SAS and are therefore outside the scope of this review. Nonetheless, those records were scheduled by its decision makers as relevant to the requested records and the applicant does not appear to have been notified of the Department's change of mind. The Service Level Agreement between Pobal and the Department concerning the SAS is identified as Appendix 3 record 6 and the Department has released it. Therefore, this review is concerned solely with whether the Department was justified in its decision to refuse access to the records/portions of records numbered 2, 3, 5, 6 and 8 under sections 31(1) and 36(1)(b) and the stakeholder record on the basis of section 15(1)(a) of the FOI Act. As regards record 7, I note that it appears in full on the Department's website and I cannot understand how the Department initially argued that it was commercially sensitive. Since it is already in the public domain, I do not need to deal with it further.

Preliminary Matters
Section 18

Firstly, I should draw attention to section 18 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records was justified.

It should also be noted that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. 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 a more recent judgment, 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]".

Analysis and Findings

Section 31(1)
Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. In deciding whether section 31(1)(a) applies, I must consider whether the record concerned would be withheld on the ground of legal professional privilege in court proceedings. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and

(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The applicant argues that some of the redacted parts might comprise "legal assistance" which is not privileged. Having examined the records withheld on the basis of this exemption, I note that the redacted portion on page 3 and appendix 3 of record 5, and the redacted portion of record 6 all disclose legal advice from the Attorney General's (AG) office. Indeed, appendix 3 of record 5 falls outside of the FOI Act entirely as it was created by the AG's office. Section 42(f) of the Act provides that the Act does not apply to such a record which relates to matters other than the general administration of the AG's office. I also note that appendix 2, record 5 discloses legal advice from the Chief States Solicitor's Office (CSSO) which is part of the AG's office. Therefore I am satisfied advice privilege applies to these records and/or that the Act does not apply to them. I find that section 31(1)(a) of the FOI Act applies to exempt the redacted portion on page 3 of record 5 and the redacted portions of record 6 and that section 42(f) applies to appendices 2 and 3 of record 5.

Section 36(1)(b)
The Department relied on section 36(1)(b) to refuse access to parts of records 2 and 3. 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. In effect, this section provides for the protection of commercially sensitive information subject to certain exceptions and a public interest balancing test.

For section 36(1)(b) to apply, it is not sufficient that the information at issue comes within the description of information in the exemption, it is also necessary that the relevant harm test is met. The essence of the test 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 "could reasonably be expected to result in material loss or gain ". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. All that is required is the possibility of prejudice.

According to the Department, the withheld portions of records 2 and 3 refer to separate meetings between the Department and two potential named suppliers concerning the SAS at which these suppliers' commercial proposals in relation to this scheme were discussed. It contends that this material contains commercial or other information relating to the operation of these suppliers, as it refers to the proposed modus operandi of their companies in relation to the SAS. I can confirm from the content of the records that this is so. The Department submits that the disclosure of this information could prejudice the competitive position of these private companies in the conduct of their business and result in material financial loss, by disclosing future potential proposals submitted by these companies under future tendering processes for the SAS.

The information at issue here is akin to information provided to FOI bodies by companies who have tendered for contracts and who have not been successful. The potential suppliers detail their proposals as to how they would operate the process in relation to the SAS. Having examined and carefully considered records 2 and 3, I am satisfied that the information contained in the redacted parts of these records comprises information of a type that may be of use to competitors and as such, that release of the records could prejudice the competitive position of the parties concerned. Accordingly, I find that section 36(1)(b) applies to these portions of the records.

Public Interest
This leaves me to consider, under section 36(3), whether the public interest would, on balance, be better served by the release of the records.

The applicant states that there is a strong public interest in transparency in relation to government expenditure and that the role, number and governance of public service bodies or state agencies has been a subject of intense discussion in Ireland in recent years. She also contends that accountability is best served where there is openness about the use of public funds and the amounts paid, particularly where the sums of money involved are relatively large.

I agree that there is a public interest in the enhancement of openness, transparency and accountability in public bodies. Indeed, I am conscious that section 11(3) of the FOI Act requires public bodies, in performing functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs, and to strengthen their accountability. However, there is also a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. As stated above, the withheld information is akin to unsuccessful tender information so that no public monies were paid to the companies involved.

Arguably, the public interest in enhancing transparency and accountability has been served to some extent by the release of certain information relating to the SAS scheme. Nevertheless, while full disclosure of all records would clearly enhance transparency around the scheme, it seems to me that a balance must be struck between the competing interests. In the circumstances of this particular case, and having carefully considered the records, I find that, on balance, the public interest would not be better served by the release of the withheld parts of records 2 and 3.

Record 8
The Department stated in its submissions that this record did not fall within the scope of the request since it was not specific to the SAS. However, I have decided to deal with it in this review having regard to the fact that the Department identified it as relevant and included it in the schedule of records in the decision issued to the applicant who has not indicated that she accepts that record 8 is no longer in scope. I note that the claim that it was exempt as commercially sensitive was upheld on internal review and it is that internal review which gave rise to this review. It seems to me that it is at least arguable that the Framework Agreement between the Department of Community Rural and Gaeltacht Affairs and Pobal regarding "overarching conditions attaching to funding advanced by Public Bodies" may have some relevance to the Service Level Agreement concerning the Scheme at issue (record 6).

Record 8 contains governance and oversight requirements in respect of schemes administered by Pobal on behalf of Departments and Public Bodies. I can see nothing in the record that would allow me to find that its release would disclose trade secrets (section 36(1)(a)). I cannot identify any financial, commercial, scientific, technical or other information which disclosure could reasonably be expected to result in material loss or gain or could prejudice the competitive position of the person to whom it relates (section 36(1)(b)) or information which could prejudice the conduct or outcome of negotiations (section 36(1) (c)). Therefore, I find that the Department has not justified its refusal to release record 8 under section 36(1) of the Act or otherwise.

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. 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 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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The 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 this Office's website, www.oic.ie).

The applicant in her internal review request provided additional information to assist the Department in locating the stakeholder record (item 3 of her request). The applicant stated that her company raised a number of issues with the Minister about the transfer of the SAS on 10 December 2014 at a meeting in Leinster House. The applicant contends that a named official stated that a consultation had taken place with "key suppliers" and that the information was in a document in his office.

This Office put various questions to the Department and the named official and requested a written statement about this matter. The official responded as follows:

"From my recollection the context of the discussion is not reflected in the applicant's comments. At the meeting, in the course of discussing the need for consultation with suppliers of equipment under the Seniors Alert Scheme, I advised the Minister that the Department was aware of the views of suppliers from a previous consultation that had taken place as part of a review of the Scheme of Community Support for Older People, the predecessor to the Seniors Alert Scheme. I further informed the Minister that this document was available in the office."

He further commented that "the review document, entitled "Review of Scheme of Community Support for Older People", was published by Minister Pat Carey T.D. in May of 2010 and is in the public domain. The Review of Scheme of Community Support for Older People states that the review team consulted with representatives of equipment and monitoring service providers, with a view to assessing the range and nature of the equipment and monitoring services available, and that the review team conducted a number of on-site visits with equipment and monitoring service providers. The review further states that other equipment suppliers and monitoring service providers were invited to make submissions and presentations. One of the organisations listed in the review document as having made a submission is [the applicant's company]."

Having considered the response of the Department, I am satisfied that its explanation is adequate. I see no basis to dispute the Department's position that the record referred to above does not exist. I consider that the Department's decision to refuse to release the stakeholder record to the applicant was justified, on the basis that it does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. I find that section 15(1)(a) applies to exempt this record.

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 refuse access to the withheld records with the exception of record 8 on the basis of section 31(1)(a) of the FOI Act, and section 36(1)(b) of the FOI Act and section 42(f). I find that the Department has justified its position under section 15(1)(a) of the FOI Act that additional records identified by the applicant either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I direct the release of record 8.

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