Case number: OIC-93830-Q3M0P1
15 December 2020
On 4 May 2020, the applicant submitted a request to the Council and a number of other local authorities for access to the following:
He subsequently clarified that the request related to both staff members and elected members and should relate only to travel undertaken or planned in the context of St. Patrick’s Day events, festivities, or celebrations.
On 27 May 2020, the Council sought an extension of time of two weeks to deal with the request. On 18 June 2020, the Council issued its decision on the request in which it refused access to seven travel invoices it identified as falling within the first part of the applicant’s request and refused under sections 29(1)(a), 36(1)(b) and 37(1) of the FOI Act. It refused the three remaining parts of the applicant’s request under section 15(1)(a) on the ground that no relevant records exist.
The applicant sought an internal review of the decision to refuse access to the records identified at part 1 of his request. On 8 July 2020, the internal reviewer issued a decision wherein he identified five records as falling within the scope of the applicant’s request. Three of these records had been identified by the original decision-maker. The internal reviewer included two new records which had since been located and also determined that four records which had been included in the original decision did not fall within the scope of the applicant’s request as they related to travel to renew a town twinning arrangement following the proposed St. Patrick’s Day events in New York.
Access was granted access to one record (record 5) which related to the second part of the applicant’s request. Access was part-granted to one record (record 4) with redactions under sections 36 and 37 and on the basis that part of the record did not come within the scope of the request. Access was refused to three records (records 1-3) under sections 30, 36 and 37 of the FOI Act. On 9 July 2020, the applicant sought a review by this Office of the Council’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant as well as the submissions made by the Council in support of its decision. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council refused access to records 1 to 3 and redacted certain information from record 4. Records 1 to 3 are invoices from a travel company relating to flights and associated management fees for proposed travel by Council representatives to New York for St. Patrick’s Day 2020.
Record 4 is a credit card statement dated 3 March 2020 for an account in the name of the Council. Having examined that record, and having regard to the request made, I am satisfied that the only information coming within the scope of the applicant’s request is the information redacted from the column entitled “Reference” for the four transactions dated 8 February 2020. I am satisfied that all remaining redacted information falls outside the scope of the applicant’s request and as such, the right of access to such information does not form part of this review.
This review is therefore concerned with whether the Council was justified in refusing access to records 1 to 3 and the relevant information described above in record 4 under sections 30, 36 and 37 of the FOI Act
The Council refused access to records 1 to 3 under sections 30(1)(c), 36(1)(b) and 37(1) and refused access to the relevant parts of record 4 under sections 36(1)(b) and 37(1).
Section 30(1)(c) of the FOI Act provides that an FOI body may refuse a request if access to the relevant record could reasonably be expected to "disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body".
In its submission to this Office, the Council said that following the cancellation of the proposed travel for St. Patrick’s Day due to the COVID-19 pandemic, it is currently engaged in ongoing negotiations with the travel company with a view to agreeing a credit note for the cancelled travel. It argued that release of the records would incorrectly imply that the Council had paid the invoices for the amounts indicated whereas no payment has been made and it is seeking a mutually agreeable position with the travel company. The Council argued that release of the records would interfere with its ability to successfully conclude these negotiations. It also argued that release of the relevant records would give the erroneous impression that individuals had travelled at a time when public health advice was not to travel.
In his application to this Office the applicant argued that the requirements of section 30(1)(c) are not met and in particular that the Council cannot reasonably expect that release of the relevant records would significantly adversely affect the ongoing negotiations in relation to the payment of the invoices. He has also indicated that he has submitted the same request to 31 local authorities, many of whom also had to cancel travel plans due to the COVID-19 pandemic and are engaged in discussions with travel providers or insurers about reclaiming travel costs, and Laois County Council was the only local authority to refuse him access to the relevant information. He further argued that if the Council is concerned that release of the records would create a false impression that individuals had travelled when in fact they had not, that it is open to the Council to clarify the position in an accompanying letter.
This Office does not generally accept that the possibility that information once released will be misinterpreted is a good cause for refusing access to the information, nor is there any provisions in the Act to exempt the release of information on the grounds that it is factually inaccurate. It seems to me that the Council should be capable of presenting the information in a way which will allow any objective observer to draw accurate and balanced conclusions.
Having examined the records at issue, it is not clear to me how the disclosure of the original invoices for the proposed travel for St. Patrick’s Day could reasonably be said to disclose positions taken or to be taken by the Council in negotiations with the travel company to obtain a credit note for the cost of the flights. By their very nature these invoices reflect the proposed travel arrangements which were subsequently cancelled due to the COVID-19 pandemic. Nowhere in these records is there any reference to the ongoing negotiations by the Council seeking some reimbursement for these invoices.
I therefore fail to see how release of these records could in anyway disclose the position of the Council in these negotiations and find that section 30(1)(c) does not apply to records 1 to 3.
Section 36(1) provides for the refusal of a request if the record sought contains 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.
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. The test to be applied is whether the decision maker's expectation of the identified harm arising 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).
Records 1 to 3
In its submission to this Office the Council argued that access to the VAT number of the travel company as well as the name of the travel company’s bank, its bank account name and the BIC number used for payments in records 1 to 3 was refused on the basis of section 36(1)(b) as to release this information could result in a financial loss to the company. In particular, the Council argued that the company’s VAT number is specific to the company and is generally not publically available unless the company provides it to a customer by way of invoice. The Council argued that if this information was released it could be inappropriately used and could facilitate fraudulent activity that could result in a financial loss to the company in question. Similarly, the Council argued that the company’s bank account details are not generally publically available unless the company provides them to a customer to facilitate payment and release of this information could also result in fraudulent activity on the company’s bank account.
The Council also stated that access to the invoice numbers in records 1 to 3 was refused on the basis that release of this information could result in a financial loss to the Council. The Council indicated that this information is one of the means used by the Council to verify the identity of a company when dealing with telephone queries and if released could give rise to information being inappropriately released to a person other than a representative of the company which could be fraudulently used.
In his application to this Office the applicant argued that companies which transact business with a public body should be aware that information is liable to be made public through an FOI request.
Having considered the matter, I do not consider that release of the above information could give rise to the harms outlined in section 36(1)(b). The travel company’s VAT number is readily available online and therefore I cannot see how release of this information could be seen to be commercially sensitive. In addition, I cannot see how the release of the company’s bank, bank account number and BIC number could lead to the harms identified by the Council. Records 1-3 are clearly standard invoices which the travel company issues on a regular basis to its clients. As such I cannot accept that the information contained therein relating to the banking details of the company can be seen to prejudice the competitive position of the company or result in financial harm.
On the matter of the Council’s invoice numbers, I simply do not accept its argument that the release of those numbers could reasonably be expected to result in a financial loss to the Council as alleged. It did not explain how the release of invoice numbers could result in its fraudulent use leading to a financial loss, nor is it apparent to me how such a harm might occur.
I therefore find that the section 36(1)(b) does not apply to this information.
Outlined above, the only redacted information that falls within the scope of the review is the information redacted from the column entitled “Reference” for the four transactions dated 8 February 2020. While the Council redacted certain other information from record 4 under section 36, that information does not form part of this review.
I note that the Council redacted what appear to be transaction reference numbers from the four transactions in question. However, it made no specific reference to those numbers in its submission to this Office concerning the applicability of section 36. I cannot see how the release of what appear to be internal banking transaction reference numbers could in any way give rise to the harms identified in section 36(1)(b). Nevertheless, for the avoidance of doubt, I find that section 36(1)(b) does not apply to this information.
The Council refused access to parts of the relevant records under section 37(1). That section provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. Where the individual is or was a service provider, the definition does not include his or her name or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service (Paragraph II refers).
Section 2 of the FOI Act defines "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".
In its submission to this Office, the Council said it refused access to the name of the travel consultant from records 1-3 on the basis that it is personal information relating to the individual’s employment. Having examined the records, I see no reference to an individual in record 3 and therefore find no part of that record to be covered by section 37(1). With regard to the individual named in records 1 and 2, I am satisfied that the company was at the time providing travel services to the Council and I find, therefore, that the name of a member of staff of that company does not constitute personal information under the provisions of the Act.
The Council also refused access to the names of two individuals in records 1 and 4 on the basis of section 37(1). The Council said the individual named in record 1 was to accompany an elected representative on the proposed flights and the individual named in record 4 was also due to travel and is not a Council representative. The Council argued that the proposed travel arrangements for these individuals is considered to be their personal information as such travel plans would only be known to those individuals and/or their families. In addition, the Council considers that the information was given for a limited purpose, i.e. in connection with making the bookings for a trip, and in the context that such information would be treated as confidential and not made public and therefore that this is personal information within the meaning of the definition set out in the Act.
In his submission to this Office the applicant said he objects to the Council’s reliance on section 37 in relation to the individual named in record 4 as it would appear that the Council has booked travel on behalf of a member of the public. He argued that if that individual did not want their details to be subject to the FOI Act then they should have made the relevant travel booking themselves.
The Investigator contacted the two individuals in this case and in both cases the individuals objected to the release of their personal information on the basis that they are private individuals and not Council representatives. In addition, the Council indicated to this Office that while, as set out above, the invoices for travel to New York have not yet been paid as they remain under discussion with the travel company, if it is the case that the Council pays these invoices, then requests for reimbursement will issue to the two individuals in line with normal procedures.
Having considered the matter, I consider that travel by an individual abroad is likely to be something known only to family members or friends and I therefore I accept that the names of the two individuals in records 1 and 4 can be regarded as personal information within the meaning of section 37. I find, therefore, that section 37(1) applies to this information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would benefit the person to whom the information relates.
I am satisfied that the release of the information at issue would not be benefit the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors  IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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 has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
In this case, it is relevant that the Council has stated its clear intention to issue requests for reimbursement to the two individuals identified in the records in line with normal procedures. It is not the case that the costs of travel for the individuals in question will be borne by the Council. In the circumstances, I see no “sufficiently specific, cogent and fact-based reason” to consider, on balance, that the public interest in granting access to the information concerned outweighs the public interest in upholding the right to privacy of the individuals to whom the information relates. Accordingly, I am satisfied that section 37(1) applies as claimed.
I find therefore that the Council was justified in refusing access to the individuals named in records 1 and 4 under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I vary the Council’s decision in this case. I direct the release of records 1 to 3, apart from the name of the individual identified as the passenger redacted from record 1. I also direct the release of the information redacted from record 4 that forms part of the review as described above, apart from the name of the individual redacted from the second transaction dated 8 February 2020.
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.