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Case Number: 170234

Whether the Department was justified in granting access to certain records of correspondence between Mr. Michael O'Leary of Ryanair and the Department in a case to which section 38 of the FOI Act was applied in part

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

This review arises from a decision made by the Department to release records following a request to which section 38 of the FOI Act was regarded as applying in part. The request was for access to records of correspondence between Mr. Michael O'Leary of Ryanair and the Department from 1 January 2012 to the date of the request (23 August 2016). Section 38 applies to cases where the public body has considered at some stage in the decision-making process that the records in question qualify for exemption under one or more of the relevant exemptions in the FOI Act, but that the records should be released in the public interest. The relevant exemptions are sections 35, 36 and 37, which relate to information that is confidential, commercially sensitive or personal information about third parties, respectively.

Where section 38 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected parties, on receiving notice of the final decision of the public body, may apply directly to the Office of the Information Commissioner for a review of that decision.

In this case, the Department identified 17 records as relevant to the request. One record was refused in full under section 31 of the FOI Act, but the Department notified the applicant under section 38 of its view that the remaining 16 records were subject to release in the public interest. In response, the applicant objected to the release of any records affecting its interests, arguing in particular that 13 of the records should be refused in full under sections 35(1)(a) and 36(1)(b). It also argued that one record (number 17) contained personal information relating to Mr. O'Leary and other individuals and was therefore exempt under 37(1) of the FOI Act. (In addition, the applicant suggested that the release of certain records dealing with the Air Travel Tax would constitute a contempt of court under section 31 of the Act, but it is apparent that the Department did not consider section 31 to be of any relevance in relation to the records subject to the section 38 notification procedure.) In its decision dated 28 April 2017, the Department granted access to the records concerned subject to the redaction of information that it regarded as commercially sensitive under section 36 of the Act. Two of the records to which no specific objections were raised were released to the requester with the decision. The applicant subsequently applied to this Office for a review of the Department's decision.

With the authority delegated to me by the Commissioner, 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 and the Department. In addition, I have examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

Adopting the numbering system used by the Department in its schedule of records, my review is concerned solely with the question of whether the Department was justified in granting access to the following records:
records 2, 5, 7, 9, 10, 12, 13, 14, 15, 17 (in full);
records 4, 6, 8, 11 (in part).

My review is concerned with the question of whether the Department was justified in granting access in full or in part to the 14 records identified above.

Analysis and Findings

Section 22(12)(a) of the FOI Act provides that a decision to grant a request to which section 38 applies is presumed to have been justified unless the person concerned shows to the Commissioner's satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the applicant for review to show that the records concerned should not be released on the basis of at least one of the relevant exemptions. It should also be noted that a review by this Office 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.

I note that the applicant objected to the involvement of the decision maker in this matter because of his role in litigation related to the subject matters of a number of the records at issue. However, it is common practice within public bodies that staff appointed as FOI decision makers continue to fulfil other duties and inevitably have to make decisions in relation to records falling within their own area of responsibility. It does not necessarily follow that such decisions are flawed. In any event, as this review is de novo, the applicant has not been prejudiced by any perceived irregularity in the Department's handling of the matter.

The Department's position
In this case, the Department stated in its submissions to this Office that two of the records at issue, records 14 and 17, were released in full on foot of previous FOI requests and that it had received Mr. O'Leary's handwritten authorisation for the release of record 17. More generally, the Department explained that many of the records in question are letters written by Mr O'Leary to the Minister of a lobbying nature in order to influence public policy in relation to taxation matters, policy surrounding the duties applied by the Dublin Airport Authority (DAA) or the structure of the DAA itself. In the Department's view, there is a clear public interest in the release of the records in the circumstances.

In relation to the claim of confidentiality under section 35(1) of the Act, the Department took into account that there was no evidence that "a mutual confidential agreement was in place" or that a "covenant of confidentiality" had been entered into between the Minister and Mr. O'Leary. While "private and confidential" is stamped on most of the correspondence, the Department noted that this alone does not provide a basis for exemption under section 35. The Department therefore considered that, on balance, the public interest favoured release.

In relation to the claims of commercial sensitivity, the Department accepted that the business of low cost airlines is highly competitive. However, the Department explained that it refused access to the information contained in the records about Ryanair's business operations and business strategy that it regarded as commercially sensitive. Thus, taking record 4 as an example, the Department highlighted that information relating to numbers of aircrew, amount of total taxes paid, where crew members are based, and how they engage with the authorities of other Member States has been exempted under section 36. The Department's position is that the redacted parts of the records at issue are commercially sensitive and that release is not in the public interest, but that the public interest in relation to the remaining records at issue "lay in knowing that the 3rd Party was writing to the Minister to influence policy around aviation".

The applicant's response
The applicant was notified of the material issues arising from the Department's submission. In response, the applicant does not dispute that records 14 and 17 have previously been released, but it notes that record 14 was released without notifying the company as required under section 38. It contends that "the illegal release of this record in breach of the FoIA cannot be used to justify its subsequent release". Included with its submissions is a copy of a letter from the Department dated 8 March 2016 in which it apologised for the "regrettable oversight" while stating that "it seems unlikely that consultation would have changed the decision [to release] in this case". The applicant otherwise maintains that the records at issue are exempt on the basis of confidentiality under section 35(1)(a) and commercially sensitivity under section 36.

Section 35(1)(a)
Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;

that the information was given to an FOI body in confidence,
that the information was given on the understanding that it would be treated by the FOI body as confidential,
that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

The applicant notes that a "a mutual confidential agreement" or "covenant of confidentiality" is not required for a record to qualify for exemption under section 35(1)(a). The applicant argues that section 35(1)(a) applies on the basis that the records concerned were given to the Department in confidence and on the implied understanding that they would be treated as confidential. In previous correspondence, the applicant argued that the release of records 2 and 14 in particular would prejudice the giving of further similar information to the Department. In reference to its position as Europe's largest airline, the applicant stated that its advice and concerns as contained in the records are "of significant importance to the Department" and that it is indeed "essential that similar information continues to be given".

Records 5, 7, 9, 12, and 15 are letters of response from the Department to Mr. O'Leary. While they may indirectly reveal the subject matter of Mr. O'Leary's correspondence to the Department, I do not accept that these records contain information given to an FOI body in confidence. For the reasons stated below, I also do not accept that the third requirement of section 35(1)(a) is met with respect to these letters.

Based on the submissions of the Department and the applicant, I accept that the correspondence from Mr. O'Leary to the Department was given in confidence and on the understanding that confidential treatment was desired. Records 2, 4, 5, 8, 10, 11, and 14 contain Mr. O'Leary's views on policy matters affecting the economic well-being of his company and the aviation industry in Ireland. As the applicant points out, the company is Europe's largest airline; it is therefore a key stakeholder and I accept that it is important that such further similar information should continue to be given to the Department. However, as providing such information serves the interests of the applicant and the aviation industry, I do not accept that the release of the records subject to the redaction of the information about the applicant's business operations and business strategy would be likely to prejudice the giving to the Department of further similar information from the applicant or others.

Records 13 and 17, on the other hand, are invitations to the Minister to attend an event in 2015 and a meeting of politicians and business leaders in Germany in 2016, respectively. I do not consider it likely that the disclosure of the invitations would deter Mr. O'Leary or others in industry from issuing such invitations to Ministers in future. As noted above, Mr. O'Leary has previously consented to the release of record 17. Moreover, I note that the Minister's attendance at the meeting concerned in 2016 was the subject of media attention. I am also not satisfied based on the Department's submissions that it is of importance to the Department, as required under the terms of the Act, that similar such invitations should continue to be given.

Section 36
Section 36 of the FOI Act provides protection for three different classes of commercially sensitive information as follows:

"36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains-

a) trade secrets of a person other than the requester concerned,

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."

Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request (section 36(3) refers).

In its submissions, the applicant's claims of commercial sensitivity in relation to the information at issue are focused on the comments and proposals made in the records in relation to the DAA. The applicant identifies the DAA as one of its most significant trading partners and maintains that the release of the records could result in a material financial loss to the company, prejudice the company's competitive position, and also prejudice its negotiations with the DAA and other airports, as well as between other airlines and the DAA. The particular harms that it points to are an increase in airport charges or reduced discounts at Dublin Airport and other airports. The applicant also suggests that the redactions made from records 4, 6, 8, 11 render these records "meaningless and beyond proper comprehension"

No argument has been made, nor do I find any basis for concluding, that the information at issue qualifies as trade secrets for the purposes of section 36(1)(a) of the Act. Regarding sections 36(1)(b) and (c), I note that the standard of proof is relatively low in that the mere possibility of prejudice to the competitive position, or to the conduct or outcome of negotiations, of the person concerned is sufficient. (The first part of section 36(1)(b) sets a higher test, however.) However, in the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J. held that it is not sufficient for a 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. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position.

In this case, I note again that the Department decided to redact the information regarding the applicant's own business operations and business strategy that it regarded as commercially sensitive. Having examined the copies of the records that are proposed for release, I find that the redactions are practicable without giving rise to any undue confusion with respect to the purpose and meaning of the correspondence. In the circumstances, I am satisfied that granting access to the redacted copies of the records is in keeping with section 18 of the FOI Act.

The applicant's particular concerns relate to its relationship with the DAA. The applicant seems to suggest that the DAA may retaliate against it and perhaps others in the event of disclosure by raising costs and that other airports might do the same. However, the applicant has not explained how the DAA or other airports could use Mr. O'Leary's correspondence in the manner suggested or why they would do so given that concerns about airport charges and the DAA's dominant position in the Irish aviation market are the subject of public debate by Mr. O'Leary and others. Moreover, I find no other basis for concluding that the release of the records at issue, as redacted, could prejudice the company's competitive position or the conduct or outcome of any of its negations. It follows that the higher test for a material financial loss or gain has also not been met. In the circumstances, I am not satisfied that section 36(1)(b) or (c) applies.

Section 37

For the sake of completeness in relation to record 17, I note that section 37(1) of the Act applies to personal information. Personal information, in turn, is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also lists 14 categories of information that constitute personal information. As noted above, record 17 is an invitation to the Minister to attend a meeting of politicians and business leaders in Germany in 2016. The meeting is a matter of public record as is the list of participants (http://www.bilderbergmeetings.org/participants2016.html). I do not accept that an invitation to the Minister of this nature is personal information within the meaning of the Act. It is also noteworthy that it is not disputed that Mr. O'Leary previously gave his written consent to the disclosure of the invitation.

The public interest

Having found that the records at issue do not qualify for exemption in the first instance, it is not, strictly speaking, necessary for me to address the public interest. Nevertheless, I note that I agree with the Department that there is a public interest in openness and transparency about matters affecting public policy. Again, as noted by the applicant, Ryanair is Europe's largest airline. It is therefore in a strong position to influence policies relating to the Irish aviation industry. The applicant has in fact described its advice and concerns about such matters as "essential" to the Department. The applicant suggests that any assessment as to whether a particular communication constitutes "lobbying" must be carried out in accordance with the Registration of Lobbying Act 2015, but I disagree. The principle of transparency in government and public affairs is inherent in the FOI Act itself, has long been acknowledged by this Office (e.g., Case 998058 (McAleer of the Sunday Times and the Department of Justice, Equality and Law Reform), available at www.oic.ie), and has now been given explicit recognition in section 11(3) of the Act. The Registration of Lobbying Act 2015 provides for public scrutiny of certain lobbying activities on a proactive basis, but it by no means undermines the importance of transparency in public affairs in relation to other activities of a "lobbying" nature regardless of whether or not they are captured by the 2015 Act. On the contrary, section 5(8) of the 2015 Act refers in a general manner to the existence of "the public interest in there being an appropriate level of transparency in relation to communications about any relevant matter and (in particular) to any arrangements for opening up such communications to public scrutiny otherwise than in accordance with this Act". Therefore, even if I were to find that any of the records concerned qualified for exemption on the basis of confidentiality or commercial sensitivity, which I do not, I would find that the Department was justified in finding that they should be released in the public interest.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Department to grant access to the records concerned.

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