Whether the Department was justified in refusing access, under sections 29(1), 33(1), 36(1), and 37(1) of the FOI Act, to records relating to an offer of two second-hand C295 aircraft to the Department and the subsequent decision to decline the offer

22 August 2022

Background

In a request dated 2 August 2021, the applicant sought access to -�copies of all high-level documents referring or relating to an offer of two second-hand C295 aircraft to the department/Irish state and the subsequent decision to decline this offer-�. The applicant specified that his request was to cover the period 1 January 2020 to 1 January 2021. In a decision dated 15 October 2021, the Department part-granted the applicant-�s request. It released in full five of the 11 records it identified as coming within the scope of the request, and one in part. The Department cited sections 29(1), 31(1)(c), 33(1) and 37(1) of the FOI Act in support of its decision to withhold part of one record and the remaining five. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records accompanying its decision.

On 15 October 2021, the applicant sought an internal review of the Department-�s decision, in the course of which he indicated that he had no issue with the Department-�s application of section 31(1)(c), which it had cited as a basis for withholding record 3. He also questioned whether the Department had identified all relevant records, in light of his concerns that record 1 did not appear to the opening communication on the matter.

In its internal review decision of 2 November 2021, the Department affirmed its refusal of record 5 in part and records 8 to 11. It also confirmed that record 1 was the initial record in respect of the time period identified in the request. On 11 November 2021, the applicant applied to this Office for a review of the Department-�s decision.

During the course of the review, the Department cited section 36 of the Act as an additional basis for withholding records 8, 10 and 11. As the applicant had not previously had an opportunity to consider the applicability of this exemption under the Act, we wrote to him to bring to his attention the fact of the Department-�s reliance on section 36 and to invite him to make any additional submissions that he wished in relation to same. No additional submissions were received from the applicant.

In addition, the Department argued that certain information in the records would, if released, affect the interests of a third party, Airbus. We invited the company to make submissions in relation to the relevant records. Such submissions were duly received and are considered below. It should be noted that the information in the records that relates to Airbus is not in respect of the offer to the Department to buy two second-hand C295 aircraft which formed the basis of this request, but rather a contract entered into by the Department and Airbus to instead purchase two new aircraft. However, the records at issue contain information relating to both of these purchasing options.

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 parties. I have also examined the records at issue, and have considered the correspondence exchanged between the parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in withholding records 8 to 11 in full and record 5 in part, under sections 29(1), 33(1), 36(1) and 37(1) of the Act.

Analysis and Findings

Section 36

The Department cited section 36 of the Act as a basis for refusing access to records 8, 10 and 11. Although it did specify the relevant subsection(s) of section 36 upon which it sought to rely, from its references to -�information of a financial, commercial and technical nature-�, and to certain relevant contractual negotiations, it can be surmised that it sought to rely on sections 36(1)(b) and 36(1)(c) of the Act.
Section 36(1)(b)

Section 36(1)(b) of the Act provides for the mandatory refusal of access to a record that contains financial, commercial, scientific, technical or other information, the disclosure of which 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 whether disclosure of the

information -�could reasonably be expected to result in material financial loss or gain-�.

The test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker-�s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

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 in the conduct of his or her profession or business or otherwise in his or her occupation. The only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the degree of harm required to meet the harm test in the second part of this provision (-�could prejudice-�) is lower than that required to meet the test in the first part, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

Section 36(1)(c)

Section 36(1)(c) of the Act provides for the mandatory refusal of access to records containing information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, a party seeking to rely on this exemption should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

In its submissions, the Department said it had signed a contract to buy two C295 aircraft in December 2019. Following the signing of the contract to buy these new aircraft, the Air Corps commenced negotiations with Airbus for a support and maintenance package for the aircraft which was finalised in December 2021. The Department said the FOI request at issue had been received while these negotiations were ongoing, and it had considered that the release of these records might affect the outcome of these negotiations. It said records 8, 10 & 11 contain information of a financial, commercial and technical nature obtained from the third party company during contract negotiations.

The Department added that the records include a pricing schedule, aircraft configuration details and technical information obtained from Airbus in confidence as part of contract negotiations. It said Airbus operates in a highly competitive market and it argued that the release of this information could potentially be used by competitors in a manner which could cause commercial harm to Airbus. It said this commercial information would not otherwise be available to competitors, who could use it to their advantage and could prejudice the competitive position of Airbus in future procurement competitions. 

Submissions from Airbus

As outlined above, this Office invited Airbus to make submissions in relation to the applicability of section 36(1). In response, Airbus argued that the configuration of the C295 aircraft was by itself confidential, and included classified information relating to the national defence and security interests of its customers, who were mostly national departments of defence, as in the case at hand. This was the case, Airbus argued, in circumstances where the C295 was not at all an -�off-the-shelf-� product, and in fact no standard or catalogue configuration existed without modifications, which meant that in order to satisfy each customer-�s needs, it was required to assume substantial investments in requested bespoke developments in the platform and its equipment and systems. Airbus said it would only enter into such development efforts and investments if confidentiality (in particular in relation to technical and financial data) was secured by the customers, as otherwise its competitors would benefit from those investments and data without any burden.

I have considered the submissions of the Department and Airbus in relation to records 8, 10 and 11. I consider first of all that section 36(1)(c) does not apply to exempt the records, in circumstances where no ongoing contractual negotiations exist, and where the Department has not explained how release could prejudice the conduct or outcome of any other negotiations. This review is de novo, in other words it takes account of the state of the law and the facts as they exist at the time the review is conducted. As such, the fact that contractual negotiations were ongoing at the time the FOI request was made cannot be a basis for their continued withholding at this juncture.

In relation to section 36(1)(b), having examined the records carefully, I find that the disclosure of certain information such as a pricing schedule, aircraft configuration details and technical information could prejudice the competitive position of Airbus by providing an advantage to its competitors. The specific sections of the records to which I consider section 36(1)(b) to apply are:

• Record 8: The second paragraph of page 2; the third sentence of the fifth paragraph of page 2; Annex B (pages 7-14);
• Record 10: The final paragraph (point b) of page 8; Annex A (pages 14-22); Annex E (page 27).

For the sake of clarity, in relation to the second paragraph of page 2 in record 8, to which I have found section 36(1)(b) to apply, I consider that the first two sentences in that paragraph contain commercially sensitive information relating to Airbus.  I consider that, on the same basis, the final sentence of the paragraph contains commercially sensitive information relating to the separate third party company that offered two second hand C295 aircraft for purchase to the Department.

However, that is not the end of the matter as section 36(1) of the Act is subject to the other provisions of section 36. I am satisfied that none of the conditions specified in section 36(2) applies.

Section 36(3) provides that the exemption in section 36(1) does not apply in relation to a case where, in the opinion of the FOI body, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. In its submissions on this point, the Department submitted that it would be contrary to the public interest to release information that may adversely affect future public procurement competitions of aircraft.

Airbus made a similar argument in its submissions, stating that the release of the records would potentially impact not only its interest but also those of its competitors, ie. if confidentiality was not assured in the Light and Medium aircraft market, no company would be able to offer any products, which would harm free competition in the market and which, according to the company, would not serve the public interest.

This Office recognises that there is a public interest in protecting the commercially sensitive information of third parties, and also accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. While the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations, the view of this Office is that, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. 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, namely the positive public interest which is served by disclosure, and the harm that might be caused by disclosure.

I note that a certain amount of information relating to the contract awarded to Airbus is already in the public domain. I note, for example, that the total cost of the contract awarded is already a matter of public record (for example, having been disclosed by the then-Minister for Defence in answer to a parliamentary question in the Oireachtas on 17 November 2020). On balance, I consider that the public interest in the disclosure of the more granular financial information contained in records 8 and 10, both as it relates to Airbus and to the separate third party company that offered the Department the option to purchase two used C295 aircraft, is outweighed by the public interest in protecting commercially sensitive information relating to those organisations. I make a similar finding in relation to the aircraft configuration details and technical information contained in records 8 and 10, and find that overall section 36(3) does not operate to disapply section 36(1) in respect of the information at issue.

I find, therefore, that the information I have specified above in records 8 and 10 is exempt from release under section 36(1) of the Act. I consider that neither the remainder of those two records, nor record 11, are so exempt. I consider the extent to which record 11, and the remaining portions of record 8 and 10, might be exempt under other provisions of the Act, below.

Section 29(1)

The Department section 29(1) of the Act as a basis for withholding access in full to records 8 to 11. Section 29(1) of the Act provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply insofar as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.

In its submissions, the Department argued that section 29(1)(a) applied to records 8, 10 and 11 as they contained information that was being used in the deliberative process of the Department of Defence and the Defence Forces in relation to future planning/tactics and strategy. It also argued that section 29(1)(a) applied to record 9 on the basis that it contained information that was being used in the deliberative process of the Department of Defence and the Commission on the Defence Force.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

I have examined the records at issue and consider first of all that, in respect of records 8, 10 and 11, the Department has successfully identified matter in the records that relates to its deliberative processes. Record 8, for example, comprises a business case for the procurement of aircraft and, as such sets out various options available in this regard, as well as the risks and costs associated with each option. I consider that this clearly meets the standard of a deliberative process as envisaged by section 29(1)(a), as it shows the Department engaged in the process of weighing up different choices and analysing the factors for and against each choice.

Similarly, record 10 is a Strategic Assessment Report in relation to the procurement of aircraft and, like record 8, sets out a list of potential options available to the Department, as well as the potential financial and economic costs associated with each option. It also sets out the strengths, weaknesses, opportunities and threats involved in any purchase of the aircraft in question and, at the conclusion of the record, contains a recommendation as regards which option the Department might pursue. This is sufficient, in my view, to bring the record within the ambit of section 29(1)(a).

Record 11 is a Multi-Criteria Analysis Report on the procurement of aircraft. This record again sets out a number of options available to the Department, as well as the criteria and scoring scheme in place for assessing each option. Like Record 10, this record contains at its conclusion a recommendation relating to the option that the report-�s authors consider to be preferable. My view is that such information brings the record squarely within the scope of section 29(1)(a).

The matter is less clear-cut in relation to record 9, which comprises email correspondence between the Department and the Commission on the Defence Forces. The relevant information in the records is a series of answers provided by the Department to questions raised by the Commission. I do not consider that this shows the Department engaged in a process of considering different options or courses of action in order to come to a decision. As such, I do not consider section 29(1)(a) applies to record 9. In those circumstances, I am not required to consider the applicability of section 29(1)(b) to this record.

It remains for me to consider the applicability of section 29(1)(b) to records 8, 10 and 11. The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. This Office has previously held that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body-�s deliberations -� whether before or, in some cases, after a decision based on those deliberations has been made -� would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

In its submissions, the Department did not specifically address the manner in which it considered that section 29(1)(b) applied to records 8, 10 and 11. However, in its Internal Review decision, the Department stated that records 8, 10, and 11 were draft records containing opinions and recommendations of a member of the staff of the Air Corps, and stated that the release of such individual opinions and recommendations as expressed in these draft documents would serve to misinform the public, and that therefore the granting of access to these records would be contrary to the public interest. I have considered this argument and note that, while the Department has stated that the release of the records would misinform the public, it has not elaborated on this point.

In any event, this Office has clarified in may previous published decisions that the possibility that information once released will be used (or abused) in some particular way or misinterpreted or will not be properly understood is not generally 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. Apart from anything else, such an argument seems to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

The Department has not made any further argument as to how it considers the release of the records would be contrary to the public interest, and I cannot identify any information in the records the release of which would, in my view, be contrary to the public interest. Accordingly, I find that section 29(1)(b) does not apply. On the basis of the above analysis, therefore, I find that records 8 to 11 are not exempt from release under section 29(1) of the Act.

Section 33(1)

The Department also cited sections 33(1)(a) and (b) of the Act as a basis for withholding records 8 to 11. Section 33(1) provides that a public body may refuse to grant an FOI request in relation to a record if, in its opinion, access to the record could reasonably be expected to affect adversely (a) the security of the State or (b) the defence of the State.

An FOI body relying on the exemption at sections 33(1)(a) and/or (b) must identify the potential adverse effect on the security and/or defence of the State and, having identified that adverse effect, consider the reasonableness of any expectation that the adverse effect will occur. It should be noted that section 33(2) provides a non-exhaustive list of categories of records that may qualify for exemption under section 33(1). With the exception of records falling within section 33(2)(b)(i) or (ii), the mere fact that a record falls within a category of records described in subsection (2) is not sufficient to render the record exempt pursuant to subsection (1); it must also meet the harm test in subsection (1). In the case at hand, the Department identified section 33(2)(a) as being the applicable category of record, i.e. information that relates to the tactics, strategy or operations of the Defence Forces in or outside the State. As such, in considering the applicability of section 33(1) to the records at issue, I must consider go to also consider the harm test provided for in that provision of the Act.

In its submissions on the applicability of section 33(1), the Department stated that records 8, 10 and 11 were draft records that contained information on how the Air Corps operated aircraft in its various roles, including information on aircraft capabilities, configuration and range. It stated that the records also outlined potential future operations and tactical usage for aircraft. In relation to record 9, the Department stated that section 33(1) applied on the basis that the record contained similar confidential information relating to Air Corps planning and operational matters.

The Department went on to argue that Defence Forces plans were kept confidential and not made public in order to safeguard Defence Force members when carrying out their duties which included operations in certain high risk locations. The Department stated that it was difficult to gauge the detrimental effect that releasing this type of information on Defence Forces tactics and strategy into the public domain would have, as there was no way of knowing who will see the information if it is published. The Department argued that it would be contrary to the public interest to release any information of the type contained in the records at issue.

The Department also stated that, as records 8, 10 and 11 were draft records, they did not represent its final considered position or that of the Defence Force. The Department argued that it had not made any prior request for the draft records, which had been created by the Air Corps, to be produced, and as such that the views expressed in the records were not formal policy and had not been endorsed by the General Staff of the Defence Forces.  The Department stated that the release of these draft documents would serve to misinform the public.

For an FOI body to succeed in its arguments that section 33(1) applies, it should demonstrate how access to the record in respect of could reasonably be expected to have the adverse effect identified. While it does not have to show that the adverse effect will definitely occur, the FOI body should be able to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

I have outlined above in my analysis of section 29(1) the nature of the information contained in records 8 to 11. I have examined the content of each of these records in light of the arguments under section 33(1) made by the Department. While the Department made a number of general arguments about the adverse effects it expected could follow from the release of the records, I do not consider that it has tied these arguments to the specific contents of the records. For example, the Department has argued that the records contain information relating to potential future operations and tactical usage of aircraft by the Air Corps, and has also alluded to the Defence Forces carrying out operations in certain high risk locations. However, it seems to me that there is nothing in records 8 to 11 that commits the Department or the Defence Forces, including the Air Corps, to any particular course of action, or usage of aircraft; similarly, there is no information in the records that appears to commit the Department or the Defence Forces to operations in any specific areas, high risk or otherwise. In addition, insofar as the records relate to the specific activities of the Defence Forces/Air Corps, the majority of activities noted are not, to my mind, activities typically related to the security and defence of the State, but rather relate to such matters as firefighting, search & rescue and aeromedical transport. Insofar as the activities mentioned in the records might be said to relate to the defence and/or security of the State -� for example, references to logistical and personnel transport -� there is nothing about the references to such activities that would, in my view, be likely to adversely affect either matter.

I have already addressed the Department-�s arguments regarding the potential misleading of the public by the release of draft records in my analysis of section 29(1) above; moreover, this is not an argument for exemption on the grounds of the potential adverse effect to the security and/or defence of the State, and as such is not sustainable when considering section 33(1). Furthermore, section 33(1) does not contain a public interest test, and accordingly I am not required to consider the Department-�s arguments regarding the alleged effect of the release of the records on the public interest.

In light of the above, I find that the Department has not established that an adverse effect on the security and/or defence of the State is reasonably likely to follow from the release of records 8 to 11. Accordingly, I find that the records are not exempt from release under section 33(1) of the Act.

Section 37(1)

The Department cited section 37(1) of the Act as the basis for withholding information from record 5. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In its submissions, the Department argued that it had redacted from record 5 was personal information relating to Department staff members, in order to protect the privacy of those individuals. However, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

I have examined an unredacted copy of record 5 and it appears to me that the material the Department has sought to exempt from release under section 37(1) falls squarely within the exclusion from the definition of personal information provided for by Paragraph (I) of section 2. As such, I find that this information is not exempt from release under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find it was not justified in refusing access to the records at issue apart from the following information to which I find section 36(1)(b) applies;

• Record 8: The second paragraph of page 2; the third sentence of the fifth paragraph of page 2; Annex B (pages 7-14);
• Record 10: The final paragraph (point b) of page 8; Annex A (pages 14-22); Annex E (page 27).

I direct the release of the records subject to the redaction of the above 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 requester 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.

Stephen Rafferty
Senior Investigator