Records of communications between CRH plc. and the Department of Public Enterprise - whether confidential information - section 26(1)(a) - whether disclosure could prejudice the conduct or outcome of contractual or other negotiations of CRH - section 27(1)(c)

Case Summary

Facts

The Department decided to grant access to two records affecting the interests of CRH following a request made under the FOI Act. CRH applied to the Commissioner for a review of that decision.

Decision

The first of the two records was a letter from CRH to the Minister. CRH argued that section 26 does not require that the information has a quality that is intrinsically confidential. The Commissioner explained that where an understanding of confidence is asserted by both parties, then in the absence of any independent evidence, he considers it appropriate to examine the contents of the records with a view to establishing whether the nature of the contents is consistent with the existence of an understanding of confidence. In this case, he decided that the information contaned in the record was not of a secret, private or sensitive nature and did not, therefore, have the necessary quality of confidence to come within the terms of section 26(1)(a). He also found that it was not of importance to the Department that it continue to receive such information. He found that section 26(1)(a) did not apply.

The second record was a note of a meeting between CRH and the Department. CRH argued that the disclosure of the record could prejudice its future negotiations. It argued that CRH will be involved in negotiations with the ESB in the future on many aspects relating to entry to the electricity market and that such future negotiations could be prejudiced if the ESB considers that a detrimental lobbying campaign is being conducted by it. The Commissioner considered that CRH was, in effect, arguing that disclosure of a record which indicates that CRH sought the assistance of the Minister in obtaining information relating to the de-regulation of the electricity market could affect the working relationship between the two parties. He did not accept that the disclosure of the fact that CRH sought the assistance of the Minister in the past could validly prejudice future negotiations concerning matters such as connection to the grid and arrangements for the sale and purchase of surplus electricity. He found that section 27(1)(c) did not apply.

Date of Decision: 01.10.2001

Our Reference: 99592

01.10.2001

X

Dear X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Public Enterprise ("the Department") to grant access to two records which may affect the interests of CRH plc. following a request made under the Act. I apologise for the delay which has arisen in dealing with your application. Unfortunately due to staff shortages and pressure of work, it has not been possible to finalise your case until now.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your correspondence with the Department and to your letter of 10 December, 1999 to my Office. I have also examined the records at issue.

Scope of Review

The Department decided to grant access to a number of records including (i) a letter of 11 September, 1998 from Mr Don Godson, Chief Executive, CRH plc to the Minister for Public Enterprise and (ii) a record entitled "Note of Meeting with Veridian/CRH" dated 31 March, 1999. You applied for a review of the Department's decision to grant access to these two records. Accordingly, my review is concerned solely with the question of whether the Department is justified in deciding to grant access to the two records.

Findings

Letter of 11 September, 1998 to Minister

You say in your letter of 10 December, 1999 that you wish to invoke section 26 of the FOI Act in support of your objection to the release of this record. Section 26 provides that certain information given to a public body in confidence is exempt. As you are aware, for this section to apply, the public body must show four things, viz.

• that the information was given in confidence,
• that the information was given on the understanding that it would be treated by it as confidential,
• that the 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 in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

With regard to the first two conditions you argue that the letter to the Minister was marked "personal" and that such a letter could only be understood by both the writer and the recipient, at the time it was sent and opened, to mean that it was intended for the recipient only and that it would be kept confidential. You also argue that section 26 does not require that the information has a quality that is intrinsically confidential. I should say at the outset that I do not accept that the mere fact that a communication is marked "personal" of itself is evidence that the information contained in the communication is confidential or that it is understood by the public body that the information was given to it on the basis that it would be treated as confidential. Furthermore, I do not accept that all information given to the Department by private companies is given in confidence and on the understanding that it would be treated by it as confidential. Indeed the fact that the Department has decided to release the letter indicates that it does not accept that there was an understanding on its part that the letter would be treated as confidential.

I should also explain that I have previously considered whether the contents of a record are relevant to the question of the confidentiality of the record in case number 98058 - Mr Phelim McAleer and the Department of Justice, Equality and Law Reform. In that case I explained that where an understanding of confidence is asserted by both parties, then in the absence of any independent evidence, I consider it appropriate to examine the contents of the records with a view to establishing whether the nature of the contents is consistent with the existence of an understanding of confidence. In this case, the record at issue contains the views of CRH concerning the future effectiveness of the CRH/Viridian partnership and a message of thanks to the Minister for Public Enterprise for meeting with the company. In my view, this information is not of a secret, private or sensitive nature and does not, therefore, have the necessary quality of confidence to come within the terms of section 26(1)(a).

While this finding in itself is sufficient for me to conclude that section 26(1)(a) does not apply to the record at issue, I have also considered whether the third and fourth conditions might apply to this record. You argue that the mere possibility that information which is given in circumstances where an obligation of confidentiality is expressly imparted could still be released would be likely to prejudice the future supply of such information by private enterprises involved in consultation with the Department or other public bodies. I do not accept that a private enterprise engaged in consultation with a public body can assume that all information given by it is given in confidence simply because the communication is marked "personal" and regardless of the nature of the information. Furthermore, I do not accept that the disclosure, in this case, of information which does not have the necessary quality of confidence about it would be likely to prejudice the future supply of such information. I am also satisfied that it is not of importance to the Department that it continue to receive such information. In the circumstances, I find that the provisions of section 26(1)(a) do not apply to this record.

Note of Meeting with CRH/Veridian

You claim that release of this record could prejudice future negotiations between the ESB and CRH/Veridian and that the exemption contained in section 27(1)(c) of the FOI Act applies. Section 27(1)(c) protects 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 harm is certain to materialise but whether it might do so. Having said that, I would expect that a person seeking to rely on this exemption would 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 outcome of such negotiations.

You say that CRH/Veridian will be involved in negotiations with the ESB in the future on many aspects relating to entry to the electricity market and I accept your evidence on this point. Your argument is that such future negotiations could be prejudiced if the ESB considers that a detrimental lobbying campaign is being conducted by CRH/Veridian. It seems to me that you are in effect arguing that disclosure of a record which indicates that CRH/Veridian sought the assistance of the Minister in obtaining information relating to the de-regulation of the electricity market could affect the working relationship between the two parties. However, it seems to me that any difficulty in the working relationship between the two parties which might arise is more likely to be as a result of the fact that CRH/Veridian will be in direct competition with the ESB. Furthermore, I do not believe that the fact that CRH/Veridian sought the assistance of the Minister in the past could validly prejudice future negotiations concerning matters such as connection to the grid and arrangements for the sale and purchase of surplus electricity.

You also argue that the record is not a true reflection of all the matters discussed at the meeting and that its disclosure could give the inaccurate impression that the meeting was specifically arranged to launch an attack on the ESB. However, as I have already indicated above, I do not accept that disclosure of the fact that the assistance of the Minister was sought in obtaining information relating to the de-regulation of the electricity market could result in future negotiations being prejudiced. It seems to me, therefore, that the question of whether the record accurately reflects the overall purpose of the meeting is not a relevant consideration as to the application of section 27(1)(c) to the record. In the circumstances, I find that section 27(1)(c) does not apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Department in this case.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner