Mr Colin Coyle of The Sunday Times and the Department of Social Protection

JudgePeter Tyndall Information Commissioner
Judgment Date02 October 2015
Case OutcomeThe Commissioner affirmed the Department's decision and found that section 36(1)(b) of the FOI Act applied to exempt the employers' details on the basis of commercial sensitivity. He also found, in the circumstances of this case (particularly the Department's acknowledgment that it was not satisfied its internal guidelines for sanctioning employers were sufficiently comprehensive to ensure that fair procedure was afforded to all of those employers), that the public interest would not, on balance, be better served by granting the request.
CourtInformation Commission
Record Number150104
RespondentDepartment of Social Protection
Whether the Department was justified in refusing to release general details concerning employers that were "banned", as at 20 January 2015, from "using the JobBridge Scheme (the scheme) since its establishment"
Conducted in accordance with section 22(2) of the FOI Act, by Peter Tyndall, Information Commissioner

On 20 January 2015, the applicant made an FOI request to the Department, seeking "details of all companies 'banned' from using [the scheme] since its establishment" and "all correspondence with the banned companies informing them of their ban and all correspondence following the ban."

The Department's decision of 12 February 2015 refused to release details of "the identity" of the relevant employers under sections 29(1), 30(1)(a), and 36(1)(b) of the FOI Act. By way of an undated application, which the Department considered to be dated 13 March 2015, the applicant sought an internal review of this decision. Its internal review decision, dated 2 April 2015, affirmed its refusal to release the "identity of [relevant employers]".

On 14 April 2015, this Office received the applicant's application for a review of the Department's refusal of his request.

Ms Anne Lyons, Investigator, wrote to the applicant on 4 August 2015, clarifying that the scope of the review would be confined to the sole issue of whether the Department has justified its refusal of general details pertaining to the "banned" employers that it had considered on foot of the request. These general details comprised the names, general region and county in which the employers are situated, dates and duration of bans, and summary details of the rationale for the bans. Ms Lyons explained that, while the applicant had sought "correspondence" relating to the various host organisations, the Department had not specifically identified or considered the contents of any such correspondence it holds (an effective refusal of that correspondence). She went on to say that she would recommend that I should annul the Department's effective refusal of those records, and direct it to identify, and decide whether or not to release, the requested records.

Ms Lyons also referred the applicant to my recent decision in case reference number 140253 (available atán-Doherty-and-the-Department-of-Social-Protection.html). That decision concerned a request for the names of employers who had been excluded from further participation in the scheme as at 21 April 2014. In the course of that review, it emerged that the continued exclusion of the various employers, as at 21 April 2014, did not necessarily comply with the requirements of fair procedure. For this and other reasons set out in that decision, I considered that it was not in the public interest to direct the release of the details at issue in that case.

Ms Lyons explained to the applicant why, having regard to my decision in case reference number 140253, she felt that the majority of the details at issue in the present case should not be released. She also explained that she was consulting with the remaining employers whose details were at issue, to invite their views on whether the requested details should be withheld, given the Department's stated position that it had complied with fair procedure in sanctioning the employers concerned.

Also on 4 August 2015, Ms Lyons consulted with the 11 employers concerned. A small number of the letters sent to these employers were returned undelivered due to the company no longer being at the relevant address. The letters were subsequently sent again to the employers at other addresses supplied to this Office by the Department and, to date, have not been returned undelivered. Therefore, I think it is reasonable to proceed on the basis that all relevant employers were given an opportunity to make submissions.

Ms Lyons was contacted by six of those employers who, by and large, contended that the Department had not treated them fairly in its decisions to impose sanctions on them. Ms Lyons referred the general details of these employers' views to the Department. On 24 August 2015, the Department stated in response that one of the 11 employers had been placed on the list in error while, on 31 August 2015, it further said that it was satisfied another of the employers (which had contacted it directly on foot of Ms Lyons' letter) had not been afforded fair procedure.

As explained in my decision in case reference number 140253, in dealing with records generated by public bodies, my Office generally assumes that the requirements of fair procedure have been complied with by those bodies. In the present case, however, Ms Lyons noted the factors that informed my decision in case reference number 140253, the similarity of claims made by the employers that responded to her, and the content of the Department's August 2015 responses. Thus, on 31 August 2015, Ms Lyons asked the Department to confirm that it remained of the view that it had complied with the requirements of fair procedure when deciding to exclude the nine remaining organisations, including those that had not responded to her invitations to comment. The Department replied on 7 September 2015, and explained why it no longer considered this to be the case.

Accordingly, Ms Lyons asked the applicant to explain why, in light of the Department's revised position, she now considered that all details at issue in this case should be withheld (as well as the related correspondence sought in the request, which the Department had not considered for release in the first instance). She invited the applicant to make submissions. The applicant's reply of 8 September 2015 outlined why he felt that at least some, if not all, of the details at issue should be released.

I must now conclude this review by way of a final, binding, decision. In carrying out my review, I have had regard to various correspondence between this Office and the Department, the third parties, and the applicant, including those specified above. I have had regard also to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to the sole issue of whether the Department has justified its refusal of general details pertaining to the 52 employers "banned" from the scheme as at the date of the applicant's request.


Preliminary Matters
At the outset, it is relevant to note a number of preliminary matters.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Section 36(1)(b)

Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or 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 essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which...

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