Decision
Mr Darragh McDonagh and the Galway Harbour Company (GHC)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0053
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0053
Published on
Whether GHC’s refusal of an AIE request relating to the export of waste through the port of Galway was justified under articles 8(a)(ii) and 8(a)(iv) of the AIE Regulations
This decision is connected to case CEI/16/0034 (available on www.ocei.ie ) in which I found that GHC was a public authority within the meaning of the AIE Regulations. I expected GHC to process the appellant's AIE request and to inform him of the timescale in which he could expect to receive a decision. However, this did not happen.
On 6 November 2017 the appellant made the same AIE request to GHC. The request was for information relating to the use of Galway Harbour for the transportation of waste including the names of the waste disposal companies, details of tonnage, number of vessels involved and transactions between GHC and those companies for the years 2013, 2014 and 2015.
A decision on this fell due on 5 December 2017 and was not given by GHC.
On 6 December 2017 the appellant requested an internal review stating the time limit for a decision had elapsed.
On 12 December 2017 GHC replied with a "decision" apologising for the delay which it said was due to the need to consider a large volume of complex information. Although it failed to cite any article of the Regulations, it stated that the information requested was confidential and commercially sensitive and would adversely affect the interests of third parties who supplied information to GHC voluntarily. It outlined the public interest arguments it considered for disclosure and non-disclosure and refused the request. It did, without prejudice to that position, provide the appellant with aggregate figures for the three years specified in his request. It provided the total number of vessels, the total tonnage of waste exported, the names of the waste disposal companies and the combined total amount received from the companies for the three year period requested. It then went on to advise the appellant of his right to internal review. As GHC’s reply was made after both the one month deadline and the appellant’s email requesting an internal review, I am treating this as its internal review decision.
On 27 December 2017, the appellant appealed to my Office.
The appellant in his appeal expressed his disappointment with GHC pointing out that he had originally sought this information in June 2016. He stated that the information provided by GHC is inadequate in that it did not provide details of waste exported by each company. It also did not reveal details of individual transactions, which would outline the amounts paid by each company in return for specified services. He argued that in the absence of data in this or an equivalent format, it was impossible to comparatively evaluate the terms offered to each company.
My Office recognises that article 15(5) of the Regulations implies that a case may be resolvable other than by way of a binding decision. A case may be closed by way of settlement between the parties or by withdrawal of the appeal altogether. My Office explored a settlement between the parties. This approach, if successful, would mean that the appellant could receive a quicker resolution of their case and from the public authority’s point of view and it would mean less time and resources required in correspondence with my Office. Given the lengthy process the appellant went through, it was considered that this would be particularly beneficial to him. However, in this case, as a settlement could not be reached between the parties, I will bring this appeal to a conclusion with a formal decision. I should say here that the treatment of the original request by GHC was so poor that I can see why the applicant has decided that he requires a formal, binding decision on the withheld environmental information.
In carrying out my review under article 12(5) of the AIE Regulations, I had regard to the submissions made by the appellant, GHC and the waste companies. I also had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
In the course of the review, GHC identified and provided my investigator with 26 invoices that contain the information requested. Each invoice contains the name of the waste company; the tonnage transported; the name of the vessel and types of other port services provided (including stevedoring, forklift hire and security). It also includes the unit costs of services provided and the total amount due. While GHC has already disclosed some information in relation to this request, I am satisfied that, as this was aggregate information, all the information in the invoices falls within the scope of this review apart from the names of employees of the waste companies to whom the invoices are addressed. Should there be any doubt as to whether the names of any employees fall within the scope of request I will deal with this below.
GHC’s position
GHC said that it was relying on articles 8(a)(ii) and 8(a)(iv) of the AIE Regulations. However, as many of its claims and those of the third parties (the waste companies) are based on commercial confidentiality, I consider that Article 9(1)(c) is also relevant.
GHC stated that confidentiality of the invoices is essential for both the waste companies and the port. It argued that disclosure of the invoices would alert other ports to GHC’s confidential agreements with the waste companies and therefore other ports would have a significant advantage should they decide to quote for the business. It provided detail on the nature of inter port competition in Ireland and the business environment that the port of Galway operates in. It argued that the larger ‘Tier 1’ ports enjoy an increasing monopoly resulting in the downgrading or closure of other ports.
GHC said that it is continually negotiating with importing and exporting companies on charges. Releasing the detail of the agreed arrangements would, according to GHC, grant competing waste disposal companies and other ports a competitive advantage. It also stated that the release of the information would have a significant impact on its relationship with the companies involved or other export companies in future. It argued that disclosure of the information could lead the companies to transfer their business to other ports and this would have a negative impact on the port’s revenue and perhaps result, ultimately, in the closure of the port.
The appellant’s position
The appellant pointed out that waste companies are required to make certain information contained in the invoices available to the Environmental Protection Agency (EPA) as part of the conditions of their licence and also to the National TransFrontier Shipments Office. Therefore, he contended that some of the information is already a matter of public record. He argued that while GHC and/or its client waste companies are obliged to report certain information to authorities, this does not necessarily mean that they have done so. Obtaining the internal data through AIE would, according to the appellant, permit scrutiny as to the accuracy of information provided to authorities and ensure that obligations were met in this regard.
He contended that my decision as Information Commissioner in case number 170516 (available on www.oic.ie ) was relevant in that the records sought were similarly related to contracts, details of payments, and other business affairs involving third parties. More specifically, the records contained a description of services to be provided, payment rates, and total sums payable. He quoted part of the decision which stated that the records did "not contain information such as margins, profitability or business models or other internal affairs of the companies involved". In the current case, he argues that the information sought pertains to transactions that took place between three and five years ago. Regardless of the contended commercially sensitive nature of this data, the elapse of time would, in his view, render the information less commercially sensitive.
The Waste Companies’ positions
My Office sought submissions from the waste disposal companies on how, if at all, disclosure of the invoices would damage each company’s interests, particularly given that they related to transactions that occurred between three and five years previously.
The companies said that disclosure of the financial information would have an adverse effect on them. They stated that as they are either in current or ongoing negotiations and arrangements with other ports or other companies on the export of waste, revealing previous amounts paid, even if those related to 2013, 2014 and 2015 would be detrimental to their interests. One company cited the Consumer Price Index (CPI) and explained that this is a standard and widely recognised mechanism of annual cost inflation in the waste treatment/services and other commercial partners could work out the current equivalent rate of what it paid to GHC. It stated that the disclosure of financial information could prejudice the competitive position of its business. It went on to state that, given that there is currently a deficit in waste recovery infrastructure in Ireland, it is dependent on the export of waste to countries that have excess treatment capacity. It said that it is only one of a number of companies that exports this particular type of waste.
Article 8(a)(iv)
Article 8 (a)(iv) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect, without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Act 2014 with respect to exempt records within the meaning of the Act);
GHC cited Section 36(1)(b) and (c) of the Freedom of Information Act, as applying in this case.
A request for environmental information can only be refused under article 8(a)(iv) if three tests are met:
1. Disclosure would adversely affect the confidentiality of the proceedings of one or more public authorities.
2. Such confidentiality is otherwise protected by law (including the Freedom of Information Act 2014 with respect to exempt records within the meaning of the Act).
3. The public interest in disclosure does not outweigh the interest served by refusal as article 10(3) of the AIE Regulations refers.
In dealing with questions of interpretation of the provisions of the AIE Regulations such as "proceedings" which is not defined, it is relevant to have regard to the The Aarhus Convention: An Implementation Guide , which in relation to the question of "the confidentiality of the proceedings of public authorities" states:
"The Convention does not define 'proceedings of public authorities' but one interpretation is that these may be proceedings concerning the internal operations of a public authority and not substantive proceedings conducted by the public authority in its area of competence."
I do not accept that the information requested amounts to information on the proceedings of GHC as the invoices cannot be said to be proceedings relating to any internal operations of the public authority. The information is in invoices raised from normal business transactions. I cannot see how the confidentiality of proceedings would be affected. However, this is not to say that no confidentiality is potentially affected. It seems to me that the points put forward by GHC, including its reliance on the provisions of section 36 of the Freedom of Information Act 2014 in relation to confidentiality provided by law is essentially an attempt to justify refusal of the request on grounds that are based on the article 9(1)(c) exception - adverse effect on commercial or industrial confidentiality provided certain conditions are met.
Article 8(a)(ii)
This article provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information.
The information held is in the form of copies of invoices created and sent by GHC to the waste companies. The information in it was created as a result of the companies choosing to do business with GHC. I consider that it is simply a record of the fact that services were provided and rates of payment due applied and invoiced. I do not accept that this type of information can be deemed to be provided voluntarily by the companies in the manner envisaged by Article 8(a)(ii). I am supported in this finding by the reasoning in The Aarhus Convention: An Implementation Guide which states that this exception is “meant to encourage the voluntary flow of information from private persons to the government”. Guidance provided by the Minister for the Environment under Article 14 of the AIE Regulations also explains that the Article 8(a)(ii) provision is "intended to safeguard informal and voluntary communications between public authorities and third parties which are essential to good public administration generally".
Therefore, I find that article 8(a)(ii) does not apply to the information in the invoices.
My finding is that the application of Article 8(a)(iv) and Article 8 (a)(ii) has not been justified so I will proceed to consider the applicability of Article 9(1)(c).
Article 9(1)(c)
Article 9(1)(c) provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
I am prepared to accept in this case that the information in the invoices is commercial in nature. I accept also that the purpose of the confidentiality being protected in this case is the protection of the legitimate economic concerns of the waste companies and of GHC. I am taking it that the relevant national law is section 36 of the Freedom of Information (FOI) Act 2014. GHC has relied on these provisions in relation to its negotiations and competition within the sector. The third parties have also referenced negotiations and competition concerns in arguing that their financial interests would be adversely affected by release of certain information as it appears in the invoices.
Section 36(1) of the FOI Act provides that subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains—
....(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(2) provides that:
(2) A head shall grant an FOI request to which subsection (1) relates if—
(a) the person to whom the record concerned relates consents, in writing or in such other form as may be determined, to access to the record being granted to the requester concerned,
(b) information of the same kind as that contained in the record in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public,
(c) the record relates only to the requester,
(d) information contained in the record was given to the FOI body concerned by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the environment,
but, in a case falling within paragraph (a) or (c), the head shall ensure that, before granting the request, the identity of the requester or, as the case may be, the consent of the person is established to the satisfaction of the head.
I have no information to show that any of the conditions set out in subsection (2) apply in this case.
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 section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of the exemption. However, as Information Commissioner, I have taken the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Under the separate exemption of section 36(1)(c), access to a record must be refused where the disclosure of information contained in the record 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, 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 disclosure, and explain how exactly disclosure could prejudice the conduct or the outcome of such negotiations.
The adverse effect on future negotiations was cited by both the waste companies and GHC. The waste companies described how harm to their companies might materialise and stressed that future negotiations are either now happening or are reasonably foreseen. However, the companies did not see any difficulty in releasing the details of the tonnage of waste exported and when this was exported. The focus of their submissions was the cost negotiated and paid for the services provided. I am satisfied that, even though the information is several years old, disclosure of the financial terms on which they dealt with the transportation of the waste with GHC could prejudice their competitive position in the waste disposal industry vis a vis other ports and operators in the industry.
I accept also from the submissions made that GHC operates in the commercial sector in supplying the services at issue and that it has a reasonable expectation that its competitive position could be prejudiced if the financial details of its transactions with the waste companies were to be released.
I am satisfied that section 36(1)(b) and /or section 36(1)(c) applies to the financial information (unit, net and total amounts charged) as it appears in the invoices.
However, I am not convinced that disclosure of all the other information on the invoices would be detrimental to GHC given the passage of time and the fact that information showing what GHC charged for the services can be redacted. As I have referred to above, the affected companies do not object to the release of the non-financial material. In relation to the services provided, I would be surprised if competing ports would not be aware of the type of services that GHC offers in general in the same way that GHC is no doubt aware of what its competitors offer. I note that cost and location were the two most important elements cited by GHC in relation to inter port competition. I therefore find that neither sections 36(1)(b) or 36(1)(c) apply to the other information on the invoices.
Finding:
I find that, subject to the weighing of the public interest, article 9(1)(c) applies to the financial information in the invoices.
Article 8(a)(i)
Article 8 (a)(i) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. The expression "personal information" is not defined in the Regulations. The Department's Guidance document indicates that AIE decision-makers should have regard to the relevant provisions of the Freedom of Information (FOI) Act 2014. That Act defines personal information as including information about an identifiable individual that is held by an FOI body on the understanding that it would be treated by that body as confidential. I find that article 8(a)(i) applies to the names of natural persons on the invoices who are not employees or contractors of a public authority but of a private entity. I see no public interest in release of the names.
Application of article 10(5)
Article 10(5), which provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 relates, may be separated from such information. By examining the different types of information on the invoices, I have already applied article 10(5).
The Public Interest
I am mindful that the public interest balancing test in section 36 of the FOI Act not identical to the requirement of article 10(3). However, for the purposes of this case, the relevant factors to be considered are common to both and I will deal with them together. I have carefully considered all of the submissions although I will not repeat them all here.
My consideration of the public interest is confined to those parts of the invoices that I have found to be exempt from release under Article 9(1)(c). In considering the public interest served by disclosure under AIE, it is important to have regard to the purpose of the AIE regime as reflected in Recital (1) of the Preamble to the Directive: "Increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment." Thus, the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making.
The appellant argued that there is a public interest in the openness and transparency of public authorities in their use of public funds and delivering value for money. He also stated that while he was not suggesting any impropriety or actual conflicts of interest by any person in GHC, there is a public interest in showing that there is no impropriety or inequality in the treatment of waste companies by the terms offered to them by GHC. Financial information would facilitate public scrutiny of pricing and ensuring transparency and accountability.
GHC submitted that it had weighed the public interest and accepts that there is a public interest in the commercial activities of public authorities being open to scrutiny by the public. However, GHC also submitted that this is outweighed by maintaining the confidentiality of information relating to the commercial activities of public authorities so that they are not disadvantaged in those activities, particularly when competing with private operators. According to GHC, there is also a public interest in maintaining the confidentiality of information relating to the commercial activities of private entities. It submitted that the public interest in openness as regards the commercial activities of GHC is satisfied by its financial statements, which are available from the Companies Registration Office. The release of the aggregated information to the appellant was, in its view, sufficient to satisfy the public interest while also maintaining the confidentiality of information.
I also have had regard to the contents of the invoices themselves. Finally, I am mindful that section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant to my assessment under section 36(3) as to whether it would be contrary to the public interest to release the financial information. I have taken into account that section 36 not only relates to third parties in this case but also to GHC, the public authority, as it acts commercially.
I find that the public interest relating to greater public awareness of environmental matters is satisfied in the release of the all other information on the invoices apart from the financial information. I also find that the public interest in this case in making the financial information available is outweighed by the potential detrimental effect of release on GHC and the waste companies.
Having carried out a review under article 12(5) of the AIE Regulations, I find that refusal of the request was justified in part under articles 8(a)(i) and 9(1)(c) of the AIE Regulations having weighed the public interest in accordance with article 10(3). I affirm GHC’s decision in relation to the amounts charged. I find that the refusal of access to the remaining information was not justified. Accordingly I vary GHC’s decision and require the partial release of information.
For clarity, I require release of all the information on the invoices with the following information redacted or withheld:
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information