Thursday, 13 April 2017
Ceisteanna - Questions - Priority Questions
Freedom of Information
2. To ask the Minister for Public Expenditure and Reform the guidelines issued by his Department relating to decisions regarding commercial sensitivity; the methods his Department uses to balance the public need to know with the need for commercial sensitivity; and if he will make a statement on the matter. [19030/17]
I want to inform the Ceann Comhairle that I must attend the Committee of Public Accounts and it is for that reason that I will have to leave shortly. The question asks the Minister to inform the House of the guidelines which are issued by his Department relating to decisions regarding commercial sensitivity and the methods his Department uses to balance the public need to know with the need for commercial sensitivity.
Section 36 of the Freedom of Information Act 2014 sets out an exemption provision under which an FOI request can be refused where the requested information includes commercially sensitive information of a third party. This provision requires that decision makers should consider, before reaching a final determination, whether "the public interest would, on balance, be better served by granting than by refusing to grant the FOI request". The Deputy may also wish to have regard to section 35 of the 2014 Act, which provides for an exemption from release where information has been provided in confidence to an FOI body by a third party. This exemption is often of relevance where commercial arrangements exist between public bodies and third parties and is again subject to a public interest test. These exemption provisions were designed to protect the legitimate interests of third parties, in particular commercial interests, without placing a disproportionate restriction on the right of access to information.
The FOI central policy unit in my Department provides advice and guidance for FOI bodies and the general public on the appropriate procedures for processing requests. The unit has published a number of guidance notes and manuals. Of particular relevance are FOI central policy unit notice No. 4 relating to information obtained in confidence by an FOI body, notice No. 5 relating to FOI and public procurement, notice No. 8 relating to third party consultation and manual Part 2, chapter 10, on commercially sensitive information. All of these notes and parts of manuals are available on my Department's website. Ultimately, it is the role of the Information Commissioner and the courts to reach authoritative determinations on the interpretation of the Freedom of Information Act 2014.
I thank the Minister for the response. The problem is that while the theory of commercial sensitivity is to strike a balance between the public's need to know and private commercial objectives, it is not always achieved in practice. In fact, we do not have that balance. An example in the Minister's area, on which I have been doing some work in the Committee on Budget Scrutiny and the Committee of Public Accounts, concerns public private partnerships. Under the public spending code issued by the Department of Public Expenditure and Reform, it is the responsibility of the project sponsor to ensure post-project reviews take place. Very often, they do not. When they do, we cannot get access to them. They are not made public because we are told there are commercial sensitivities. In reality, that is not good practice because we need to be able to evaluate properly whether there was good value for money and whether the taxpayer got good value for money. The problem is that, at times, commercial sensitivity is actually used as a cloak or excuse to prevent proper scrutiny and the development of policy.
I appreciate from where the Deputy is coming. I was a member of the Committee of Public Accounts for a number of years. The issue in regard to the qualification of public private partnerships and the difficulty in getting information on them is one with which I am familiar. The reason, as I have alluded to, has two elements. The first is that where a semi-State commercial body which is subject to FOI legislation, as the Deputy knows, is competing with a private body which is not subject to it, the former can be at a competitive disadvantage. That is because there is a higher degree of disclosure. That is the reason for the caveat.
Let me consider the second caveat. Given that it is the State that is initiating public private partnerships, in order for it to be able to get best value, it can be and is of help to it to make sure the terms on which we conclude agreements are not available to competitors or other companies with which we might have to deal. If the Deputy has a specific project or group of projects in mind, as I am sure he does, I will be happy to respond to him if he mentions them.
I have discussed this issue with officials in the Minister's Department in respect of public private partnerships. It was based on a genuine desire to ensure we had proper scrutiny, not only in having a look-back but also in the planning of public private partnerships. The arrangement has been used as an excuse at times not to allow us to get under the bonnet of some of the public private partnerships that have taken place. That is unfortunate because the more information we have, the more scrutiny we have. The more we evaluate projects such as this, the better it is for all of us. It was in that vein that the questions were put. I have no difficulty in corresponding with the Minister on any of these issues.
I accept the principles the Deputy is raising. When I was commenting on the initial formulation of metro north many years ago, I raised similar points, stating it was very difficult to understand some aspects of the then project because every time one tried to gain access to some information, one was told it was commercially sensitive, to the extent that, at one point, it was actually difficult to ascertain how much the project was going to cost. I am very eager to ensure that, where possible, all information for which Deputies are looking will be made available under the FOI legislation. I spoke on this point at a conference recently. I pointed to the breadth of organisations that were subject to FOI legislation and the support we had for the office of the commissioner in making adjudications on the matter. There is a balance sought in making these decisions. It is a balance that, when maintained, is in the commercial interests of the State.