Kevin Humphreys (Dublin South East, Labour)
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To ask the Minister for Public Expenditure and Reform the way in which the designation of commercially sensitive information is arrived at; if his Department has specific guidelines in place for the designation of information as commercially sensitive; his plans to reform this area in future legislation; and if he will make a statement on the matter. [2838/13]

Brendan Howlin (Wexford, Labour)
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I presume the Deputy’s question relates to the position pertaining under Freedom of Information legislation. Section 27 of the Freedom of Information Act sets out categories of information which are classed as commercially sensitive and are on that basis exempt from release under the Act. The basis to commercial sensitivity includes trade secrets, financial, commercial, scientific, 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 prejudice the competitive position of that person in the conduct of his or her business or the conduct of contractual negotiations. The consultation procedures laid down in section 29 of the Act must be followed before making a final decision on disclosure of such records. In addition, commercially sensitive information may be released, for example, if the information, or similar information is already in the public domain or if the provider of the information was informed before providing the information that such information could be made available to the public. It is also very important to note that if in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request, the issue of possible commercial sensitivity can be set aside and the relevant records released.

In view of the diversity of situations in which information which is potentially releasable under FOI can give rise to issues of commercial sensitivity careful examination is required of the individual circumstances applying in each case. Detailed guidelines are available from the FOI Central Policy Unit’s website www.foi.gov.ie on the interpretation and implementation of section 27 requirements relating to commercially sensitive information including from relevant custom and practice and case law in this area. In addition, the Office of the Information Commission publishes decisions on reviews on her website and special reports which provide extensive guidance to public bodies on how the Information Commissioner assesses decisions of public bodies in relation to FOI requests which would include records classed as commercially sensitive. The steps that may be necessary to strengthen and enhance current guidance to FOI for decision-makers more generally relating to the operation of the Act will be considered as part of the forthcoming operational and management review of FOI which is expected to commence shortly.

I do not currently propose to make any changes to section 27 of the FOI Act in relation to the exemption available for commercially sensitive information. In my recent discussion with the Oireachtas Finance, Public Expenditure and Reform Committee on my proposals for the reform and extension of FOI, I made clear however that in the context of the pre-legislative scrutiny process being carried out on the FOI legislation, I am open to any case that may be made relating to any matter encompassed by the proposed legislation.