Commercially sensitive

Below is the decision of the appeals officer in the department of social protection in response to my arguments seeking the release of full records from the JobBridge programme. Short version, they said no.

Back in June, I blogged the issues I intended to raise in my FOI appeal, for those of you who need a refresher.

I have six months to appeal the decision. I’ve already outlined some of the grounds on which I believe the refusal to supply me with all JobBridge records is mistaken here, but before I submit an appeal, I’m appealing to the wisdom of crowds. What points should I include in the appeal.

20 August 2012

Dear Mr Cunningham

I refer to the appeal which you made earlier under the Freedom of Information Acts 1997 to 2003 on 2 August for review of the earlier decision of this Department dated 30 May and 29 June 2012 respectively.

The Department received your appeal and fee of €75 on 6 August 2012.

I am a more senior member of staff of this Department than the person making the first decision. I decided today, on August 20, to affirm the original decision on your request. This decision on review is an entirely new and separate decision on your request, and is explained as such below.

The purpose of this letter is to explain my decision as in the paragraphs below:

I note that you were supplied with a range of documents and electronic data on 30 May and 29 June respectively.

The two specific matters that you now raise as the basis for the appeal are as follows:

1. Non release of Company ID’s – This information cannot be released as it is a unique identifier for companies when interacting with our National Contact Centre (NCC). The NCC are responsible for processing all Jobbridge and other vacancies. As such, if we were to release this information into the public domain, it would allow an individual to contact the NCC and purport to act on behalf of a company by supplying the Company ID number. An individual could then contact the NCC and act on behalf of the company. I have discussd this matter in detail with our colleagues in the NCC and as you may appreciate it would be both irresponsible and reckless of the Department of Social Protection to release Company ID data into the public domain. In accordance with Section 27 of the FOI Acts, the Company ID is clearly of a commercially sensitive nature and its release could damage the reputation of the company. As such, the only reasonable course of action is to reafirm the original decision in respect of the above.

I note that a significant level of vacancy and company data has previously been supplied to you as per the email correspondence sent to you on 29 June.

2. Non-release of 20% of records relating to companies who wished their details to remain anonymous – I note that over 8,300 rows of Company data were released to you in the email attachment that was sent to you on 29 June. It is my view that we cannot release data in respect of companies who conscientiously declared an option that their company details would not be displayed on the Jobbridge vacancy/website. It is my considered view that companies have specifically requested that their details would remain anonymous and would not be displayed in the public domain. In accordance with Section 27 of the FOI Acts, it is my view that this information is commercially sensitive and that these companies made a deliberate decision that their company information would not be released into the public domain. In my view, the release of this information would undermine the expressed wishes of these companies and their specific request that their company details would not be released by JobBridge. It is my considered view that there is ‘a reasonable expectation of confidence’ on behalf of these companies that their information would remain confidential.

Finally, in the penultimate paragraph of your appeal you assert that you did not receive a response to your request for ‘a normalised table of the data in the JobBridge database’. I have reviewed these records further and note that the FOI Officer sent you an email responding to this matter on 24 July. See below for further information.

I refer to your most recent request regarding a normalised table of the data in the JobBridge database, linking companies to vacancies with the COMPANY_ID identifier removed.

I have discussed this further with the IT Department and the FOI unit. There is no such record available in the JobBridge database. The database records are kept in the manner of the data dumps as previously supplied.

Separately, there are existing reports that have been generated in terms of breakdown of placements by company size and company sector but there are no existing reports/records in the manner that you have requested.

Please advise if you wish to receive the existing reports/records as outlined in the paragraph above.

Over to you, internet.

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  1. Re: Non release of Company IDs

    If someone in the JobBridge IT department put their mind to it, they could hash the COMPANY_IDs using MD5 or SHA-1. This would allow you to see related JobBridge positions (all positions in a single company would share the same cryptographic hash string), but without revealing the actual COMPANY_ID for those positions.

    I guess this goes beyond the provisions of the FOI legislation and would probably demonstrate too much eagerness to co-operate with an FOI request.

  2. I can see why they won’t release the company ID, the appeal officer makes a valid point you would need to look at it in more detail to see if there is a work around. Remember that the FOI Act does not oblige the creation of new records so there would be no obligation to anonymise the data for you.

    In terms of the name of the company in point 2 this is fairly typical. The appeal officer starts off discussing confidential information and then makes their conclusion based on commercial sensitivity. These are two separate sections of the Act and to confound them like this demonstrates a very low level of knowledge and competence regarding FOI.

    In terms of confidential information I spent 20 minutes on the site and nowhere does it say that the identify of a company can or shall be kept confidential, yes they have an option of not having their name listed on the site, but this is far from an obligation of confidentiality. Normally a company will use a recruitment agent if it wishes to be discrete about advertising a position. The situation here is analogous but it doesn’t give rise to an obligation of confidentiality.

    Presumably a candidate will at some point be told the identity of the company without having to sign an NDA and presumably those that are hired do not have to give an obligation to keep the identity of their employer a secret. If they did it would be bizarre. Therefore there is no obligation of confidentiality. And in fact the identity of the company enters the public domain at some point in the process. Imagine you got a job here and updated your LinkedIn profile.

    Turning to commercial sensitivity. The appeals officer does not say which subsection of 27(1) applies. There are only three circumstances where S27 applies: (a) trade secret; (b) competitive prejudice or financial loss; or (c) prejudice conduct of a contract.

    Since the appeals officer did not state which one of these they were applying the decision is already faulty.

    It is quite clear that none of these applies for more or less the reasons above. But even if they did the appeals officer is obliged to examine the exemptions to S27(1) that are set out in S27(2). Indent (b) and (d) are most relevant.

    In terms of (b) it is normal practice for job adverts not to be anonymous and for the identity of the employer to be in the public domain. Just look at the Irish Times on a Friday. In terms of (d) I would wager that one of the conditions of an employer signing on the Job Bridge is that FOI may apply to any data that is supplied. You might want to check the T&Cs of that.

    So to summarize. This is a faulty decision, there is no basis in the FOI Act for it and in fact it doesn’t seem to be actually based on the act at all since the officer has confused confidentiality with commercial sensitivity, has not said which specific section of the act they are applying and even if they did they have not examined the statutory exemptions which they are obliged to apply if they are engaged.

    This should be appealed.

  3. Fred,

    I’m not sure I agree with your first point about the creation of new records. It should be no more difficult to dump the data as a normalised set than in the form it was given to me, which I’ve asked for. I’ve even offered to go in and run a script myself to anonymise the numbers, or to do the replacement myself once the numbers are released to me, and keep the information confidential. I’ve also agreed without prejudice to not seek several fields of information for now to simplify the FOI process, including contact names, email addresses, telephone and fax numbers, full postal addresses etc.

    The only mention of confidentiality I came across is in the graphic above, which is a brief message which appears when the mouse hovers above a button asking the company to select yes/no to a question on displaying company details, and reads “do you wish company information/logo to be part of this internship advertisement?” (emphasis added). It seems to me that question extends only to the advertisement as it appears on the JobBridge wesite, and cannot be cited as a way to avoid releasing names in response to an FOI request.

    Your point about the subsection of Section 27 is interesting. No subsection is cited in response to the first item either.

  4. Yeah but there is no obligation to make a new record and if there is no obligation then it won’t be done unless they agree to it and they haven’t so that’s the end of it. What you need to do is to find a way of achieving what you want within the constraints of the FOI act, this is often possible with a bit of thought.

    You should go ahead and make the appeal along the lines of what is set out above. Be prepared to wait possibly more than a year for a decision from the Information Commissioner.

    I suggest also that you look at S26 on confidential information. Again this exemption is limited to where (a) the information was given in confidence and release would prejudice the giving of similar information in the future; or (b) there would be a breach of a statutory or legal duty of confidence. Even where (a) and (b) apply the head must consider the public interest and balance the public’s interest in disclosure with the duty of confidentiality.

    So to summarise there must be at least an understanding of confidentiality and where the duty is less than a legal one some prejudice to the public body. In any even the public interest must be taken into account when deciding to release or not.

    Obviously the appeals officer either doesn’t understand the relevant sections of the act or didn’t spend the time to make a proper administrative decision as is their statutory duty under FOI.

    The end result of this lack of competence and care in decision making is further delays and costs for both you and the public since an appeal will need now to be made to the Commissioner.

    As a journalist I suggest you shed some light on this issue and also highlight the limited reforms that are currently under review for FOI which are not addressing these core issues of training of FOI officers in public bodies and the inefficiency that this introduces into the system.

  5. Replacing the Company ID with a randomised number is not a matter of creating information. It is a matter of preserving information in the redaction process.

    Let me explain by a simple analogy.

    When I worked as an FOI Officer, an substantial part of my work involved redacting documents. For the most part this involved blacking out the names of individuals, which was personal data of no relevance to the request. However, very rarely a case would arise where simply blacking out the names would prevent a clear understanding of the document. You could have a description of a meeting, for instance, in which different people took part, sometimes more than once. It might be important to the requester to know that the person who made an intervention at the beginning was the same person who made a comment some time later.

    In such cases, a conscientious FOI Officer, instead of simply obscuring the name, will replace it with a designation: eg [Name 1 redacted], [Name 2 redacted], etc. This has the effect of withholding the details that need to be, while giving the reader a full understanding of the situation.

    This is exactly what you are asking for here: redaction which, instead of simply deleting the ID number, replaces it with another one. This preserves the information (the link between company and job) while obscuring the detail to be withheld. A public body with a genuine commitment to transparency would certainly take this approach.

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