Case number: OIC-53319-F9F1B1 (190105)
4 July 2019
This review arises from a decision made by Irish Water to grant access to records relating to a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the FOI body has formed a view that the record(s) in question are exempt under section 35 (confidential information) and/or section 36 (commercially sensitive information) and/or section 37 (personal information) but that the record(s) should be released in the public interest.
Where section 38 applies, the FOI body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the FOI body, may apply directly for a review of that decision to this Office.
On 21 December 2018, a requester made an FOI request for all records filed with Irish Water by Cairn Homes or any of its affiliates in respect of the development by them of lands in Donnybrook, Dublin comprising the Montrose site.
Irish Water consulted with Cairn Homes on 22 January 2019. On 28 January 2019, Cairn Homes replied, explaining why it believed that the records concerned were exempt under sections 36(1)(a), (b) and (c) of the FOI Act. On 1 February 2019, Irish Water carried out a further consultation with Cairn Homes regarding extra records it considered to be covered by the FOI request. Cairn Homes replied on 11 February 2019, again explaining why it considered the records to be exempt under the various provisions of section 36(1).
On 15 February 2019, Irish Water decided to grant the request on the basis that the records should be released in the public interest. On 28 February 2019, Cairn Homes made an application to this Office, through its solicitors, for a review of Irish Water's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, Irish Water, Cairn Homes and the original requester. I have had regard also to the records considered by Irish Water and to the provisions of the FOI Act.
This review is confined to whether Irish Water’s decision to grant the request is justified under the FOI Act.
In the circumstances of this case, section 36(1)(b) of the FOI Act seems to me to be the most appropriate provision to consider.
Section 36(1)(b) requires the refusal of access to records containing 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 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". This Office takes 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 considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner  IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner ( 2 I.L.R.M. 374,  2 IR 272,  IESC 35) Kearns J stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
The requester says that the records concern a proposed Strategic Housing Development (SHD) by Cairn Homes on the Montrose site. It says that because of the scale of the proposed development, Cairn Homes can benefit from a fast track planning process. This requires a pre-application consultation stage followed by an application for planning permission directly to An Bord Pleanála (ABP). The requester says that this bespoke process has been specifically designed to facilitate the implementation of Government policy in relation to the housing crisis and homelessness and therefore that SHDs are, by their nature, of fundamental importance to the public interest.
It is the requester’s position that because pre-application consultations are a mandatory requirement of the SHD planning permission process, they should not be seen in the same light as the traditional informal process. The requester also says that the application is no longer active
and that, in the interests of transparency, all of the pre-application documentation should be placed on the public register. It says that it makes no sense to hold that the records will only be made available if there is a subsequent application for planning permission, which cannot happen in this case because it is now effectively closed.
The requester says that the records do not contain trade secrets and as the application has been withdrawn, there is no application before ABP at present and therefore disclosure of the records cannot prejudice the conduct or outcome of contractual or other negotiations. The requester also says that disclosure could not reasonably be expected to result in a material financial loss or gain to Cairn Homes and also that disclosure could not prejudice its competitive position in the conduct of its business. It says that the proposed plans have already been widely reported on by the media. It describes information about the proposed development that is in the public domain and says therefore the information is no longer confidential. It says that because of the strategic nature and scale of the development and its impact on the local amenity and environment, transparency is essential and the public interest must override any private interest in confidentiality. Finally, the requester also says that the records concern environmental information and that accessing such information is a fundamental right that has been enshrined in both EU and Irish law.
Irish Water says that in the normal course it would consider that developers are entitled to confidentiality and to the protection of commercially sensitive information as contained in records like those covered by this review. However, its position appears to be that the plans have lost their confidentiality and commercial sensitivity because they have been reported on by the media.
Cairn Homes accepts that there is a very small amount of general information in the public domain in relation to the development. However, it says that the records contain other details that are commercially sensitive and could be of use to third parties. It maintains that granting the request could thus prejudice its commercial position and that the public interest does not require this.
It would not be appropriate for the Commissioner to direct that access be granted to records on the basis of a contention that a particular type of record should be publicly available. This would effectively amount to the Commissioner creating a general policy, which is not part of his role. In addition, even if a record contains environmental information, it may still be found to be exempt under the FOI Act.
As I understand it, the purpose of the pre-application consultation process is to give applicants for planning permission an opportunity to seek advice from planning authorities on proposed SHDs. The consultations are based on development plans at a particular point in time and can be subject to change. If and when a formal planning application is made, interested parties have access to all relevant planning documentation further to a statutory process.
Section 25(3) requires this Office not to disclose the content of a record under review. I accept that the records contain information about the development that has not been published. Having regard to Cairn Homes’ submission and the content of the records, which I have examined, I accept that the records could be of use to its competitors. It is also relevant that granting access to records under FOI is generally accepted to be equivalent to releasing them to the world at large. I accept its position that granting access to the records, which were created in 2017 and 2018, could prejudice Cairn Homes’ competitive position in the conduct of its business. I find that section 36(1)(b) applies.
The public interest
Section 36(2) provides for a number of exceptions to section 36(1), none of which I consider relevant in this case. However, section 36(3) provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
In relation to section 36(3) and on the matter of where the public interest lies, I have had regard to the comment by the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner  1 I.R. 729,  IESC 26)  1 I.R. 729,  IESC 26 (the Rotunda case) that a public interest is "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Although this comment was made in relation to another provision of the FOI Act, I consider it relevant to the consideration of public interest tests generally.
The FOI Act recognises a public interest in promoting the openness and accountability of FOI bodies. In the case at hand, there is a public interest in promoting Irish Water’s openness and accountability for its consideration of pre-application enquiries. However, in the overall circumstances of this case, I consider that the weight of this public interest is entitled to minimal weight. The request sought records filed with Irish Water by Cairn Homes. Of their nature, such records provide minimal, if any, insight into Irish Water’s performance of its functions.
I accept that a public interest in the availability of environmental information is recognised by law. While I note the applicant's comments on the scale of the development, this does not of itself require that access to the records must be granted in the public interest under the FOI Act.
Section 36(1)(b) itself reflects a public interest in the protection of records containing information that could prejudice a private company's competitive position in the conduct of its business. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, that it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. The requested records are clearly concerned with the plans of a private enterprise and it seems to me that there is significant weight to the public interest in protecting them accordingly.
On balance, I consider that the public interests in favour of granting the request are outweighed by the public interest in favour of refusing it.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Irish Water’s decision to grant the request. I find that the records are exempt under section 36(1)(b) and that the public interest does not weigh in favour of granting access to them.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.