Case number: OIC-60606-G9H7W4
7 July 2020
In a request dated 29 July 2019, the applicant sought access to records evidencing any communication in the period of 1 January 2016 to 31 December 2016 relating to a proposed 18 MW data centre, known as the Gemini Data Centre, at IDA Business Park, Ballycoolin, Dublin 15. In a decision dated 3 October 2019, GNI refused the request under sections 32(1)(iv), 36(1), and 37(1) of the FOI Act. On 18 October 2019, the applicant requested an internal review of GNI’s decision. On 13 November 2019, GNI affirmed its original decision, but in doing so, it made additional claims for exemption under sections 30(1), 32(1)(a)(iv), and 35(1) of the FOI Act.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the application for review and the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The records at issue consist of 61 sets of emails, some with attachments, concerning the Gemini Data Centre project. This review is concerned solely with the question of whether GNI was justified in refusing access to these records under the FOI Act.
There are a number of preliminary matters that I wish to address at the outset.
First, section 25(3) of the FOI act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.
Secondly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Lastly, it is important to note that release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put. In contrast, in the case of a court order for discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed.
It is not in dispute in this case that the records at issue are relevant to ongoing court proceedings between the applicant and the affected third party relating to, among other matters, the timing of availability of grid power at the Project Site. In this context, GNI set out the following reasons in its decision for refusing the request:
In its submissions, GNI highlighted the confidential and commercially sensitive nature of the information included in the records at issue, such as, but not limited to, the customer’s strategic criteria and business requirements, details about the progress of the project and the names of the decision-makers, and the location of the Project Site. GNI confirmed that the information was provided to and received by it in confidence and with the expectation that the information would be treated in confidence by GNI and would not be disclosed to the world at large. It stated: “In GNI’s experience, connection applications relating to data centres are always treated, due to customer request, with great sensitivity and confidentiality.” GNI provided evidence to show that assurances of confidentiality were requested and given in the immediate period preceding the timeframe covered by the request. GNI also described the restricted nature of the circulation within the body of the information received from the third party customer. It also noted that design project drawings are included in the records which contain detailed information on the location of the gas pipeline.
GNI said that it considers that release of the records in the circumstances would be very likely to breach customer trust and thus to prejudice its ability to effectively fulfil its statutory mandate. It also stated that it is necessary for it to continue to receive the same level of information from its customers in future in order to fully and efficiently consider and assess applications for connection to the GNI network in future. Moreover, in reference to section 12(1) of the 2013 Act, GNI maintained that disclosure of the information concerned would constitute a breach of a statutory duty of confidence.
For these reasons, GNI claims that sections 35(1)(a) and (b) of the FOI Act apply to all of the records at issue. It also relies on sections 30(1)(a) and (b), 32(1)(a)(iv), 32(1)(a)(ix), 36(1)(b), and section 37(1) of the FOI Act in relation to certain specified records as previously outlined to the applicant.
Moreover, in relation to the public interest, GNI noted that the FOI Act and the Courts recognise that there is no right of access to exempt information and that there is a public interest in protecting third party confidential, commercially sensitive and personal information. GNI submitted that there is a considerable public interest in ensuring that it can continue to maintain essential customer trust and to carry out its statutory functions effectively. It stated: “Therefore, there is a clear public interest in maintaining the full and frank exchange of commercially sensitive, confidential and personal information from customer companies to GNI, and the right to negotiate freely, without the risk that such information will subsequently be released under FOI.”
The Third Party
In its submissions, the third party explained how the records at issue in this case, and certain details in particular, are directly relevant to the dispute and how disclosure could reasonably be expected to result in a material financial loss to the company and how it would prejudice its competitive position in circumstances where release under FOI is regarded as release to the world at large. While the third party acknowledged that discovery and FOI provide separate access routes for obtaining records, it emphasised that the records at issue in this case involve information that was shared with GNI in confidence on the basis that the information would not be further disclosed. It also emphasised that the information concerned is relevant to a private dispute that does not involve public funds and that disclosure would not on balance serve the public interest.
In addition, the third party stated that disclosure of information related to the specific route of the gas pipeline creates a security concern. It noted that international standards recommend a restricted awareness of the location and function of secure areas. In its view, disclosure of such information not only creates a security risk but also puts it at a competitive disadvantage. In support of its claim of confidentiality, the third party also highlighted the sensitivity of the details provided regarding such matters as the project site, its location, and the financial arrangement discussed. In relation to the issue of personal information, it noted that the records include information about the employment of private individuals.
The applicant was notified by this Office of the updated claims for exemption made by GNI and the third party. In its response, the applicant maintained that its request has been subject to a blanket refusal in a manner that is not in keeping with the FOI Act. Although the requirements of sections 18 and 25(3) of the FOI Act had been explained to the applicant, it continued to argue that insufficient details have been provided to explain the reference to inquiries that was made in GNI’s decision in relation to section 30(1)(a) of the FOI Act or to explain why the records are considered to be “highly commercially sensitive”. The applicant clarified that the dispute between it and the third party concerns not only the timing of availability of grid power at the Project Site but also the adequacy of the gas supplied to the Site for the Project. The applicant stated, however, that the particular prejudice that is claimed in relation to the civil proceedings has not been identified. It stated: “If anything, the refusal of the FOI request is impairing the fairness of those proceedings by placing our client in a disadvantaged position.”
In addition, the applicant maintained that insufficient information has been provided to explain how the expectation of confidence arose. In relation to section 12(1) of the 2013 Act, the applicant stated:
“This provision imposes a duty on individual directors and members of the staff, and advisors and consultant to, GNI not to disclose confidential information received by such individuals in the performance of their functions, without the authorisation of GNI. It does not impose a duty of confidence on GNI not to disclosure information received by GNI in the performance of its statutory functions. This duty, which is owed by GNI personnel to GNI, is not relevant to section 35(1)(a) or (b) of the FOI Act.”
Moreover, it argued that none of the information in the records, including the information about the employment and property of third party individuals, has been shown to qualify as personal information as defined in the Act. In its view, the types of information listed in GNI’s decision “would not appear to meet the threshold of information known only to family or friends”, nor is it held on the understanding that it would be treated as confidential.
The records at issue consist of correspondence between GNI and representatives of a private company regarding the Gemini project. The correspondence provides information about such matters as the scope of the project and the requested connection, its progress, certain costs, site drawings, property rights, contractual arrangements, and the personnel involved. The information was provided in the context of GNI’s examination or assessment of the company’s connection application and the works involved.
I consider that a strong case for exemption has been made under numerous provisions of the FOI Act, including section 30(1)(a) and, in relation to certain parts of the records at issue, section 32(1)(a)(ix). I also consider it worthwhile to point out in relation to the applicability of section 37(1) that the Supreme Court found in Rotunda Hospital v The Information Commissioner  1 I.R. 729,  IESC 26 that it is sufficient for information to fall within one of the specified categories which are deemed to be included in the personal information definition. However, I find that section 35(1)(b) is the most relevant exemption to apply in the circumstances of this case.
Section 35(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law". Under section 35(2), the confidentiality exemption does not apply to a record prepared by a staff member of a public body or a person who is providing a service for a public body under a contract for services "in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services".
The third party in this case is not a public body or service provider within the meaning of the Act and therefore section 35(2) does not operate to disapply the confidentiality exemption. Section 12 of the 2013 Act provides:
“(1) A person shall not disclose confidential information obtained by him or her while performing functions as a director or a member of the staff of, or an adviser or consultant to, the network company, or a member of the staff of such adviser or consultant, unless he or she is duly authorised by the network company to so do.
(2) Subsection (1) shall not operate to prohibit the disclosure of confidential information by a person referred to in that subsection to BGÉ.
(3) In this section “confidential information” includes—
(a) information that is expressed by the network company to be confidential either as regards particular information or as regards information of a particular class or description, and
(b) proposals of a commercial nature or tenders submitted to the network company by contractors, consultants or any other person.”
Section 12 of the 2013 Act is evidently based on Article 16 and/or Article 27 of Directive 2009/73/EEC. It is not listed in Schedule 3 of the FOI Act. BGÉ refers to Bord Gáis Éireann, the predecessor to GNI.
It is apparent from section 12(3)(b) of the 2013 Act that the confidentiality provision is intended to protect, among other matters, information about proposals of a commercial nature submitted to the network company, i.e. GNI. As stated above, GNI provided evidence to show that assurances of confidentiality were requested and given in the immediate period preceding the timeframe covered by the request. GNI and the third party have explained why the information concerned, including details regarding the progress of the project, is considered to be sensitive and how disclosure could reasonably be expected to result in a material financial loss or gain to the third party. I am therefore satisfied that the records at issue are subject to a duty of confidence provided for by enactment and agreement.
Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3), but as noted in previous cases, a duty of confidence may still be subject to public interest considerations. I must also have regard to the general principle of transparency and accountability which is reflected in section 11(3) of the FOI Act insofar as it relates to the actions of GNI. On the other hand, it has also been acknowledged in previous cases (e.g., Case 140108 (Ms. X & The Department of the Environment, Community and Local Government), available at www.oic.ie), that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. Moreover, I take the view that the FOI Act was designed to increase openness and accountability in the way in which public bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of private enterprises to scrutiny. I am satisfied that section 35(1)(b) applies to the records requested.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of GNI in this case.
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.