Case number: 120179

Whether the IGB was justified in its decision to refuse access to records relating to Items 1-15, listed overleaf, concerning financial matters, land purchase and Board minutes on the basis of various sections of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner

Background

The applicant made his original request to the IGB on 28 September 2011, seeking information relating to financial dealings involving the IGB to include 15 specified items, as follows:

  1. All invoices, bills, contracts and vat receipts relating to the provision of Aertel Teletext service for the IGB and/or its affiliates
  2. The records of all payments made to FKA Project Managers and/or Michael Punch & Partners in relation to the purchase of land for the new Limerick greyhound stadium to include the accounts and ledgers which registered these payments in the IGB accounts.
  3. The details of all travel expense payments and toll reimbursements made to staff in 2009, 2010 and up to 28 September 2011
  4. All IGB board minutes and finance committee board minutes from 2003, particularly those which relate to discussions, valuations and estimates of the Greenpark site.
  5. The record of all payments made to FKA Associates by IGB or its affiliates.
  6. The details of any internal discussions surrounding the costs, engineer reports and waste permits for filling the land at the new stadium. This should include initial plans and subsequent costs and when those plans changed.
  7. The details of all purchase, lease, rental or use agreement for the car park lands at the stadium between 2000 and the present day. This should include any correspondence to and from the CEO of IGB on this issue.
  8. The details and subsequent discussions on overpayments or incorrect payments made by the Prizemoney Department of the IGB in January 2011. This should include any communication on the issue to and from the CEO. It should also include any reference documents such as IT consultants' reports or discussions on the process used for electronic funds transfers.
  9. The number of employees at IGB who do not have a signed employment contract.
  10. All correspondence with the office of the Comptroller and Auditor General (C&AG) in relation to the purchase of land at the Greenpark site from 2002 onwards.
  11. The report/correspondence/advice of Rooney Auctioneers in Limerick which the IGB received in October 2003.
  12. Any documents which explain or breakdown the value of the Greenpark site prior to or subsequent its purchase by the IGB.
  13. The records of the origins, economic basis, and discussion of the Net Present Value calculation of the Greenpark site presented to the board of IGB prior to its purchase.
  14. Any advice received from Holmes O'Malley Sexton in relation to the purchase and preparation of the stadium site.
  15. The Board minutes for IGB for 2007, 2008, 2009, 2010, and to 28 September 2011.

The applicant said that if "tweaking the scope of the request would reduce the workload for the IGB without unduly compromising the request", he would consider an alternative wording. There was some engagement between the IGB and the applicant in relation to the request with a view to refining it as well as in relation to extension of the time to reply and payment of search and retrieval fees. The applicant paid a search and retrieval fee of €380 in January 2012. While some records were released to the applicant in or about February 2012, it has not been possible to establish with certainty exactly what records were released, what records were refused and the basis on which the IGB refused access. The applicant was unhappy with the response and sought an internal review of the IGB position on 16 April 2012. There is no indication that a proper original or internal review decision was made by the IGB. The applicant sought a review by my Office in an application received on 18 July 2012.

On accepting the application as valid, my Office commenced dealing with the application in the normal way. However, it was not until 25 January 2013, some six months later, that the IGB provided my Office with a copy of the records relevant to the review in a manner that appeared to relate to the original request. This followed correspondence between my Office and the IGB , including a letter to the then CEO drawing attention to the powers of the Commissioner under section 37 of the FOI Act. The IGB issued an effective internal review decision on 2 October 2012, at the request of my Office, refusing the request on the basis of sections 20, 21 and 27 of the FOI Act.

Unfortunately, there was then a considerable delay before the review was assigned to an Investigator, due to a backlog of cases on hands and limited resources available to my Office. I am glad to say that both of these issues have now been addressed and in this context I had hoped that this review would have been brought to a conclusion much sooner. However, early in 2014, it was evident that the records provided by the IGB were not sufficient to allow the review to progress. The Investigator determined that not all relevant records had been provided to my Office by the IGB and that there should be considerably more records falling within the scope of the request. There was confusion as to what had been released to the applicant and what had been refused and on what basis records had been withheld. In some instances records, identified as relevant to the review had, in fact, only been "released" to my Office and not to the applicant.

Given the extent of these issues, the only option available to my Office was to deal with the review as if no records had been released at any stage by the IGB. In order to assist with progressing the review and in view of the lack of clarity as to how the IGB handled the request, it was necessary to ask the applicant for clarification. In the circumstances of this case, I consider it appropriate to acknowledge the cooperation of the applicant, both with my Office and the IGB, during the course of this protracted review.

The Investigator actively engaged with the IGB from April 2014 with a view to addressing and resolving these issues but no real progress was made over a number of months. It is not possible for me to say with any certainty why this might have been the case but it is abundantly clear that there was little, if any, cooperation with my Office at that time in relation to this review and other reviews concerning the IGB. It seems to me that the records cover issues dealt with in the IGB Head Office in Limerick, yet the nominated FOI Officer for the organisation is employed in another role operating from one of the IGB's Dublin based stadia. Without considerable assistance from relevant staff based in the Head Office, it was almost impossible for him to address the issues relevant to this review. The structures and processes in the IGB for dealing with FOI requests were clearly inadequate, with my Investigator being told on one occasion that the provision of records to my Office would require approval of the IGB Board. This is clearly at odds with the provisions of the FOI Act, and indicative of either a fundamental misunderstanding on the part of the IGB of the FOI Act or a deliberate tactic to frustrate the FOI process at that time.

In August 2014, my Office brought the matter to the attention of the current CEO of the IGB, who had been appointed in July 2014. It was only at that point that progress began to be made. The CEO assigned a member of Head Office staff, based in Limerick, who was familiar with the issues raised, to work on the matters relevant to the review. In view of the seriousness of the matter and the resources which had already been devoted to this review, I used my powers under Section 37(2) of the FOI Act to "enter any premises occupied by a public body" and "to examine the [IGB's files] and to copy or take possession of any records or other information required to progress the review". Consequently, my Investigators visited the IGB offices, by arrangement and with the cooperation of the IGB, on 25 September 2014. This was the first recorded occasion on which I or my predecessors as Commissioner found it necessary to invoke the provisions of Section 37(2).

Given the extensive nature of the request, which at one stage the IGB indicated would take them up to 6 "person months" to deal with, the applicant was asked to consider various amendments to his request. It is obvious to me that had the IGB properly assessed the request at the outset (and provided evidence of same) that 10(1)(c) might have applied given the voluminous nature of the request. There is no evidence available to me to suggest that this was considered by the IGB. That said, had the IGB had a proper structure in place for records management and filing systems, it would have been able to deal with the request in a far more straightforward manner.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the IGB and to the provisions of the FOI Acts. Although many records were released following the intervention of my Office, there are outstanding issues and the only way that I can bring matters to a conclusion is by making a formal, binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The review relates solely to whether the decision of the IGB to refuse access to the records sought was justified. During the course of the review a number of further amendments were made to the scope of the review as the IGB released additional material or the applicant agreed to refine the scope of some parts of the request. The release of certain information came about following considerable effort on the part of the Investigator, the IGB and the applicant. To that extent, this decision does not fully reflect the extensive discussions and follow up work that resulted from my staff's visit to the IGB offices which culminated in the release of information, including records of travel expenses. In summary, the applicant agreed that Item 11 had been released to him; he withdrew his request for Item 15, Item 9 and part of Item 6; and he agreed to a significant reduction in the scope of Item 3 which information was then released by the IGB. In relation to Item 4, this was taken to refer to 2003 only; the applicant was informed of this and did not dispute this interpretation. The IGB released some information relevant to Items 1, 2, 4, 5, 6, 7, 8, 12 and 13 but claimed that various exemptions applied to other information relevant to these items. Therefore, the items remaining in scope at this point are Items 1, 2, 4, 5, 6, 7, 8, 10, 12, 13 and 14 to the extent that records have not been released in respect of each item or relevant records have not been found.

Preliminary Matters

Handling of the request
Requesters have a right to expect that public bodies subject to the FOI Act, such as the IGB, would be aware of and comply with the statutory requirements in relation to FOI. I find it necessary to draw attention to several instances where the handling of this request fell significantly short of what would be expected and had an adverse impact on the conduct of the review.

In particular, the fact that meaningful engagement on the part of the IGB only commenced after the issue of the statutory notice under section 37(2) referred to above is an indication of the challenges presented by this review. While I wish to acknowledge this cooperation, it must be said that the engagement was still marked by delays and progress was slow. In some instances, the IGB was reluctant to release information, though no exemption applied and it is not clear to me what it wished to protect. The subject matter of the request was such that the CEO was personally involved in searching for and determining the IGB position on some of the records. In circumstances where there have been other significant issues facing the organisation, which required the attention of the CEO, this impacted upon the delays involved.

I wish to point out that I do not see my Office's role as negotiating and facilitating the management of FOI requests to the extent that occurred in this case. Indeed, under new procedures introduced by my Office for more recent cases, public bodies which fail to deal properly with requests generally have their decisions annulled and the matter remitted to them for fresh consideration. In cases where the public body fails to justify its decision as required under the FOI Act, I will, subject to other requirements of the Act, direct the release of records. However, particular difficulties exist where a question arises as to whether or not particular records exist and are held by a public body.

It is difficult to understand how an organisation such as the IGB could have effectively managed its affairs on the basis of the very limited records now available in respect of some elements of the request. In claiming that records do not exist or cannot be found after all reasonable searches have been conducted, the IGB has put forward a number of reasons why this is the case. Unfortunately, it is not possible to be certain as to the applicability of these issues to the relevant records at this point in time. From the point of view of establishing what records are held, this has been one of the most challenging cases dealt with by my Office to date and has taken up significant resources. I have had to take the position that there is a limit to how far my Office can go in requiring the IGB to conduct further searches for records. There is no doubt that there are unacceptable gaps in the information which has been found and provided to the applicant. I must acknowledge also that there has been a considerable effort on the part of the IGB in recent months, when it did engage properly. However, I have to say that the adequacy of some of the explanations offered is not what I would wish for but, at this point in time, I am satisfied there is little, if anything, to be gained from attempting to pursue the matter any further. It is against this background that I make findings below on the applicability of Section 10(1)(a).
Particular issues which have arisen in the course of the review and to which I draw attention include:

Lack of records management policy
There is no indication from the IGB that it has or had a records management policy in place or a central filing arrangement for corporate records. While there are arrangements in place, for example, for personnel files of staff and original travel and expenses claims, there was no evidence of a filing arrangement relating to the annual audit by the C&AG of the IGB accounts, nor was there evidence provided of files in relation to the development of the Limerick stadium and offices.

Loss of key personnel; extensive use of email and IT system upgrade
By the time the IGB engaged properly with my Office, a number of staff who had been involved in the matters the subject of the review no longer worked for the IGB. This included the former CEO and others who had key roles in relation to the Limerick stadium project. It became clear that many of the records relevant to the review had existed primarily in the email accounts of such personnel and do not appear to have been filed in any central repository, either electronically or in hard copy. This would appear to be a failure of corporate governance. Some of the records which were found were identified as they were held in the email accounts of staff who continue to work for the IGB.

A further relevant issue is that the IGB changed the way it managed its email system in November 2013. This meant that the back up of the system transferred from a tape based system to a cloud environment. As a result, only the electronic records of staff working with the IGB at that time were migrated to the new system. The backup tapes containing the records of staff who had left the organisation by then are held securely by the IGB, but it has no local means of accessing these tapes and would require external IT assistance in order to access material on these tapes. The IGB advised my Office that it had obtained an estimate of the likely cost of this on a per tape basis, and of issues in identifying the tapes on which the relevant information might be held. It is likely that, given the time span, finding relevant information would require the examination of such a number of tapes that it would not be reasonable for me to require the IGB to take the measures necessary to access the information. There is no way of knowing for certain if information relevant to the review would be identified should such measures be taken. However, it does seem to me that the IGB was remiss in not ensuring that the IT migration provided for access to historical information, given that some of the information relates to the relatively recent past and concerns a live issue.

C&AG Special Report No.86 Development of Limerick Greyhound Stadium
It is relevant to note that the C&AG published this report on the Development of the Limerick Greyhound Stadium in October 2014. It identified and addressed issues, some of which are relevant to the subject matter of this review.

Review of Certain Matters Relating to Bord na gCon - Report by Indecon International Consultants for the Department of Agriculture, Food and the Marine.
This report, published in July 2014 also identified issues and made recommendations, some of which are relevant to the subject matter of this review.

Analysis and Findings

Section 34 provisions relevant to the Commissioner's decision
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

While there are links between each item of the request, given the nature of the request and the issues which arose in relation to each part of the request, I have decided to set out this decision on an item by item basis. While records which were released are not within the scope of this decision, I refer to some released records below for the sake of clarity.

Section 10(1)(a)
This provision of the FOI Act is particularly relevant to many aspects of this review. I should explain at the outset that the FOI Act confers a general right of access to records held by public bodies. If the information sought is not contained in a record held by the public body, the FOI Act does not oblige public bodies to create records to satisfy or respond to the request.

Section 10(1)(a) of the FOI Act states:

"A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

In cases such as this, my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally my function to search for records that a requester believes are in existence. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) which is available on my Office's website,www.oic.ie.

Item 1 - All invoices, bills, contracts and VAT receipts relating to the provision of Aertel Teletext service for the IGB and/or its affiliates
The relevant invoices were identified by the IGB and released to the applicant during the course of the review. According to the IGB, it was not possible to locate any contract relating to the provision of Aertel Teletext Services to the IGB, and it has claimed that Section 10(1)(a) of the FOI Act applies.

In this case, the steps taken to search for further records included searches of electronic databases, physical searches of the IGB current and former offices, in which some older files are kept and making enquiries of current staff who may have dealt with such matters in the past. Contact was made with RTÉ Commercial Enterprise seeking a copy of any contract which may have existed, The avenues for further searches by the IGB were limited due to the issues outlined above. In the case of this particular item, it is not clear as to what, if anything, might be found had further search efforts been possible as it was not possible to ascertain if an actual contract had existed. The position of the IGB is that any further records relevant to this item cannot be found or do not exist. In the circumstances of this case, I have no option but to conclude that all reasonable steps to ascertain the whereabouts of the records have been taken and that the position of the IGB is justified on the basis of Section 10(1)(a) of the FOI Act.

Item 2 - Records of all payments made to FKA Project Managers (FKA) and/or Michael Punch & Partners (MPP) in relation to the purchase of land for the new Limerick greyhound stadium, including the accounts and ledgers which registered these payments in the IGB accounts.

Item 5 - The record of all payments made to FKA Associates by IGB or its affiliates.
As these two items are so closely linked, I am dealing with them together. Following an examination of its Accounts Payable system, the IGB was able to identify only one individual payment to Michael Punch and Partners and a copy of this was provided to the applicant. No evidence was found of any other payment directly from the IGB to either of the companies named. The IGB position is that Section 10(1)(a) applies to this part of the request. The applicant provided my Office with a copy of a record released to him by the IGB previously, though not necessarily through FOI, which referred to "fees and outlays as per attached statement". Following extensive efforts on the part of my Investigator and the IGB, the "attached statements" were found and provided to my Office on 15 December 2014. The IGB position is that, given the content of the "statements", the information is more relevant to item 14 (below) and has claimed an exemption on this basis. While I do not agree with the IGB that these "attached statements" are relevant to Item 14, I am satisfied that they do not show or refer to any payments to FKA or MPP and therefore are not relevant to these items either. One further email has been identified by the IGB which specifically refers to arrangements for payments, though not to actual payments made, to these two companies and this has been released by the IGB.

It is very difficult to accept the position that no further records exist relating to arrangements for and amounts of payments to these companies by the IGB given their role in the project and the sums of money involved. However, it is also the case that access to potentially relevant information has been significantly impeded by the issues outlined above. In particular, the fact that key personnel dealing with the matter at the time no longer work in the IGB, the lack of hard copy files on the matter and the limited access to electronic records have meant that it has not been possible to determine if further records ever existed. The applicant has indicated that he has a particular difficulty with the absence of information on this item.

The IGB stated that it has access to the emails of the former CEO. However, it has not provided any information as to the searches, if any, conducted for this information or the outcome of these searches. This is despite this issue being raised with the IGB by the Investigator and it being made absolutely clear that it must be addressed. In these circumstances, it is not possible for me to make a finding that all reasonable searches have been conducted and that Section 10(1)(a) applies - therefore I can make no finding in relation to this part of the review. I consider that the appropriate action for me to take is to annul these elements of the decision, to remit Items 2 and 5 to the IGB and to direct it to make a fresh consideration and decision in accordance with the FOI Acts.

Item 4 - All IGB board minutes and finance committee board minutes from 2003, particularly those which relate to discussions, valuations and estimates of the Greenpark site.
This item was interpreted as relating to records from 2003 only and this was communicated to the applicant who did not raise any issue with it. Initially, the IGB position was that all 2003 board minutes were relevant and that it was prepared to release them, subject to redaction of some material in respect of which it claimed that sections 21, 27 and 28 of the FOI Act applied. The IGB then revised its position to one which sought to limit the scope of this item to those parts of the 2003 board minutes which related to the Greenpark site and indicated that it was willing to release those parts of the minutes. The Investigator took the view that the wording of the request included the full board minutes and that, while the applicant identified areas of particular interest, the scope of this item is not limited to those areas. I agree with her interpretation of the scope of this item and will, therefore, examine the various exemptions claimed in respect of the withheld material.

Personal Information

Section 28(1) of the FOI Act provides:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Some of the information included in these board minutes includes the names and addresses of individuals who were granted bookmaker's permits and training licences by the IGB, discussions about named individuals which can be described as relating to their employment or employment history, or as the views or opinions of another person about the individual. Having examined the records, my Investigator took the view that only some of the information to which the IGB claimed section 28 applied could be regarded as personal information of the individual to whom it relates. She informed the IGB of her view, clearly identifying the information to which she considered Section 28 applied. (Redactions marked as numbers: 1, 2, 3, 6, 7, 18, 19, 20, 21, 23, 24, 29, 30, 31, 33, 34, 35, 36, 37, 39, 40, 43, 45, 46, 47, 48 in Ms. Lynch's email to the IGB of 19 February 2015.) I agree with her view and find that Section 28(1) applies to this information.

There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) do not apply. Having examined the information at issue, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 28(2) does not apply to the withheld records.

I turn now to section 28(5) which also provides for exceptions to the section 28(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 28(5)(b) does not apply in this case. Section 28(5)(a) recognises a public interest in protecting privacy rights. The right to privacy also has a constitutional dimension. Release of a record under FOI may be regarded as release to the world at large as records are released without any restriction as to how they may be used. Having reviewed the information, I am not satisfied that the public interest served by the disclosure of other parties' personal information would, in this instance, be of sufficient weight so as to displace the public interest served by upholding the right to privacy of the individuals concerned. I find that Section 28(1) applies to the personal information of individuals other than the applicant and direct that the redacted information be withheld.

Commercially sensitive information

Section 27(1)(b) protects 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 could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified.

Having examined the records and the submissions of the IGB, I agree with the Investigator's view as put to the IGB that the section 27(1)(b) exemption applies only to those parts marked as Numbers 28 and 44 on the copies of the information sent to the IGB. In relation to No. 28, only the amount is considered exempt from release under section 27(1)(b). I find accordingly.

Having found that Section 27(1)(b) applies, Section 27(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. Having considered the matter, I am satisfied that the public interest is served to some extent by the release of the information in redacted form. In my view, this satisfies the public interest in openness and accountability on the part of the IGB. I conclude that, on balance, the public interest would not be better served by the release of the redacted information to which Section 27(1)(b) applies to the extent that overriding the commercial sensitivity of that information would be justified and I find accordingly.

In her email of 19 February 2015, Ms. Lynch informed the IGB of her view that none of the exemptions claimed applied to the other information in these records for which it had been claimed. The IGB initially indicated that it accepted Ms. Lynch's view. However, the most recent position of the IGB is that it does not accept her view. The IGB position is that Sections 21, 27 and 28 apply to exempt other information in these records from release. It has not provided my Office with any further submission in support of this position. Having considered the matter in the context of the content of the records, the exemptions claimed and the onus on the public body to justify its decision to refuse access, I find that section 28 does not apply any of the other information for which it was claimed. I further find that sections 21 and 27 do not apply to any of the other information for which they were claimed. In the case of some of the information for which section 27 was claimed, even if I were to find that the exemption applied, it is likely that I would direct its release in the public interest. These records are now 12 years old and deal with the expenditure of public funds by the IGB.

I direct the release of these records, subject only to the redaction of the information to which I have found Sections 27 and 28 to apply, as detailed above.

Item 6 - The details of any internal discussions surrounding the costs, engineer reports and waste permits for filling the land at the new stadium. This should include initial plans and subsequent costs and when those plans changed.
When the IGB set about collating the records properly for the purposes of this review, this item turned out the be the most substantial in terms of actual records. In order to make it more manageable, the IGB was asked to identify at a high level the types of records covered and the applicant was then advised of these categories. He confirmed that he wanted access to all parts except one subset. The IGB's position was that it was willing to release records relevant to this part of the review but that it considered it best to meet with the applicant in this regard. This meeting took place on 10 February 2015 and the outcome was that the applicant reviewed the relevant records and identified those he required. The IGB provided these records to him. Insofar as there are any other records which the applicant considers relevant to this part of the review that have not been provided to him, I am satisfied that the efforts made by the IGB to address this part of the request are adequate and I find that Section 10(1)(a) applies to any further records which in the applicant's view, should exist.

Item 7 - The details of all purchase, lease, rental or use agreement for the car park lands at the stadium between 2000 and the present day. This should include any correspondence to and from the CEO of IGB on this issue.
When the IGB met with the applicant, he indicated that he did not require certain records encompassed by this item. The IGB has identified records which it considers relevant to this item and has released these to the applicant. The IGB's position is that it cannot identify any further records relevant to this item, despite the fact that one would reasonably expect there to be more relevant information, and that Section 10(1)(a) applies.

The applicant has particularly identified correspondence to and from the (then) CEO as relevant to this item. The issues set out above, in relation to Items 2 and 5, regarding the emails of the former CEO are also relevant here. Therefore, I can make no finding that Section 10(1)(a) applies and I consider it appropriate for me to annul this element of the decision, to remit this item to the IGB and direct it to make a fresh consideration and decision in accordance with the FOI Acts.

Item 8 - The details and subsequent discussions on overpayments or incorrect payments made by the Prizemoney Department of the IGB in January 2011. This should include any communication on the issue to and from the CEO. It should also include any reference documents such as IT consultants' reports or discussions on the process used for electronic funds transfers.
The records originally identified as relevant to this item were clearly inadequate. Following the visit to the IGB offices by my staff, further searches were conducted and further relevant records were identified. Having identified relevant records, the IGB position was that it was willing to release them. However, on examination of the records by my Office, it became clear that some of the records identified dog owners and trainers who were overpaid prizemoney. It is clear that the overpayment of prizemoney was due to an error on the part of the IGB and not attributable to those who received the money. I consider that such information comes within the definition of personal information where the individuals involved are identifiable. The provisions of Section 28 in relation to personal information are set out above. I am satisfied that the information relating to dog owners and trainers is personal information which is exempt from release under Section 28(1). I further find that none of the exceptions provided for in section 28(2) apply. In relation to section 28(5), I am not satisfied that the public interest served by the disclosure of these parties' personal information would, in this instance, be of sufficient weight as to displace the public interest served by respecting the right to privacy of the individuals concerned. It has not been argued that the grant of the request would benefit the individuals concerned. I find that Section 28(1) applies to the information identifying dog owners and trainers.

Item 10 - All correspondence with the office of the C&AG in relation to the purchase of land at the Greenpark site from 2002 onwards.
Section 46(1)(c)(ii) provides that the FOI Act does not apply to a record relating to an audit, inspection or examination carried out by the C&AG under the Comptroller and Auditor General Acts, 1923 and 1993, the Exchequer and Audit Department Acts, 1866 and 1921, or any other enactment. The wording of this part of the request is such that Section 46(1)(c)(ii) would apply to any relevant records. However, for the avoidance of doubt, records of correspondence between the C&AG and the IGB were reviewed by the Investigator. On this basis, I am satisfied that the records held relating to this Item relate to an audit, inspection or examination carried out by the C&AG and I find, therefore, that section 46(1)(c)(ii) applies to this part of the request.

Item 12 -Any documents which explain or breakdown the value of the Greenpark site prior to or subsequent its purchase by the IGB.
The IGB has identified records which it considers relevant to this item and has released these to the applicant. The IGB also noted that some records which might be considered relevant to this item were considered by it under other parts of the request and have been released to the requester. The IGB's position is that it cannot identify any further records relevant to this item and that Section 10(1)(a) applies. In the context of the issues relevant to Section 10(1)(a) set out above, I find that reasonable steps have now been taken by the IGB to search for relevant records and that Section 10(1)(a) applies to any further records which, in the applicant's view, should exist, in that they either do not exist or cannot be found.

Item 13 -The records of the origins, economic basis, and discussion of the Net Present Value calculation of the Greenpark site presented to the board of IGB prior to its purchase.
According to the IGB, there were only two records relevant to this item, both of which were spreadsheets presented to the Board in April and June 2008/9. As one of these had been released by the IGB and the other was published by the C&AG as part of his Special Report, there was no basis on which to claim exemption from release under FOI. When the applicant met with the IGB in February 2015, he sought records supporting the figures and assumptions in the spreadsheets. Some such records had been identified by the IGB under other parts of the request, and had been released. However, the IGB identified further records which, in its view, provided a basis for some of the figures in the spreadsheets and released these to the applicant. In the context of the issues relevant to Section 10(1)(a) set out above, I find that reasonable steps have now been taken by the IGB to search for relevant records and that Section 10(1)(a) applies to any further records which, in the applicant's view should exist, in that they either do not exist or cannot be found.

Item 14 - Any advice received from Holmes O'Malley Sexton in relation to the purchase and preparation of the stadium site.
The IGB has claimed that Section 22(1)(a) applies to any records relevant to this part of the request. Section 22(1)(a) provides that : "A head shall refuse to grant a request under section 7 if the record concerned - (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege" . I accept that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Unlike most other provisions of the Act, section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. I am satisfied that the wording of this part of the request is such that Section 22(1)(a) would apply to any relevant records. However, for the avoidance of doubt, records identified as relevant to Item 14 by the IGB were examined by the Investigator. On this basis, I accept that they are communications between a client (the IGB) and its legal adviser for the purpose of obtaining legal advice and that, therefore , the first limb of legal professional privilege (advice privilege) is satisfied. I find that the records are exempt under Section 22(1)(a).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the IGB. I find that the FOI Act does not apply to Item 10 under Section 46(1)(c)(ii). I further find that Section 10(1)(a) applies to any further records which are relevant to Items 1, 6, 12 and 13 on the basis that they do not exist or cannot be found after reasonable steps have been taken to look for them. I further find that Section 28(1) applies to some information relevant to Items 4 and 8 as set out above; that Section 27(1)(b) applies to two pieces of information relevant to Item 4; and that Section 22(1)(a) applies to information relevant to Item 14. In relation to Items 2, 5 and 7, I am not satisfied that a finding can be made that section 10(1)(a) applies since the emails of a former IGB official have, apparently, not been searched. I annul that part of the decision and direct the IGB to undertake a fresh decision making process on Items 2, 5 and 7 in accordance with section 8 of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner