Case number: 140287

Whether the Council was justified in refusing access to records concerning Bray Swimming Pool Sports & Leisure Centre Limited (trading as Shoreline) on foot of a request dated 31 May 2011 made by the applicant under section 7 of the FOI Act. The Information Commissioner's decision of 29 April 2013 (Case Number 110161) was discharged by Order of the High Court on 23 October 2014 and the case was remitted to the Commissioner for fresh consideration following the applicant's appeal to the High Court on a point of law against that decision

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

Background

On 31 May 2011, the applicant made an FOI request for "whatever records Bray County Council holds in relation to Bray Swimming Pool Sports & Leisure Centre Ltd. This should include any records held [by the Council] as shareholders of the company in relation to the breakdown of it's income and expenditure figures for the years 2008 and 2009". The Council's decision of 29 June 2011 referred to records relating to the finances of the company trading as Shoreline and refused the request on the basis that it did not hold the requested records and that it had no right of access to any records held by Council staff in their capacity as officers of Shoreline. Following the applicant's internal review application of 1 July 2011, the Council's internal review decision of 26 July 2011 upheld that refusal.

On 10 August 2011, the applicant sought a review by this Office of the Council's refusal of his request for the financial records. In the course of the review (case number 110161), it transpired that the Council itself held copies of Shoreline's unabridged accounts for 2008 and 2009, which were sent by Shoreline to the Council (as its only member/shareholder), further to section 159(1) of the Companies Act 1963. The Council's position had been that those records were commercially sensitive and exempt from release under section 27(1)(b) of the FOI.

On 29 April 2013, my delegated officer made a decision affirming the Council's decision on the basis that certain records of relevance to the request as held by the Council contained commercially sensitive information, that, on balance, the public interest would not be better served by granting than by refusing the request, and that any further records of relevance to the request as held by Shoreline were not under the Council's control such that they could be deemed to be held by the Council further to section 2(5)(a) of the FOI Act.
Under section 42(1) of the FOI Act, the applicant then appealed to the High Court against that decision. By Order dated 23 October 2014 (the Order), the decision was discharged and the matter was remitted to my Office for further consideration by me, or by an officer nominated by me. The Court further ordered that the decision was to be made within ten weeks of the date of the Order by a decision maker other than those involved in the making of the initial decision. I confirm that those officers who dealt with the original recommendation and decision have not been involved in this decision making process.

Material Considered

I have considered the facts and circumstances surrounding the request the subject of this review. I have considered the applicant's request and internal review application to the Council; his application for review to my Office; his submissions on the original case number 110161 and his letter dated 18 November 2014 in this case. I have considered the judgment delivered on 15 July 2014 by Cross J. in Westwood Club Limited and the Information Commissioner and Bray Town Council [2013 No 176 MCA], the Order of the High Court referred to above together with the legal submissions and affidavits of the parties insofar as these are relevant. I have also considered the submissions of the Council on the original case number 110161, its original decision and internal review decision as well as its submission of 5 November 2014 in this case.

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

Given that the Council has released to the applicant Shoreline's unabridged accounts for 2008 and 2009, those records need not be addressed further in this review. Therefore, the scope of my review is confined to whether or not the Council was justified in its effective refusal of access to the remaining records within the scope of the request i.e. the records in respect of which the High Court found that my Office "had erred in law in concluding and in the manner in which [it] concluded" that the Council did not control the records held by Shoreline.

I note that the applicant maintains in his letter to my Office dated 18 November 2014 that his request is not solely restricted to financial records. It appears from the Council's letter of 5 November 2014 that the content of the records relating to Shoreline includes many diverse areas, including, for example, construction and staffing details. According to the Council, the financial records examined include invoices and receipts for goods and services as well as membership details. In this regard, in his FOI request submitted to the Council on 31 May 2011 the applicant sought to "amend his [FOI] request slightly", and sought "whatever records [the Council] holds in relation to the [company]"... [to] include any records held as shareholders of the company in relation to the breakdown of it's (sic) income and expenditure figures for the years 2008 and 2009." The matter does not seem to be straightforward although the Council's decisions in relation to that request refer to records held relating to the finances of Shoreline and, indeed, the applicant's internal review request to the Council (dated 1 July 2011) makes several references to his request for financial information and financial records. Furthermore, the applicant's application to my Office for review (dated 10 August 2011) states "On 31st May 2011 I requested financial information...". The application made no reference to records other than those of a financial nature. Similarly, a submission from the applicant dated 29 August 2011 again referred to his seeking financial information.

My Office's decision on Case 110161 (now discharged) contained the erroneous conclusion that the Shoreline records were not under the Council's control for FOI purposes. Indeed, it is worth clarifying that that decision did not deal with any of the records now deemed to be held by the Council apart from the 2008 and 2009 unabridged accounts which have since been released. Having regard to this and to my findings below in relation to the requirement on the Council to make a fresh decision on those previously unconsidered records, I consider that it is a matter for the Council to determine which records are encompassed by the request. In this regard, I note that the FOI Act makes provision at section 10(1)(c) and at section 10(2) for the handling by public bodies of requests, which, by reason of the nature or number of the records concerned might cause certain difficulties and envisages public bodies contacting requesters where necessary to assist in amending the request. It is also relevant to note here that, should the applicant be dissatisfied with the Council's fresh decision, it will be open to him to make an application for review to this Office in accordance with the provisions of the Act; therefore, it would not be appropriate for me to direct the Council as to the decision it might make in relation to any aspect of the request.

The Review Process

On 24 October 2014, Mary Byrne, Investigator of my Office, wrote and informed the Council that, in light of the Order made by Cross J. dated 23 October 2014, my Office was considering annulling the Council's decision on "control" which was effectively its refusal of access to all records it held relating to Shoreline, and directing that the Council make a decision on these records in accordance with the FOI Act. In its reply dated 5 November 2014, the Council stated that it had not time to list all the records relating to Shoreline for the 2008 and 2009 period but had identified certain classes of records which it listed. It stated that there are approximately 5,000 financial records relating to Shoreline for 2008 and 2009 held by the company and by "Bray Municipal District". While the Council made relatively general comments about its approach to those 5,000 records - including its concerns that third parties would have to be consulted in relation to some information - Ms Byrne took the view that this did not constitute a decision under the FOI Act. I agree with this approach having regard to Council's submission and the requirements of section 8 of the FOI Act in relation to the making and notification of a decision by a public body.

On 7 November 2014, Ms Byrne wrote to the applicant setting out the position on this review and summarising the Council's approach to the Shoreline records as notified to my Office. She invited him to make observations. She also informed him that it was my Office's intention to proceed to a decision annulling the original decision of the Council on the "control" issue in relation to the Shoreline records not previously considered but effectively the subject of the previous refusal and to direct that the Council makes a decision on those records in accordance with the requirements of the FOI Act. In a response dated 18 November 2014, the applicant noted the position and said that it was not appropriate for him to make further substantive submissions at this juncture and that the question of "control" of the records is manifestly one for my Office to make in light of the requirements of the FOI Act. He also set out his view on the scope of the request as dealt with earlier in this decision. I consider that the review must now be brought to a close by the issuing of a formal, binding, decision.

Findings

The High Court found that my Office erred, inter alia, in concluding and in the manner in which it concluded that the Council did not control the records held by Shoreline for the purposes of the FOI Act and that my Office erred in law in failing to consider whether Shoreline was the agent of Bray Town Council and in failing to consider whether the records sought were controlled by Bray Town Council in its capacity as principal. In cases where it is clear in the course of a review that a public body has not identified and considered most or all of the records covered by the review, it is normally the practice of my Office to annul the decision or part of it and to require the public body to make a new decision. The new decision is then notified to the requester by the public body after proper consideration, including notification of affected third parties or compliance with other requirements of the Act. This ensures that the rights of the requester as regards internal review and review by this Office are preserved. It is evident from the Council's letter of 5 November 2014 referred to earlier in this decision, that, following the Order of the High Court and the timeframes involved, the Council has already begun its identification of the relevant records. Given that none of the remaining records at issue were considered in the original decision or in the review decision since discharged and having regard to the material, facts and circumstances before me, I conclude that the proper course of action is to annul the decision of the Council which gave rise to this review in accordance with section 34(2)(b)(ii) of the FOI Act. I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Council's decision to refuse the request. I direct that the Council undertakes a fresh decision making process in respect of the records and informs the applicant of the outcome in accordance with the requirements of the FOI Act. The effect of this is that the Council is required to make a new, first instance, decision in accordance with the provisions of the FOI Act, including the requirements of section 8 of that 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 that 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