Case number: 150333
This review arises from a decision made by the Department to part grant access to records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information relating to third parties, respectively) but that the record(s) should be released in the public interest.
Where section 38 applies, the public 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 public body, may apply directly for a review of that decision to this Office.
On 14 April 2015, a request was made to the Department for access to records relating to the proposed redevelopment of Páirc Uí Chaoimh, including copies of any business cases/cost benefit analyses given to the Department by representatives of the GAA in relation to the proposed redevelopment. On 29 May 2015, the Department informed the applicant, as an affected third party, that it had decided to part grant the request. On 10 June 2015, the applicant sought a review by the Information Commissioner of the Department's decision. As this Office found that the Department had not complied with the time requirements of section 38, its decision was annulled on 10 July 2015 and the Department was directed to conduct a new decision making process; see Case 150175 (X and Department of Transport, Tourism and Sport).
Subsequently, on 19 August 2015, the Department formally notified the applicant that it was considering release of certain documents and it invited the applicant to make a submission within three weeks. On 9 September 2015, the applicant made a submission to the Department and argued that the records should not be released. On 22 September 2015, the Department informed the applicant that it had decided to part grant the request. On 5 October 2016, the applicant sought a review by this Office of that decision.
I have decided to conclude this review by way of a formal binding decision. In conducting the review, I have had regard to the contents of the relevant records, to the submissions of the parties and to the provisions of the FOI Act. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared in connection with the FOI request.
In its notification of 19 August 2015 to the applicant, the Department identified nine records on which it invited submissions, described as follows:
Record 7: Páirc Uí Chaoimh - Case for Funding A National GAA Project dated 27th
September 2013 provided to the Department by the applicant as part of
submission for stimulus grant
Record 8: Páirc Uí Chaoimh Stadium Development - Additional information for Sports
Capital Programme dated 18th December 2014
Record 13: Cost Benefit Analysis submitted by email on 26 February 2015
Record 14: Business Plan submitted by email on 26 February 2015
Record 17: Revised Cost Benefit Analysis submitted by email on 24 March 2015
Record 20: Business Plan received in hard copy on 10 June 2015
Record 21: Addendum to the Business Plan (record 20)
Record 22: Cost Benefit Analysis received in hard copy on 10 June 2015
Record 23: Addendum to the Cost Benefit Analysis (record 22)
In conducting a fresh decision making process following the decision by this Office to annul the previous decision, the Department included records 20 to 23, notwithstanding the fact that those records did not exist at the date of the original request. The effect of this Office annulling the Department's decision is that the original request remains to be processed as if no decision had been made. As such, the Department should not have included additional records for consideration that did not exist at the time of the request. Accordingly, this review will not consider records 20 to 23. In any event, I note that records 20 to 23 are the subject of a separate, related, review before this Office.
Therefore, the scope of this review is confined to considering whether the Department was justified in deciding to grant partial access to records 7, 8, 13, 14, and 17. For the avoidance of doubt, I should clarify that the review is not concerned with the information contained in the records that the Department has decided to redact.
In its submissions to this Office, the applicant argued that following this Office's direction to the Department to carry out a fresh decision making process, a new FOI request should have been submitted by the requester. It argued that as no new request was submitted the Department again failed to comply with the time requirements of section 38 and its decision should be annulled.
I do not accept this argument. Section 22(2)(b)(ii) empowers the Commissioner to "annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper". The Department was directed to conduct a new decision making process which complied with the time requirements of Section 38. It was not directed to seek a new request from the requester, and I am satisfied that there was no requirement on the Department to do so. As I have explained above, the effect of such a direction by this Office is that the original request remains to be processed as if no decision had been made by the Department. In this case, the Department informed the applicant that the date for the commencement of the section 38 process would be four weeks after the date of this Office's decision to annul, allowing for the period for an appeal to the High Court to elapse. In my view, this was a legitimate approach to take.
I would also like to draw the applicant's attention to the provisions of section 22(12)(a) of the FOI Act which provide that a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the affected party shows to the satisfaction of the Commissioner that the decision was not justified. This places the onus on the applicant of satisfying this Office that the Department's decision was not justified.
The background to the original FOI request is that the applicant is engaged in a project to redevelop Páirc Uí Chaoimh stadium in Cork. It sought funding from the State for the project and in May 2014, the Government announced that it would award funding of €30 million. Subsequently, the applicant engaged with the Department in relation to the State grant, with a view to satisfying the requirements of the Public Spending Code. In October 2015, the Government formally approved the grant.
The applicant contends that access to the records should be refused in their entirety, and argues that the information is exempt from release under sections 35, 36 and 37 of the FOI Act.
Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;
that the information was given to an FOI body in confidence,
that the information was given on the understanding that it would be treated by the FOI body as confidential,
that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
that it is of importance to the body that such further similar information should continue to be given to the body.
It is the circumstances in which the information was imparted and received that is important in determining whether these first two requirements of section 35(1)(a) are met. In its submission of 5 October 2015, the applicant contended that the information contained in the records was submitted to the Department in confidence.
The fact that the applicant may have submitted the records in confidence does not, of itself, mean that they were given to the Department on the understanding that they would be treated by the Department as confidential. I take the view that an understanding of confidentiality has to be mutual. In considering this point, a number of factors are relevant, including, but not limited to, whether any assurances were given at the time the information was given, the purpose for which the information was sought or provided, and the nature of the relationship between the provider of the information and the FOI body receiving it.
As I have outlined above, the applicant submitted the records at issue to the Department in connection with an application for a very significant level of grant aid. Given the amount of public funds involved, I find it difficult to accept that the Department could legitimately have given an assurance to the applicant that the records would be treated as confidential, nor has it argued that it did so. The applicant argued that a previous FOI request to the Department of Public Expenditure and Reform (DPER) in respect of similar, but less sensitive, information was rejected, and that this created an implied understanding that the information had been given to the Department in confidence. I disagree. Regardless of the views of DPER on the matter, the records at issue are held by the Department, as the body charged with considering the State funding application. No evidence has been presented to this Office to suggest that the Department gave any such assurance that the records had been accepted on the understanding that they would be treated as confidential.
It seems to me that the applicant's primary concern is to protect any and all commercially sensitive information contained in the records. However, such concerns fall more appropriately for consideration under section 36 and I have addressed those concerns below. Furthermore, I note that the Department agreed to redact certain information having regard to the applicant's concerns as to the commercial sensitivity of the records. In any event, even if I were to accept the applicant's argument that all such commercially sensitive information was given in confidence and on the understanding that it would be treated by the Department as confidential, I do not accept that the third and fourth requirements of section 35(1)(a) are met in this case. I do not accept that the disclosure of information of the type at issue would be likely to prejudice the giving to the Department of further similar information from the same person or other persons in circumstances where such a significant amount of grant aid is being sought.
Furthermore, it is not clear to me that it is of importance to the Department that such further similar information should continue to be given to the Department. The consequences of failing to provide such information are borne by the applicant, not the Department. In all of the circumstances, I find that section 35(1)(a) does not apply. I should add that even if I had found section 35(1)(a) to apply, the public interest balancing test as set out in section 35(3) would remain to be considered. I have set out below my findings on where the balance of the public interest lies in the context of protecting commercially sensitive information.
This is a mandatory exemption that protects commercially sensitive information. Section 36(1) provides as follows;
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains --
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."
Subsection (2) contains a number of exceptions to the exemption. Subsection (3) contains a public interest balancing test.
The applicant argued that the entirety of the records are exempt from release under each of the subsections (a) to (c).
In its submissions to this Office, the applicant stated that "Throughout the documents there are references to historical and projected future match attendances (for other GAA stadiums and for the new Stadium), current operational costs of Croke Park, projected operational costs of the new Stadium, and other data which is the intellectual property of the GAA...it amounts to trade secrets of the GAA."
This Office has previously accepted that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication. Having considered the records before me, I am not satisfied that the applicant has adequately demonstrated that the information within them could properly be classified as trade secrets. It seems to me that the applicant's concerns more properly relate to section 36(1)(b). I am not satisfied that the applicant has satisfactorily shown that the records contain trade secrets and I find, therefore, that section 36(1)(a) does not apply.
While the applicant's arguments as to the applicability of section 36(1)(b) are not entirely clear, it appears, in essence, that it is concerned that the release of the records, even in redacted form, could prejudice its competitive position in so far as the disclosure of certain details could provide useful information for competitors or could cause cost overruns on the overall project. It also argued that the release of certain information could provide persons with a business interest in the project a competitive advantage over other competitors but I fail to see how this is relevant to section 36(1)(b) as it has not argued that such a competitive advantage would be to its detriment.
The standard of proof necessary to meet the second part of the test in section 36(1)(b) (could prejudice the competitive position etc.) is relatively low. All that is required is the possibility of prejudice. As such, I accept that the records contain certain information, the release of which could prejudice the competitive position of`the applicant such that section 36(1)(b) applies. However, that is not the end of the matter. Subsection (3) provides that "Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request." I have examined the relevant public interest considerations separately below.
It is public knowledge that the Government has agreed to provide funding of €30 million for the redevelopment project. It would appear, therefore, that the applicant's primary concerns in relation to section 36(1)(c) relate to the potential prejudice to the outcome of negotiations with other funding sources. The applicant suggested that this could happen were the records to be misinterpreted as raising doubts concerning the availability of the State grant. It seems to me that this argument is now irrelevant, given that agreement to provide such funding has since been made.
Essentially the applicant is keen to avoid the possibility of any adverse consequences for its ability to raise funding for the project. While this is entirely understandable, the applicant has not, in my view, shown how the release of the records could give rise to the harm identified in section 36(1)(c). Furthermore, this Office does not accept as a general proposition that the possibility of a record being misunderstood provides a sufficient ground for refusing access. Indeed I note that the applicant has previously issued media releases to clarify what it regarded as inaccurate reporting of issues relating to the project and I see no reason why it could not do so again if the need arose. I find that section 36(1)(c) does not apply.
The applicant has identified the public interest in openness and transparency regarding the expenditure of public funds as favouring the release of the records. Against release, it has identified the public interest in securing the best possible value for money in contracts through the tendering process for the construction and future operation of the stadium. It contends that the tendering process will be "jeopardised" by the release of the records.
This Office has previously found that there is a public interest in openness, transparency and accountability of public bodies, particularly as regards the expenditure of public funds; see e.g. Case 140194 (X Solicitors and Westmeath County Council, available on www.oic.ie). I am satisfied that, in principle, the public interest favouring release of the records in this instance is particularly strong. This is because the applicant has been granted approval for the receipt of a very significant amount of public funds in order to redevelop its own, privately owned, stadium. In my view, any public interest factor favouring the withholding of the records would have to be compelling in order to outweigh the public interest favouring release. Having carefully examined the relevant records, I find that the public interest would, on balance, be better served by the release of the records at issue, subject to redaction of the following extracts:
Record 13 P. 16 - All material (text and graphic) on page 16 above the sentence "The Stadium will have a number of attributes that will attract business."
P. 21 - The third sentence of the first paragraph, which relates to Croke Park
P. 33-35 - In its schedule of records, the Department stated that these pages had been redacted in full. However, in the copy records submitted to this Office, they are part redacted. I am satisfied that they contain particularly detailed information of the redevelopment costs and as such are commercially sensitive.
Record 17 P. 21 - The third sentence in the opening paragraph under the heading "Repairs and Upgrades" which relates to Croke Park.
I should add that the applicant has drawn attention to alleged inconsistencies in the redactions applied by the Department, and has submitted that this Office should ensure that all redactions are applied consistently across all of the records. The fact that the Department, in its original decision, may have found certain material to be exempt from release in respect of one record, does not oblige me to agree that the same or similar material should be exempt from all the records under review. As I have explained above, this review does not extend to examining the information that the Department has decided to redact.
The applicant contended that the records contain personal information about certain individuals, including names and contact details of consultants who compiled reports on behalf of the applicant. It argued that the release of this information in what it says are "draft and out of date documents" could be misconstrued and could risk the professional reputations of the individuals concerned. Having considered the relevant records, I note that page 4 of record 17 includes the names of two people who assisted in drafting the record.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. It goes on to identify fourteen categories of information that is deemed to be personal information. I am satisfied that the disclosure of the names of the individuals in question would involve the disclosure of information relating to the employment or employment history of the individual. Therefore, I find that the information is personal information for the purposes of the FOI Act.
I am satisfied that none of the exceptions set out in section 37(2) apply and that the public interest in releasing the information does not outweigh the privacy rights of the individuals concerned. I find, therefore, that the names of the two people in the third and fourth paragraphs of page 4 of record 17 should be redacted from the record.
The applicant's additional submission
The applicant furnished additional submissions to this Office on 12 February 2016. It stated that the grant of State funding of €30 million is now subject to a "Notification to and Assessment by the European Commission" under provisions of EU state aid law. It stated that it has prepared a submission for the Commission that "drew upon and incorporated much of the information from the documents" which are under consideration in this review. It further stated that it is unknown how long the Commission might take to consider the matter, or whether it might revert to the applicant and/or the Department for further information.
The applicant contended that the Department has provided oral confirmation to it that its communications with the Commission are part of an ongoing deliberative process and therefore confidential. It argued that the ongoing EU process provides a further reason why this Office should vary the Department's decision and direct that the original request be fully refused. Specifically, it contended that
Any information relating to the submission to the Commission and/or the Commission's assessment is equivalent to being sub judice and the release of such information would be contrary to section 35(1)(b).
The State funding is vital to the redevelopment project and therefore the release of the records would be contrary to section 35(1)(b).
The release of the records could prejudice the outcome of the Commission's assessment, and therefore release would be contrary to section 36(1)(c).
Litigation privilege attaches to the records during the performance of the Commission's functions and therefore the release is prohibited by section 31(1)(b).
As a general point, I am not satisfied that the fact that the request and approval for State funding is now subject to an assessment by the European Commission should fundamentally alter how I approach this review. While I note the applicant's contention that its submission to the Commission "drew upon and incorporated" much of the information contained in the records, that submission is not a record under consideration by me in this review. Rather, the records within scope concern the applicant's request for funding from the State, and I remain of the opinion that the public interest factors in favour of release of these records are generally stronger than those favouring their withholding. I consider that these factors in favour of release are not lessened by the subsequent decision of the European Commission to review the State grant.
In respect of the specific arguments raised by the applicant, I do not accept that it has demonstrated that the Commission's assessment procedure has created a duty of confidence over the records within the scope of this review, and therefore I do not agree that it has shown that their release would be contrary to section 35(1)(b). Additionally, I am of the opinion that it has not shown how the disclosure of the records could prejudice the outcome of the negotiations with the Commission, and consequently I do not accept its argument that section 36(1)(c) should apply to prevent their release. Finally, the applicant has not referred to any contemplated or pending litigation, nor has it shown that the records under review were created for the dominant purpose of any such litigation, and therefore I am satisfied that litigation privilege does not attach to the records.
In conclusion, therefore, I affirm the Department's decision in respect of all of the records that I have found are within the scope of this review, with the exception of the limited number of additional redactions that should be applied to records 13 and 17.
Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. I find that the following parts of records 13 and 17 are exempt from release
Record 13, page 16 - All material (text and graphic) on page 16 above the sentence "The Stadium will have a number of attributes that will attract business."
Record 13, page 21 - The third sentence of the first paragraph
Record 13, pages 33 to 35
Record 17, page 4 - the names of the two people in the third and fourth paragraphs
Record 17, page 21 - The third sentence in the opening paragraph under the heading "Repairs and Upgrades".
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.