Case number: 160064
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 15 December 2015, a request was made to the Department for access to records relating to the proposed redevelopment of Páirc Uí Chaoimh. On 23 December 2015, the Department formally notified the applicant, as an affected third party, that it was considering release of certain documents and it invited the applicant to make a submission within three weeks. On 15 January 2016, the applicant made a submission to the Department and argued that the records should not be released. On 29 January 2016, the Department informed the applicant that it had decided to part grant the request and it attached copies of the records proposed for release with redactions. On 11 February 2016, the applicant sought a review by this Office of the Department's 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 and to the submissions of the parties. I have also had regard to my previous decisions in Cases 150333, 150344 and 150345 in so far as they considered the same records as some of those at issue in this case. 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 23 December 2015 to the applicant, the Department identified the following records on which it invited submissions:
- Original cost-benefit analysis submitted by [the applicant] for the redevelopment of Páirc Uí Chaoimh stadium.
- All subsequent revisions to the initial cost-benefit analysis.
- Pertinent correspondence between the applicant and Department relating to the above documents up to 15 December 2015.
The records relating to the first two categories, and some relating to the third, were under consideration by this Office in separate reviews at the time (Cases 150333, 150344 and 150345). In its notification of 29 January 2016, the Department stated that those records that also fell within the scope of the applicant's request would not be released pending this Office's decisions in those separate reviews.
My decisions in Cases 150333, 150344 and 150345 have since issued (available on www.oic.ie). As a consequence, the applicant subsequently informed Simon Noone of this Office that it did not object to the release, in this case, of those records considered in the previous cases in the same form as directed in those decisions.
Therefore, I find that the following records fall outside the scope of this review and should be released to the applicant as per my decisions in cases 150333, 15034 and 150345 (corresponding Case and record numbers are included in brackets):
Record 3: (Record 3 in Case 150333),
Record 6: (Record 17 in Case 150333),
Record 8: (Record 1 in Case 150344),
Record 11: (Record 22 in Case 150333),
Record 12: (Record 23 in Case 150333),
Record 13: (Record 6 in Case 150344),
Record 14: (Record 7 in Case 150344), and
Record 15: (Record 8 in Case 150344).
Furthermore, I find that the following records concern documents other than those sought by the applicant in his original request, namely the cost-benefit analysis, subsequent revisions, and related correspondence, and therefore fall outside the scope of this review:
2, 9, 10, 16 to 23, 27, 29, 32.
I also note that records 24, 25, 26, 28, 30, 31, 33 to 36, and 38 on the schedule of the records prepared by the Department did not form part of the third party notification process as provided for under section 38 and fall outside the scope of this review.
Consequently, the following records remain to be considered by me in this review:
Record 1: Email from applicant to Department 26/02/2015
Record 4: Email from Department to applicant 10/03/2015
Record 5: Email from applicant to Department 24/03/2015
Record 7: Email from Department to applicant 02/04/2015
Record 37: Email from applicant to Department 03/12/2015
Record 39: Email from Department to applicant 11/12/2015
For the avoidance of doubt, I should clarify that the review is not concerned with the information that the Department has decided to redact from the records in question.
This review of the Department's decisions has been sought by the applicant as an affected third party. Section 22(12)(a) provides that the applicant bears the onus of showing to my satisfaction that the Department's decision to part grant the request was not justified. Furthermore, this review is de novo, and my decision is made in light of the facts and circumstances as they apply on the date of the review. It is important to bear in mind that I am not obliged, in making this decision, to ensure that all redactions previously made by the Department are uniformly applied to all the records before me.
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 announced that it had approved the grant. The grant was subsequently considered by the European Commission under provisions of EU state aid law. In July 2016, the European Commission informed the applicant that it was not objecting to the grant. On 29 July 2016, the applicant submitted to this Office that "no letter of provisional approval of funding will be provided [by] the [Department] until the requirements of the [Public Spending Code] (which are not limited to the Business Case) and the terms and conditions of the Sports Capital Programme have been satisfied. The [Department has] indicated that these elements may still take time."
Records 1, 5, 37 and 39 are, in my view, essentially covering emails and contain no substantive information about the redevelopment program. Records 1, 37 and 39 have been redacted slightly in order to protect certain personal information. Nevertheless, the applicant has objected to the release of the records on the basis that they make reference to other documents that have been withheld from release, either fully or partly, and also that they are out of date. However, the mere fact that the records might refer to other documents that have not been released in full to the requester is not sufficient to render them exempt from release. I am satisfied that these records, as per the redactions proposed by the Department, contain no exempt information and I find that the Department was justified in its decision to grant access to those records.
Records 4 and 7 contain some information about the engagement between the applicant and the Department regarding the application for State aid. The applicant has contended that the records should be withheld under section 36(1)(c) as they contain commercially sensitive information. It has submitted that the records are out of date and that their release could potentially "spook" funding sources for the redevelopment project. I do not accept that these concerns are reasonable or realistic. In my opinion, these records do not contain any substantive information that is not already in the public domain, or indeed that is not contained within records that have previously been released e.g. record number 13. Therefore, I find that section 36(1)(c) does not apply to these records.
Finally, the applicant has requested that the name of an official of Cork City Council should be withheld under section 37. However, section 2 of the FOI Act provides that the name of a member of staff of an FOI body does not constitute "personal information" for the purposes of the Act, and therefore I find that the Department's decision not to redact the name was justified.
Having carried out a review under section 22(2) of the Act, I hereby uphold the decision of the Department to partially release records 1, 4, 5, 7, 37 and 39.
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.