Case number: 160529
The Catchment Flood Risk Assessment Management (CFRAM) project is a core component of the National Flood Policy, which was adopted in 2004. The CFRAM project commenced in 2011. Further to six national studies, including that of the Shannon area, detailed flood maps will be produced and flood risk management measures identified, assessed, and prioritised.
The OPW has, to date, prepared draft modelling and mapping for each of the 300 towns that are at significant risk of flooding, which included the surveying and modelling of 6,700 km of watercourse. It has held public consultations. These included the publication of various maps, although in a different format to those requested in this case. Submissions made on foot of the consultations will be reviewed, and the OPW is finalising the relevant plans. It will then submit them for Ministerial approval. The approved plans must then be adopted by Local Authorities for implementation. The preferred measures will in due course be prioritised via a Multi Criteria Analysis. €430 million will be invested over six years.
The applicants' solicitor acted on their behalf at all stages in the FOI process in this case. All references to "the applicants" in this decision include references to their solicitor.
On 24 August 2016, the applicants made an FOI request to the OPW for the river survey data collected under the Shannon CFRAM project. The request specified various technical information and formats. The OPW's decision of 5 October 2016 refused to grant access to the records sought, under sections 29(1) and 40(1)(d) of the FOI Act. These are, respectively, provisions of the FOI Act that may be applied to records relating to an FOI body's deliberative process, and to records whose release could reasonably be expected to result in an warranted benefit or loss to a person or class of persons. On 10 October 2016, the applicants sought an internal review of the OPW's decision, which the OPW affirmed on 2 November 2016. On 28 November 2016, the applicants sought a review by this Office of the OPW's decision.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above, and to correspondence between this Office, the OPW, and the applicants. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.
The scope of this review is confined to whether or not the OPW has justified its refusal to grant access to the requested records.
Section 40(1)(d) - Unwarranted Benefit or Loss
It is the OPW's position that the records are of a sort specified at section 40(2)(m) of the FOI Act, which are exempt under section 40(1)(d) of the Act. Section 40 protects, generally speaking, certain records relating to the financial and economic interests of the State.
Section 40(1)(d) is a discretionary exemption that provides for a refusal to grant access to records whose release could reasonably be expected to result in an warranted benefit or loss to a person or class of persons. Where an FOI body relies on section 40(1), this Office expects it to identify the potential harm - unwarranted benefit or loss to a person or class of persons- that might arise from disclosure. It must also consider the reasonableness of any expectation that the harm will occur.
Section 40(1)(d) may be applied to any record, but particularly those of a sort described in section 40(2) of the FOI Act. Section 40(2)(m), to which the OPW's submissions refer, concerns records relating to trade secrets or financial, commercial, industrial, scientific or technical information belonging to the State or a public body, that are of substantial value or reasonably likely to be of substantial value.
The OPW provided a copy of a data release agreement with which the four engineering consultant companies it commissioned to deliver the CFRAM programme must comply. The agreement states that the "data are the copyright of the [OPW]". It places strict restrictions on the use to which the data can be put, and requires the user to delete the data when it has completed its work. The OPW says that the data will be used in technical specifications that will form part of future procurement projects.
The OPW says it is currently considering making the CFRAM data sets generally available under licensing arrangements, such as through the Ordnance Survey of Ireland. This is because of the volume of data collected and the associated investment and cost of collecting it. The OPW says that, for example, it cost about €12,500 to commission the survey that generated the information sought in the applicants' FOI request. According to the OPW, over 900 data images and data files are involved.
Licensing arrangements have not been used by the OPW before. However, it says that Northern Ireland's Rivers Agency licenses the data gathered for its now completed Flood Risk Management Plans. Complete flood data for Northern Ireland is available for over £45,000, with different subsets of that data costing different prices. The OPW says that it gathered roughly 15 times more data than did the Rivers Agency.
The Investigator in this case outlined to the applicants the OPW's position as set out in its submissions. She invited them to make comments but none were received.
Based on the figures provided, it seems to me that the licensed value of the full set of CFRAM data would be substantial. I accept that the records contain technical information belonging to the State or the OPW, that are of substantial value or reasonably likely to be of substantial value. However, this, of itself, is not enough for me to find that the records should be withheld.
According to their submissions, the applicants have private interests in seeking access to information that is clearly difficult and expensive to otherwise obtain. However, section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request. Furthermore, it is not relevant that the applicants are prepared to give an undertaking to the OPW that the requested information will only be used by them and their engineer. It is well settled that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
It is clear that the OPW restricts the use of the information that has been requested. At this point in time, it has not decided on, or authorised, how it might make such information generally available to the public. I consider this to be sufficient for me to find that release of the information at issue under FOI could reasonably be expected to result in an unwarranted benefit to the applicants. Release could also reasonably be expected to result in an unwarranted benefit to any other persons with a similar interest in the requested information, given that material released under FOI is available to the world at large without restriction.
Furthermore, among OPW's concerns is the fact that a strategic approach to procurement for future flood relief schemes will be required so as to ensure that the technical specifications can be released without giving an advantage to some potential tenderers over others. It states that it intends to provide the material to tenderers at tender stage. Thus, release now could reasonably be expected to also result in an unwarranted benefit to some prospective tenderers over others, or indeed to all tenderers at the expense of the OPW's planned management of the procurement process. In addition, the information would be so available without payment of any licensing fees that could otherwise have been required to be paid to the OPW/the State. I find that the records are exempt under section 40(1)(d) of the FOI Act.
Section 40(3) - The Public Interest
Section 40(3) must be considered regarding a record to which section 40(1)(d) applies. It provides that section 40(1) does not apply in a case where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner IESC 26 (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicants say that the information they are seeking should be as accessible as any other scientific data. They say that the OPW has powers to access land for survey purposes that the general public does not have. They also say that, because the information they have sought is not generally available, they are being deprived from having recourse to legal remedies that may be available to them (in relation to various related matters).
Seeking access to information for the purpose of taking legal action, or avoiding incurring significant expense, are clearly private interests. I cannot take account of such matters. Neither is it part of my role to determine what the OPW's general policy should be on making the requested information available to the general public, or to otherwise undermine the consideration it says it is currently giving to this.
There is a public interest in ensuring that the OPW is open about, and can be held accountable for, how it carries out its functions. The requested information is relevant to the identification of those areas worst affected by flooding and the prioritisation of funding, but at the same time will not enable any significant insight into the OPW's actual decision making on such matters. The statutory public consultation on the Draft Flood Risk Management Plans has now closed and general information about the CFRAM studies and related action is available on a dedicated website as well as on www.opw.ie. Accordingly, I do not consider there to be a significant public interest in the release of the information at issue.
Section 40(1)(d) of the FOI Act recognises the public interest in withholding information that could reasonably be expected to result in, in this case, an unwarranted benefit to a person or class of persons. For reasons already outlined, I am satisfied that release of the requested information at this time could reasonably be expected to result in an unwarranted benefit to the applicants and to anyone else with an interest in the information. I consider this public interest to be of considerable weight.
On balance, I consider that the weight of the public interest in granting access to the requested information is not such that it outweighs the public interest that the information should be upheld. I find that section 40(3) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the OPW in this case.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision .In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal