Case number: OIC-137527-X4D9B7

Whether the Council was justified in refusing access to certain correspondence between the Council and An Garda Síochána and certain records relating to a previous review conducted by the Office of the Information Commissioner, under sections 30(1)(b), 31(1)(a), 36(1), and 42(ja) of the FOI Act

 

26 October 2023

 

Background

On 3 February 2023, the applicant submitted a two-part request to the Council. In the first part, he sought access to copies of all correspondence between the Council and An Garda Síochána (AGS) concerning the alleged use of fraudulent invoices at the Council. He referenced previous engagements with the Council wherein he was informed that there was an ongoing Garda investigation on the matter. In the second part, he sought copies of written correspondence between the Council and this Office in respect of a previous review (case OIC-116823 refers).

In correspondence dated 2 March 2023, the Council informed the applicant that it would be necessary to extend the time period for consideration of his request by four weeks. In a decision dated 20 March 2023, the Council refused the request in full under sections 30(1)(b), 31(1)(a), 35(1)(a), 36(1)(b), 36(1)(c), 37(1) and pursuant to Schedule 1, Part 1(n) of the FOI Act. On 27 March 2023, the applicant sought an internal review of the Council’s decision, following which the Council affirmed its refusal of the request in full. On 18 April 2023, the applicant applied to this Office for a review of the Council’s decision.

In its submissions to this Office during the review, the Council said it had decided to part-grant access to certain “administrative correspondence”. It also sought to rely on section 42(ja) of the Act in support of its refusal of the remaining records. The applicant was informed of the Council’s revised position and invited to make submissions in respect of same, which were duly received.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and the Council. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council identified 25 records as coming within the scope of the first part of the applicant’s request. I will refer to these as records 1a to 25a. The Council identified 30 records as coming within the scope of the second part. I will refer to these as records 1b to 30b

During the course of the review, the Council revised its position in respect of 16 records and said that it had made the decision to grant same in full or in part. It released records 1b, 6b and 24b in full. It granted partial access to records 2b to 5b, 7b to 12b and 20b to 21b, with the redaction of information under sections 36(1)(b), 36(1)(c), 37(1) and 42(ja). It also identified one further relevant record, comprising email correspondence dated 15 February 2022, which it released in part. As such, 16 records were released in full or in part. Following the release of the relevant records, the applicant confirmed that he was happy to remove all 16 records from the scope of this review. A number of the records part-granted also contained links to records considered during the course of an earlier review by this Office. As such records had already been the subject of a review and decision, the applicant agreed to remove same from the scope of this review.

During a later stage of the review, and following queries from this Office, the Council identified one further relevant record, comprising email correspondence between the Council and this Office dated 7 October 2022. The Council’s position is that the record is also exempt from release under sections 30(1)(b), 31(1)(a) and 42(ja) of the FOI Act. I will refer to this record as record 31b and I will consider it further in my analysis below. 

As noted above, the Council referenced Schedule 1, Part 1 of the FOI Act in its decision-making records. In its submissions to this Office, it said that it was no longer relying on this section of the Act in support of its refusal of the relevant records. In further correspondence, it said it was no longer seeking to rely on section 35(1) of the FOI Act as a ground for withholding any of the records. As such, I will not consider these provisions as part of my review.

In its initial decision-making records in respect of section 37(1), the Council said that the granting of access to certain records where the release of the records would result in the disclosure of personal information was refused and that “the existence of any such records is neither confirmed nor denied”. This appeared to be an effective reliance on section 37(6) of the FOI Act, the purpose of which is to is to protect the personal information of a third party in situations where knowledge of the existence or non-existence of particular records would effectively disclose that party’s personal information. During a later stage of the review, and following communications with this Office, the Council confirmed that it was not relying on section 37(6) of the FOI Act. The Council also said that it was relying on section 37(1) only in respect of the records it was part-granting to the applicant. As the applicant has removed these records from the scope of the review, I do not need to further consider the application of section 37(1). 

Accordingly, this review is concerned solely with whether the Council was justified in its decision to refuse access to records 1a to 25a, 13b to 19b, 22b, 23b, and 25b to 31b under sections 30(1)(b), 31(1)(a), 36(1)(b), 36(1)(c) and 42(ja) of the FOI Act.

Preliminary Matters                                                                        

Section 25(3) of the Act requires the Commissioner to take all reasonable precautions during a review to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. Therefore, this means that the extent to which I can describe the contents of the records at issue is limited.

A review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of mandatory exemptions, notwithstanding the fact that the provisions may not have been relied upon as a ground for refusing access to the specific records in the FOI body’s decisions on the request.

It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

The records at issue

While I am limited in the extent to which I can describe the records at issue, I believe that it is necessary to provide some background information in respect of the records and the matter referenced in the applicant’s request. In its submissions, the Council provided what it said was confidential contextual information in respect of the records at issue. As such, the extent to which I can recount this information is also quite limited. Nevertheless, I do not consider myself to be in breach of section 25(3) by stating that the applicant’s request has its background in an independent investigation that was undertaken for the Council in respect of potential breaches of financial procedures in a named municipal district.

In addition, I consider it necessary to note that the Council explained that it commissioned an independent investigation into certain matters in March 2017. Terms of reference were drawn up. It further explained that following receipt by the Council of notification of a protected disclosure, the terms of reference of the Investigation were extended to include the subject of the protected disclosure. The Council said that two reports were produced on foot of the investigation, one in 2018 and one in 2020. I also consider it necessary to note that the Council said that it reported certain matters relating to the subject matter of the reports to AGS in 2018.

Records 1a to 25a are copies of letters and emails exchanged between the Council and AGS. I will refer to these collectively as category A records.

Records 13b to 19b, 22b to 23b and 25b to 31b comprise emails and attachments exchanged between the Council and this Office as part of the earlier review. I will refer to these collectively as category B records.

As noted above, the Council cited a number of exemptions in support of its decision to refuse access to the records in question. Given that the effect of section 42(ja) is to exclude certain records from the scope of the FOI Act, I deem it appropriate to consider the application of section 42(ja) at the outset.

Section 42(ja) – restriction of Act

A protected disclosure is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and the worker reasonably believes that the relevant information tends to show relevant wrongdoing. The Protected Disclosures Act 2014 provides certain protections to those who make protected disclosures.  That Act has recently been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Amendment Act), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new sub-section, namely section 42(ja).

Section 42(ja) provides that the FOI Act does not apply to “a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022”. Section 4 of the 2022 Amendment Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”.

In considering whether the records are records “relating to” a report made under the Protected Disclosures Act, I have adopted the reasoning in the case of EH v The Information Commissioner [2001] IEHC 182 (the EH case). In that case, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question.

The Council sought to rely on section 42(ja) in support of its refusal to release all of the records at issue. In respect of records 1a to 25a, the Council said that the correspondence between the FOI body and AGS is directly linked to a relevant report made under the Protected Disclosures Act. It said that records 4a, 24a and 25a include a copy of one of the above referenced investigation reports. It said the investigation reports were prepared in light of a protected disclosure which was communicated to the Council in or around May 2017. It said that the subsequent correspondence between the Council and AGS is directly related to the investigation reports. Its position is that there is a sufficiently substantial link between the records and the protected disclosure.

In respect of the relevant category B records, the Council said that it formed the view that its correspondence with this Office is directly linked to the protected disclosure. The Council said that certain records contain information relating to third parties who were involved in the relevant investigation. It said that other records contain focused submissions sent by the Council to this Office. It said that the submissions include detail in respect of the protected disclosure and related matters. It said that further records include additional submissions and points of clarification and it determined that section 42(ja) applies given the links between the records and the protected disclosure.

In support of its position, the Council referenced the EH case as well as a recent decision of this Office (OIC-123006). It said that the decision in Case OIC-123006 related to the same protected disclosure and that this Office held that the copy of the investigation report which the applicant sought was sufficiently linked to the relevant report made under the Protected Disclosure Act.

This Office notified the applicant of the Council’s reliance on section 42(ja) in support of its refusal. In response, the applicant said that he does not accept the Council’s position. His position is that “the Council is trying to cast as wide a net as possible in order to prevent the release of these records so as to save itself from any embarrassment”. He said that it is “deeply ironic” that the Council is seeking to rely on protected disclosure legislation “which is supposed to be about uncovering malfeasance, corporate wrongdoing” in order to refuse an FOI request. He said that the Council is thereby preventing the public from gaining an understanding of certain matters. The applicant said that this Office should interpret the relevant section of the protected disclosure legislation as relating only to the report itself and not all other records relating to the same subject area.

In essence, the applicant’s position is that this Office should interpret the relevant section of the protected disclosure legislation as restricting the application of the FOI Act only in respect of the protected disclosure report itself. However, the newly inserted section 42(ja) of the FOI Act clearly states that the Act does not apply to a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act (my emphasis). It seems to me that if the Oireachtas had intended to remove only the protected disclosure report itself from the scope of FOI, it would have done so by referring only to that report. The enacted section is clearly broader than that. In his submissions, the applicant also made what I would describe as public interest arguments. However, there is no public interest provision in section 42 of the FOI Act. If a record is captured by one or more of the categories of records described in section 42, that is the end of the matter.   

The question I must consider in this case is whether the records at issue are records “relating to” a report made under the Protected Disclosures Act. Applying the test outlined in the EH case, I have considered whether there is a sufficiently substantial link between the relevant report made under the Protected Disclosure Act and the records in question. I am satisfied that there is a sufficiently substantial link between the information in records 1a to 6a and the relevant protected disclosure to determine that they relate to a report made under the Protected Disclosures Act. The records in question relate and refer to the investigation undertaken. As noted above, the scope of that investigation was widened to include the protected disclosure made. I am similarly satisfied that records 10a, 17a, 20a, 24a and 25a relate to a report made under the Protected Disclosures Act. The above records contain information relating to the investigation.

However, I am not satisfied that there is a sufficiently substantial link between the remaining records in category A and the protected disclosure. Records 7a to 9a, 11a to 16a, 18a, 19a, and 21a to 23a comprise email correspondence between the Council and AGS in the context of previous FOI requests and reviews by this Office. The records are largely administrative in nature and while they reveal information in respect of previous FOI decision-making by the Council, I am not satisfied that they are substantially linked to the protected disclosure in question. It seems to me that the circumstances in which the records were created were the relevant reviews by this Office and that the records were created for that purpose. I am not satisfied that the content of the records is such that they could be said to relate to a protected disclosure.

In respect of the category A records to which I have found section 42(ja) not to apply, the Council has not sought to rely on any further exemptions in respect of those records. Accordingly, I direct the release of those records.

I have also considered the category B records. As noted above, the records relate to communications between the Council and this Office during the course of an earlier review. A number of the email records include attachments which comprise submissions made to this Office. I must consider whether the records relate to a report made under the Protected Disclosures Act. On the face of it, it seems that the records in question relate primarily to the review undertaken by this Office. They were created in that context and for that purpose. They were not created as part of the investigation referenced in the Council’s submissions nor in the course of actions flowing from same. I am not satisfied that a sufficiently substantial link exists between the protected disclosure and the records. However, a number of the records contain information which relates to the investigation undertaken in light of the protected disclosure. I am satisfied that the attachments to records 13b, 16b, 17b, 18b, 22b, 27b and 28b contain information which directly relates to that investigation. Accordingly, I am satisfied that there is a sufficiently substantial link between those attachments and a report made under the Protected Disclosures Act. The attachments comprise requests from this Office for submissions and responses to same from the Council. The records contain detail in respect of the protected disclosure and the resulting investigation.

In sum, I find that records 1a to 6a, 10a, 17a, 20a, 24a, 25a and the attachments to records 13b, 16b, 17b, 18b, 22b, 27b and 28b are records relating to a report (that report being the protected disclosure) for the purposes of the Protected Disclosures Act. I find, therefore, that section 42(ja) of the Act applies to those records. I also note that record 19a includes a forwarded copy of record 17a. I find, therefore, that the Council was justified in refusing access, under section 42(ja) of the Act, to records 1a to 6a, 10a, 17a, 20a, 24a, 25a, the attachments to records 13b, 16b, 17b, 18b, 22b, 27b and 28b, and the relevant part of record 19a.

It therefore remains for me to consider the application of other exemptions to the relevant category B records.

Sections 30(1)(b) – functions and negotiations of FOI bodies

Section 30(1)(b) of the Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur. Not only must the harm be reasonably expected, but it must also be expected that the harm will be significant.

A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected to occur, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

Section 30(2) provides that section 30(1)(b) does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.

In respect of the records to which I have found section 42(ja) not to apply, the Council cited section 30(1)(b) in support of its refusal of records 13b to 18b, 22b, 23b, 25b to 28b and 31b. As I have already found section 42(ja) to apply to the attachments to records 13b, 16b, 17b, 18b, 22b, 27b and 28b, I will consider the application of section 30(1)(b) to the attaching emails only.

In its submissions, the Council said that the records in question contain focused submissions it prepared in respect of the earlier review by this Office. It said the records include a detailed summary of the steps it took following the protected disclosure. It said certain other records include additional submissions which were prepared in response to queries and requests for clarification from this Office. The Council argued that release of the records would have a significant adverse effect on the performance of the management function as the reporting and speculation in the media in respect of the submissions could be damaging, unwarranted and difficult to remedy for the members of the Council who prepared the records. It said the records contain information on how Council makes decisions and that release would have an adverse effect on its management functions. It said that release could reveal the roles, involvement and decision-making of Council staff and could deter staff from cooperating in future investigations. It said that the level of cooperation by certain staff may be prejudiced in the future and that the Council could face challenges from individuals involved. It said that it should be free to engage in wide-ranging investigations into how it manages staff and resources without apprehension as to whether the methodology and results of such investigations will be disclosed to the public.

The Council also made submissions in respect of the public interest. It said that the records in question are not already in the public domain and are related to the subject matter of the protected disclosure. It said that an increased focus on same may discourage future employees, contractors or directors of the FOI body from utilising the Protected Disclosure Policy to report any wrongdoing.

Before commencing my analysis, I would again note that I have already found a number of records exempt from release pursuant to section 42(ja). These include records to which I understand the Council was referring to in its submissions in respect of section 30(1)(b). In respect of the remaining records, I would again note the high bar of significant adverse effect for the exemption to apply. I have carefully considered the content of the records in question. The majority of the remaining category B records comprise administrative correspondence in respect of the previous FOI review. I am not satisfied that their release could result in the harms outlined in section 30(1)(b). While certain records contain information in respect of exemption provisions relied on in an earlier FOI decision made by the Council, this detail is included in the decision which issued in respect of the earlier review by this Office. As such, I do not accept that the release of such information could have a significant, adverse effect of the performance by the Council of its management functions. Nor do I accept that the remaining records contain information relating to staff which could deter their participation in future investigations.

While I also consider that the remaining information in the records is quite limited in terms of the actions undertaken by the Council, I would note that, in general, I do not accept its position that FOI bodies should be free to engage in wide-ranging investigations without apprehension as to whether the methodology and results of such investigations will be disclosed to the public. It seems to me that the very purpose of the FOI Act is to achieve greater openness in the activities of FOI bodies, to strengthen accountability and to inform scrutiny and review by the public of the activities of such bodies. In respect of the Council’s arguments regarding the protected disclosure process, I note that section 42(ja) provides for the protection of such information. I have duly considered the records under that provision. I am not satisfied that the remaining records contain information which could undermine future engagement with the protected disclosure process.

In sum, I am not satisfied that release of the relevant records could reasonably be expected to have a significant, adverse effect on the performance by the Council of any of its functions relating to management. I find that the Council was not justified in relying on section 30(1)(b) to refuse access to the records in question.

Section 31(1)(a) – legal professional privilege

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

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).

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied.

Having considered the Council’s submissions, I am satisfied that litigation privilege is the relevant aspect of section 31(1)(a) which is being relied on in respect of the category B records.

For litigation privilege to apply the records must have been created for the dominant purpose of contemplated/pending litigation. Litigation encompasses not only court proceedings but also proceedings before tribunals exercising quasi-judicial functions. The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. in Silver Hill Duckling Limited v Minister for Agriculture [1987] 1 IR 289. In the judgment of the High Court in University College Cork - National University of Ireland v The Electricity Supply Board [2014] IEHC 135, Finlay Geoghegan J. stated -

"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."

As such, a body claiming the exemption must satisfy the Commissioner that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created. This Office also accepts that, in certain circumstances, litigation privilege may attach to internal communications provided that the dominant purpose for their creation is contemplated or pending litigation.

In its submissions, the Council said that the Commissioner has acknowledged in previous decisions that litigation encompasses not only court proceedings but also proceedings before tribunals exercising judicial functions. It referenced a previous decision of this Office (case OIC-99017) in which the Commissioner found that the dominant purpose in creating documents which passed between various Revenue officials and the Revenue Solicitor and between other Revenue officials was preparation for a threatened appeal to the Appeal Commissioners and that the equivalent section 31(1)(a) provision in earlier FOI legislation applied. It also referenced case OIC-010420 where it was accepted that records prepared in contemplation of an appeal following the decision of a body such as the Office of the Director of Equality Investigations (ODEI) may attract litigation privilege.

The Council said that the category B records were prepared to respond to the Commissioner in respect of an “active claim” which the applicant had lodged. It said that the focused and additional submissions that were prepared by the Council were not provided for any additional purpose and the dominant purpose was to set out its position in respect of the request. The Council said that while a decision issued in respect of the review to which the category B records related, it said that the matter is “directly linked to the present proceedings”. It said that given that the applicant is seeking records which relate to the earlier review, it is of the opinion that litigation privilege should continue to apply to the records.

The Council’s substantive argument is that a review undertaken by this Office constitutes proceedings such that litigation privilege applies. Accordingly, it seems to me that the question I must consider is whether this Office is deemed to be exercising judicial functions such that documents prepared in the context of a review are covered by litigation privilege. I am satisfied that it is not. Section 45(6) of the Act provides that the Commissioner may determine the appropriate procedure for conducting reviews, and that such procedures shall be as informal as is appropriate. The review process is informal and inquisitorial in nature, as opposed to adversarial, and the Courts have accepted this to be the case. The review process is conducted in private and there is no requirement that evidence is given under oath. I find that reviews undertaken by this Office do not constitute proceedings such that litigation privilege applies.

For the sake of completeness, I have also considered whether the records can be regarded as having been created for the dominant purpose of further apprehended or threatened litigation in circumstances where a decision of the Commissioner following a review may be appealed to the High Court on a point of law.

In case OIC-010420, the then Commissioner considered whether litigation privilege attached to a memorandum concerning a Government Department’s preparations for its submission to the then Office of the Director of Equality Investigations (the ODEI). She noted that in the case in question, a right of appeal existed from an ODEI decision to the Labour Court and to the High Court on a point of law. In the particular circumstances of the case, she was satisfied that that litigation before the High Court was contemplated by the Department when the memorandum was prepared. I am not so satisfied in this case. While I acknowledge that a decision by this Office following a review can be appealed to the High Court on a point of law, I am satisfied that the records at issue were created by the Council in the context of the review before this Office and not for the dominant purpose of apprehended or threatened litigation. Indeed, I note the Council’s comment that the dominant purpose of the records was to set out its position in respect of the request that was the subject of the earlier review.

In sum, in light of the analysis outlined above, I find that the records do not attract litigation privilege, and that section 31(1)(a) does not apply.

Section 36(1) – commercially sensitive information

In the schedule and submissions provided to this Office, the Council identified the records to which it claimed sections 36(1)(b) and (c) of the Act to apply. All of the records identified have either been deemed out of scope by virtue of their part-granting by the Council or I have found them to be exempt pursuant to section 42(ja). However, given the mandatory nature of section 36, I propose briefly considering the application of the section to certain remaining records.

Section 36(1)(b) of the Act provides for the mandatory refusal of access to a record that contains financial, commercial, scientific, technical or other information, the disclosure of which 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. The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release.

The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the degree of harm required to meet the harm test in the second part of this provision (“could prejudice”) is lower than that required to meet the test in the first part, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

Section 36(1)(c) of the Act provides for the mandatory refusal of access to records containing information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, a party seeking to rely on this exemption should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

Records 14B and 15B contain the names of certain third parties. These third parties were named by the applicant in his earlier FOI request which resulted in the relevant review by this Office (case OIC-116823). The emails in question are administrative communications relating to the processing of that review and clarifying the Council’s position in respect of the earlier FOI request. I note that the Council has not sought to rely on section 36 in respect of this information, nor has it made submissions in respect of same. Nonetheless, I have considered the content of the records. I am not satisfied that the disclosure of the names of third parties referenced in an earlier FOI request by the same applicant could result in the necessary harms under sections 36(1)(b) or (c). That request has been the subject of a decision by this Office which necessarily outlined the position taken by the Council in respect of the records. The applicant is obviously aware of the names of the third parties. While noting that release under FOI is considered to be release to the world at large, I am not satisfied that any relevant harm could flow from the release of such high-level information, nor has the Council advanced any arguments in this regard.

Accordingly, I am satisfied that sections 36(1)(b) and (c) do not serve to exempt the information in question.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that it was justified in refusing access to records 1a to 6a, 10a, 17a, 20a, 24a, 25a and the attachments to records 13b, 16b, 17b, 18b, 22b, 27b and 28b, under section 42(ja) of the Act. I find that it was not justified in refusing access to the remaining records under sections 30(1)(b), 31(1)(a), 36(1) or 42(ja) of the Act and I direct their release.

Right of Appeal

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 applicant 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.

 

Stephen Rafferty
Senior Investigator