Case number: OIC-120190-Y3X9X2
8 August 2022
The applicant was unsuccessful in his application to Fáilte Ireland’s 2019-2022 capital investment programme, Platforms for Growth. In a request dated 21 June 2021, he sought access to the following:
In a decision dated 16 July 2021, Fáilte Ireland part-granted the request. It released one record in part and refused access to seven others on the basis of sections 30(1)(b), 30(1)(c), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act. The applicant sought an internal review of that decision on 9 August 2021. In a decision dated 1 September 2021, Fáilte Ireland affirmed the original decision. On 28 February 2022, the applicant applied to this Office for a review of Fáilte Ireland’s decision.
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 both the applicant and Fáilte Ireland. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by Fáilte Ireland when processing the request.
As noted above, part 2 of the applicant’s request included “detailed reasons” as to why his application was unsuccessful. In correspondence with Fáilte Ireland, this Office queried whether it understood this to constitute an application for a statement of reasons and whether section 10 of the FOI Act was considered.
Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.
Fáilte Ireland said that it did not consider the applicant’s request under section 10. It referenced two letters issued to the applicant on 12 December 2019 and 19 December 2019. Fáilte Ireland said that feedback and a statement of reasons as to why his application did not proceed beyond Stage 2 were provided. Having had regard to these letters, and the fact that the applicant did not raise section 10 in his submissions to this Office, I will not consider the section 10 issue in this review.
In respect of part 3 of the applicant’s original request, I note that this information was provided in Fáilte Ireland’s original decision letter. As such, this will not form part of the review.
Fáilte Ireland identified eight records which it states come within the scope of the original request. Record 1 was released in part while records 2, 3(1), 3(2), 4, 5, 6(1) and 6(2) were refused. In addition to the sections of the FOI Act relied on in its original and internal review decisions, Fáilte Ireland also sought to rely on section 30(1)(a) of the FOI Act in its submissions to this office. I will consider this section below.
Records 1, 3(2), 5 and 6(1) contain considerable detail in respect of other scheme applicants and projects. The applicant has been clear in his request and in submissions to this Office that he is only seeking information in respect of his own scheme application and project idea. Fáilte Ireland’s position is that the records fall within the scope of the applicant’s FOI request by showing how the applicant performed when compared to successful scheme applicants. In his submission to this Office, the applicant clearly states “I do not want any other applicant’s info[rmation] and this can easily be redacted by Fáilte [Ireland] prior to furnishing me with my records”. I am therefore satisfied that information in respect of other scheme applicants contained in records 1, 3(2), 5 and 6(1) is outside the scope of this review. As the information contained in record 1 was released to the applicant and the remaining information relates to the other scheme applicants, I will not consider this record any further.
Record 6(2) is an internal management reporting document. It sets out a high-level summary of outcomes from stage 2 of the Platforms for Growth scheme. There is no information in the record relating to the applicant or indeed any other scheme applicants. Accordingly, I find that the document is outside the scope of this review and will not consider it further.
Accordingly, this review is concerned solely with whether Fáilte Ireland was justified in refusing access, under various provisions of the FOI Act as outlined above, to records 2, 3(1), 3(2), 4, 5, and 6(1) insofar as they relate to the applicant, his account, his project idea and his scheme application.
It is relevant to note that section 13(4) of the FOI Act provides that I cannot have regard to any reasons as to why the applicant is seeking the information concerned (except insofar as such reasons are relevant to consideration of the public interest or other specific provisions of the Act). It is also relevant to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Therefore, while I note the arguments raised by the applicant concerning his engagement with Fáilte Ireland and the outcome of his application to the Platforms for Growth scheme, I cannot have regard to these arguments except and insofar as they may be relevant to a consideration of the public interest.
I would also draw Fáilte Ireland’s attention to section 22(12)(b) of the Act. That section provides that a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore in this case, the onus is on Fáilte Ireland to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.
Finally, for the avoidance of confusion, I will refer to individuals and companies who apply to the Platforms for Growth scheme as “scheme applicants”, while the individual who made the relevant FOI request will be referred to as the “applicant”.
Brief Description of the Records
While noting the requirement at section 25(3) of the Act that I take all reasonable precautions to prevent disclosure of information contained in an exempt record, I believe it would be useful at the outset of the section to briefly describe the records in question.
In its submissions to this Office, Fáilte Ireland explained that Platforms for Growth is a four-year capital investment programme for the Irish tourism sector. It said the first platform, or investment scheme, launched under the 2019-2022 programme was the Immersive Heritage and Cultural Attractions platform. It is this scheme to which the applicant applied. Fáilte Ireland said that applications for funding under the scheme were open to applicants from the private, public and voluntary sectors and that the application process involved five stages. The applicant proceeded to Stage 2 (“the project idea” stage) but was not invited to proceed to Stage 3 (“the business case” stage).
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. Section 30(2) provides that subsection (1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.
In its submissions to this Office, Fáilte Ireland sought to rely on section 30(1)(a) in respect of the withholding of records 2, 3(1), 3(2), and 6(1). I note that limited arguments are advanced in the submissions and that Fáilte Ireland made the same points in respect of a number of exemptions. In essence, it argued that release of the records could prejudice the effectiveness of the screening and evaluation process carried out as part of the grant scheme.
Section 30(1)(a) refers to “tests, examinations, investigations, inquiries or audits”. Fáilte Ireland’s position is that the grant screening and evaluation process comes within the above scope. Having reviewed the records and supplementary information provided by Fáilte Ireland in respect of the grant system, I am satisfied that the process to which the records relate forms part of a system of inquiry that Fáilte Ireland undertakes prior to awarding the relevant grant and that the records fall within the scope of section 30(1)(a).
This Office notified the applicant of the additional exemption being claimed. In his submission in response, he noted that the grant scheme has been “over for many years now”. He said he assumes that scoring and methodologies are updated for each grant scheme and questioned how these could be replicated given the different criteria and objectives involved in each scheme.
Fáilte Ireland argued that release of the relevant records “could have a significant adverse effect on the effective conduct of public affairs and the administration of public monies in a fair and impartial manner” and could impact “Fáilte Ireland’s ability to preserve the confidentiality of our internal decision-making processes and impair future decisions in relation to the award of public funds”. It argued that the records contain information in respect of its internal evaluation methodology and that these are applicable across “various funding opportunities”. Its position is that release would require Fáilte Ireland to undertake a full re-design of its evaluation framework and methodology.
Fáilte Ireland said a diverse range of expertise feeds into the development of its evaluation methodologies and scoring mechanisms/systems. It acknowledged that as scheme guidelines vary based on its strategic aims, the respective evaluation frameworks will therefore vary accordingly, and subsequently, so too will the associated scoring mechanism/system. However, it said some primary underpinning principles are maintained across the investment schemes and the evaluation methodologies. It said that “While it is not standard practice for the same exact guidance to be used for more than one Fáilte Ireland funding opportunity – given that they are aimed at achieving different outputs and outcomes, the scoring mechanisms used share a broadly similar approach and underpinning principles such that information in relation to our internal evaluation methodology, model and associated scoring mechanism/s… is applicable across funding opportunities and these would be revealed by the records…”
Fáilte Ireland further argued that releasing “the fundamental/primary tool that informs and supports our decision making” into the public domain is likely to impede its ability to make objective decisions in relation to the awarding of investment grants under current and future investment schemes. It said this can arise in circumstances where the release of information may result in a change of behaviour by applicants to its investment schemes. It said it can happen that applicants will submit an investment grant application based on what they consider Fáilte Ireland wishes to see rather than presenting a true picture reflecting the likely and realistic performance and impact of the proposed project.
Fáilte Ireland added that where internal or external stakeholders require feedback, it extracts it carefully and meaningfully from its evaluation materials and presents it in context of the competitiveness of that respective investment scheme across the applicant cohort. It said it includes any necessary caveats and an emphasis on strengths/areas for improvement for each applicant, rather than providing the “test question solution”. It said it provides extensive information on the relevant qualifying and eligibility criteria and applicant/applicant project requirements in the respective guidelines document per Platform/investment scheme. It said the guidelines provide prospective applicants with all of the relevant information in terms of what is required to qualify for and progress through each application stage of the particular investment scheme.
Having considered the submissions made by both parties, and having reviewed the records in question, it seems reasonable to me in the circumstances that release of the scheme details and how applications are specifically scored could prejudice the effectiveness of evaluations undertaken by Fáilte Ireland. However, I do not accept that the exemption applies to each record claimed. I will outline my findings in respect of each record below.
Record 2 –The record contains considerable detail about the evaluation methodology employed by Fáilte Ireland and specifically about how that methodology is applied to scheme applications and how such applications are scored. I am satisfied that section 30(1)(a) applies.
Record 3(1) – This record contains an evaluation and analysis of the applicant’s proposal in terms of visitor numbers. While it contains quite limited information in respect of methodology, I fail to see how the release of the record could reasonably be expected to prejudice the effectiveness of Fáilte Ireland’s evaluation methods. I note, for example, that the evaluation is based on Fáilte Ireland’s analysis of visitor projections, regardless of applicant projections. I find that section 30(1)(a) does not apply.
Record 3(2) – This record contains a summary of visitor projections and also contains details of achieved scores per evaluation criterion, the ranking of the applications within the ‘Dublin Region’ cohort of Stage 2 applications and a status checklist. Again, given the limited information in respect of methodology in the record, I fail to see how the release of the relevant part relating to the applicant’s proposal could reasonably be expected to prejudice the effectiveness of Fáilte Ireland’s evaluation methods. I find that section 30(1)(a) does not apply.
Record 6(1) – This record contains details of the final scores achieved and final ranking of all ‘Dublin Region’ Stage 2 applications. Fáilte Ireland argued that the record contains, among other things, the final scoring and ranking of each project against each scoring criterion, Fáilte Ireland’s proposed visitor number projection for each proposed project and a calculation of the additional number of visitors that each project might generate, and the scoring weightings attached to each criterion. As with record 3(2), given the limited information in respect of methodology in the record, I fail to see how the release of the relevant part relating to the applicant’s proposal could reasonably expected to prejudice the effectiveness of Fáilte Ireland’s evaluation methods. While it contains details of the scores achieved, it does not disclose precise details of the scoring methodology employed such that release might prejudice the effectiveness of such scoring methodology. I find that section 30(1)(a) does not apply.
Given my finding in respect of record 2, I am required to apply the public interest balancing test under section 30(2). Fáilte Ireland’s position is that the public interest lies in protecting the effective management of the public body, not impairing future decisions in relation to the award of public funds and maintaining a competitive application process that results in investment in commercial and financially viable projects. The applicant’s position is that a public grant scheme should not be a confidential process.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner (25 September 2020), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
Noting the submissions made by the parties and the specificity of the information in record 2, I am of the view that it is in the public interest to maintain the effectiveness of the detailed evaluation criteria such that it can be used by Fáilte Ireland in future assessments. I find that the public interest would not, on balance, be better served by the granting of access to the internal evaluation scoring guide in this case.
Section 30(1)(b) provides that a request for access to a record may be refused where its release could reasonably be expected to "have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)".
An FOI body relying on section 30(1)(b) should identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a “significant, adverse” nature. This Office also considers that the term management is a word of wide import and that it is apt to cover a variety of activities of an FOI body, including activities such as strategic planning, and the management of operational matters.
Fáilte Ireland cited section 30(1)(b) in support of its refusal to release records 2, 3(1), 3(2), 4, 5, and 6(1). The applicant made submissions to this Office in support of his position that the records in question should be released. In respect of section 30(1)(b), he outlined the reason why he is seeking the information and said that he is not trying to decipher Fáilte Ireland’s evaluation model and scoring mechanism. He also said he does not intend to share the records further.
As noted above, under section 13(4) any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded, subject to certain provisions which render motive relevant. In addition, it is 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.
Fáilte Ireland’s arguments as to the applicability of section 30(1)(b) are quite similar to those in respect of section 30(1)(a). In its submission, it argued that release of the records would compromise its ability to effectively discharge its management functions including management of its financial resources and its funding operations. It said the records contain information in relation to its evaluation methodology, model and associated scoring mechanisms which apply across various funding opportunities. It argued that release of the information would provide tourism industry stakeholders, who operate in a highly competitive environment, with internal and confidential information which could result in individuals “gaming” the application process. Again, it argued that if the records are released, it would be required to undertake a full re-design of the programme, including its evaluation framework. It says that this would have the potential to materially affect prospective applicants and impact upon its ability to implement and deliver future funding platforms.
I have carefully considered the content of the records, apart from record 2 which I have already found to be exempt under section 30(1)(a). As I have explained above, I am satisfied that records 3(1), 3(2) and 6(1) contain limited detail in respect of Fáilte Ireland’s methodology and that their release could not reasonably be expected to prejudice the effectiveness of its evaluation methods.
Record 4 contains details of Fáilte Ireland’s appraisal and evaluation of the applicant’s Stage 2 application. Fáilte Ireland argued that it contains commercially sensitive information (intellectual property) relating to its evaluation model, methodology, tools, techniques and scoring framework and mechanism/s, and includes the scoring weightings applied to each evaluation criterion. I accept that the record contains considerably more detail in respect of the evaluation methodology than records 3(1), 3(2) or 6(1).
Nevertheless, the information in question essentially constitutes the scores obtained by the applicant supported by an analysis of his application rather than any information about how such schemes are scored more generally. I am satisfied that the detail in record 4 relating to the methodology used is similar to that included in published scheme documents such as the programme guidelines and the applicant toolkit. The former includes detail of national level outcomes and regional level priorities and these mirror the information in record 4. I am not satisfied that the release of the record could reasonably be expected to have a significant, adverse effect on the performance by Fáilte Ireland of any of its functions relating to management. I find that section 30(1)(b) does not apply.
Record 5 contains details of scheme applications received from the Dublin region. Among other things, Fáilte Ireland said it contains information on its evaluation methodology and framework, including the weightings applied to each evaluation criterion. Disclosure of the relevant part of the record would involve the disclosure of the scores obtained by the applicant under a number of identified headings. It would not, in my view, disclose any specific information concerning Fáilte Ireland’s scoring and evaluation methodology that might prejudice or impair those methodologies. I find that section 30(1)(b) does not apply.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
Fáilte Ireland cited section 30(1)(c) as a basis for refusing access to the same records for which it claimed an exemption under section 30(1)(b). In its submissions to this Office, it says that the negotiations in question include engagements with other applicants to the current scheme and applicants under other capital investment schemes, including historical schemes which are still within the relevant operational period. It is Fáilte Ireland’s position that release would disclose insights in respect of the evaluation process and indicate potential decisions that Fáilte Ireland might make. It further says that certain information contained in the records is used to determine Key Performance Indicators (KPI) in respect of successful applicants and that such KPIs are the subject of negotiations in respect of grant agreements.
In his submissions to this Office, the applicant says that the information he is requesting would not prejudice the outcome of negotiations, “which are over”. He says that such negotiations would have finished in 2021, based on the assumption that relevant contracts would have been signed by the time he made his FOI request. While this may be the case, it is important to note that records relating to past, present and future negotiations may be protected under section 30(1)(c).
When information in respect of other scheme applicants is removed, I do not accept that the remaining records could reasonably reveal information in respect of negotiations. While some of the records contain information in respect of the methodology employed by Fáilte Ireland, I do not accept that release of same would disclose information in respect of negotiations. The substantive information relates to the scheme applicant, who was unsuccessful in respect of the funding stream and who is therefore not engaged with Fáilte Ireland in respect of his project idea. I have found that information in respect of other scheme applicants is outside the scope of the review.
Having reviewed the records, and with reference to my finding that information in respect of other scheme applicants is outside the scope of this review, I find that Fáilte Ireland was not justified in refusing access to records 3(1), 3(2), 4, 5, or 6(1) on the basis of section 30(1)(c).
Fáilte Ireland refused access to records 5 and 6(1) on the basis of sections 36(1)(b) and 36(1)(c).
Section 36(1)(b) provides for the refusal of a request if the record sought contains 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. Section 36(1)(c) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
Fáilte Ireland’s arguments in relation to the applicability of section 36 are based on its concerns about the release of information relating to other scheme applicants in the records at issue. As I have indicted above, information in respect of other scheme applicants contained in the records is outside the scope of this review. Accordingly, I find that section 36(1) does not apply.
Summary of Findings
In summary, I find that Fáilte Ireland was not justified in refusing access to a number of the records, (or parts of records). I direct the release of Records 3(1) and 4 in full, and the release of Records 3(2), 5, and 6(1) in part, subject to the redaction of all information relating to third parties as same is outside the scope of the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Fáilte Ireland. I find that Fáilte Ireland was justified in refusing access to record 2 on the basis of section 30(1)(a). I annul its decision to refuse access to Records 3(1), 3(2), 4, 5 and 6(1) and I direct their release, subject to the redaction of information contained in the records relating to other scheme applicants.
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.