Case number: OIC-92085-V5S2W7

Whether the Department was justified in refusing access, under sections 30(1)(c), 35(1)(a), 36(1)(b), 36(1)(c), 37(1), and 40(1)(d), to all correspondence between the Department and Codling Wind Park Ltd (CWPL) with regard to foreshore lease payments in the period 1 January 2015 to March 2020, and details of the amounts paid by CWPL in foreshore lease payments to the Department for each of the years 2009 to 2019

 

25 May 2022

 

Background

In a request dated 4 March 2020, the applicant sought access to all correspondence between the Department and Codling Wind Park Ltd (CWPL) with regard to foreshore lease payments in the period 1 January 2015 to the date of his request, and details of the amounts paid by the company in foreshore lease payments to the Department for each of the years 2009 to 2019. Pursuant to section 38 of the FOI Act, the Department notified CWPL that it was considering the release of four records in the public interest and invited it to make a submission on the matter. In response, CWPL argued that the public interest would be better served by refusing to grant access to the four records in question.

In a decision dated 17 April 2020, the Department refused access to all 17 records it identified as relevant to the request under sections 30(1)(c), 35(1)(a), 36(1)(b) and 40(1)(d) of the FOI Act. The applicant sought an internal review of that decision, following which the Department affirmed its original decision on 20 May 2020. On 3 June 2020, the applicant sought a review by this Office of the Department’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 correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the submissions made by CWPL both to the Department and to this Office and I have also had regard to the contents of the records identified by the Department as relevant to the request. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule it prepared when processing the request.

Scope of Review

This review is concerned solely with whether the Department was justified, under sections 30(1)(c), 35(1)(a), 36(1)(b) and 40(1)(d) of the Act, in refusing access to the records at issue, relating to foreshore lease payments.

Preliminary Matters

During the course of the review, this Office invited CWPL to make further submissions on the applicability of section 36 to the records. In its response, via its legal representatives, CWPL raised a number of concerns relating to the consultations undertaken. First, it argued that it was impossible to properly to respond without sight of the original request, the decision made, the request for internal review, and the schedule of records. While it noted that the Investigator had explained that details of the records at issue could be obtained from the Department, it said it was entitled to know what this Office held and it said it was objecting to release until the company had a meaningful opportunity to review and address this Office on all relevant information.

Secondly, CWPL argued that the Investigator should have informed the company of the identity of the requester. Thirdly, it argued that a number of other exemptions may be of relevance to the records at issue. Of those exemptions cited, it referenced two that the Department has not relied upon, namely sections 29 and 32.

In an email dated 12 August 2021, the Investigator explained that, being mindful of the provisions of section 25(3) of the FOI Act, which requires this Office to take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record, she was not in a position to provide CWPL with copies of the records. Nevertheless, she provided details of the wording of the original FOI request and of the fact that there were 17 records at issue. She provided a redacted schedule of those records which contained a brief description and date of each record and stated again that it was open to the company to contact the department for further details of those records. She explained that was not apparent to her how the release of details of payments made could give rise to the harms set out in the exemption that serves to protect commercially sensitive information and she offered the company a further opportunity to make additional submissions on the matter. Despite reminders to the company/legal representatives, no further response was received.

On the matter of the identity of the requester, the Investigator explained that the identity of a requester is not generally a relevant consideration as the release of a record under FOI is regarded, in essence, as release to the world at large, given that the Act imposes no constraints on the uses to which a record released under the Act may be put. She also drew CWPL’s attention to section 13(4) of the FOI Act which provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request, and any belief or opinion of the body as to what are the reasons of the requester for the request, must generally be disregarded.

Om the matter of the two exemptions cited that were not cited by the Department in support of its refusal of the request, it is important to note that under section 22(12)(b) of the Act, a decision to refuse a request is presumed not to have been justified unless the public body satisfies the Commissioner that the refusal was, indeed, justified. This means that the onus is on the Department in this case to justify its refusal of the request. Sections 29 and 32 are discretionary exemptions that the Department has not chosen to rely on as a ground for refusal. As such, I do not propose to consider the applicability of those exemptions in this review.

Finally, I should add that although I am obliged to give reasons for my decision, section 25(3) of the Act provides that I must take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Accordingly, the extent to which I can describe the contents of the records at issue is somewhat limited in this case.

Analysis and Findings

The Records at Issue

To put the records at issue in context, the Department provided the following detailed background information on the matter. The State has been processing applications under the Foreshore Act 1933 (as amended) (the Foreshore Act) for Offshore Renewable Energy (ORE) projects since approximately 1999. The Department is responsible for administering the current regulatory system, such as leasing and licensing, by powers given to the Minister for Housing, Planning and Local Government under the Foreshore Act.

During the period from 1999 onwards, the activity by the companies in the offshore wind energy sector was fuelled by the initial development of this sector and the belief that the Refit Scheme (State support scheme for renewable energy) would provide subsidy support and allow these projects move to a level of commercial viability. Also, as the Foreshore Act was demand led, it meant that potential developers were free to identify suitable areas from a technical perspective within the Foreshore area to develop their projects without a national planning framework for the development of ORE being in place.

However, financial support for offshore wind was not provided for under any of the three iterations of the Refit scheme, as the subsidy required was in excess of what was available, and activity by such companies in the foreshore consent process stalled almost completely. At that time, the Department took a decision not to reject the existing applications that were on hand in order to prevent damaging a sector that was in the infancy of its development at that time. This meant that these applications were effectively in abeyance, and with the exception of an occasional meeting, these applications were not progressed further. In addition, certain applicants were awaiting developments in relation to a possible intergovernmental agreement on power transfer but these discussions concluded without agreement. These developments led to a situation whereby different offshore renewable wind energy companies who are engaged in the foreshore application process were at different points in this process. In the period from 1999 onwards, only two leases to develop full scale commercial offshore wind projects were issued under the Foreshore Act.

In 2014, the Minister for Communications, Energy and Natural Resources published the Offshore Renewal Energy Development Plan (OREDP). The OREDP was the subject of an interim review in 2017 and was due to be reviewed again later in 2020. This plan sets out the policy and direction for the sustainable development of Ireland’s offshore renewable energy resources. The OREDP also sets out key principles, policy actions and enablers for delivery of Ireland’s significant potential in this area. The OREDP identifies the opportunity for Ireland of realising the potential of its offshore energy resources for increasing indigenous production of renewable electricity, thereby contributing to reductions in greenhouse gas emissions, improving the security of energy supply and creating jobs in the green economy.

Since the adoption of this plan, the Department has not accepted foreshore lease applications for offshore energy developments, other than for site investigation works or demonstration projects. The rationale for this position is the conflict between the plan led

approach of the OREDP and the demand led approach of the Foreshore Act, the ongoing implementation of the OREDP and the development and enactment of the Maritime Area Planning Bill (MAPB) which will introduce a new marine planning regime.

Since the beginning of 2016, the Department has re-engaged, at their request, with all of the companies whose applications had been in abeyance since the decision not to include subsidy support for ORE projects under the REFIT scheme. The re-emergence of activity from these companies is fuelled by a number of catalysts;

  • The lower cost of the turbine technology involved
  • An industry view that the next iteration of the State support scheme for renewables (RESS) will offer a subsidy for offshore wind. This position was subsequently confirmed with Government approval for the RESS in 2019
  • Potential opportunities for the supply of electricity to large users in the domestic market, such as data centres
  • A number of strategic transactions have also taken place in some of these projects.

As ORE is a new and emerging technology, it required specific legal advice in order to draft the new type of lease that was required under the Foreshore Act. Accordingly, in 2000, Arthur Cox was engaged, with Attorney General & CSSO approval, to provide legal advice and input to the then Department of Communications, Marine and Natural Resources who were responsible for the Foreshore Acts. The specific legal advice was required in order to develop and draft specific lease to cater for this type of development.

In relation to CWPL, the services of Arthur Cox Solicitors were engaged by the Chief State Solicitor’s Office to draft the lease. The lease was approved by the Attorney General’s Office and the financial terms of the lease were approved by the Department of Finance.

  • CWPL was awarded a foreshore lease in November 2005.
  • An application was submitted to the Minister in or about November 2009 for a second foreshore lease for the Codling Wind Park Extension(CWPE), known as Codling II.
  • CWP has not yet been constructed, and the project has been ‘on hold’ since the CWPE lease application was made while attempts were made to secure a route to market for both projects.
  • In accordance with provisions in the foreshore lease (these provisions are not included in other non-ORE leases) CWPL made claims to the Department that Special Force Majeure Events occurred and sought a deferral of the fees due under the lease. In 2019 it withdrew its claims for force majeure & special force majeure after discussions with the Department.
  • For certain specified reasons, CWPL requested amendments to the original 2005 lease granted and 2013 Conditional Extension Letter on revised financial terms and extension to the Long Stop Dates to 2023.
  • In order to open discussions on the contractual terms of the lease, including the payments due, negotiations on these issues commenced and included CWPL providing internal business plans and project proposals. The information was
  • obtained on this basis (Records 1, 3, and 4 refer) and the Department’s responses are set out in Record 2.
  • The remaining records are implementing the agreement reached between the parties during the negotiations i.e. payments due on the contractual financial arrangements of the lease in order to progress negotiations on revisions to the lease and proposals for progressing to development phase and later negotiations to transition under the transitional protocol for the MAPB.

Section 36 – Commercial Sensitivity

As the Department refused access to all 17 records under section 36(1)(b), I have considered the applicability of that section first. Section 36(1)(b) provides for the refusal of a request where 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.

CWPL Submissions

As noted above, when processing the request, the Department notified CWPL that it was considering the release of four records (records 1 to 4). In its submissions to the Department, CWPL, via its legal representatives, argued that having regard to the distinction between “Relevant Project” and others that are not, release of the course of dealing between the Minister and CWPL would provide to CWPL’s competitors a material regulatory advantage and thereby prejudice CWPL’s competitive and regulatory position. I understand that since the request was made in this case, both CWP projects were included in a list of seven projects the Minister designated as “Relevant Projects”. The associated media release noted that “The announcement of the transition of these projects means that they can continue to work and update a number of aspects of their projects so that they will be in a position to apply under the new marine planning regime, once enacted …”

CWPL also argued that the same prejudice to CWPL’s competitive position arises with even greater force in connection with the competitive auction process proposed for route to market support under the RESS. It argued that it would be wholly inappropriate for the Minister to release information that would harm CWPL’s opportunity to win support in that scheme and that it would undermine the competitive tension that is necessary to secure best value for money, if other bidders can rely on CWPL’s course of dealing with the Department to inform their bid strategy.

CWPL further argued that apart from the redacted payment terms, the four records include information, directly or indirectly, about:

A. scale of investment to date;

B. project delivery strategy, including technical and finance solutions;

C. grid connection strategy;

D. construction contracts strategy;

E. regulatory, planning and permitting strategy for lease amendments, including impact assessment methodology;

F. route to market strategy, including bid strategy for RESS;

G. timetable for all of the above, including extension of Longstop Date; and,

H. expansion plans.

It argued that release of any of this information would harm the project and its timely delivery.

As I have outlined above, during the course of the review, this Office invited CWPL to make further submissions on the applicability of section 36 to the records. The Investigator also drew CWPL’s attention to a previous decision of this Office (Case 140108) which was concerned with the release of records relating to the Codling Wind Park project.

In response, CWPL said it objected to the release of the records. It said it expected that the same arguments it had made against release of the four records about which the Department had notified it when processing the request would apply to all of the records at issue. On the matter of the information in the records relating to payments made or to be made, CWPL argued that the payments made and/or to be made must be considered relevant to each of the scale of investment to date; project delivery strategy, including technical and finance solutions; regulatory, planning and permitting strategy; route to market strategy, including bid strategy for RESS; and its expansion plans. It said they are relevant to its ongoing course of dealing with the Minister, its proposed status under the MAPB and, fundamentally, the cost of delivery of the project. It argued that all of these are materially relevant to, and significant for its competitive position.

The Department’s Submission

The Department essentially repeated the arguments made by CWPL. It argued that the release of the records in question would be prejudicial and harmful to the interests of CWPL. It argued that release of the course of dealing between the Minister and CWPL could provide competitors with a material regulatory advantage and thereby prejudice CWPL’s competitive and regulatory position.

The Department said CWPL provided commercially sensitive internal business plans and project proposals in the course of negotiations on the contractual terms of the lease, including the payments due (records 1, 3, and 4 and the Department’s responses in record 2). It said the remaining records are implementing the agreement reached between the parties during the negotiations i.e. payments due on the contractual financial arrangements of the lease in order to progress negotiations on revisions to the lease and proposals for progressing to development phase and later negotiations to transition under the transitional protocol for the MPDM Bill. It argued that this is commercially sensitive information.

My Analysis

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 section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". The test to be applied is not concerned with the question of probabilities or

possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J. held that the explanation, as finally given by the FOI body to the Commissioner, did little more than repeat the requirements of what is now section 36(1)(b) and referred to the nature of the documents held. Cross J stated:

It does not in any sense engage with the proper question ... as to why these particular documents, if disclosed, could prejudice the financial position...

Having carefully considered the submissions of the Department and CWPL in this case, it seems to me that their arguments amount to little more than an assertion that the release of the records could give rise to certain harms identified in section 36(1)(b). They do not, in my view, explain how such harms are likely to arise. While CWPL argued that release of the records would provide to its competitors a material regulatory advantage, it did not explain how such an advantage might arise, nor did it explain how the release of the records could harm its opportunity to win support in the competitive auction process proposed for route to market support under the RESS. Moreover, while it described the types of commercial information contained in the records, it did not explain how the release of such information could harm the project and its timely delivery.

Similarly, while the Department described the information in the records as commercially sensitive and repeated some of the arguments made by CWPL, it did not explain how the release of the records at issue could give rise to the harms identified in section 36(1)(b).

I accept that CWPL provided certain commercial information to the Department in the course of its negotiations on the terms of the lease. However, it is not apparent to me how the release of that information could give rise to the harms identified in section 36(1)(b). In the circumstances, I find that section 36(1)(b) does not apply.

Section 36(1)(c)

CWPL argued that the records at issue are also exempt under section 36(1)(c). That section provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. A person 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 explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

Again, while CWPL argued that the release of the records could harm its opportunity to win support in the competitive auction process proposed for route to market support under the RESS, it did not explain how the release of the records at issue could give rise to those harms. I find that section 36(1)(c) does not apply.

Section 35(1)(a)

The Department claimed that section 35(1)(a) of the Act applies to records 1, 2, 3, 4, 5, 11, 12 and 13. Section 35(1)(a) provides as follows:

“Subject to this section, a head shall refuse to grant an FOI request if –

(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

The confidentiality exemption generally does not apply to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider." (section 35(2) refers). In addition, section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

Records 2, 5 and 11

As section 35(2) serves to disapply section 35(1), I have considered its applicability first. Records 2, 5 and 11 were prepared by the Department. As such, I must consider whether disclosure of the information would constitute a breach of a duty of confidence provided for by an agreement or statute or otherwise by law and owed to a person other than the Department or its staff.

The Department did not specifically address the provisions of section 35(2) in its submissions. It did not point to any statute that provided for such a duty of confidence. However, it referred to its role as Landlord and CWPL’s role as tenant being governed by a lease which contains the following confidentiality clause:

29.1 Subject to clause 29.2, a Recipient must keep confidential and must not disclose any Confidential Information which the Recipient receives or acquires pursuant to this Lease, other than with the consent of the Disclosing Party.

29.2 It will not be a breach of clause 29 for a Recipient to disclose Confidential Information:

  1. to the extent required by Law; or
  2. to such of its Affiliates, employees, servants, agents, contractors or advisors who require access to such Confidential Information, provided that such Affiliates, employees, servants, agents, contractors or advisors are:

a. made aware of the fact that the information is Confidential Information; and

b. made aware of and bound by the obligations of Recipient under this clause 29.

29.3 For the avoidance of all doubt, the parties acknowledge that this Lease is a public document and that it will not be a breach of clause 29 for either party to disclose this Lease to any person. For the avoidance of doubt, this clause29.3 does not permit the disclosure of any documents referred to in this Lease.

The essence of the Department’s argument is that none of the records for which an exemption under section 35 was claimed should be released due to the commercially sensitive financial information relating to CWPL contained within provided to the Department in confidence. The records at issue concern with CWPL’s efforts to renegotiate the terms of the lease and the implementation of the agreement reached. I find it very difficult to accept that either party to the lease could reasonably argue that such correspondence is captured by the confidentiality clause in the lease, in circumstances where the clause expressly provides that the lease is a public document. Moreover, I would question the compatibility of such a sweeping clause with the Department’s obligations under the FOI Act. On this point, I note that the Department had been subject to the FOI Act for more than seven years when the lease was signed. In the circumstances, I am not satisfied that the release of the information in records 2, 5, or 11 would constitute a breach of a duty of confidence provided for by the lease agreement.

I have also considered whether disclosure would constitute a breach of a duty of confidence provided otherwise by law. A duty of confidence provided for otherwise by law is generally accepted to include a duty of confidence arising in equity.

In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

“[T]hree elements are normally required if, apart from contract, a case of breach of

confidence is to succeed. First, the information itself ... must 'have the necessary

quality of confidence about it'. Secondly, that information must have been imparted in

circumstances importing an obligation of confidence. Thirdly, there must be an

unauthorised use of that information to the detriment of the party communicating it."

Fennelly J summarised or restated the requirements of what he called “the contours”
of the equitable doctrine of confidence as follows:

1) the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;

2) it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;

3) it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”

For the same reasons as I have set out above in respect of the applicability of the confidentiality clause in the lease agreement, I find that the release of the information in records 2, 5, or 11 would not constitute a breach of an equitable duty of confidence.

I would add that I note that the company referred to the labelling of some records as “strictly private and confidential”. While the labelling of a record as confidential may be a relevant factor in determining confidentiality, it is not of itself sufficient, in the absence of other evidence establishing the necessary quality of confidence, to impose an obligation of confidence with respect to the record concerned.

I find, therefore, that section 35(2) serves to disapply section 35(1) in respect of records 2, 5 and 11.

Records 1, 3, 4, 12 and 13

For section 35(1)(a) 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.

In the particular circumstances of this case, as with records 2, 5, and 11 I find it very difficult to accept that the information contained in records 1,3, 4, 12 and 13 that is concerned with CWPL’s efforts to renegotiate the terms of the lease agreement can be reasonably regarded as having been given in confidence and on the understanding that it wold be treated by the

Department as confidential. Nevertheless, I note that when seeking to negotiate the terms of the lease, CWPL provided certain additional information relating to its operations and future strategic plans. While I accept that such information was provided in support of CWPL’s claim for a renegotiation of the terms of the lease, I accept that is of a type that meets the four requirements of section 35(1)(a). Accordingly, I find that section 35(1)(a) applies only to the following parts of the following records:

Record 1: The first five paragraphs of page 2

Record 3: On page 2, paragraph 4 and paragraph 6 with accompanying bullet points

Record 4: On page 2, paragraph 3 with accompanying bullet points, paragraph 4 and paragraph 7

Record 4 appendix: All text in columns 3 and 4 for items 1 and 3b

Section 35(3) of the Act provides that section 35(1(a) does 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. 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. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.

It is important to note at the outset that it is the Department that is subject to the FOI Act and not the company. The Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. The information at issue is concerned with the affairs of CWPL, and while it was provided to the Department in the context of CWPL’s engagements concerning the renegotiation of the lease agreements, its release would add little or nothing to the enhancement of the transparency or accountability of the Department in the matter. I find that the public interest would not, on balance, be better served by the release of the information in question.

Section 30(1)(c)

The Department claimed that section 30(1)(c) applies to records 1 to 5, 9, and 11 to 17. As I have found section 35(1)(a) to apply to parts of records 1 and 4, I need only deal with the remaining parts of those records when considering if section 30(1)(c) applies.

Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought 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. Where the body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers).

This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by Government or the FOI body of its negotiations. However, such issues may be relevant to the public interest test in section 30(2).

In its submissions, the Department said it has been in on-going communication and negotiations with CWPL regarding financial terms and its claims for force majeure & special force majeure under the lease while negotiating on the revisions to the lease to meet the current requirements of ORE development and timeframes for completion. It said negotiations were ongoing with the Company on its transitioning from the current regime to apply under the new proposed MAPB regime and procedures on same. It said those negotiations are ongoing with a view to arranging a mutually satisfactory agreement and how best for the Company to proceed with the project.

The Department argued that if the information at issue was released, it would disclose its position with regard to information on sensitive financial commercial terms and agreements for payments on the lease. It argued that it would reveal the Department’s position in relation to negotiation of the best return to the State for leasing of foreshore, gaining investment in the ORE sector and agreements made with Company. It argued that it would reveal criteria used in particular to CWPL by the Department for lease conditions in relation to a schedule of payments and milestones.

The Department said records 1 to 5 in entirety relate to agreements between the Department and CWPL, schedules of milestones and financial payment schedules, all sensitive and confidential negotiation details particular to CWPL. It said records 9 and 11 to 17 in entirety relate to following on correspondence in relation to negations on financial arrangements and payments due under the lease conditions and discussion in relation to CWPL transitioning under the MAPB Bill.

I accept that release of the records at issue could reasonably be expected to disclose positions taken for the purpose of negotiations carried on by the Department. However, as outlined, above, section 30(2) provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. On the matter of where the balance of the public interest lies, it is relevant to note that the specific negotiations have, at this stage, been completed. I fail to see how the release of the records at issue could, at this stage, cause harm to any future negotiations. Accordingly, I find that the public interest would, on balance, be better served by the release of the records.

Section 40 (1)(d)

The Department claimed that sections 40(1)(d) applies to records 1 to 5, 9, 11 to 13, and 16 to 17. Section 40(1)(d) of the FOI Act provides for the refusal of a request where the FOI body considers that access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

Section 40(1) of the Act is a harm-based provision. In other words, where an FOI body relies on section 40(1) it should identify the potential harm specified in the relevant paragraph of subsection (1) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

This Office takes the view that the context of the section 40 exemption suggests that it is intended to protect the financial and economic interests of the State and of public bodies. We consider that, to the extent that it may also protect the interests of persons generally (as suggested by section 40(1)(d)), this would seem to be the case only to the extent that harm to a person (other than the State or a public body) would also result in harm to the State or a public body. The commercial interests of persons generally are protected by section 36.

Accordingly, this Office considers that the key issue in considering the application of section 40(1)(d) is the extent to which, if at all, the grant of the request would damage the interests of the State or some public body. Such damage would also have to meet the test of being "unwarranted".

The Department said it is important for the State to maximise its return on the value of leased foreshore. It argued that release of sensitive financial information would prejudice the future supply of such information and prejudice the Department’s ability to fulfil its statutory functions in relation to financial arrangements and objectives for gaining investment in the ORE sector to

meet Climate Action Plan projections.

It seems to me that the Department’s argument is dependent upon its argument that the records are commercially sensitive and confidential and are protected by sections 35 and 36. As I have found that sections 35 and 36 do not apply (apart from certain parts of records 1 and 4), I find that section 40(1)(d) does not apply for the same reasons.

Section 37 Personal Information

Section 37(1) provides that an FOI body shall refuse to grant a request if access to the

record concerned would involve the disclosure of personal information relating to an

individual or individuals other than the requester. While the Department did not cite section 37 in support of its refusal of the request, it is relevant that it was of the view that the records were otherwise exempt. While I have found that the vast majority of the records are not exempt under the exemptions cited, I do not consider it appropriate to direct the release of the records without having regard to the fact that some of them contain personal information.

I find that section 37(1) applies to details of representatives of CWPL contained within the records, i.e. names, email addresses and telephone numbers. I am satisfied that none of the other provisions of section 37 serve to disapply section 37(1).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I find that it was not justified in refusing access to the majority of the records sought. However, I find that it was justified in refusing access, under section 35(1)(a) if the Act, to the following parts of records 1, 3, and 4 and to certain other personal information in the records under section 37(1):

  • Record 1: The first five paragraphs of page 2
  • Record 3: On page 2, paragraph 4 and paragraph 6 with accompanying bullet points
  • Record 4: On page 2, paragraph 3 with accompanying bullet points, paragraph 4 and paragraph 7
  • Record 4 appendix: All text in columns 3 and 4 for items 1 and 3b
  • The names, email addresses, and telephone contact numbers of CWPL representatives throughout the records

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 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.

Stephen Rafferty
Senior Investigator