Case number: OIC-113993-L6S4L0
20 December 2022
In July 2021, the NGI announced that it had purchased the painting entitled “Bachelor’s Walk, In Memory” (the painting) with the support of the Government and key contributions from several donors. On 3 August 2021, the applicant sought access to certain records relating to the NGI’s purchase of the painting. In a decision dated 31 August 2021, the NGI identified 11 records as falling within the scope of the request. It granted full access to one record and partial access to the remaining 10, with redactions made under sections 29(1), 30(1)(c), 35(1)(a), 36(1)(b) and (c), and 37(1) of the FOI Act.
On 1 September 2021, the applicant sought an internal review of the NGI’s decision. In its internal review decision dated 21 September 2021, the NGI varied its original decision by releasing the name of the agent acting on behalf of the painting’s vendor where it appeared in the records, as this information was in the public domain, and by releasing additional information in record 1. That aside, the NGI upheld its original decision. On 5 October 2021, the applicant applied to this Office for a review of the NGI’s decision.
In its submissions to this Office, the NGI argued that the release of the records would affect the interests of certain third parties, namely the painting’s vendor, the agent acting on their behalf, the NGI’s parent department (the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media) and donors to the NGI. We invited each party to make submissions as to the manner in which they felt their interests would be so affected. On the matter of the donors, we invited the NGI to notify whoever it deemed to be relevant donors. Submissions were received from a number of donors via the NGI, and are considered below. No submissions were received from any of the other third parties.
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 parties. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the NGI stated it was seeking to withhold certain sections of the records on the basis that they fell outside the scope of the request. We contacted the applicant to put this to him and to invite him to make any submissions that he wished. The applicant indicated that he had no objections to the exclusion from this review of material that this Office considered outside scope.
The information that the NGI deemed to be outside the scope of this review, and which I accept to be the case, is as follows:
Record 1: Item 1 on the agenda
Record 3: The NGI released an extract (two pages) from a six-page record comprising minutes of a meeting, with certain information redacted. I am satisfied that the extract is the only part of the record that comes within the scope of the request.
Record 4: The NGI released an extract (four pages) from a 35-page record entitled “Acquisitions, Loans & Exhibitions Report” with certain information redacted from those four pages. I am satisfied that the remaining 31 pages were properly excluded as they do not relate to the request. I am also satisfied that Item 5 on page 1 of the extract released is outside the scope of the request.
Record 7: The NGI released an extract (one page) from a 10-page record comprising minutes of a meeting of 20 May 2021, with certain information redacted. I am satisfied that the extract is the only part of the record that comes within the scope of the request.
Record 10: The NGI released an extract (six pages) from a 36-page record entitled “Acquisitions, Loans & Exhibitions Report” dated 8 July 2021 with certain information redacted from the pages released. I am satisfied that the remaining 30 pages were properly excluded as they do not relate to the request. I am also satisfied that the details of proposed acquisitions other than the painting on pages two and three of the extract provided are outside the scope of the request.
In addition, during the course of the review, the NGI released information from records 4, 5, 10 and 11 that it had previously sought to withhold, relating to the provenance of the painting, on the basis that the information was in the public domain.
Accordingly, this review is concerned solely with whether the NGI was justified in redacting certain information from those parts of records 1 to 8, 10, and 11 that fall within the scope of the applicant’s request, under sections 29(1), 30(1)(c), 35(1)(a), 36(1)(b) and (c), and 37(1) of the FOI Act.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of the section applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition. In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid...".
In its submissions to this Office, the NGI conceded that the names of Board members and presenters in board minutes should have been released and that it was now relying on section 37(1) only in relation to the identities of the vendor and of donors to the NGI. As the only information redacted from record 1 relates to NGI staff, which the NGI now accepts not to be exempt under section 37, I need not consider this record any further.
I find that the following information is personal information for the purposes of the FOI Act and that section 37(1) applies:
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. One such provision is section 37(2), which sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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 & Ors  IESC 57 (“the Enet Case”), 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.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
I find no relevant public interest in granting access to the information concerned that on balance outweighs the public interest in upholding the privacy rights of the individual whose personal information is contained in the records. In the circumstances, I find that section 37(5)(a) does not apply. Accordingly, I find that the NGI was justified in withholding access to the information in the records that it redacted under section 37(1).
The NGI cited section 29(1) of the Act as a basis for partly withholding access to records 3, 6 and 8. Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met.
In terms of the deliberative processes to which the records related, in its submissions the NGI identified the deliberations and consideration of various matters by its Board and Committee, leading to the decision to purchase the painting. It further argued that two FOI bodies were shown in the records to be engaged in the deliberative processes, namely the NGI itself and its parent department. The NGI argued that the records disclosed the opinions, advice and recommendations regarding the decision to purchase the painting, as expressed by members of its Board, its Acquisitions & Exhibitions Committee, its Director and other members of its Executive. The NGI stated that its Board had partaken in lengthy, detailed deliberations over the course of several meetings in relation to the purchase, with members of its Executive also taking part in the deliberations. It stated that the deliberations covered such issues as the optimum funding structure, sources of funding, the timing of negotiation steps and the availability (or otherwise) of options to secure the work for the National Collection, and that these issues were the subject of much debate and differing opinion. The NGI also stated that the records also disclosed opinions that were proffered regarding the art market, relations with government and donors (both short and long term) and the likely level of interest of other purchasers in the work.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
I have examined the material that was redacted by the NGI and, in relation to records 3 and 6, consider that it shows the NGI weighing up facts and information in relation to the purchase of the painting, with a view to making a decision regarding same. As such, I accept that this information relates to the NGI’s deliberative processes, in satisfaction of section 29(1)(a). However, I am not persuaded that the relevant redaction made to record 8 (the two sentences immediately prior to the heading “3. Approval Sought” at page 2 of the record) is captured by section 29(1)(a). To me, this appears to be a simple statement of an action point agreed by the NGI’s Board of Governors and Guardians, and does not relate to its deliberative processes. As such, I find that it does not fall within the scope of section 29(1)(a).
In respect of section 29(1)(b), the public interest test in this provision of the FOI Act is a strong test, and any arguments against release should be supported by the facts of the case, and it should be shown how release of the record(s) would be contrary to the public interest. Any arguments against release should be substantiated and supported by the facts of the case. It is important that the FOI body demonstrates how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The NGI argued that the disclosure of its strategies or negotiating positions, and of discussions with its parent department, regarding fundraising plans and strategies, could adversely affect the successful realisation of such strategies and negotiations, to the detriment of the public. The NGI also argued that future negotiations of a similar vein with its parent department, vendors of works of art and financial supporters could be adversely affected if the positions taken were revealed. The NGI stated that it had been extremely fortunate to have the opportunity to acquire the work in question for the National Collection, for the ultimate benefit of the people of Ireland. It argued that disclosure of the details of the deliberative processes that led to this successful conclusion could jeopardise future similar transactions and offers of support by damaging carefully nurtured relationships with its parent department, the vendor and their agent. The NGI stated that Board and Committee decisions were taken by majority, and releasing the content of deliberations into the public could discourage individual Board and Executive members from freely expressing their views and having a rounded debate on significant decisions before they were made. The absence of this frankness and candour, it argued, could directly harm the public interest by curtailing discussions such that future negotiations on acquisitions ended without success.
I have carefully considered the above arguments. In circumstances where the public interest test in section 29(1)(b) is a strong test, and where the deliberative processes at issue are complete, I find on balance that section 29(1)(b) does not apply. I fail to see how the harms identified by the NGI (to future strategies and future negotiations with its parent department and the vendor) are likely to come to pass by the release of the specific information at issue. Regarding the NGI’s arguments in relation to the potential impact of the disclosure of the records on the future frankness and candour of its Board and Committee members, I do not accept that such frankness and candour would be affected by the release of the records. It is to be expected as part of any discussion or deliberation that different parties will have different viewpoints and opinions. The views and opinions disclosed in records 3 and 6 are not, to my mind, in any way unusual or controversial, and consist of a reasonable set of views expressed in the context of the discussion of different funding options for the purchase of the painting. I cannot identify anything in those views and opinions the disclosure of which would result in the relevant parties behaving with any less frankness and candour in future discussions.
I find therefore that the disclosure of the information would not be contrary to the public interest, and thus the material is not exempt from release under section 29(1) of the Act.
The NGI cited section 30(1)(c) of the Act as a basis for redactions made to record 8. In the Schedule of Records provided by the NGI, it also indicated that record 10 had been redacted pursuant to this section. However, I cannot find any reference to section 30(1)(c) on the redacted copy of record 10 (the redacted records being annotated with the relevant exemption pertaining to each redaction). As such this section will focus solely on record 8.
Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the opinion of the body, 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. This exemption is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It does not contain a harm test, and thus it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
In seeking to rely on section 30(1)(c), an FOI body should identify the relevant negotiations at issue. It should also demonstrate that the release of the record could reasonably be expected to disclose positions taken (or to be taken), or plans etc. used or followed (or to be used or followed) for the purpose of any such negotiations. A distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc. used for the purpose of a negotiation, and a record might reveal the former without necessarily disclosing the latter.
The NGI identified the relevant negotiations as those related to its Board’s decision to acquire the painting. In relation to the positions, etc. which it considered would be disclosed, it stated that in-depth discussions had been carried out at Board and Committee level as regards offers and counter-offers on price, the composition of the purchase price, the level of government contribution to the price, and other sources of support. The NGI contended that positions taken by individual Board members, the Board as a whole and NGI staff were noted in the records and would be revealed if the records were released.
The relevant part of Record 8 is paragraph 3 on page 1. I accept that the paragraph in question reveals a certain position of the NGI, regarding the manner in which the purchase of the painting was to be funded. However, I do not accept that it reveals positions taken, etc. by the NGI for the purposes of a negotiation. In my view, the paragraph in question is not concerned with such negotiations at all, but rather with the manner in which the purchase was to be funded, the relevant negotiations having been completed.
Accordingly, I find that the relevant portion of record 8 is not exempt under section 30(1)(c) of the FOI Act. Having so found, I am not required to consider the public interest test in section 30(2).
The NGI cited section 35(1)(a) of the FOI Act as a basis for making a number of redactions to records 3 to 8, 10, and 11. However, in the circumstances outlined above, where I have already found that certain redacted material is either outside the scope of the review or exempt under other sections of the FOI Act, I am only required to examine the applicability of section 35(1)(a) to the following parts of the records under section 35(1)(a):
Section 35(1)(a) provides for the mandatory refusal of a request where the record sought contains information given to an FOI body in confidence. This provision of the Act contains four requirements, all of which must be satisfied in order for a record to fall within its scope;
Before considering section 35(1)(a), I believe it is appropriate to examine the applicability of section 35(2), which provides that subsection (1) does not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions 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.
The records at issue in this case were prepared by staff members of an FOI body (the NGI) in the course of the performance of their functions. Accordingly, the question I must consider is whether disclosure of the relevant information would constitute a breach of a duty of confidence owed to a person other than an FOI body, a member of staff of an FOI body or service provider.
A duty of confidence may be provided for by a provision of an agreement or by an enactment, neither of which exist in this case. However, a duty of confidence may also be provided for “otherwise by law”. This is generally accepted to include a duty of confidence arising in equity, a position supported by relevant case law. In particular, In the Supreme Court decision in the case of Mahon v Post Publications Ltd  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.  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.”
This Office has adopted this approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence.
I find as follows in relation to whether an equitable duty of confidence can be said to exist, and be owed to a person other than an FOI body, etc, in relation to the relevant information in the records that the NGI has sought to withhold under section 35(1)(a):
In summary, I do not consider that the test outlined in the aforementioned Coco case has been satisfied in respect of any of the information above that the NGI sought to withhold under section 35(1)(a). I find that the release of the information would not constitute a breach of an equitable duty of confidence that is owed to a person other than an FOI body or its staff. I find, therefore, that section 35(1)(a) cannot apply.
The NGI cited section 36(1)(b) of the FOI Act as a basis for redacting records 2-6, 8 and 10. In addition, it relied on section 36(1)(c) of the FOI Act as grounds for redacting records 6 and 8. Section 36(1) provides for the mandatory refusal to grant an FOI request if the record concerned contains:
(b) 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
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”. This test is not a question of probabilities or possibilities, but rather whether the FOI body’s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate 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 at issue.
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. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, 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.
The NGI identified financial/commercial information, such as sources of funds, prices paid for artworks, offers and purchase price, funding options and proposals and information in relation to the art market, which it considered would be disclosed by the release of the records. It stated that this information related to the NGI, the vendor, their agent, donors and the NGI’s parent department. The NGI also stated that the records contained information relating to the painting’s provenance, and details of confidential contractual terms.
Regarding the test in the second part of subsection 1(b) of section 36, the NGI stated that the release of the information would prejudice its competitive position, as well as that of the vendor and their agent by revealing their respective pricing/valuation strategies, positions and tactics.
As outlined above, the NGI indicated that the commercial interests of a number of third parties would be affected by the release of the records. This Office invited the parties identified by the NGI to make submissions in relation to the matter. A number of submissions were made by donors to the NGI, which were received in this Office via the NGI. It is significant, in my view, that in the case of donors who have made public donations to the NGI, the submissions indicate that the relevant parties have no objection to the release of the records.
In the case of a number of other donors, who are anonymous but who nonetheless made submissions on the matter, I note that the submissions include some vociferous objections to the fact of their donation(s) to the NGI being disclosed. However, the identity of individual donors is not contained in the records. It follows that is simply not possible for the fact of their donation(s) to the NGI, or any other information relating to them, to be disclosed by the release of the records. In circumstances where the identities of the donors who have objected to the release of the records is not disclosed, I am at a loss to understand how the release of the records could affect their commercial interests, or those of the NGI, in any way.
In relation to the test in the first part of subsection 1(b) of section 36, I do not consider that the NGI has set out the basis on which it contends that the disclosure of this information could result in specific harms, or that any such harms could reasonably be expected to result from such disclosure. In the context of the particular transaction at issue, in circumstances where the purchase of the painting has been completed, it is unclear to me how the release of the information redacted under section 36(1)(b) could reasonably be expected to result in financial gain or loss to any of the parties.
I am similarly unconvinced that the disclosure of the information relating to a specific transaction can reasonably be expected to result in material loss or gain to parties to any hypothetical future negotiation or transaction. It seems to me that the negotiating positions etc. adopted by parties to a sale would very much depend on the circumstances arising in each individual case. On this basis, it is not evident to me that material financial loss can reasonably be expected to follow from the release of the particular information contained in the records.
In relation to the test in the second part of subsection 1(b) of section 36, again, in circumstances where the purchase of the painting is complete, it is unclear to me how the release of such information would prejudice the competitive position of any of the parties in relation to that particular transaction. Again, it seems to me to be relevant that the identities of the individual donors who have objected to the release of the records are not actually disclosed in any of the records at issue. I cannot envisage how the commercial interests of third parties could be affected by the release of the records in circumstances where they remain anonymous
The NGI also asserted that the disclosure of the information could prejudice its competitive position by jeopardising future funding from its parent department. However, it seems to me that the provision of funding to the NGI by its parent department, as an integral part of the department’s remit, is a relatively uncontroversial matter. It is not clear to me how the disclosure of same would jeopardise the provision of any future funding.
Accordingly, I find that the NGI has not shown how the release of the records could reasonably be expected to give rise to the harms identified in the exemption, nor is it apparent to me as to how such harms might arise. In these circumstances, I find that section 36(1)(b) does not apply.
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, an FOI body seeking to rely on this exemption should be able to demonstrate 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.
In its submissions, the NGI identified the relevant negotiations as those related to its Board’s decision to acquire the painting. However, these negotiations are at an end. Having examined the relevant redactions, I consider that they relate to extremely specific negotiating positions that are relevant only to the particular transaction. No argument has been made that any other contractual or other negotiations might be prejudiced by the release of the relevant records. As such, I find that they are not exempt under section 36(1)(c).
Having found section 36(1) to be inapplicable, I am not required to consider the other provisions of section 36 to which section 36(1) is subject.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the NGI. I find that the NGI was justified in withholding from the records the material redacted under section 37(1) of the FOI Act. However, I find that the remaining redactions, made under sections 29(1)(a), 30(1)(c), 35(1)(a) and 36(1) of the FOI Act, were not justified, and I direct the release of that information.
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.