Case number: 180089
15 June 2018
On 21 January 2018, the applicant sought access to records relating to the Mahon Tribunal. He had made a previous similar request and following further correspondence, it was clarified that he was seeking the following:
The applicant confirmed that he was not seeking details of the tribunal lawyers' payments and that he didn't require a further search and retrieval of records for the time period covered by his previous FOI request.
The Department decided to part-grant the applicant's request. It identified three records relating to the first part of his request, which it released in part. It reconsidered the 63 records which had been identified in relation to his previous request and released one additional record. The decision-maker mainly relied on sections 31(1)(a) and 42(e) to refuse access to the records withheld, although he also referred to sections 31(2), 35, 36 and 37 in relation to specific information in the records.
The applicant sought an internal review on 2 February 2018. The Department affirmed its original decision and refused to grant access to additional information. It relied solely on section 36(1)(c) in this regard. The applicant applied to this Office for a review of the Department's decision on 8 March 2018.
During the course of this review the Department indicated that while it had relied on section 36(1)(c) of the Act in its internal review decision, it also considered sections 31(1)(a), 31(2), 35, 36, 37 and 42(e) to apply to some or all of the information withheld.
Having completed my review I have decided to bring this case to a close by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as to the contents of the records concerned.
The Department identified 66 records relating to the applicant's request. It released records 30, 36, 50-51, 55-56 and 60 in full. It refused to grant access to the remainder in full or in part.
As noted above, the applicant initially sought records relating to payments associated with the Mahon Tribunal made by the Department to third parties, as well as records detailing payouts of legal costs relating to the Tribunal. The Department released records containing some details of payments made, although it withheld the names of the payees. In his internal review request and application to this Office the applicant stated that in his view the public interest favoured the release of the identity of each third party whose fees were paid and that he was unhappy with the Department's decision not to release the details of the recipients of the fees paid for by the State.
Having reviewed the records concerned, I am satisfied that the information withheld in full or in part from records 38, 42-44, 47, 52, 53 (except the three bullet points on page 6), 54, 59, 61-62 and 65 (pages 2-4) does not comprise details of third parties who received payments in relation to the Mahon Tribunal during the relevant timeframe. Some of the material refers to payments made in previous years and other records contain various discussions about cases, costs and negotiations which do not refer to specific payments made. Other details withheld include a personal phone number, names and details of Tribunal staff, and lists of outstanding cases (with no payments shown). In my view this is all outside the scope of this review.
I should also state that although the Department listed record 31 as being released in full, two names were redacted from the record provided to this Office for the purpose of this review. Therefore I shall consider record 31 with the remainder of the records withheld.
Accordingly, this review is solely concerned with whether the Department was justified under the provisions of the FOI Act in its decision to refuse to grant access to the identities of third party recipients of legal payments relating to the Mahon Tribunal for the relevant time period, contained in the following records: 1-30, 31-35, 37, 39-41, 45-46, 48- 49, 53 (page 6, 3 bullet points), 57-58, 63-64, 65 (page 1) and 66.
Section 36(1)(c) provides for the refusal of a request if 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". However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).
The standard of proof required to meet this exemption is quite low. Nevertheless, a body 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. It should also be able to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.
As a general principle, this Office considers that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. However, it is accepted that there is some uncertainty as to the position of FOI bodies under section 36. Depending on the circumstances of the case, it is also accepted that the FOI Act does not prohibit an FOI body from relying on the provisions of section 36.
The records withheld in full or in part mainly comprise requests or instructions to the Department to pay various legal costs from the SCA in connection with the Mahon Tribunal. The remainder of the records comprise bills of costs/invoices from third parties forwarded by the SCA for payment, or details of claimants and claims and what it was hoped they could be reduced to by negotiation.
The applicant argued that the same type of information as that contained in these records had been released by the Department of the Taoiseach in relation to the Moriarty Tribunal, and that the Department's own press office had previously released details of a payment to a named individual in relation to the Mahon Tribunal. He contended that no harm arose from the release of that information.
In submissions to this Office the Department stated that the SCA has been managing claims in relation to the Mahon Tribunal since 2016. The Department said that the SCA negotiates and resolves claims in an effort to reduce costs for the State. It also said the SCA had negotiated "substantial savings" in this regard. The Department provided a letter from the Head of Legal Costs in the SCA which indicated that he was of the view that if the records were released, the published payments would become "a benchmark" for parties who have not yet submitted their claims. In essence, the Department and the SCA are of the view that release of these records would prejudice the outcome of future negotiations, as it would be extremely difficult for the SCA to keep costs to a minimum in circumstances where third parties were aware that higher costs had been agreed with other claimants.
The Department stated that there were 35 current cost orders relating to the Tribunal under active management. It outlined the total amount claimed, and indicated that substantial reductions were expected through continued SCA negotiations with claimants. It also stated that the Tribunal had confirmed that 43 cost orders were outstanding and had not yet been submitted to the SCA.
The records at issue relate to negotiations, settlements and final payments made since late 2016. 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. While some of these figures have been released, the details of negotiations and the names of the claimants have been withheld. It seems to me that the release of the claimant's names together with individual payments, or coupled with what has already been released, could allow a legal cost accountant or solicitor acting on behalf of one of the outstanding claimants to calculate payments made in respect of similar cases and to conduct its negotiations accordingly. Having regard to the fact that a large number of claims for costs are still to be negotiated, I am willing to accept that release of the records concerned could prejudice the conduct or outcome of the SCA's negotiations with claimants in relation to costs orders.
Section 36(3) - The Public Interest
Section 36(3) provides for release of a record to which section 36(1)(c) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, 1 I.R. 729,  IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The FOI Act itself recognises a public interest in ensuring the openness and accountability of FOI bodies. Furthermore, the provisions of section 11(3) of the FOI Act require public bodies in performing their functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs and to strengthen their accountability. In my view, this need to enhance openness, transparency and accountability carries even greater weight in a case involving the expenditure of public monies.
Decisions issued by this Office have made it clear that those persons entering into business arrangements with FOI bodies should have a diminished expectation of privacy or confidentiality in relation to those arrangements, particularly with respect to the payment to them of public monies. However, it is important to note that, in this case, the claimants have not entered into business contracts with the Department. The payments at issue in this case relate to fees paid to legal teams acting for third parties giving evidence before the Tribunal. None of the payments concerned legal teams acting on behalf of FOI bodies. Furthermore, the Department has released a significant amount of information relating to the payments, including the amounts paid in 2016 and the total figures up to and including 2016. It also released records showing the amounts of individual instructions for payment submitted by the SCA to the Department. In my view, the public interest has been met to some extent by the release of the information already provided to the applicant.
I accept that the release of the names of the individuals concerned would further serve the public interest; however, I am mindful of the SCA's role, as set out on its website. The SCA states that it provides advice and assistance to public bodies "with the aim of reducing future claims and litigation". I also note that it states that its objective is to manage claims that arise "so as to ensure that the State’s liability and associated expenses are contained at the lowest achievable level". In this regard, I consider that there is a considerable public interest in ensuring that public expenditure is managed so as not to incur unnecessary expenditure and to achieve value for money.
In the circumstances of this case, where further claims are ongoing and remain to be negotiated, I find that, on balance, the public interest does not favour the release of the information concerned.
As I have found that the Department was justified in refusing to release the records at issue in full or in part under section 36(1)(c) of the FOI Act, I do not need to consider the application of any other exemptions claimed.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse to grant access to the records withheld in full or in part on the basis of section 36(1)(c) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.