Case number: OIC-53307-W8C7Q (190067)
1 August 2019
In a request dated 5 December 2018, the applicant sought access to records relating to documents submitted by the Council to the Department in relation to the URDF in 2018. The Department’s decision of 7 January 2019 granted partial access to 15 records and fully withheld two others. It relied on section 15(1)(d) of the FOI Act (information already in the public domain) in relation to the remainder of one record and on section 29(1) (deliberative processes) in relation to the other withheld records or parts of records. The applicant sought an internal review of this decision on 15 January 2019. The Department’s internal review decision of 5 February 2019 said that it had identified all relevant documents and affirmed its decision on the records concerned, again relying on sections 15(1)(d) and 29(1).
On 8 February 2019, the applicant applied to this Office for a review of the Department’s decision to withhold records on the basis that a deliberative process was ongoing. During the review, the Department also sought to rely on further provisions of the FOI Act, including section 36(1)(b) (commercial sensitivity).
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
This review is confined to whether the Department’s refusal to grant access to parts of the records is justified under the FOI Act. It will not consider whether the Department has taken reasonable steps to identify all records covered by the request, which was not raised in the application to this Office.
Section 15(1)(d) – information already in the public domain
Section 15(1)(d) provides for the refusal to grant access to a record where the information is already in the public domain. The withheld part of record 17 comprises a report published in November 2018 that details the Department’s URDF funding allocations for 2019. The Department has provided the applicant and this Office with details of the location of the report on the web and I find that section 15(1)(d) applies to it.
Section 36(1)(b) – commercial sensitivity
The remaining records relate to the Council’s six successful and the seven unsuccessful URDF applications made in 2018. Two of the successful applications were in Category A ("ready to go") and four in Category B ("require further development" i.e. approved in principle for work to be undertaken that would enable them to achieve Category A status in future calls). Some of the applications also involve third parties other than the Council and some of these third parties are also FOI bodies.
In particular, the fully withheld record 15 comprises the Department's initial appraisal of the applications concerned, and includes details of each project’s expected total value/costs, funding sought and match funding both in 2019 and over its lifetime. The records submitted by the Council include these and other details such as anticipated costs of different elements of the various projects beyond 2019, various steps (and in some cases alternative steps) proposed to be taken to deliver the projects, the Council’s own views on how the proposals meet the URDF funding criteria and supporting documentation such as multi criteria analysis reports that it commissioned external parties to prepare. I cannot describe the records further due to the requirements of section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.
Of the various exemptions relied on by the Department, section 36(1)(b) seems to me to be the most appropriate exemption to consider in the circumstances. Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or 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. While section 36 generally provides for the protection of third party commercially sensitive information, it can also be applied to records concerning an FOI body's interests. It is also relevant that granting access to records under FOI is generally accepted to be equivalent to publishing them to the world at large.
This Office's approach to section 36(1)(b)
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 Commissioner takes the view that 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, the Commissioner considers 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  IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner  2 I.L.R.M. 374,  2 IR 272,  IESC 35 Kearns J. stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
Arguments made in relation to section 36(1)(b)
By way of background, the Department says that that the URDF is a competitive, bid based programme that will operate on a multi annual basis to 2027. Proposals are evaluated by
reference to a broad set of assessment criteria via a three staged appraisal process and a Project Appraisal Board. A range of complex issues are taken into account in evaluating the merits of each proposal, such as the potential for delivery and/or further development of "innovative and transformational proposals". Finally, because the fund was oversubscribed, proposals for 2019 funding also had to be assessed in terms of their relative merits in the context of the overall applications received and the funding available.
The Department says that the allocations announced in November 2018 outline "approval in principle" for year one (2019). These approvals are subject to clarifications and/or the agreement of subsequent technical details with the Department. The Department says that some have been revised to take account of amendments and/or the re-categorisation of elements of the proposals between Categories A and B. It also says that a significant element of funding available in 2019 will be for the provision of technical assistance for project development that will enable Category B proposals to achieve Category A status in future calls.
The Department says that because of the fund's rolling nature, applicants were invited to submit full project costs. Subsequent clarifications may be required to conclude the whole project cost over multiple years. It is the Department’s position that the records may not relate solely to the finalisation of 2019 funding. It also says that some proposals contain details relevant to potential site, building or land acquisitions or Compulsory Purchase Orders or tendering. It is of the view that disclosure of details of successful applications could leave their applicants vulnerable to undue intrusion or at a disadvantage with other bids in future funding rounds. It says that unsuccessful proposals may be varied or amended and resubmitted further to future calls for funding and that the disclosure of information in them could compromise their future viability.
The applicant did not reply to this Office’s letter of 13 June 2019, which outlined the Department’s reasons for refusing to fully grant his request including under the provisions of section 36.
I accept that the records could be of interest to a variety of external parties such that disclosure could prejudice the competitive position of the Council and the other parties to its applications in in the conduct of their business of progressing the proposals concerned. For instance, parties from whom particular assets might need to be acquired in the future may, further to the details in the records, seek to obtain higher amounts of compensation than they might otherwise have done. I find that section 36(1)(b) applies to the records.
Section 36(3) - the public interest
Section 36(2) provides for a number of exceptions to section 36(1), none of which I consider relevant in this case. However, section 36(3) provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
In relation to section 36(3) and on the matter of where the public interest lies, I have had regard to the comment by 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)  1 I.R. 729,  IESC 26 (the Rotunda case) that a public interest is "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law". Although this comment was made in relation to another provision of the FOI Act, I consider it relevant to the consideration of public interest tests generally.
The FOI Act recognises a public interest in promoting the openness and accountability of FOI bodies in respect of the performance of their functions. There is a public interest in promoting the Department’s openness and accountability for its consideration of the applications and its decisions (as published in November 2018) on whether to approve them in principle for funding.
The Department agrees that there is a public interest in the public understanding and being able to comment on proposals and funding. It says that there is a substantial amount of information in this regard on its website and in responses it gave to Parliamentary Question. I accept that there are various details about URDF applications on the Department’s website and otherwise in the public domain. These include high level information published on the Department’s website regarding the various applications it received under the URDF. The Department says that it also engaged with applicants and explained the rationale for its decisions to them to help in formulating or amending applications for 2019 funding and future funding. It seems to me that while the above may serve the public interest in granting access to the withheld records to some extent, it would be further served to at least some extent by disclosure of the records submitted by the Council and in particular by the disclosure of record 15.
However, some approvals announced in November 2018 have since been amended or re-categorised. Furthermore, the records do not disclose information about the actual expenditure of monies by the Department under the URDF. These matters seem to me to reduce the weight of the public interest in disclosing the records generally. Finally, the fact that seven of the Council’s applications did not receive approval in principle for funding seems to me to further reduce the public interest in the disclosure of records relating to such applications.
Section 36(1)(b) itself reflects a public interest in the protection of records containing information that could prejudice a party’s competitive position in the conduct of its business. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations. As already noted, some of the applications involve third parties that are not FOI bodies. In general terms, the FOI Act was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Furthermore, while the records relate to the Council and in some cases to other FOI bodies, this of itself does not mean that the records fall to be granted in the public interest. It is particularly relevant that the records contain details of estimated costs and proposed courses of action necessary for the projects to proceed. It seems to me that section 36(1)(b) reflects a public interest in ensuring that the Council and the other parties to the successful applications are not prejudiced in their ability to, for instance, acquire land and conduct tender competitions competitively and deliver the proposals concerned. In this regard, the Department says that competitive disadvantage caused to an URDF applicant could also potentially become a liability on Exchequer funding and impact on value for money. Section 36(1)(b) also reflects a public interest in ensuring that the Council and the parties to the unsuccessful applications are not prejudiced from amending and resubmitting these or similar proposals in future.
On balance, I consider that the public interest in favour of granting the request for the withheld records is outweighed by the public interest in favour of refusing it.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to grant access to parts of the records. I find that one record is exempt under section 15(1)(d). I find that the other withheld records are exempt under section 36(1)(b) and that, on balance, the public interest does not weigh in favour of granting access to them.
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.