Case number: OIC-53313-P5C0B0 (190085)
9 August 2019
On 28 November 2018, the applicant made an FOI request for access to all records relating to the selection of a site by the Council "where it proposes to situate a playground". The Council refused access to the Site Selection Report under section 36(1)(b) (Commercial sensitivity) of the FOI Act Following a request for an internal review, the Council granted access to other records which it considered were relevant to the original request but affirmed its decision on the record the subject of this review.
On 15 February 2019, the applicant sought a review by this Office of the Council's decision on the request.
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 Council and the applicant and to correspondence between the applicant, the Council and this Office. I have also had regard to the content of the record at issue and to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.
During the review, the Council stated that in addition to the exemption at section 36(1)(b), it was refusing access to the record on the basis of section 36(1)(c). In addition, the Council was informed by this Office that it might be appropriate to consider the mandatory section 37 provision of the Act in the context of personal information to be found in the record. Also, the applicant queried whether further records related to his request may exist. The Council was informed of the applicant's reference to further records. The applicant was also informed of the additional exemptions applied by the Council and was invited to make a submission which he did.
This review is concerned solely with whether the Council was justified in deciding to refuse access to information in records falling within the scope of the applicant's FOI request, on the basis of sections 15(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.
The decision making process of the Council in this case fell short of the requirements of the Act. No attempt was made in either the original or internal review decisions to give reasons as required by section 13(2)(d) of the Act, or findings and there was no reference to the public interest balancing test having been carried out as required under section 36(3). Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. Given that the Council has been subject to FOI legislation since 1998, it ought to be fully aware of its obligations under the FOI Act. There is a wealth of training material and other resources to assist FOI bodies on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (DPER) at www.foi.ie, and on the Commissioner's website (www.oic.ie) and I find it hard to understand why decision makers do not avail of the guidance available in carrying out their statutory functions.
I draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in my analysis is limited.
Section 15 - Refusal on administrative grounds
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of the Commissioner in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
Adequacy of search
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to have been held.
In his application to this Office the applicant queried whether all records relevant to his request were made available to him. In particular, he queried whether any records were held by the Council that related to a record (a preliminary report) that had been released to him.
The Council stated that it conducted searches on its CRM system and also searched hard copy files and emails and that it had fulfilled the requirements of section 15(1)(a) in its search for any records held that are covered by the scope of the applicant's request. While the applicant is of the view that more records may be held by the Council, he has provided no supporting evidence to suggest that other relevant records are held. In light of the above, I do not consider that I would now be justified under section 15(1)(a) in requiring the Council to take further search steps on the basis of the applicant's belief that further records ought to be held.
The position of the Council is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Council to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that the Council has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.
If the applicant has identified specific additional records which he believes are held by the Council, it is open to him to consider making a fresh request for access to those. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.
Section 36 - commercially sensitive information
The Council relied on sections 36(1)(b) (commercially sensitive information) and 36(1)(c) (prejudice to outcome or conduct of negotiations) in refusing access to the Site Selection Report.
As regards section 36(1) (c), the Council has not identified contractual or other negotiations which were in train or were reasonably foreseen and which might be affected by the disclosure of the remaining withheld information. I find that section 36(1)(c) does not apply in this case.
In any event, I consider that, given the harms identified by the Council in relation to commercially sensitive information, section 36(1)(b) is the more relevant exemption.
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. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm envisaged.
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. As such, a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.
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  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.
As a general principle, the Commissioner takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. He has found that there is some uncertainty as to the position of FOI bodies under section 36. Depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to his Office, from relying on the provisions of section 36.
I do not believe that I would be revealing exempt information in violation of section 25(3) of the FOI Act by noting that the record comprises three parts (numbered 1, 2 and 3) relating to a 'Site Selection Report'. Part 1 of the report comprises seven sections concerning a detailed planning analysis to identify the suitability of sites for the facilitation of community development facilities. Part 2 of the record is a list of sites entitled ‘Initial Site Selection Rationale’ and provides details of former planning/development applications concerning a number of sites referred to in part 1. Part 3 of the record contains information about proposed remaining sites that were considered by the Council.
The Council said that the record contains sensitive information on sites in the ownership of third parties. It said that the information in the report was commercially sensitive. It also said that owners were unaware that their lands were being assessed for the purpose of site suitability.
The Council stated that none of the sites that were part of the survey were owned by it. However, on examining the record, I note that one site is recorded as being owned by the Council and another site is recorded as being owned by a named public body.
It is clear that the purpose of the survey is to identify sites suitable for the facilitation of community development projects and not just a suitable location for a playground. Also, I have no reason to doubt the Council’s position that the owners of the sites (for the most part private individuals or companies) under consideration were not aware that their property was included in the survey. Due to the requirements of section 25(3), I am unable to include further details in my decision except to say details of the properties concerned are identified in the various parts of the report by reference to ownership and/or location maps.
The Council has not specifically referred to any loss or prejudice to commercial interests that it and the other public body as landowners might suffer. However, it seems to me that, if the public bodies involved were to seek to sell the sites, there is a reasonable expectation that disclosure of the record could materially affect the value of those sites in much the same way as it could affect those in private ownership.
I accept that disclosure of information about the sites and an examination (including rejection in some cases) of their uses for certain purposes included in the report might have financial implications for their owners and might impact on the value of the lands in the future so that the terms of section 36(1)(b) are met.
I find that the following withheld information is exempt under section 36(1)(b):
I am not satisfied that the section 36(1)(b) exemption applies to information contained in part 1 of the record at sections 1, 2, 3, most of section 6 and some of the information in section 7.
I do not consider any of the exceptions in section 36(2) to apply in this case.
The public interest – section 36(3)
Section 36(3) provides that subsection (1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. Having found that certain information is exempt under section 36(1)(b) I must apply the public interest balancing test.
The FOI Act is concerned primarily with the promotion of transparency and accountability in public bodies. There is a public interest in ensuring that public bodies manage assets and fulfil any commercial remit that they might have.
I am satisfied that the public interest in how the Council carries out its functions in relation to planning insofar as this record is concerned is served to some extent by the information released and directed for release.
However, it seems to me that details of sites and their development potential are primarily related to the commercial interests of the parties and I consider that there is a strong public interest in allowing such enterprises to operate without being commercially disadvantaged. This is not a case in which public monies have been spent by the Council on acquiring any of the lands the subject of the report. According to the Council, land that it owned became available in 2018 which was suitable for playground use so that the site survey was not relevant to its ultimate decision on the location of the playground. On balance, I find that the public interest in granting access to the details of those sites does not outweigh the public interest in protecting the positions of landowners.
Section 37 - Personal information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester.
I find that the identity of individuals associated with community or other organisations discloses the personal information of parties other than the applicant and is exempt under section 37(1). This does not apply to the name of the member of An Garda Síochána; neither does it apply to organisations or partnerships.
I find that section 37(2) does not apply to the details at issue.
Section 37(5)(a) - The Public Interest
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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 cannot identify a public interest which would override the Constitutional rights to privacy of the third parties who are mentioned in the record. The public interest has been served to a large extent by the release of other records in full or in part to the applicant.
I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council.
I find that the Council has taken all reasonable steps to search for records covered by the request and that section 15(1)(a) applies. I vary the Council's decision to refuse to grant access to the record under section 36(1)(b) and find that the following information is exempt on the basis of section 36(1)(b):
I direct release of the following remaining information: In relation to part 1 of the record only –
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