Case number: OIC-126793-W7H0S0
27 April 2023
In a request dated 11 April 2022, the applicant sought access to records relating to any land/buildings sold by ÚnaG in Rossaveal since 1 January 2002, and records relating to the sale of buildings on Inis Mór by ÚnaG listed in response to a specific parliamentary question on 8 September 2020. Following correspondence between ÚnaG and the applicant, the scope of the request was refined to contracts for sales of land/buildings in Rossaveal since 1 January 2002. In a decision dated 8 July 2022, ÚnaG identified three records relevant to the request and part granted access to these records, redacting some information under section 36(1)(b) of the Act. The applicant sought an internal review of that decision and on 26 July 2022, ÚnaG affirmed its decision to refuse access to certain information under section 36(1)(b) and also cited 36(1)(c). On 2 August 2022, the applicant applied to this Office for a review of ÚnaG’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 applicant’s comments in his application for review and to the submissions made by ÚnaG in support of its decision. I have also had regard to the contents of the records concerned. During the review, a number of relevant third parties were invited to make submissions on the matter and none were received. I have decided to conclude this review by way of a formal, binding decision.
The records at issue are three contracts for the sale by ÚnaG of land/buildings to third parties. In its submissions to this Office, ÚnaG explained that two conditions of sale (condition 5 and 18) were redacted from record 3 as they were removed from the contract during final negotiation. I will not, therefore, consider whether a right of access exists to that redacted information.
Accordingly, this review is concerned solely with whether ÚnaG was justified in redacting certain information from the records at issue under sections 36(1)(b) and 36(1)(c) of the Act, apart from conditions 5 and 18 in record 3.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the ÚnaG to justify its decision to refuse access to the information concerned.
The information redacted from record 1 comprises information relating to the sale price. The information redacted from record 2 comprises information relating to the sale price and information describing certain documents listed on the document schedule. The relevant information redacted from record 3 comprises information relating to the sale price and certain information relating to the intended use of the land to be sold contained in the conditions of sale.
Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the records concerned contain 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.
The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm that 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". This Office 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 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 records 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. While the degree of harm required to meet the harm test in the second part of this provision (“could prejudice”) is lower than that required to meet the test in the first part, the Commissioner takes the view that, in invoking the phrase "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 made it clear that it is not sufficient for the 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. The FOI body or the third party opposing release should explain how disclosure of the particular records might give rise to the harms identified in the section.
In considering the applicability of section 36(1)(b) in any case, other relevant factors may need to be considered, such as the availability otherwise of the information and whether it is in the public domain, the passage of time, and the broader context and rate of change in the relevant industry.
Section 36(2) identifies certain circumstances where section 36(1) cannot apply, while section 36(3) provides section 36(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
In its submissions to this Office, ÚnaG said the information at issue is sensitive commercial information regarding the business of the purchasers. It said that disclosure of the information could reasonably be expected to result in a material financial loss to the purchasers and could prejudice their competitive position. However, it did not explain how the release of the information at issue might give rise to those harms, nor did the third parties make any submissions when invited to do so. Moreover, it is not apparent to me how such harms might arise. I fail to see how the prices paid by the parties, of itself, could result in a material financial loss to those parties or could prejudice their competitive position. It seems to me that the price paid for the land/property is only one element of a purchaser’s business and it alone does not give such an insight into its business such that it could give rise to the harms identified.
On the matter of the information redacted from record 3 relating to intended use of the land, I fail to see how the release of that information might give rise to the harms outlined in section 36(1)(b). The submissions made by ÚnaG do little more than restate the provisions of the FOI Act. Having regard to the provisions of section 22(12)(b) as outlined above, I find that ÚnaG has not justified its decision to redact the information at issue form the records under section 36(1)(b).
Section 36(1)(c) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet section 36(1)(c) 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, this Office expects that a person seeking to rely on section 36(1)(c) would 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.
ÚnaG said that it needs to be able to maintain confidentiality of its deliberative processes and that this needs to be confidential to protect its negotiations with entrepreneurs and the job creation potential of projects. This seems to me to be a general argument that it should never be required to disclose information of the type at issue in this case for fear of prejudicing similar negotiations. I do not accept this as a general proposition. In my view, the disclosure of the price ÚnaG received for the sale of the particular lands/properties could not, of itself, prejudice future negotiations around the subsequent sale of lands/properties. Given that the information is historic, it seems to me that a variety of factors are likely to be in play in any future negotiation and that the price ÚnaG received for the sale of the lands/properties in question is likely to be of limited, if any, relevance to future negotiations. In the circumstances, I find that section 36(1)(c) does not apply to the information at issue.
As I have not found section 36(1)(b) or (c) to apply to the withheld information, I am not required to consider sections 36(2) or (3).
Having carried out a review under section 22(2) of the FOI Act, I hereby annul ÚnaG’s decision. I find that ÚnaG was not justified in refusing access to the withheld information from the records at issue under sections 36(1)(b) or 36(1)(c) and I direct its release.
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.