Case number: 170132

Whether the Council was justified in its decision to refuse access to records relating to the Business Improvement District (BID) levy on the basis of section 36 of the FOI Act
 

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request dated 22 January 2017 the applicant sought access to information regarding the number of businesses that were invoiced for the Business Improvement District (BID) levy between 2008 and 2016.  He also sought access to the number of those invoiced businesses that paid, did not pay and were issued with legal proceedings for the same years.  The Council part granted the request.  It provided details of the number of businesses that were invoiced, but refused access to the number of businesses that paid, did not pay and were issued with legal proceedings on the basis of section 36 of the FOI Act.  The applicant sought an internal review of this decision and on 16 March 2017 the Council upheld its original decision to refuse access to those three categories of information on the basis of section 36.  The applicant subsequently applied to this Office for a review of that decision. 
In submissions to this Office, the Council noted that a separate company had been set up in order to manage the BID levy, namely Dublin City Centre Bid Company Plc trading as Dublin Town (the Company).  It was the view of the Council that the interests of the company would be affected if the information was released and so the views of the Company were sought for the purposes of this review.  
I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting this review I have had regard to the correspondence between the applicant and the Council, and to correspondence between this Office and the applicant, the Council and the Company on the matter. 

Scope of Review

This review is concerned solely with whether or not the Council was justified in refusing access to information relating to the number of businesses that paid the business improvement district levy, did not pay the levy and were issued with legal proceedings in relation to non-payment of the levy from 2008 to 2016 inclusive on the basis of sections 36(1)(b) and (c) of the FOI Act.  

Preliminary Matters

It is important to note at the outset that the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified (section 22(12)(b) of the FOI Act refers).
Further, a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.

Analysis and Findings

As noted above, the information sought by the applicant relates to the BID levy.  This levy was established by the Local Government (Business Improvement Districts) Act 2006 (the 2006 Act) in order to enable and finance schemes under which projects, services and works are carried out for the benefit of the relevant districts.  One of the aims, as stated in the Long Title of that Act, was to improve local authority funding.  The 2006 Act states that the local authority shall establish a BID fund for the BID scheme and this shall be paid to a BID company.  The establishment of a BID company is also provided for under the 2006 Act and states that the principle objectives of that company are to implement, administer and manage a BID scheme and to ensure each project, service and work under the scheme is carried out.  According to the Council its Rates Office bills and collects the levies on behalf of the BID company.  However, the BID company itself manages and pursues any debts.  
The Records
The applicant is not seeking access to the identities of the businesses involved.  The Council identified the information sought by compiling statistics requested into a table covering the number of accounts with a zero balance at the end of each year.  It does not include details of any payment arrangements in place with relevant businesses.  As regards the legal proceedings, the Council says that the records it holds cover only cases which proceeded to court hearing.  

Section 36
The Council refused the request under section 36(1) of the FOI Act.  That section provides for the mandatory refusal of a request if the record concerned contains-

(a) trade secrets of a person other than the requester concerned,
(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.

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances.  I am satisfied that none of the circumstances identified at section 36(2) arises in this case.
Both the Council and the Company argued that sections 36(1)(b) and 36(1)(c) applied to the three categories of information sought.
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. For the exemption at section 36(1)(b) to apply, the only requirement that has to be met is that disclosure of the information could reasonably be expected to result in financial loss or gain to the person to whom the information relates or could prejudice the competitive position of the person concerned.  The Commissioner takes the view that the test to be applied in this regard 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 record at issue should be shown by an FOI body or a third party relying on this provision. 
Both the Council and the Company argue that releasing the information would be likely to result in a higher number of businesses refusing to pay their levy and that this would therefore have a negative financial impact on the Company.  
As noted above, the Council is obliged by the 2006 Act to bill and collect a levy in relation to a BID scheme.  This is a statutory function of the Council and the applicant has sought records in relation to this function.  The Council states that the recovery of the unpaid levies is a matter for the Company and any legal proceedings initiated are done so by the Company.  I am not satisfied that releasing the information sought can reasonably be expected to result in the harm envisioned by the Council and the Company.  Businesses are obliged to pay this levy and its collection, as well as recovery of unpaid levies, is a matter for the Council and the Company to pursue as a simple contract debt.  However, even if I were to accept that the Company would suffer from a material financial loss due to a drop in levy payments, section 36(1)(b) is subject to a public interest test, that I will deal with below.  

Public Interest

Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. 
Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. The Company argued that if sufficient numbers of levy payers refuse to discharge the levy then this may compromise the future of the Company which would have a detrimental effect on the public interest.  Similarly, the Council argued that if the Company is financially affected then services may be scaled down or withdrawn.  
On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in public administration being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs.  There is a strong public interest in the openness and accountability regarding the expenditure and administration of public funds.  
In this instance, the Council has a statutory function to collect the levy and the Company has a statutory function to administer it.  I find that there is a considerable public interest in the openness and transparency around these statutory functions.  Any fall in the amount of the levies received in a given year would be a matter for the Company or the Council to recover, as is their statutory entitlement.  I note also that individual businesses would not be identifiable through the release of the information sought.    
Having regard to the above, on balance, I find that the public interest would be better served by granting access to the records. I find that the Council is not justified in refusing access to the records under section 36(1)(b) of the FOI Act.

Section 36(1)(c)
As with section 36(1)(b) above, the essence of the test in section 36(1)(c) is the nature of the harm which might be occasioned by its release. 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, this Office expects that a person seeking to rely on this exemption 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, as importantly, explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. 
While the Company made reference in its submission that release would prejudice its position in relation to negotiations over non-payment of levies where proceedings have been instituted,  it did not provide any specific details of how this prejudice or harm would arise, or any specific details of relevant negotiations.  
I am not satisfied, from the submissions received from either the Council or the Company and having regard to the fact that individual businesses are not identified in the records, that the release of the information sought could prejudice the conduct or outcome of contractual or other negotiations of the Company. Accordingly, I find that section 36(1)(c) does not apply.  

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council and direct release of the records on the basis that sections 36(1)(b) and (c) of the FOI Act do not apply.  

Right of Appeal

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 no later than four weeks after notice of the decision was given.


Elizabeth Dolan
Senior Investigator