Case number: 180175

Whether the Council was justified in refusing access to a copy of a lease under sections 36, 37 and 40 of the FOI Act. 

18 July 2018 
 

Background

On 26 January 2018, the applicant sought access to a copy of a sporting lease given by the Council to a hurling and football club and completed on 1 June 2017.  The Council refused the request on 22 February 2018 on the basis of sections 36 (commercial sensitivity) and 40 (financial and economic interests of the State) of the FOI Act.  The applicant sought an internal review but the Council affirmed the original decision, while also relying at that time on section 37 (personal information) of the FOI Act.  

The applicant subsequently applied for a review to this Office.  

During the course of this review, an investigator in this Office wrote to the hurling and football club concerned asking if it had any objection to release of the record and inviting it to make submissions in relation to the review.  No response was received to this correspondence.  

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Council and the applicant as described above. I have also had regard to the correspondence between this Office and both the Council and the applicant on the matter and to the contents of the record at issue.

Scope of the Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to one record, namely a lease dated 1 June 2017, on the basis of sections 36, 37 and 40 of the FOI Act.  

Preliminary Issues

Firstly, I wish to comment on the wholly unsatisfactory manner in which the Council has handled the request and this review.  Both the original decision and the internal review decision are very poor and do not give the applicant sufficient reasons for the refusal of access to the record as required by the FOI Act.  Neither decision considers the public interest as required by the sections relied on.  This Office was obliged to issue a statutory section 23 Notice to the Chief Executive of Cork City Council, requiring a head of a public body to provide reasons to both a requester and this Office for refusal of access to a record.  The Chief Executive failed to acknowledge or reply to this Notice, although a submission was received from the Council's FOI Officer.  However, despite this Office's request for submissions, providing a further opportunity to the Council to properly address the exemptions relied upon, again, it failed to properly address the public interest requirements.  

I considered whether, in view of the Chief Executive's failure to respond to the section 23 Notice, I should examine the Commissioner's powers under section 45 of the FOI Act in relation to persons who obstruct the Commissioner in the performance of his functions.  Given the circumstances of the case, I decided that the applicant's rights would be better served if I proceeded to make a decision without delay on the review based on the information before me.  
In relation to the handling of the request and review, I direct the Council to the FOI training materials and other guidance prepared by the Central Policy Unit of the Department of Public Expenditure and Reform (DPER) and by this Office on www.oic.ie.  

It should be noted that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. 


Analysis and Findings

As noted above, it is incumbent on a public body to justify its refusal of access to a record.  Sufficient reasons must therefore be identified to satisfy me that any given exemption is applicable.  It is not sufficient to simply recite the provisions of the FOI Act. 

Section 37 - personal information
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where release of the record would involve the disclosure of personal information relating to third parties.  Personal information is defined in section 2(1) as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential.  The definition also details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition including “(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual." 

The applicant identified in her request that the lease was in favour of the trustees of the hurling and football club.  However, the names of those trustees does not appear to be in the public domain.  I find that the names and any addresses of the trustees, as well as the names and addresses of any witnesses to their signatures, is personal information and section 37(1) applies to that information only.  

The effect of section 37(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case section 37(2), or 37(5).

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. 

Consequently, I find that section 37(2) does not apply to the information in the records at issue.

Section 37(5)
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. 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 Council did not carry out a public interest balancing test, save to say in submissions to this Office that it does not see any public interest in knowing the individual names and private home addresses of each trustee.  I have already acknowledged above that this constitutes personal information and so the question is whether or not there are any public interest factors that would serve to override the privacy rights of those named individuals.    

Subsection 37(5)(a) provides that section 37(1) does not apply where the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the individual to whom the information relates. There is a public interest in ensuring openness and transparency in the manner in which the Council carries out it functions, however, I think that this public interest is largely satisfied with the release of the balance of the lease.  The names of the trustees and witnesses would not add significantly to the public's understanding of how these functions were carried out.  In my view, there are no compelling public interest factors in favour of the release of names and addresses of the trustees and witnesses that would outweigh the privacy rights of the individuals concerned. 

I find that the names and addresses of the trustees and witnesses are exempt from release under section 37(1) of the FOI Act.  
Having found that section 37 applies to the names and addresses contained in the lease, I must now go on to consider if any of the exemptions relied upon by the Council apply to the balance of the contents of the record.  

Section 36 - commercial sensitivity
Section 36 protects certain records containing commercially sensitive information.  The Council relied on section 36(1)(c) which provides for a mandatory exemption to a record containing information the disclosure of which could prejudice the conduct or outcome of negotiations of the person to whom the information relates.  This section is subject to a public interest test and is a harm based exemption, which means that the public body must show what harm would arise if the record was released.  

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 (the Westwood case), 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. The High Court found that the Commissioner had erred in accepting the public body's claim that the information in that case was commercially sensitive.

Under the separate exemption of section 36(1)(c), access to a record must be refused where the disclosure of information contained in the record 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 this exemption is not as high as that of section 36(1)(b) in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so.  However, it is still not sufficient to cite the exemption without providing certain particulars and identifying what prejudice or harm may arise. The Commissioner 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 explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

The Council stated that it believed that each contract/lease that it enters into is a matter solely between the parties to that contract.  I am surprised that after twenty years of the FOI Act, a body such as the Council would take this position which is simply incorrect.  The Council neither identified what, if any, contractual or other negotiations were in train nor what, if any, prejudice would arise to affect such negotiations.  It is incumbent upon a public body to consider each record the subject of a request, rather than applying exemptions to a class of records.  

I am not satisfied that the Council has justified the decision to refuse access to the record on the basis of section 36(1)(c) and I have not been provided with any grounds on which it could apply.  I find that section 36(1)(c) does not apply to the record.  

Section 40 - financial and economic interests of the State
Section 40(2)(i) of the FOI Act was relied upon by the Council.  Section 40(2) sets out a list of the types of records to which section 40(1) may apply.  An FOI body may only invoke section 40(2) in conjunction with section 40(1) and so the relevant requirements of section 40(1) must still be met.  

At no point did the Council identify any subsection of section 40(1) that may be relevant and no harm whatsoever was identified.  As section 40(2) cannot stand alone, it is not possible to rely on section 40(2)(i) in isolation.  Further, when questions were put to the Council by this Office no answer was received to those points.  It is difficult to see how section 40 could possibly apply in relation to this particular record given that the exemption is concerned with protecting the financial and economic interests of the State.  

As the Council has failed to justify its decision that any subsection of section 40(1) is applicable, I find that section 40 does not apply to the record.  

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Council.  I direct release of the contents of the lease subject to the redaction of the names and addresses of the trustees and witnesses in accordance with section 37(1) of the FOI Act.  
For the sake of clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the redacted record is to be released to the applicant within 3 working days of the expiration of the 4 week period available to the Council and the Third Party for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. 

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 by the applicant 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.

 

 


Elizabeth Dolan
Senior Investigator