Case number: 180532
The background to this review concerns the Curragh Racecourse which has recently seen the completion of a significant redevelopment project. It is in the public domain that this redevelopment is being funded by a mixture of private funding from investors and public funding from Horse Racing Ireland (HRI). The racecourse was transferred by the Turf Club (now the Irish Horse Racing Regulatory Board (IHRB)) to a new company called Curragh Racecourse Limited (CRL) for the purposes of the redevelopment. This company is owned by private investors, the IHRB and HRI. It is also in the public domain that, as the project developed, an issue arose in relation to the size of the parade ring and additional works were required in order to enlarge it.
On 6 September 2018, the applicant made an FOI request to HRI for access to any records held relating to the issue of the parade ring at the Curragh being insufficient to cater for all races that take place. On 4 October 2018, HRI refused to grant access to the records on the basis that it would be premature to release them as the redevelopment project is ongoing. HRI did not refer to any provision of the FOI Act under which the request was refused; nor did it inform the applicant of his right to request an internal review of its decision.
On 4 October 2018, the applicant requested an internal review of HRI's decision. On 24 October 2018, HRI's original decision maker informed the applicant that he was reviewing the records again to see if further material could be released. In reply, the applicant stated that, under the FOI Act, the internal review should be carried out by a more senior member of staff. On 24 November 2018, the applicant sought a review by this Office as HRI had failed to issue an internal review decision.
On 3 December 2018, this Office requested HRI to outline its effective position in relation to the request under the provisions of the FOI Act to the applicant and to this Office. On 19 December 2018, HRI outlined its effective position. It stated that 15 records fall within the scope of the applicant’s request, it granted access to records 7, 8 and 14 and it refused access to the remaining records under sections 29 (deliberative process), 35 (confidential information) and 36 (commercially sensitive information) of the FOI Act.
On 19 December 2018, the applicant requested this Office to proceed with the review. Both the applicant and HRI were invited to make submissions during the course of the review. As the records also relate to third parties, this Office wrote to the relevant third parties and provided them with an opportunity to make submissions in relation to the release of the records. The third parties made submissions in which they objected to release of the records.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act 2014.
During the review, the applicant confirmed that he is not seeking any personal information such as private email addresses and he is willing to exclude emails sent by private individuals which contain the personal information of those individuals if it is not possible to redact the emails so as to provide for the anonymity of the individuals concerned.
This Office informed HRI of the applicant’s position and as recently as 18 April 2019, HRI released records 2, 3, 5, 6, 10, 11, 12 and 13 to the applicant, withholding private email addresses contained in these records. HRI withheld record 9 and record 11 (page 1) on the basis that they contain emails sent by private individuals which contain the personal information of those individuals. HRI partially released record 15 withholding certain information which it argued falls outside the scope of the applicant’s request. Finally, HRI stated that its schedule of records contains an error as record 4 does not exist. It stated that there are only two records dated 10 August 2018, whereas the schedule indicates that there are three records.
The private email addresses withheld from records 2, 3, 5, 6, 10, 11, 12 and 13 fall outside the scope of the applicant’s request. I accept that the emails sent by private individuals contained in record 9 and record 11 (page 1) also fall outside the scope of the applicant’s request as it is not practicable to redact those emails to provide for the anonymity of the individuals concerned. Record 15 contains 10 bullet points. With the exception of bullet point number 7 which was released to the applicant, the remaining bullet points concern matters other than the parade ring and I am satisfied that they fall outside the scope of the applicant’s request. Finally, I accept that there is no record 4 to be considered in this review.
The scope of this review is confined to whether HRI was justified in its decision to refuse access to record 1 under sections 29, 35, or 36 of the FOI Act.
At the outset, it is relevant to note a number of preliminary matters.
Section 13(2) of the FOI Act requires that where a decision is made to refuse a request in full or in part, the decision must include any provision of the Act pursuant to which the request is refused, any matter relating to the public interest taken into account and particulars of the right to request an internal review. Section 21(3) of the Act provides that where an internal review is requested, the review should be carried out by a more senior member of staff than the individual who made the original decision. I am disappointed to note that, although the request was clearly made under the FOI Act, HRI as an FOI body did not comply with either of these key statutory requirements. Neither did it inform the applicant of his right of internal review of its initial withholding of the records. Useful guidance, including template letters, on processing FOI requests is available from the Central Policy Unit (CPU) of the Department of Expenditure and Public Reform (https://foi.gov.ie/) and it is difficult to understand why public bodies do not use this.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the record and certain arguments in some of my analysis and reasoning is limited.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
HRI relies on sections 29, 35 and 36 in refusing access to record 1. I am satisfied that it is appropriate to consider section 36 at the outset.
HRI relies on sections 36(1)(b) (commercially sensitive information) and (c) (information impacting on negotiations) in refusing access to record 1.
This Office’s approach to sections 36(1)(b) and (c)
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 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, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Section 36(1)(c) must be applied to "information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates". The conduct and the outcome of negotiations are separate matters. 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, 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.
In their submissions to this Office, HRI and the relevant third parties state that during the redevelopment, an issue arose in relation to the size of the parade ring and additional works were required in order to enlarge the parade ring. They state that negotiations in relation to this matter are ongoing and the conduct of these negotiations could be affected by the release of records 1.
Record 1 contains information in relation to the design of the parade ring, certain financial and budgetary information and options for remedial works to the parade ring. I accept that this information is relevant to negotiations that are ongoing in relation to the costs incurred due to additional works to the parade ring. I also accept that releasing record 1 could harm the conduct of the negotiations between the relevant parties by placing certain financial and budgetary information and information in relation to the design of the parade ring into the public domain. I find that record 1 is exempt under section 36(1)(c) of the Act.
A record that is exempt under section 36(1) may be released if certain circumstances apply (section 36(2) refers). I am satisfied that none of the provisions of section 36(2) apply to the information which I have found to be commercially sensitive.
A record that is exempt under section 36(1) may also be released if the public interest in favour of its release outweighs the public interest that it be withheld (section 36(3) refers).
Section 11(3) of the FOI Act requires public bodies, in performing functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs and to strengthen their accountability. In my view, this need to enhance openness, transparency and accountability carries even greater weight where the use of public funds is involved. As outlined above, HRI has contributed public funding towards the Curragh redevelopment project.
It is important to note, however, that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and it was not generally designed as a means by which the operations of private enterprises were to be opened up to scrutiny. In this case, record 1 concerns the operations of a third party which is a private company and not the operations of HRI. Record 1 was forwarded to HRI to keep it updated in relation to the redevelopment. I accept that there is a legitimate public interest in commercial entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interests that section 36(1) seeks to protect. I find that, on balance, the public interest would not be better served by the release of record 1. In light of this finding, it is not necessary to consider whether record 1 is also exempt under sections 35 or 29 of the Act.
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.