Case number: OIC-56397-Z3Z2K2
17 April 2020
On 17 July 2019, the applicant made an FOI request to the OPW for a list of properties purchased by the OPW in 2017, 2018 and 2019, including the purchase prices and the valuation reports associated with each purchase. The OPW issued its decision in two parts, on 9 and 14 August 2019. It granted access to the list of properties and their purchase prices and refused access to the valuation reports on the ground that they were exempt under sections 30(1)(c), 36(1)(b) and 37 of the FOI Act. On 13 August 2019, the applicant applied for an internal review of the decision. The OPW issued an internal review decision in two parts, on 3 and 4 September 2019, in which it varied the original exemptions relied upon in relation to certain records. On 6 September 2019, the applicant applied to this Office for a review of the OPW's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the OPW as outlined above and to the correspondence between this Office and both parties, as well as the content of the records provided to this Office by the OPW for the purposes of this review. I have also had regard to submissions obtained from third parties.
During the review process, the OPW also claimed section 15(1)(a) over one record. The question for me is whether the withheld information within the scope of this review is exempt under sections 15(1)(a), 30(1)(c), 36(1)(b) and 37 of the FOI Act.
Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. Thirdly, with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Fourthly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, I have adopted the numbering used in the updated schedule provided by the OPW.
Section 15(1)(a) - Refusal on administrative grounds
Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The OPW initially refused access to Record 11 on the ground that it was exempt under sections 30(1)(c) and 36(1)(b). However, during the review process, it claimed that Record 11 was exempt under section 15(1)(a), on the basis that it was not a formal valuation report and no formal valuation report in relation to that property exists. Record 11 was prepared by a third party valuer. It concerns one of the properties purchased by the OPW and contains the valuer’s opinion on the value of the property, which is clearly the information sought by the applicant in requesting a “valuation report”. The OPW’s argument may be more properly understood as an argument that this record falls outside the scope of the applicant’s FOI request. However, given its content, I do not accept this and neither am I satisfied that section 15(1)(a) applies to it. I find that the OPW was not justified in refusing access to Record 11 under section 15(1)(a). I consider it below under the other exemptions claimed.
Section 37 – Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” 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 FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include “(xiii) information relating to property of the individual (including the nature of the individual’s title to any property)”.
Certain records contain information relating to identifiable individuals other than the applicant. Record 1 contains a detailed background to the property concerned, the release of which would involve disclosing information relating to the previous property owner. Paragraph 5.0 of Record 2 also contains information relating to the previous property owner. Finally, the last sentence of paragraph 1.0 on page 2, paragraph 5.0 on page 4, and Appendices 3 and 5 to Record 9 contain information relating to the previous property owner. I am satisfied that section 37(1) applies to this information and have applied section 18 in reaching this conclusion. My finding is subject to other provisions of section 37, which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies to the records. That is to say: (a) it does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.
In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
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 must also bear in mind that release under FOI is effectively release to the world at large. In the circumstances, I am not satisfied that the public interest in granting the request outweighs the right to privacy of the individuals other than the applicant. I find that section 37(5)(a) does not apply. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.
In conclusion, I find that the OPW was justified in refusing access to this information under section 37(1) of the FOI Act. Given this finding, I am not required to consider other exemptions claimed in relation to this information. References to “the records” below should be taken to exclude this information.
Section 30 – Functions and negotiations
The OPW claims section 30(1)(c) over the records. Section 30(1)(c) of the FOI Act allows an FOI body to refuse to grant an FOI request if access to the record could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1) is subject to a public interest test under section 30(2). It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records which disclose positions taken etc. for the purposes of negotiations.
The OPW says that the records could disclose positions taken or likely to be taken in ongoing and future negotiations. It says that they could disclose strategies used by the OPW in acquisitions, thereby weakening future interaction with the market. It says that disclosure would reveal the commercial approach adopted in acquiring assets, thereby limiting the ability to achieve value for money in a highly competitive market.
The records disclose the following kinds of information: details of the relevant properties, asking prices, valuations, options and recommendations, including, in some cases, references to various strategies and to legal advice. I accept that they could reasonably be expected to disclose positions taken or plans, procedures etc. to be used for the purpose of negotiations and that section 30(1)(c) applies to them.
Given this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act. On the one hand, section 30(1)(c) itself reflects the public interest in FOI bodies being able to negotiate effectively. As noted above, in weighing up the public interest, I should take into account whether disclosure could prejudice future negotiations. On the other hand, there is a public interest in having transparency around the way in which the OPW carries out its functions, particularly in relation to the use of public funds and obtaining value for money. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.
In determining whether the public interest would, on balance, be better served by granting or refusing this request, I consider it appropriate to distinguish between different kinds of information. I believe that disclosing the following information would serve the public interest in transparency identified above: basic facts about the properties purchased by the OPW, as well as the asking prices and valuations. I consider that the public interest in transparency outweighs the potential harm in relation to this information and that on balance, the public interest would be better served by disclosing it. I should note that the OPW says that any partial release of the records would be misleading and taken out of context. However, having reviewed the records, on balance, I am satisfied that it would be practicable to release certain information and that this would be reasonable and proportionate to satisfy the public interest in disclosure in the circumstances.
Accordingly, I find that the OPW was not justified in refusing access to the following information under section 30(1)(c) of the FOI Act: Record 2 (except paragraphs 7.1 and 7.2); Record 3 (only pages 1-5 from “Location” onwards and information on Site 1a on the final page); Record 6 (only pages 1-3 and “Negotiations & Recommendations” on the final page); Record 7 (only pages 1-2 and “Progressing Matters” on page 7); Record 8 (only “Situation” – “Town Planning” on pages 2-5 and the final page); Record 9 (except paragraphs 7.1 – 7.3 and Appendix 4); Record 11 (except the second paragraph under “Site Description” and the final paragraph “Negotiation”) and Record 12 (only pages 6-9 and “Valuation” on page 18).
However, I am not satisfied that the public interest would, on balance, be better served by releasing the remaining information. It comprises detailed options, advice and recommendations which disclose negotiation strategies. I consider that the public interest in the OPW being able to negotiate effectively outweighs the public interest in transparency in relation to this information. I find that the OPW was justified in refusing access to it under section 30(1)(c) of the FOI Act.
Section 36(1) - Commercial Sensitivity
The OPW claims section 36(1)(b) over the following records: 2, 3, 4, 6, 7, 8, 9, 11 and 12. I am only required to consider the information which I have not already found to be exempt above. Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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 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 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) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).
The OPW says that releasing the records could damage the future competitive position and negotiations of the OPW and the vendor. It says that releasing the records would disclose the State’s negotiation and acquisition strategies, thereby compromising its competitive position. It says that this would compromise the ability to achieve value for money in future acquisitions of commercial properties. Furthermore, it says that Records 8 and 12 disclose confidential information about properties which it does not own and releasing this information could impact the future sale potential of those properties.
Third party valuers prepared three of the valuation reports: Records 8, 11 and 12. Accordingly, during the review process, the Investigator consulted those parties to obtain their submissions. Regarding Record 8, the third party says that it always considers its professional advice on market value to be confidential to the client, in this case the OPW. It submits that disclosing the information may confer a commercial advantage on the recipient. Regarding Record 11, the third party submits that releasing the document will make available to the public sensitive information that could cause them commercial harm in their role as land negotiators. It says that the record outlines the negotiation strategy adopted in acquiring land on behalf of the OPW and that publishing this would severely jeopardise its future negotiations. Regarding Record 12, the third party says that the record contains confidential lease/tenancy details and market comparisons and market value. It submits that disclosing this record would give its competitors an insight into its processes and client pool, which could jeopardise future business and prejudice the OPW’s position in future negotiations. It also says that disclosing the information would prejudice the giving of further information to the OPW.
As noted above, the remaining information discloses basic facts about the properties purchased by the OPW, their asking prices and valuations. I have found the more detailed and strategic information to be exempt under section 30(1)(c) and in making that finding, I considered the potential prejudice to future negotiations. I note that although the purchase dates at issue are in 2017 to 2019, in many cases the valuation reports date from several years before the OPW finalised the purchases. Having regard to the content of the remaining information and the parties’ submissions, I do not accept that disclosing it could prejudice the competitive or negotiating position of the parties concerned. Regarding Records 8 and 12, information on properties not purchased by the OPW is contained in the material which I found to be exempt under section 30(1)(c) and so its disclosure and any harm that might flow from that no longer arises. I find that section 36(1) does not apply to the remaining information. Given this finding, I am not required to consider sections 36(2) or (3). I find that the OPW was not justified in refusing access to the remaining information under section 36(1) of the FOI Act.
For completeness, I note that a third party valuer’s reference to “prejudice to the giving of further information” to the OPW would appear to be more relevant to section 35 rather than section 36 of the FOI Act. Section 35(1)(a) concerns confidentiality and has four requirements which must be met before the exemption can apply. The OPW did not claim that section 35 applied to the records concerned and nor did any of the parties make arguments as to why it would apply. Therefore I do not propose to consider it further.
Having carried out a review under section 22(2) of the FOI Act, I vary the OPW’s decision as follows. I affirm its decision to refuse access to certain information under sections 30(1)(c) and 37 of the FOI Act, as outlined above. I annul its decision to refuse access to the remaining information and direct its release. For the avoidance of doubt, the information which falls for release is as follows:
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.