Case number: OIC-100275-M7T3Y5
12 August 2021
By way of context, the Book of Kells is one of Ireland’s main tourist attractions. It was unveiled in a new display case in the Old Library at TCD on 14 September 2020. The case, which was specifically designed by Goppion Technology (Goppion), was funded by a combination of funds from Fáilte Ireland and a gift from private donors. See https://www.tcd.ie/visitors/trinity-unveils-new-book-of-kells-treasury-and-display-case/#:~:text=The%20new%20Book%20of%20Kells,in%20the%20newly%20refurbished%20Treasury and https://www.goppion.com/projects/the-trinity-college-old-library-new-book-of-kells-showcase. TCD continues to redevelop the Old Library to conserve the building itself, as well as its manuscripts and research collections.
In a request dated 1 October 2020, the applicant sought access to the following records concerning the above-mentioned display case:
In its decision dated 30 October 2020, TCD refused access to the records sought at parts 1 and 2 under sections 30(1)(c) (negotiations of an FOI body), 36(1)(b) (commercially sensitive information) and 36(1)(c) (information prejudicial to negotiations) of the FOI Act. It withheld records concerning part 3 under sections 32(1)(a)(iii) (systems for ensuring the safety or security of persons and property), 32(1)(a)(ix) (security of a building or other structure), 32(1)(b) (endanger the life or safety of any person) and 32(1)(c) (facilitate the commission of an offence) of the FOI Act. The applicant sought an internal review on 2 November 2020. TCD’s internal review decision of 23 November 2020 affirmed its decision on the request. In addition to the exemptions referred to above, it also relied on section 36(1)(b) in relation to records covered by part 3 of the request. On 25 November 2020, the applicant applied to this Office for a review of TCD’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, TCD and the applicant. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act.
The scope of this review is confined to whether TCD’s refusal of the applicant’s request was justified under the FOI Act. The records covered by parts 1 and 2 are four invoices and parts of an agreement for the commissioning, design, fabrication, installation and maintenance of the display case. Parts of two records are covered by Part 3, including the agreement referred to earlier.
It is relevant that the release of information under FOI is accepted to be generally the same as publishing that information to the world at large.
Parts 1 and 2 – section 36(1)(b) (commercial sensitivity)
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". 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(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
The applicant disputes that records relating to this project are commercially sensitive. He says that it is of a unique nature and is unlikely to be repeated any time soon. He also says that TCD does not explain how release of the information might place it at a competitive disadvantage in the future.
TCD says that the expenditure records disclose the case’s total cost and how this is broken down over the various stages of the project, as well as maintenance fees and what these include. It says that the details disclose information about Goppion’s pricing model and how it manages projects. It says that the market for the design of display cases is small, specialised and high value, in which Goppion are the market leaders because of their experience in designing and developing the technical specifications for some of the world’s leading display cases. It says that greater value attaches to information generally in such markets than it does to information in markets for “off the shelf” goods, and especially where information relates to the market leader. TCD stresses the current nature of the details at issue. It says that, given the nature of the market, the withheld details comprise valuable information that could allow competitors to undercut Goppion in future competitions, no matter how unique those competitions may be, thus prejudicing Goppion’s competitive position and resulting in financial loss to it.
TCD also says that it may acquire further display cases for other national treasures housed in the Old Library as part of its ongoing redevelopment of that building. It says that disclosure of the relevant details could put it at a competitive disadvantage in these acquisition processes generally. It says that disclosure could also give Goppion’s competitors a serious advantage and prejudice Goppion’s commercial position in such processes.
The relevant cost information is current. It is reasonable to accept that current information is of much more use to a competitor, and therefore more sensitive from a company’s perspective, than historic pricing information. Furthermore, I have no reason to dispute TCD’s submissions about the nature of the market in which Goppion competes, Goppion’s status within that market or the value of information to competitors generally within that market. In turn, I accept TCD’s arguments as to why disclosure of the relevant details could prejudice Goppion’s competitive position in relation to the supply of specialised display cases generally. On this basis, I find that section 36(1)(b) applies to the relevant details.
Although the applicant is of the view that the project is unlikely to be repeated any time soon, I accept TCD’s position that it may seek to acquire similar display cases while redeveloping the Old Library. I note again the small number of potential suppliers of such display cases. It seems to me that if the relevant cost information was made known to the world at large, Goppion’s competitors could, for instance, seek to undercut its prices for the supply of any further similar display cases that TCD, or other similar entities, may seek to acquire. I accept that this could prejudice Goppion’s commercial position in those processes, which is a further reason for section 36(1)(b) to apply.
Finally, while section 36 enables the protection of third party commercially sensitive information, previous decisions from this Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests. It seems to me that the records also contain information that could prejudice TCD’s competitive position in any similar acquisition processes for display cases in which it may engage while redeveloping the Old Library. In my view, disclosure of the relevant information could enable other suppliers of display cases to submit higher prices to TCD than they might otherwise have done, or lower quality offerings for the same price or a combination of both. Any of these outcomes could impact on TCD’s ability to acquire the most suitable display cases to preserve and protect priceless items at the best price. I find that this is a further, separate reason for finding that section 36(1)(b) applies.
Exceptions to section 36(1) – sections 36(2) and (3)
I do not consider section 36(2) to be relevant in this case. In relation to the public interest test contained in section 36(3), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in the eNet judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.
The applicant says that a commercial company entering a contract with a State agency can have no expectation of confidentiality in the circumstances. He also says that the details fall for automatic publication under public sector guidelines on expenditure. TCD, however, says that the public interest lies in acquiring the best quality goods to protect artworks like the Book of Kells.
I am not aware of any information in the public domain regarding how TCD acquired the display case. It seems to me that the records disclose information relating to this matter, albeit to a very limited extent. I note the applicant’s view regarding the automatic publication of the details under public sector guidelines on expenditure. From an FOI perspective, however, it seems to me that the records at issue do not give any meaningful insight into the expenditure of public monies given that private funding was also involved, and there is nothing in the records to indicate where the divide between the public and private funds lies.
On the other hand, disclosure of the information could prejudice the commercial interests of Goppion generally. It could also prejudice the interests of both Goppion and TCD in any further acquisition processes for similar display cases that TCD may commence. In relation to TCD in particular, such an outcome has implications for TCD’s prudent expenditure of monies, whether public or private. It also has implications for the quality and standard of offering submitted for in such tender processes. Having considered the matter carefully, I believe that the public interest weighs in favour of protecting the records at issue.
There is no need for me, in the circumstances, to consider the other exemptions relied on by TCD in relation to the records covered by Parts 1 and 2 of the request.
Part 3 – sections 32(1)(a)(ix) (security of a building or other structure) and 32(1)(c) (facilitate the commission of an offence)
The applicant says that the refusal of the design brief under section 32 is tenuous and that the exemptions claimed cannot apply to the entirety of the relevant details. The applicant believe that it is unclear what provision of section 32 is being relied on, and that it is difficult to make other arguments. Of the various exemptions relied on by TCD, it seems to me that the most relevant are sections 32(1)(a)(ix) and 32(1)(c).
Section 32(1)(a)(ix) of the FOI Act provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the security of a building or other structure or a vehicle, ship, boat or aircraft. The FOI body should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm, which it has identified. Section 32(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to facilitate the commission of an offence. The FOI body should show how the release of the record could make the commission of an offence easier and consider the reasonableness of that occurring. It should also indicate the nature of the relevant offence(s) concerned. It should show the link between the particular record at issue and how its release could make the commission of the offence(s) easier.
TCD says that both it and Goppion have already published certain information about the case’s design. It says that disclosing further information regarding design and technical and maintenance specifications could provide individuals with information that would facilitate them in commissioning an offence. It maintains that any threat to the security of the Book of Kells is in turn a security threat to the Old Library and TCD itself as well as to members of the public who visit the Book of Kells and to TCD’s staff.
I accept that a display case that was specifically commissioned to protect and preserve an item like the Book of Kells is a structure for the purposes of section 32(1)(a)(ix). I accept that placing further information about any aspect of the case’s design in the public domain, such as that contained in the remaining records, could reasonably be expected to prejudice or impair its security. I also accept that such disclosure could reasonably be expected to facilitate the commission of an offence by making it easier for the case and/or its contents to be damaged or stolen. I find that sections 32(1)(a)(ix) and 32(1)(c) apply.
The public interest at section 32(3) is only required to be considered in the event that any of three circumstances apply, which they do not in this case. On the basis of my findings above, there is no need for me to consider the other exemptions relied on by TCD in relation to the records covered by Part 3.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD’s decision to refuse the applicant’s request under sections 32(1)(a)(ix), 32(1)(c) and 36(1)(b) of the FOI 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.