Decision
Ken Foxe Right to Know CLG and Land Development Agency (LDA)
From Office of the Information Commissioner (OIC)
Case number: OIC-150178-V7N8J9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150178-V7N8J9
Published on
Whether the LDA was justified in refusing access to certain information in a risk register on the basis of sections 36(1) and 40(1) of the FOI Act
24 July 2025
In a request dated 1 May 2024, the applicant sought access to a copy of the most up-to-date risk register for the LDA. In a decision dated 30 May 2024, the LDA part-granted the applicant’s request. It withheld certain information from the relevant record on the basis of sections 36(1)(b) and 36(1)(c) of the FOI Act. It released information in relation to the risk name and description and “a comprehensive list of risk mitigations for each risk”. On 5 June 2024, the applicant sought an internal review of the LDA’s decision. He directed the LDA’s attention to a particular decision of this Office (OIC-127198) and asked that it familiarise itself with that decision and “multiple other recent decisions of the OIC with regard to risk registers”. In its internal review decision dated 27 June 2024, the LDA affirmed its original decision and said that it was withholding certain sections of the record under section 36 of the FOI Act. On 1 July 2024, the applicant applied to this Office for a review of the LDA’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the parties. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
The LDA identified one record as coming within the scope of the applicant’s request. In addition to sections 36(1)(b) and (c), in its submissions to this Office it said that it was also relying on sections 36(1)(a) and 40(1)(a) in support of its refusal to release the withheld information.
In its submissions, the LDA said that after further consideration, it was willing to release information contained in the record pertaining to the risk status. Accordingly, I am satisfied that such information is outside the scope of this review and I will not consider the information contained in column C further.
Accordingly, this review is concerned solely with whether the LDA was justified in refusing access to the remaining withheld information on the basis of sections 36(1)(a), 36(1)(b), 36(1)(c) and 40(1)(a) of the FOI Act.
In its submissions to this Office, the LDA referenced confidential information and said that commercially sensitive information beyond the contents of the risk register was included in its submission in furtherance of its defence of its position to refuse the release of certain information. It said that the commercially sensitive information in question relates to the inner workings of the LDA and third parties. It requested confirmation that none of the contents of its correspondence would be shared with the requester or included in this decision.
Section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. However, it is important to note that I am also obliged to give reasons for my decision. This will often necessitate engagement with submissions made, which in turn requires the referencing of those submissions. Upon receipt of the LDA’s correspondence, the Investigator contacted the FOI liaison officer and explained the above position. She said that if the LDA wished to direct attention to specific information in the submissions which it considered confidential, it was welcome to do so. The FOI liaison officer said that she would liaise with colleagues and respond within a particular timeframe. No response has been received to date. While I will take all reasonable precautions to prevent the disclosure of information in accordance with section 25(3), I have a statutory obligation to provide reasons for my decision under the FOI Act. More generally, the LDA made quite lengthy submissions. I will not be in a position to reference them in full, though I confirm that I have had regard to same.
It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
The LDA and the record at issue
In submissions to this Office, the LDA said that it is a commercial semi-state body created to provide affordable and social homes and build communities across Ireland. It said that its principal activity is to facilitate the acquisition and development of affordable and social housing for cost rental or affordable purchase. It said that it is in the process of delivering more than 10,000 homes on State owned or acquired land and over 8,000 more through a specific initiative.
The LDA said that as a State-sponsored body, it must compete against and contract with private participants in the property development, construction and rental markets. It noted that the demand for housing across Ireland is outstripping supply and said that the Housing Commission’s 2024 report identified a deficit of up to 256,000 homes. It said that increasing land and construction costs coupled with housing demand and other factors have increased home prices and mean that affordability is a major issue for those seeking a home. It said that these factors result in a private residential market that is supply constrained, highly competitive and extremely price sensitive. It said that in order to succeed, the LDA must be able to compete in the relevant markets, manage risk, and comply with the provisions of relevant legislation and regulations.
The LDA said that the primary mechanisms available to it to deliver housing are:
• Land acquisition purchased from both private and public landowners;
• Direct housing delivery by contracting private construction companies; and
• Forward purchase of constructed or under construction housing from private developers.
The record at issue is a copy of the LDA corporate risk register. The document is an Excel spreadsheet which comprises various rows and columns. The information contained in four columns has been released to the applicant. The columns are entitled ‘risk status’, ‘risk name’, ‘risk description’, and ‘risk mitigating controls (combination of preventative/corrective/directive/detective)’. Information in the remaining columns has been withheld. Such information includes the risk identifier, the relevant business unit, risk assessment scoring, the risk mitigation strategy, the residual risk rating, and trend information.
Submissions received from the LDA focus predominantly on its refusal to release risk scorings and risk ratings. The LDA said that due to the small size of the residential construction market in Ireland, it is likely to purchase land and property from some of the same companies it will contract to construct homes. It said that if these parties have access to the LDA risk register, they can apply the insights gained when selling land and properties to the body and also in bidding for contracts to construct homes. It said, therefore, that the impact of disclosing the risk register to market participants is significant. It said that the primary objective of those parties is to maximise returns for their shareholders. It said that they will use all available information to secure any competitive advantage possible. The LDA said that its competitors are not subject to the FOI Act and can retain commercially sensitive information like risk registers. It said that access to the register in question will provide these market participants with LDA trade secrets and commercially sensitive information that will enable them to set prices that will result in a material financial loss.
Section 36 – commercially sensitive information
Section 36(1)(a)
Section 36(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned contains trade secrets of a person other than the requester. The Commissioner has accepted that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit widespread publication.
The Commissioner also accepts that an exact definition of trade secret is not possible and that some factors to be considered in determining whether information is a trade secret are:
1. the extent to which the information is known outside of the business concerned;
2. the extent to which it is known by employees and others involved in the business;
3. the extent of measures taken by the business to guard the secrecy of the information;
4. the value of the information to the business and to its competitors;
5. the amount of effort or money expended by the business in developing the information;
6. the ease or difficulty with which the information could be properly acquired or duplicated by others.
In its submissions, the LDA said that its business model differs from that of the normal private housing sector and that the manner in which is evaluates risk also differs. It said that its weighting of risk is made up of constituents unique to the LDA. It said that factors unique to the LDA such as its bespoke business methods, market analysis, pricing information, cost information, purchasing information, financial information and business planning contribute to how the LDA profiles a given risk. It said that these constituents are the LDA’s trade secrets.
The LDA said that the record contains insights into trade secrets that would compromise its ability to secure land and property at prices that satisfy its obligations to the State. It said that the record details its attitude to risks and that the insight provided by the risk ratings communicates the LDA’s appetite to deploy resources and the quantity of those resources. It referenced specific risks listed in the register.
The LDA’s position is that the unique factors which result in the risk profile assigned are trade secrets of the FOI body. In the first instance, it is important to note that the record does not detail those factors, or ‘constituents’ as they are referred to by the LDA. The withheld information details numerical risk likelihood and impact, as well as risk scoring and rating and high-level references to risk categories and mitigation strategies. It is not clear to me that release of such high-level information would provide any insight into the specific factors considered by the LDA in arriving at its risk assessment.
The substantive question I must consider is whether the release of the withheld information would disclose trade secrets. The risk impact and likelihood analysis method is a common tool used by organisations in assessing risk. I do not accept that the scores assigned by the LDA qualify as a trade secret for the purposes of subsection (a). The LDA has released the relevant risk name and risk description, as well as risk mitigating controls. It seems to me that a party with knowledge of the Irish property market would be able to assign risk impact and likelihood scores based on that information. While the exact scoring and rating arrived at might differ from the LDA’s, I cannot accept that such information constitutes a trade secret. Furthermore, I do not believe that such risk ratings are viewed as a trade secret in an Irish context. Indeed, I note that many organisations include such details in published risk reports. For the avoidance of doubt, nor am I satisfied that the other withheld information, comprising high-level administrative, categorisation and risk mitigation information, constitutes trade secrets. In particular, it seems to me that the details in the risk category and risk mitigation strategy columns can be gleaned from a consideration of the information released to the applicant to date. The LDA has not made substantive submissions in respect of the information and having considered it carefully, it is not clear to me how it could be considered to fall within the scope of subsection (a).
Having considered the LDA’s submissions and the content of the record, I am not satisfied that the withheld information contains trade secrets of a person other than the requester. I find that section 36(1)(a) does not apply.
Section 36(1)(b)
Section 36(1)(b) provides for the mandatory refusal of a 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 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 the exemption. However, this Office takes the view that, in invoking “prejudice”, the damage which could occur must be specified with a reasonably degree of clarity.
In its submissions, the LDA said that in circumstances where it is required to compete with the private sector in relation to the purchase of land from other entities, the provision of the information in question would undermine the position of the LDA in any bidding process as a vendor. It said that other bidders, including private developers, would be aware of how the LDA approaches and prices risk. It said that this would lead to an unfair competitive advantage to the vendor and those developers and result in the LDA either not being successful in purchasing land or having to pay significantly increased prices for the same land.
It said that, furthermore, even where the LDA is successful in its bid to purchase land, it is almost invariably required to tender for the development of that site to developers, including those that may have been involved in the tender for the purchase of the site. It said that in this scenario, the release of the requested information would undermine the LDA’s position in that it would likely lead to developers pricing tenders at a far higher price, given that they would be aware of the risk rating and other confidential information relevant to the site in question. It said that this would result in increasing the cost to the LDA and would hamper its ability to provide cost rental accommodation in accordance with Government policy and legislation.
The LDA said that the outcomes of release of the information include vendors equipped with the knowledge only willing to trade at an “LDA price” in excess of market price as the vendor has knowledge of the FOI body’s land acquisition and risk appetite. It said that the consequences of this include the LDA being forced to pay prices above market valuations, being unable to achieve financial returns to satisfy state aid requirements, being unable to meet the requirements of the cost rental regulations and being unable to achieve required financial returns and operate in a financially sustainable way as a commercial semi-state entity. The LDA also provided submissions in respect of the cost rental designation. It said that its challenge is to engage competitively and secure land and property in the market at prices low enough that the cost rental designation and Government policy are satisfied.
The LDA’s position is that its competitive position would be compromised by the release of the information. It said that the release of its weighting of risk provides an insight into how the LDA does business in the highly competitive housing market. It said that its risk register contains critical commercially sensitive information that would compromise its ability to secure land and property. Again, it said that the register details its attitude to risks and its appetite to deploy resources to mitigate those risks. It said that a private sector seller equipped with the detail in the record will charge a higher price and be unlikely to yield to negotiation and unwilling to consider other factors. The LDA made certain submissions in respect of funding sources and investment. It also referenced certain land purchase and development examples in support of its submissions.
At the outset, I must again note that the LDA has released certain substantive information contained in the risk register. This includes the relevant risk names, a description of the risk, and the controls in place or planned. Accordingly, the applicant is aware of the nature of the risks identified by the LDA and the steps it is taking in respect of same. While the LDA made lengthy submissions, in effect, its position is that release of the scoring and rating information contained in the record would enable third party vendors and competitors to undermine its competitive position and would result in relevant harms.
I have carefully considered the submissions received. It seems to me that the arguments advanced by the LDA are undermined considerably by the fact that it has already released information pertaining to risks identified. The applicant is therefore aware that the LDA has identified, for example, the uncertain availability and supply of lands and the viability of particular financial investment as relevant risks. I do not accept that release of the specific risk scoring and ratings assigned would result in relevant harms above and beyond those that might be anticipated to flow from release of the detail of the risks themselves. The LDA’s position is that release would enable third parties to demand higher prices because they know the FOI body’s approach to risk. Notwithstanding the fact that parties will generally seek to obtain the highest possible price, I do not accept that a party would change its approach because a risk was rated as ‘very high’ as opposed to ‘high’ or even ‘medium’. I must also note that many of the risks identified in the released information reflect general concerns about the market, compliance requirements and security. Even if the LDA had not chosen to release that information, it is not clear to me that any relevant harms could be expected to flow from release. I also note that the risk register in question is dated ‘Q4 2023’. It seems likely that the register has been updated in the interim and that the ratings assigned to the relevant risks, and the risks themselves, may have changed.
Again, while the LDA has not made substantive submissions in respect of the other high-level information withheld from the record, I am not satisfied that the relevant harms could be expected to flow from the release of administrative, categorisation and risk mitigation information. As noted above, it seems to me that much of the withheld information can be gleaned from a consideration of the information released to the applicant to date.
It seems to me that the LDA’s concerns are significantly overstated. I do not accept that the release of the withheld information could reasonably be expected to result in the harms envisaged in section 36(1)(b). I find that the LDA was not justified in relying on the exemption provision to refuse release.
Section 36(1)(c)
Section 36(1)(c) provides for the mandatory refusal of a request if the record concerned contains information whose disclosure 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 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 its submissions in respect of this subsection, the LDA repeated many of the submissions made in respect of section 36(1)(b). It said that it is regularly required to compete with the private sector in relation to the purchase of land from other entities. It said that release of the information would undermine the position of the LDA in any bidding process as the vendor and other bidders, including private developers, would be aware of how the LDA approaches and prices risk. It said that this would lead to an unfair competitive advantage to the vendor and developers and result in the LDA either not being successful in purchasing the land or having to pay significantly increased prices for the same land.
It is important to note that section 36(1)(c) is also a harm-based exemption. While I accept that the LDA may regularly enter into contractual or other negotiations with vendors and developers in respect of land and property, in order to find that the exemption applies, I must be satisfied that release of the remaining withheld information could prejudice the conduct or the outcome of such negotiations. In keeping with my findings in respect of subsection (b), I do not accept the LDA’s arguments in this regard. Again, the FOI body has already released to the applicant information pertaining to identified risks and controls. I do not accept that the release of the remaining withheld information contained in the record could prejudice any relevant negotiations in circumstances where the applicant is already aware of the risks which the LDA considered to merit inclusion on its risk register. Furthermore, it seems to me that the role, aims and functions of the LDA would be well-known to any third parties engaging with it in the market. Such parties would be, or could readily become, aware of the expectations and constraints placed upon it by relevant policy, rules and regulations. It seems to me that a party wishing to exploit the LDA in the manner anticipated in its submissions could do so without access to the information at issue.
In sum, I do not accept that the release of the remaining withheld information from the risk register could be expected to prejudice the conduct of relevant contractual or other negotiations. Accordingly, I find that the LDA has not satisfied this Office that section 36(1)(c) applies to any of the information in the record.
Section 40 – financial and economic interests of the State
Section 40(1)(a) provides that a request may be refused if the head of the body is of the opinion that access to the record could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State.
For section 40(1)(a) to apply, the potential harm that might arise from disclosure must be identified and the expectation that the harm will occur must be reasonable. In examining the merits of a body’s view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities but rather whether or not the decision maker's expectation is reasonable. It is sufficient for the body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
Section 40(2) sets out a list of the types of records to which section 40(1) may apply. An FOI body may invoke section 40(2) only in conjunction with section 40(1). Thus, the relevant requirements of section 40(1) must still be met. The IDA’s position is that the record relates to subsection (i) property or other assets held by or on behalf of the State or a public body and transactions or proposed or contemplated transactions involving such property, or other assets, subsection (m) trade secrets or financial, commercial, industrial, scientific or technical information belonging to the State or a public body, that are of substantial value or reasonably likely to be of substantial value, and subsection (n) information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body in relation to activities carried on by it on a commercial basis.
It is not immediately clear to me that the risk scoring and rating information contained in the record falls within the scope of the above subsections, though I note that an argument can be made that the record in general relates to property or other assets by virtue of the fact that it is an LDA risk register. However, I do not intend to analyse the LDA’s arguments in respect of section 40(2). Even a record that falls squarely within the provisions of subsection (2) must still meet the relevant test in section 40(1)(a) in order to be exempt. In determining whether section 40(1) applies, consideration should be given to the actual content of the record and what its disclosure would actually reveal. A connection between the subject matter of the record and matters relating to the economy alone does not mean that the harm envisaged by section 40(1)(a) could reasonably be expected to occur as a result of release.
In respect of the adverse effect expected to flow from release of the record, the LDA said that the Government’s Housing for All policy has a target to provide affordable rents at 25% below market rents. Its position is that release of the relevant information would negatively impact the LDA’s ability to provide this housing and that the 25% margin would not be achieved. It referenced a 2024 report of the Housing Commission which identified that the housing crisis was having a detrimental impact on Irish society. It said that given the current housing crisis, the ability to provide affordable housing would be seriously impacted should the 25% margin not be achieved. The LDA said its ability to compete in such a low margin industry is already impaired, given the 25% below market rent requirement. It said that the release of any risk profiling information would put the LDA at a direct competitive disadvantage in fulfilling its objectives. It reiterated arguments advanced in respect of section 36 and said that vendors equipped with the relevant knowledge would only be willing to trade at an “LDA price”. It directed my attention to various other paragraphs in its submissions. While I do not intend to reference them here, I confirm that I have considered same.
The LDA made further submissions in respect of the housing market and its work developing cost rental accommodation. It referenced the level of interest in this tenure-type and said that the examples provided highlight the huge demand for affordable and social homes as well as the collapse of the affordable private residential property market. The LDA said that the private residential property market is a mature, well-established marketplace. It said that successful market players are experts in constructing and selling homes and are profitable at doing so. It referenced the huge demand and constrained supply of products. The LDA said that given this context, if the information in question was to be made available, the market would use the information to its competitive advantage and to the detriment of the LDA.
In effect, the LDA’s arguments again centre on the competitive insights which it believes the release of risk scoring and rating information would provide to participants in the property market. Its position is that such insights will enable parties to undermine the LDA and its functions. I have already noted that the LDA has released information contained in the record relating to the risks identified and risk controls. While disclosure of the remaining information would provide vendors or competitors with the precise risk scores and ratings assigned in 2023, the fact is that by virtue of the information released to date, parties will already be aware of the risks identified. As per my analysis in respect of section 36, it seems to me that if any harms were expected to flow from the release of information in the risk register, they would arguably flow from release of the substantive information provided to the applicant. It is not clear to me that release of the remaining information would result in any harms above and beyond that.
In all of the circumstances, I see no basis to accept that disclosure of the remaining information could reasonably be expected to have such an effect on the LDA’s ability to perform its statutory functions that, in turn, disclosure could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State. I must again note that I believe that the LDA’s concerns are significantly overstated. I find that section 40(1)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the LDA’s decision. I find that it was not justified in refusing access to the remaining information withheld from the record on the basis of section 36(1)(a), 36(1)(b), 36(1)(c) or 40(1)(a) of the FOI Act. I direct the release of the information at issue.
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.
Stephen Rafferty
Senior Investigator