Decision
Mr. X & Fáilte Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-155743-W0V7Y7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155743-W0V7Y7
Published on
Whether Fáilte Ireland was justified in refusing access to parts of an Economic Impact Study for the Ryder Cup 2027 under sections 29(1)(a), 35(1)(a) or (b) or 36(1)(b) or (c) of the FOI Act
29 June 2026
Background
In 2024, Fáilte Ireland received two separate FOI requests for a copy of any analysis or review carried out in relation to hosting of the Ryder Cup in Adare. This review concerns the second of those requests. As the background to the first request is also relevant to the second request, I will outline the background of both requests for completeness.
In the first request, the applicant sought access to a copy of any cost benefit analysis that has been carried out by Fáilte Ireland on the hosting of the Ryder Cup. Fáilte Ireland located one record which falls within the scope of the request. This record, entitled “An Economic Impact Study for the Ryder Cup 2027”, was produced by Ernst and Young (EY) for Fáilte Ireland and the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Department). Fáilte Ireland notified the Department of the FOI request and provided it with an opportunity to make a submission. The Department argued that the record was exempt under various sections of the FOI Act. On 9 August 2024, Fáilte Ireland issued its decision, wherein it refused access to the record at issue under sections 29(1)(a), 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act. The applicant sought an internal review of that decision, following which Fáilte Ireland affirmed its original decision. On 6 September 2024, the applicant sought a review by this Office of the Fáilte Ireland’s decision.
In the second request dated 18 November 2024, the applicant sought access to a copy of any review that Fáilte Ireland has done on the likely economic impact of hosting the Ryder Cup. On 11 December 2024, Fáilte Ireland refused access to the same record under sections 29(1)(a), 35(1)(a) and (b) and 36(1)(b) and (c) of the FOI Act. Fáilte Ireland also notified the applicant that it had received an earlier FOI request for the study and that its decision to refuse that request was being reviewed by this Office. On 20 December 2024, the applicant sought an internal review of Fáilte Ireland’s decision, following which Fáilte Ireland affirmed its original decision. On 23 January 2025, the applicant sought a review by this Office of Fáilte Ireland’s decision.
During the review, this Office provided the applicant, Fáilte Ireland and the Department with an opportunity to make submissions. The Department said it wished to rely on the submissions that it had provided to Fáilte Ireland. In its submissions, Fáilte Ireland said the study relies on confidential information provided to EY by stakeholders and bodies who are not FOI Bodies. It also referred to confidential input from foreign governments. This Office requested Fáilte Ireland to identify the relevant third parties so that it could notify them of the review and provide them with an opportunity to make submissions. In reply, Fáilte Ireland provided contact details for EY and Ryder Cup Europe. It did not identify any other third parties who provided confidential information. This Office provided both EY and Ryder Cup Europe with an opportunity to make submissions. Both parties did so.
Following communications between Fáilte Ireland and this Office, Fáilte Ireland released redacted versions of the record to both applicants. The applicant in the first case withdrew his application for review following the partial release of the study and that case was closed. The applicant in the second case wanted a formal decision in relation to whether Fáilte Ireland was justified in redacting parts of the record.
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 correspondence outlined above and to the submissions made by the parties during the review. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
The Department argued that sections 30(1)(a) and (b) and 33(1)(c) and (d) of the Act apply to the study. As Fáilte Ireland has chosen not to rely on these discretionary exemption provisions, I will not consider them in this review. It is a matter for the FOI body processing a request for a record it holds to determine whether or not to exercise its discretion to a apply a discretionary exemption.
The scope of this review is therefore confined to whether Fáilte Ireland was justified in redacting parts of the record at issue under sections 29(1)(a), 35(1)(a), 35(1)(b), 36(1)(b), and/or 36(1)(c) of the Act.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on Fáilte Ireland to justify its decision to refuse access to the parts of the study.
The Information at Issue
The record at issue is a study dated July 2024 and entitled “2027 Ryder Cup Economic Impact Study - Final Report for Fáilte Ireland and the Department”. It was created by EY and is headed “Confidential – Not for distribution”. The study says that “EY were commissioned in 2019 to conduct a study of the potential impact of hosting the event in Ireland in 2026. We have subsequently been commissioned to update this previous study, utilising more up-to-date data and assumptions to highlight the economic impact of the 2027 Ryder Cup. We have undertaken this analysis utilising: our economic impact assessment model, which assesses the event based on the CSO’s input/output tables; previous Ryder Cup data and other relevant tourism and event related data, shared by Fáilte Ireland and partners.” The study sets out three economic scenarios to understand the potential economic impact of the 2027 Ryder Cup in Ireland (low scenario, core scenario, high scenario) and it outlines spending estimates under these categories.
Information has been withheld from pages 2, 6 to 9, 13, 16 to 22 and pages 25, 32 and 34 of the study. The information withheld from page 2 comprises the name and contact details of a member of the staff of EY. The information withheld from pages 6 to 9 comprises financial estimates, including estimates of the amount the Ryder Cup could generate in additional direct spending, estimated breakdown between direct organisational spending and direct tourism spending, estimates for the net benefit for the economy and the return on investment for the Irish economy, estimates for public spending, estimates for spending with PGA’s Irish Suppliers (also redacted from page 13). There are estimates on categories of spending broken down under low, core and high scenarios and estimates for changes in spending between the 2019 and 2024 studies. Page 16 is an exact copy of page 8. The information withheld from pages 17, 18, 19 includes estimates for spending by ticket holders, workers on site, PGA spending benefiting Irish suppliers/foreign suppliers, Irish public/private stakeholder spending, and foreign tourism spending after the event under the low, core and high scenarios with a comparison of each scenario on page 20. The information withheld from pages 21 and 22 includes a breakdown of costs between host country and PGA European Tour. This includes who covers what costs i.e. host country (tournament fee, local authority costs etc.) PGA European Tour (staging, ticketing, sponsoring, TV production etc.) Finally, information withheld from pages 25, 32 and 34 includes additional direct spending, net benefit, net Gross Value Added impact and exchequer revenues.
Section 36 – Commercially Sensitive Information
Section 36(1) provides for the refusal of the request where the record contains–
b) 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,
c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.”
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 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 that could occur must be specified with a reasonable degree of clarity.
Under section 36(1)(c), access to a record must be refused where 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 relatively low. 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.
Fáilte Ireland said the stakeholders and bodies who provided information to EY were not FOI bodies, nor was their engagement directly with Fáilte Ireland. It said that for example, Ryder Cup Europe provided EY with confidential details on the percentage of spend which was with Italian suppliers for the Ryder Cup 2023 in Italy and this was an important assumption for the EY model. It said the study includes assumptions regarding the cost of hosting the Ryder Cup in 2027 and some of these costs are public and will be paid by the Government and some of the costs are private and will be paid by Adare Manor. It said the competitive position of Adare Manor to procure services, such as course upgrades, could be impacted if the assumptions regarding costs are released to the public.
Fáilte Ireland said the Irish State, in the form of various Government Departments, Local Governments and a number of State Agencies are actively engaged in public tenders related to the delivery of the Ryder Cup. It said that providing information relating to overall public cost of elements of the event is signalling to the market the anticipated cost ceiling and impeding the ability of the State to effectively negotiate the appropriate value for money for the exchequer. It said that, as an example, the Government will need to procure services for infrastructural upgrades around the course area. It argued that if assumptions on the likely public expenditure needed for hosting the event are released, then the Government’s negotiation position will be hindered as potential clients will see this as an indication of how much government is willing to spend and this could prejudice the conduct or outcome of its ongoing or future negotiations with the service providers.
The Department relied on the submissions it provided to Fáilte Ireland. In those submissions, the Department said certain information contained within the study should be refused release on the grounds of section 36(1)(b). While the Department did not rely on section 36(1)(c), it did make submissions under 30(1)(c) of the Act which are also potentially relevant to 36(1)(c). The Department said it is currently engaged with Ryder Cup Europe in comprehensive host nation agreement contract negotiations. It said should some of the information contained within the study be released to the general public, this could result in Ryder Cup Europe being in possession of information which could affect negotiations carried on by the Government. It said releasing the record could result in the host nation agreement negotiations becoming leveraged against the State resulting in a potential added financial obligation on the State.
EY said that with regard to section 36, the following information would all have the potential to jeopardise the competitive position of a number of parties and have the potential to impact ongoing or upcoming procurements or negotiations: assumptions and data relating to the tournament fee (pages 7, 8, 12, 18, 32) who covers what costs and types of costs (page 22), the proportion of PGA spend placed with Irish suppliers (pages 16-20) absolute costs by cost type (pages 20, 23). EY said if the tournament fee values that Fáilte Ireland/Ryder cup were assuming for planning purposes become known, they would have the potential to skew negotiations with the counterparties. It said with regard to the proportion of PGA spend with local suppliers, again, knowing these values would place the PGA at a disadvantage with local suppliers who might gain a negotiation advantage using the knowledge of a certain level of pressure or assumption that the PGA will spend with them locally rather than overseas alternatives.
Ryder Cup said that although it has not seen a copy of the report, it was requested to give certain information for use in its compilation. It said such requested information included commercially sensitive details, including operating costs of staging the 2023 Ryder Cup in Rome, which it shared in confidence at the time. It argued that public disclosure of this information could adversely affect its commercial position, especially with regard to its current ongoing negotiations with suppliers for the 2027 Ryder Cup, given that this information includes details on catering costs, staging costs and TV production (which, if known, could be used to undermine its current negotiating position). It said all requested information was given, in good faith, on the understanding that it was for internal planning purposes only and would be kept confidential. It said for this reason it would object to the release of the report.
On the matter of the applicability of section 36(1)(b), notwithstanding that the standard of proof is quite low, I am not satisfied that it has been satisfactorily shown that the release of the withheld information at issue might give rise to the harms identified in that section. I note Fáilte Ireland’s argument that Adare Manor’s competitive position when procuring services such as course upgrades could be impacted if assumptions regarding costs are released to the public. While the report does contain an estimate for Irish private stakeholder spending, this figure does not appear to relate to spending by Adare Manor on procuring upgrades. I note in this regard that Appendix A contains key assumptions which relate to each scenario presented in the study. One of the assumptions under organisational impact states “The potential investment required to upgrade the current venue in Adare Manor is unknown to date and will not be taken into account because it would have a return which could offset the investment cost.” I am not satisfied that there is information in the report that could affect the competitive position of private stakeholders such as Adare Manor. While the Department argued that certain information contained within the study should be refused release on the grounds of Section 36(1)(b), it did not specify which information or why such information is exempt under section 36(1)(b). I am not satisfied that the Department has satisfactorily explained why section 36(1)(b) applies. I find that section 36(1)(b) does not apply to the information withheld from the study.
On the matter of the applicability of section 36(1)(c), Fáilte Ireland said releasing information relating to the overall public cost of elements of the event could impede the ability of the State to effectively negotiate and it gave the example of infrastructural upgrades around the course area. The report does contain an estimate for public costs for elements of the event. Pages 16 to 20 contain estimates for public spending based on low, core and high scenarios and pages 21 and 22 contain percentages and estimated figures for host country spending on tournament fee, local authority costs, marketing, tournament supports, delivery costs, transport, security, contingency. I note however that host country appears to include public and private stakeholders. It seems to me that these are quite high-level figures and it is difficult to see how they could give parties to negotiations an insight into what the state would be willing to pay to procure various services. The estimate for public spending for example varies very significantly between low and high scenarios and again this is an overall figure. Looking at the more granular example given by Fáilte Ireland of negotiations for infrastructure upgrades around Adare, I note that Appendix A states “The investment on permanent infrastructure that will be used after the event should not be taken into account in the economic impact of the event to avoid overestimating its cost. These investments would leave a long-lasting legacy and would occur with or without the Ryder Cup event. The spending on temporary infrastructure used for the event is taken into account.” Appendix A also states “The investment required regarding the Adare bypass will not be taken into account in the economic impact study. The road will be delivered sooner than planned but would have been built regardless.” It is clear, therefore, that permanent infrastructure upgrades by the state are not taken into account. I am not satisfied that release of the redacted parts of the study could impede the ability of the State to effectively negotiate in relation to infrastructural upgrades or other costs associated with this event.
I note that the Department said it is currently in engaged with Ryder Cup Europe in host nation agreement negotiations and release of withheld information could affect those negotiations. I also note that EY said if the tournament fee values become known, they would have the potential to skew negotiations with the counterparties. The Department’s submissions were made to Fáilte Ireland approximately two years ago in July 2024. The Department was provided with an opportunity to make further submissions during the review and chose not to do so. It appears to me that certain information about the costs of hosting the Ryder Cup is publicly available. I note that the Oireachtas website contains information about core terms of the host nation agreement including licence fee, additional support for Irish Golf Tour Events and the provision of a sum of money for marketing costs. This information is available at: https://ombudsmanie.sharepoint.com/:w:/r/sites/OIC/_layouts/15/Doc.aspx?sourcedoc=%7B63DFD62E-29EC-494D-AD39-4F41B538948B%7D&file=0.%20OIC-155743-W0V7Y7%20Anonymised%20Decision.docx&action=default&mobileredirect=true
I am not satisfied that release of the redacted information could negatively affect the host nation agreement negotiations. I also note that Fáilte Ireland released information about the tournament fee which is contained in the report to the applicant during the review as this information is in the public domain. The issue of releasing tournament fee information and whether this could skew negotiations with third parties does not therefore arise.
Finally, I note that Fáilte Ireland stated that Ryder Cup Europe provided EY with details on its spend with Italian suppliers for the Ryder Cup 2023 and in its submissions to this Office, Ryder Cup said it provided information on catering costs, staging costs and TV production for the 2023 Ryder Cup in Rome. It argued that public disclosure of this information could adversely affect ongoing negotiations with suppliers for the 2027 Ryder Cup. I note that page 21 contains a break down of costs as between the host country and the PGA tour and this includes costs for marketing/tv production, golf course/staging, ticketing/catering/ hospitality. However, I also note that Appendix A of the report states that “The total spending also includes the organisational spending of the Ryder Cup Organising Committee. At the time of writing, we have not received detailed and up to date spending from the Rome Ryder Cup 2023, and so relied in the initial assumptions on cost from the France 2018 Ryder Cup to detail the spend by PGA in the host country. These costs have been uplifted with relevant inflation rates to update the numbers.” It appears, therefore, that while Ryder Cup provided information on the operating costs of staging the 2023 Ryder Cup, this information had not been provided to EY by the time this report was completed on July 2024. The figures used in the report relate to the 2018 Ryder Cup, albeit with an uplift for inflation, this information is now 8 years old. Given the passage of time, I am not satisfied that release of this information could reasonably be expected to affect ongoing negotiations with suppliers for the 2027 Ryder Cup. I find therefore that sections 36(1)(b) and (c) do not apply to the information withheld from the study.
Section 35(1) – Information obtained in Confidence
Fáilte Ireland relied on section 35(1)(a) and (b) in refusing access to parts of the study. Section 35(1) provides that an FOI body shall refuse to grant an FOI request if:
• the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
• disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law.”
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider.
In its submissions, Fáilte Ireland stated that certain information was provided to it and to the Department and EY on the understanding that it would be held in confidence. In particular, it said information was obtained from Ryder Cup Europe in relation to previous iterations of hosting the event and information was provided in confidence from foreign Government entities from their experiences of hosting the event. Fáilte Ireland said in its opinion the information provided in confidence is protected from disclosure under section 35(1)(a) of the Act. It said the specific information includes cost of the Ryder Cup to the public which was not finalised, direct spend of PGA which is commercially sensitive to PGA and net impact.
The Department’s submissions are reflected in Fáilte Ireland’s submissions above. It also stated that cost benefit analysis are a commonly used tool in the overall submission for approval to Government to host Major International Sports Events. It said in order for the information contained within the analysis to be as accurate as possible, to allow Government to make an evidence based decision, these cost benefit analysis must include key information from previous iterations in other jurisdictions which is always provided in confidence. It said the potential negative scenario from releasing confidential information is that it would prejudice its ability to obtain this information in the future and could result in a Government decision being made which could result in a negative economic impact for the public finances.
EY stated that certain information was provided to it which was necessary in order to allow it to complete calculations and certain assumptions were absolutely provided in the expectation they would remain confidential. It said without that understanding, it believes the information would not have been furnished to it. This Office requested EY to clarify which information was provided in confidence, who provided this confidential information and why EY said this information was provided in the expectation that it would remain confidential. In reply, EY said the information was the tournament fee, it was provided by Fáilte Ireland having received it from the relevant parties and this information was provided in confidence because the values are commercially sensitive and they would not want them disclosed or published.
Ryder Cup’s submissions which cover both sections 35 and 36 are outlined above. In essence, it said information on the costs of staging the 2023 Ryder Cup in Rome was shared in confidence and disclosure of this information could adversely affect ongoing negotiations with suppliers for the 2027 Ryder Cup.
In the request for submissions to Fáilte Ireland, the Investigator noted that section 35(2) provides that the exemption at 35(1) does not apply to certain records prepared by a service provider to an FOI body and it appeared that the record in question was prepared by a service provider on behalf of Fáilte Ireland. She therefore asked it to show that disclosure of the information contained in the record would constitute a breach of a duty of confidence provided for by agreement, statute or otherwise by law.
In its submissions, Fáilte Ireland agreed that Ernest and Young is a service provider acting on behalf of Fáilte Ireland and the Government of Ireland. It said communications and information was provided to EY by stakeholders and bodies who were not FOI bodies.
As the study was prepared by a service provider to an FOI body, I must consider whether disclosure of the redacted parts of the study would constitute a breach of a duty of confidence provided for by agreement, statute or otherwise by law.
Fáilte Ireland did not specifically argue that release of the study would constitute a breach of a duty of confidence provided for by agreement or by statute. It did however refer to a service level agreement with EY. It said:
“A review of the record was undertaken, and it was our intent to try and part-grant the request, however most of the document would have been refused so partial release in this instance may have given an incomplete picture and may have been misleading. Therefore, as per section 18(2) a decision was made to refuse in its entirety. Furthermore, the service level agreement between Fáilte Ireland and Ernest and Young stipulates that: Once the Final Report has been made publicly available on a website that you control, then each of us may provide copies of the Final Report (without altering, editing or modifying its contents) to any other party in print or by email. Due to considerations relating to FOI as set out in this response, Fáilte Ireland is not in a position to publish the report at this juncture and the release of a redacted document would be contrary to the service level agreement.”
After Fáilte Ireland’s submission and following communications with this Office, it did in fact decide to release a redacted version of the study to the applicant. It is clear from the service level agreement that Fáilte Ireland can publish the final report on its website and can provide a copy of the agreement to any third party. For the avoidance of doubt, I am not satisfied that release of the remainder of the study would constitute a breach of a duty of confidence provided for this service level agreement.
A duty of confidence provided for “otherwise by law ” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338, Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J. summarised or restated the requirements of what he called“the contours ” of the equitable doctrine of confidence as follows:
1) “the information must in fact be confidential or secret: it must ... ‘have the necessary quality of confidence about it’;
2) it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3) it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
I have adopted this approach in considering whether disclosure of this report would constitute a breach of an equitable duty of confidence in this case.
There is a certain amount of financial information in the public domain about the economic impacts of the 2018 and 2023 Ryder Cup’s. Sheffield Halham University has carried Economic Analysis Reports on previous Ryder cups which are cited as sources in Appendix C of the EY report. Publicly available information includes for example that:
“ The 2023 Ryder Cup in Rome generated €262 million in economic activity for Italy. The figure represents an 11% increase over the €235 million generated during the 2018 Ryder Cup in Paris. More than 271,000 spectators from 100 different countries attended the tournament in Rome. Spectators staying in paid accommodation in Rome during Ryder Cup week generated more than 318,000 commercial bed-nights, which was worth €34million in revenue for the local accommodation sector. There was €72million in non-accommodation related expenditure by spectators.”
Fáilte Ireland has said that the report contains confidential information provided by Ryder Cup Europe for example details on the percentage of spend which was with Italian suppliers for the Ryder Cup in Italy which it said was an important assumption for the EY model and was provided to EY on the understanding that this information was confidential. I accept that this information is not in the public domain, however as outlined above EY specifically state that at the time of writing the report they had not received up to date spending from the Rome Ryder Cup 2023, and so they relied in the initial assumptions on cost from the France 2018 Ryder Cup to detail the spend by PGA in the host country and those costs were adjusted to reflect inflation rates. The information relating to Ryder Cup spending is almost 8 years old and the figures in the report do not represent the actual costs as they have been adjusted for inflation. For these reasons, I am not satisfied that the withheld information concerning the spending by the Ryder Cup has the necessary quality of confidence about it.
Finally, I note that the study is marked “Confidential – Not for Distribution”. Where records are marked “Confidential” or something similar, this may be a relevant consideration. However, the Commissioner takes the view that such labelling is not sufficient, in the absence of other evidence establishing the necessary quality of confidence, to impose an obligation of confidence with respect to the records concerned. In this case, I am not satisfied that sufficient evidence establishing the necessary quality of confidence has been provided. I find therefore that disclosure of the study would not constitute a breach of a duty of confidence owed to the Ryder Cup Europe or any other stakeholders or bodies. For the reasons outlined above, I find that section 35(2) serves to disapply section 35(1) in respect of the study.
Section 29 – Deliberative processes
Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.
Failte Ireland’s said the study relates to an event due to take place in 2027. It said the study informs the deliberations and decision-making process of the Department and Fáilte Ireland in respect of this event. It said withholding parts of the study is necessary to protect the deliberative process so that the formulating, considering, weighing up, advising and deciding on issues is not interfered with.
For section 29(1)(a) to apply, the records must contain matter relating to the ‘deliberative process ’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to that process. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
Page 5 of the study states:
“This study has been carried out for Fáilte Ireland and the Government of Ireland and is for internal use only. It relies on confidential data and delivers insights that should not be shared with a wider audience. The main purpose of this economic impact study is to support decision-making. To do so, the analysis should be robust and objective. It relies on prudent assumptions based on previous impact studies of Ryder Cup competitions held in Europe…”
Having considered Fáilte Ireland’s submissions and examined the record, I accept that the purpose of the record was to support the decision-making process of the Department and Fáilte Ireland in respect of the 2027 Ryder Cup. It seems to me that the process of creating the report involved the gathering of information from a variety of sources and the careful consideration of this information with a view to helping Fáilte Ireland and the Department to evaluate different options, proposals or courses of action with respect to the hosting of 2027 Ryder Cup. I satisfied that the record relates to the deliberative process of an FOI Body and I find that section 29(1)(a) applies to the record.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
Fáilte Ireland’s Submissions
In its submissions to this Office, Failte Ireland said the main purpose of this study is to support decision-making therefore to release it at this juncture will negatively impact this. It said the report uses assumptions around public expenditure for the delivery of the event and release of this information could negatively impact the procurement of expenditure. It said the Government considers these events as significant with the 2006 event having generated 143 million to the Irish economy. It said the effect of losing such business in future and a damaged reputation due to negative publicity is substantial by any measure. It said it remains of the view that the public interest does not favour release of this information as the likely harm that would be caused to the relationship between Fáilte Ireland and those who contributed to the paper and who are essential to the winning of this type of business, far outweigh any possible benefit to the public by release of this information.
Analysis
The time at which records are released may be significant. For example, it is possible that release of a particular record at a particular point in time would be contrary to the public interest, but that with the passage of time this would no longer be the case. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply. It is possible, for example, that the release of sensitive information may be premature in situations where the deliberative process is at an early stage or ongoing. On the other hand, if the deliberative process is at an end, the need to withhold the release of the information may be weakened.
I note that in its submissions to this Office, Fáilte Ireland said the Department requested it to update the Economic impact study on hosting the Ryder Cup. It said an original study had been undertaken prior to COVID-19 and the inflation crises. It said at the time the Ryder Cup was due to take place in 2026, before being postponed to 2027, and it was thought that these factors may have a knock-on effect on the cost and potential benefit of hosting the event. It said there were several meetings with the Department during the evaluation. It said the current status is that the Economic Impact Study was completed to a satisfactory standard and there are no further deliberations. It said there may be a post-event analysis undertaken to check the assumption used and the accuracy of the pre-event Economic Impact Study.
I accept that the main purpose of this economic impact study was to support decision-making by Fáilte Ireland and the Department in relation to the Ryder Cup. I accept Fáilte Ireland’s contention that major sporting events such as the Ryder Cup generate large sums of money for the Irish economy and I note that it wishes to maintain strong relationships with Ryder Cup Europe. However, two years have now passed since the study was completed. Failte Ireland have said there are no further deliberations in relation to the study. The information in relation to Ryder Cup expenditure dates back 8 years to the Ryder Cup in Paris. For the reasons outlined above, I am not satisfied that the withheld information is commercially sensitive or confidential. Nor am I satisfied that it is reasonable to expect that the effect of releasing the withheld information would be the loosing of major sporting events in future and damaged reputation and relationships due to negative publicity. I am not satisfied that Fáilte Ireland has shown that granting access to the remaining parts of the study would be contrary to the public interest and I find that it was not justified in refusing access to the information at issue under section 29(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Fáilte Ireland’s decision. I find that Fáilte Ireland was not justified in refusing access to the withheld parts of the Economic Impact Study under sections 29(1), 35(1)(a) or (b) or 36(1)(b) or (c) of the FOI Act and I direct the release of the withheld parts of the study to the applicant.
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