Case 99114

Request for access to details of the sum paid by the Council to purchase Flowerhill House under a compulsory purchase order - whether disclosure could reasonably be expected to prejudice the Council's negotiating position (as well as that of other Local Authorities) - section 21(1)(c) - whether information given in confidence - section 26(1)(a) - whether personal information about the former owners - section 28 - public interest

Case Summary

Facts

The requester sought access to details of the sum paid by the Council on foot of the compulsory purchase order on Flowerhill House. The Council claimed that release could reasonably be expected to prejudice the negotiating position not only of Meath County Council but of local authorities in general. It claimed that it had always treated such information as confidential and also claimed that the information amounted to personal information about the former owners of Flowerhill House.

Decision

The Commissioner found that it was not reasonable to expect that the release of details of the final sum paid, rather than details of any negotiations that may or may not have occurred leading to settlement on that figure, would have negative consequences for the negotiating capacity of Meath County Council, or of local authorities generally. He found that section 26(1)(a) did not apply as the sum paid could not be described as information given in confidence; rather it was information which revealed the outcome of a statutory process. In respect of the Council's claim that details of the sum paid amounted to personal information about the previous owners, he found that the information did not meet the requirements of the definition of personal information, contained in section 2 of the FOI Act. He found that the potential for any member of the Council to table a question or motion seeking details of the sum paid, suggested that such information could never be kept confidential. The Commissioner also commented that even if he had considered that any of the exemptions applied to the information sought, he would have found that the public interest warranted release.

Date of Decision: 26.02.2001

Our Reference: 99114

26.02.2001

(name of staff member of Meath Association An Taisce)

Dear (name of staff member of Meath Association An Taisce)

I refer to your application for a review of the decision of Meath County Council, under the Freedom of Information (FOI) Act, to refuse to provide you with details of the sum paid by the Council to purchase Flowerhill House under a compulsory purchase order. Your original FOI application to the Council was made on 6 January 1999.

At the outset, please accept my apologies for the delay in bringing this matter to a conclusion. I appreciate that you would have wished to obtain a decision at an earlier date but unfortunately, due to the large number of cases pending before me, this did not prove possible.

In summary, I have decided to annul the decision of Meath County Council in this case and direct that it provide you with details of the sum paid to purchase Flowerhill House. My findings and decision are set out below.

Background

In reviewing this case I have had regard to the following matters -

• The correspondence which passed between you and Meath County Council in relation to your Freedom of Information request of 16 January 1999,
• Your application to this Office, dated 15 March 1999, for a review of the Council's decision,
• Telephone submissions from you dated 6 September, 22 October 1999 and 31 October 2000,
• Written submissions from you dated 3 May 1999 and 30 October 2000,
• Correspondence between my Investigator Mr. Tallon and Meath County Council,
• Written submissions from Meath County Council dated 26 April 1999, 13 May 1999, 31 May 1999 and 4 December 2000,
• The provisions of section 84 of the Housing Act 1966 and the Third and Fourth Schedules of the same Act,
• The provisions of the Freedom of Information Act, 1997.

I also note that my Investigator, Mr. Tallon set out his detailed observations to Meath County Council in a letter dated 14 November 2000.

During the course of my review in this case my Office made efforts to contact the previous owners of Flowerhill House in order to ascertain their view. These efforts proved unsuccessful.

Scope of Review

The only matter on which I must decide in this case is whether or not Meath County Council was justified in its decision, as notified to you in Mr. Neil Cassidy's letter of 12 March 1999, to refuse to provide you with details of the sum paid by the Council to purchase Flowerhill House.

Findings

As you are aware, the Council initially refused access to the information sought on the basis of claims for exemption under section 27(1)(b) and 27(1)(c) of the FOI Act. Section 27 protects records containing information which is commercially sensitive. In subsequent submissions the Council argued that it had always treated information of this nature (i.e. price paid in the case of a compulsory purchase) as confidential and made further arguments that disclosure of the sum paid in this case could reasonably be expected to prejudice the negotiating position not only of Meath County Council but of local authorities generally. In its final submission the Council also claimed the information was exempt under section 28 of the FOI Act.

The onus of proving that a particular exemption applies rests on the public body. Having considered the arguments put to me by the Council in relation to its section 27 claims, I am satisfied that it has not provided me with any evidence which would demonstrate the harm envisaged by either section 27(1)(b) or 27(1)(c). Accordingly, I find that the Council has not discharged that onus in relation to the exemptions claimed under section 27.

I take the Council's argument that disclosure could reasonably be expected to prejudice its negotiating position (as well as that of other local authorities) to be a claim for exemption under section 21(1)(c) of the Act. I have difficulty in accepting that the release of the information requested in this case, the final amount paid rather than details of any negotiations that may or may not have occurred leading to settlement on that figure, could have the adverse effect envisaged by section 21(1)(c). I do not accept that it is reasonable to expect that release of details of the sum paid will have negative consequences for the negotiating capacity either of Meath County Council or of local authorities generally. I find that section 21(1)(c) does not apply in this case.

It is not clear whether the Council's claim in relation to confidentiality is a claim for exemption under section 26 of the Act. If so, I am satisfied that such a claim is not sustainable in this particular case. In relation to 26(1)(a) this is because the information sought does not consist of "information given to the public body concerned in confidence"; rather, it consists of information which reveals the outcome of a statutory process i.e. the compulsory purchase order. It is possible that, in the course of a statutory process, information would be given in confidence and that section 26 might apply to such information. However, I do not accept that this present case represents such a situation. In relation to section 26(1)(b), no argument has been put forward to the effect that the release of the information would constitute the breach of a duty of confidence provided for by a provision of an agreement or enactment or the breach of an equitable duty of confidence.

The final claim made by the Council is that the amount paid on foot of the compulsory purchase order constitutes personal information in relation to the previous owners of Flowerhill House and that section 28 of the Act therefore applies. Section 2 of the Act defines personal information as information about an identifiable individual that -

"(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by the public body on the understanding that it would be treated by it as confidential."

The Council has argued that there was an understanding of confidentiality in relation to its dealings with the owners in this and in all similar cases. My officials had no success in contacting the former owners of Flowerhill House and there is, therefore, no evidence available to me to suggest that they had such an understanding. A question must arise, however, as to whether it was ever realistic, or indeed appropriate, for the Council to give the impression that the amount paid for the compulsory purchase of Flowerhill House would be kept confidential. The potential for any elected member of Meath County Council to table a question or motion seeking this information would suggest that such confidentiality could never be assured. In view of this I am satisfied that the amount paid does not fall within either part (a) or part (b) of the definition of "personal information" as defined in section 2 of the Act. Accordingly, I find that the protection of personal information, provided at section 28, does not apply either.

Public Interest

Given my findings that sections 21, 26, 27 or 28 do not apply, it is not strictly necessary for me to consider the public interest in this case. However, in view of arguments put to me by Meath County Council, I consider it appropriate to comment on this aspect of the matter.

In response to correspondence from my Office, the Council acknowledged that the public has a right to ascertain that funds from the public purse are legally spent and properly accounted for. It also argued, however, that there are already audit procedures in place which serve this purpose, namely the annual Local Government Audit, and that the positive public interest in the release of the information is not particularly strong in the absence of circumstances which suggest the possibility of the misuse of public funds.

These arguments appear to make the point that the requirement for openness in the use of public funds is subject to the existence of circumstances which suggest wrongdoing. I cannot agree. It is of course correct to say that openness in the use of public funds is a significant aid in the prevention of fraud and corruption or the waste or misuse of public funds. It is, however, also essential to ensuring effective oversight of public expenditure, to ensuring that the public obtains value for money and to the promotion of accountability generally. All of these matters are of equal importance, none of which should be considered in isolation.

In considering whether the public interest that the request should be granted might outweigh the public interest that the right to privacy of the former owners of Flowerhill House be upheld, I am cognisant of the fact that moneys paid on foot of a compulsory purchase order are compensatory in nature and related to the development value of the land in question. It seems to me that, having regard to the particular circumstances prevailing in any county, the development value of land at any point in time is likely to be known with reasonable accuracy by all parties interested in such matters. It is difficult to see therefore how the release of the actual sum paid would significantly impact on the right to privacy of persons to whom it was paid.

I attach a significant weight to openness in the use of public funds. Even if I were to have found that sections 26, 27 or 28 of the Act applied, I am satisfied that the public interest would, in any event, warrant release of the information requested in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the decision of Meath County Council as notified to you in Mr. Neil Cassidy's letter of 12 March 1999, and direct that the Council provide you with details of the amount paid by it to purchase Flowerhill House.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner