Case 030095. Request for records relating to the acquisition by a local authority of a number of properties - whether release could prejudice the local authority's negotiating position - section 21(1)(c) - public interest - section 21(2).

Case Summary

Facts

The requester sought information, including the sale price and valuation reports, in relation to the acquisition by the Town Council of a number of properties. The Town Council refused access to the records on the grounds that they were exempt under section 21(1)(c) as release could disclose positions taken or plans, procedures etc used or followed for the purposes of negotiations carried out by, or on behalf of the Town Council. The Town Council also refused access on the grounds that the records were exempt under section 27 as they contained commercially sensitive information and/or disclosure could prejudice the conduct or outcome of contractual or other negotiations.

Decision

The decision found that section 21(1)(c) did not apply to the contracts for sale for the properties in question as these records contained factual, rather that 'proposal-type' information but that section 21(1)(c) did apply to the valuation reports. However, the decision found that in view of the time which had elapsed since the valuation reports were written, and the fact that the negotiations for the properties to which they related had concluded, the Council's expectation that disclosure of the valuation reports could have significant adverse consequences for its current negotiating capacity was not reasonable. The decision found that the public interest would be better served by release of the records. It was noted in the decision that although it was unclear whether section 27 may be invoked by public bodies to protect their own interests, even if it were found that the information was exempt under section 27(1), section 27 is subject to the same public interest test as section 21 and it was considered that the public interest would be better served by releasing the information. The decision found that certain portions of four of the records contained personal information which was exempt under section 28(1).

Date of Decision: 04.09.2003

Our Reference: 030095

04.09.2003

Mr X

Dear Mr X

I refer to your application to the Information Commissioner for a review of the decision of Ennis Town Council on your Freedom of Information (FOI) request of 13 December 2002 for records relating to the Town Council's acquisition of a number of properties in Ennis.

I have been authorised by the Information Commissioner to carry out this review on her behalf.

Background

In your FOI request you sought the following records:

• Details of the sale price, including a copy of the valuation report and date of sale for the houses located at Carmody Street, as sold by the Town Council.
• Details of the purchase price including a copy of the valuation report and date of purchase for the house located at Drumbiggle and Buttermarket, Ennis, as purchased by the Town Council.
• Details of the sale price including a copy of the valuation report and date of sale for the house located at The Market, Ennis, as sold by the Town Council.

The Council identified five records as falling within the scope of this request. Following discussions with this Office, the Town Council identified a further record falling within the scope of this request, viz a Contract of Sale for "Simms Mews", Buttermarket. The Town Council refused access to these six records on the grounds that the records are exempt under section 27 and section 21(1)(c) of the FOI Act.

In carrying out this review I have had regard to the Town Council's conclusions on the matter and to its submission to this Office; I have taken account of your submissions to the Town Council and to this Office. I have also examined the relevant records. I have carried out this review in accordance with the provisions of the Freedom of Information Acts 1997 and 2003. Accordingly, all references in this letter to particular sections of the FOI Act, unless where otherwise stated, refer to the FOI Act, 1997 as amended.

Scope of Review

The scope of this review is confined to the issues raised in your application to the Town Council for an internal review of their original decision and your application to this Office for a review of that decision namely, whether or not Ennis Town Council was justified, in accordance with the provisions of the FOI Act, in its decision to refuse access to the six records.

Findings

Section 21(1)(c) - Negotiating positions of public bodies Section 21(1)(c) provides:

"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-

..........(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purposes of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body."

Generally speaking, paragraph (c) is designed to protect negotiating positions or plans etc. from being disclosed directly or indirectly to other parties. The Commissioner accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 21(1)(c).

With regard to the Contracts of Sale for 11 and 13 Carmody Street (Record No.s 5 and 30) and the Contract of Sale for "Simms Mews", the negotiations for these properties have obviously concluded and the records in question contain only factual information. The records disclose the actual prices paid for the properties which could not be regarded as 'proposal-type' information. I find therefore that section 21(1)(c) does not apply to these records and, except they are protected by some other exemption provision in the FOI Act, that they should be released.

The remaining records (Record No.s 1, 2 and 19) are valuation reports and I consider that release could disclose positions taken or plans, procedures etc. used or followed for the purposes of negotiations carried out by or on behalf of the Town Council. Accordingly, I find that section 21(1)(c) applies to these three records. However, section 21(1)(c) is subject to a public interest test at section 21(2).

Section 21(2) - Public Interest Section 21(2) provides:

"Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

A record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations and even if such positions, plans etc are of no conceivable relevance to any current or future negotiations.

In Decision No. 98166 - involving the Department of Enterprise, Trade and Employment - the Commissioner stated:

"While section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm and disclosures which do not, it seems to me that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of negotiations. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to such records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test."

The Town Council argues that it is currently in negotiations to acquire two additional properties on Carmody Street and that release of the prices paid for the Carmody Street properties already bought would confer an advantage on the owners of the two additional properties. It argues that release of the prices already paid for Carmody Street properties would be of "significance" and that this information is "clearly sensitive".

In view of the time which has elapsed since these valuation reports were written and the fact that the negotiations for the properties in question have concluded, I do not consider it reasonable to expect that disclosure of these reports will have significant negative consequences for the current negotiating capacity of the Town Council. On the other hand, I consider that there is a strong public interest in members of the public exercising their rights under the FOI Act and in public bodies being open and accountable, particularly in relation to the use of public funds. In the circumstances, I find that the public interest would on balance be better served by releasing this information.

The Council has also argued that your interest in this information "is not on behalf of the public but a specific private interest as he is engaged to act for a client in a consultative capacity". It is important to be clear, as provided at section 8(4) of the FOI Act that in the normal course the reasons, given by or attributed to a requester in seeking information, are not to be taken into account by the decision maker. It may well be that release of this information to you will serve your own professional or commercial interests; however, what matters in this context is whether release will serve the public interest. In this particular case, I am satisfied that release of the information sought serves the general public interest in transparency in relation to the activities of public bodies and accountability in relation to how public bodies use public funds. This public interest is not dependent on the identity of the particular requester but is one which exists irrespective of the identity of the requester.

Section 27 - Commercially Sensitive Information The Town Council has also relied on section 27 in refusing access to all records. Section 27 provides:

"(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains -

(a) trade secrets of a person other than the requester concerned,

(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, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Although it is unclear whether section 27 may be invoked by public bodies to protect their own interests, even if I were to find that the information was exempt under section 27(1), this section is subject to the same public interest test as section 21. For the reasons detailed above, I consider that the public interest in this case would on balance be better served by releasing this information and therefore I find that the Council was not justified in refusing access to these records in accordance with section 27.

Section 28 - Personal InformationSection 28 provides that a head shall refuse to grant a request if access to a record would involve the disclosure of personal information. Record No.s 1, 5, 30 and the Contract of Sale for "Simms Mews" contain personal information in relation to a number of vendors eg. names, addresses and spouses' names. I have considered whether any of the exceptions in section 28(2), (5) or (6) apply in this case and I find that they do not. I should also add that this information was not the subject of your original request. I have therefore decided to refuse access to the following parts of these records:

Record No. 1: Page 1 Vendor's name and address after 'Re.' Paragraph 1 - Vendor's name. Paragraph 2 - Text from start of first sentence to 'is not interested'. Page 2 Last paragraph - Vendor's name.

Record No. 5: Page 1 Vendor's name. Page 2 Paragraph 1 - Vendor's spouse's name and vendor's name. Paragraph 2 - Second line - Vendor's name. Vendor's signature. Page 7 Vendor's name.

Record No. 30 : Page 1 Vendor's name. Page 2 Vendor's name and address.

Record: 'Conditions of sale for "Simms Mews" Page 1 Vendor's name. Page 2 Vendor's name and vendor's signature.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended I hereby annul the decision of Ennis Town Council in this case and direct that the Town Council grant you partial access to Record No.s 1, 5, 30 and the Contract of Sale for "Simms Mews" and full access to Record No.s 2 and 19. The partial access to Record No.s 1, 5, 30 and the Contract of Sale for "Simms Mews" is in accordance with the deletions to these records identified above.

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

Yours sincerely

Fintan Butler
Senior Investigator