The Commissioner found that the IDA had not properly applied the provisions of the FOI Act in exempting excerpts of the report. Accordingly, the IDA's decision was annulled and a new decision was made that the report be released in full to the applicant. This decision was made and issued on 7 October, 2008.

Note: When decisions of the Information Commissioner are published, the normal practice is to anonymise the party/parties concerned, however, in this case, the Applicant has requested that his name be published.

Case Summary

Issue

Whether the IDA has properly applied the provisions of the FOI Act in exempting excerpts of a report prepared on behalf of the IDA into an exchange of lands between the IDA and the applicant's late relatives

Decision

The Commissioner found that the IDA had not properly applied the provisions of the FOI Act in exempting excerpts of the report. Accordingly, the IDA's decision was annulled and a new decision was made that the report be released in full to the applicant. This decision was made and issued on 7 October, 2008.

Date of Decision: 07.10.2008

Review Application to the Information Commissioner Freedom of Information Acts 1997 & 2003 (FOI Act)

Background:

On 8 August 2007 the applicant submitted a request under the FOI Act to the IDA for various records relating to the exchange of lands and construction of a replacement house for the applicant's late relatives, including records relating to an investigation into the matter sought by then Minister for Enterprise, Trade & Employment, Micheál Martin. On 5 September 2007 the IDA informed the applicant of its decision to release some records in full, others in part and to withhold further records in full, citing various sections of the FOI Act. The applicant sought internal review of this decision on 26 September 2007, to which the IDA responded on 10 October 2007 finding that one record exempted in the original decision should be released but upholding that original decision with regard to all other records. The applicant applied for review of that decision to this Office on 3 December 2007.

Following consultation and correspondence with this Office, the applicant agreed to limit the scope of this review to the report of the investigation requested by then Minister Martin which had been part released by the IDA. In the light of the amended scope of the review, officials of my Office corresponded with the IDA on their reasons for withholding various excerpts of the report under the following provisions of the FOI Act: 21(1)(a), 22(1)(b), 27(1)(b), and 28(1). My officials also consulted with eleven of the twelve third parties identifiable in the report whose identities had been withheld by the IDA. The correspondence with the third parties informed them that my officials' preliminary view was that the record, including all references to third parties, should be released in full to the applicant. The third parties were given an opportunity to comment on that preliminary view but were informed that non-reply would be interpreted as their having no objections to it. My Office did not correspond with the twelfth third party, Waterford County Council, as it is a public body subject to the FOI Act and the nature of its performance of its functions on this matter, in my view, meant that the exemption provisions cited by the IDA were not relevant for consideration.

Seven third parties confirmed to my Office that they either agreed with or had no objection to release of references to them in the report, following which confirmation the IDA released those references to the applicant (while it appears from the report that there are seven such third parties, it transpired that two separate services were provided by the same firm). Accordingly, I will not consider such references further in this decision. Two third parties did not respond, and, in line with the correspondence from my officials, I am taking it that those two parties have no objection to my officials' preliminary view that the report should be released in full. Nevertheless, for the avoidance of doubt on the matter, I have provided those parties with a copy of this decision to enable them to appeal it to the High Court on a point of law should they choose to do so. The remaining two third parties objected to my officials' preliminary view, and those objections are considered and responded to in the text of this decision. These parties have also been provided with a copy of this decision. My officials also continued to correspond with the IDA on the matter, and that body's bases for objection to release of the remaining elements of the report are also dealt with below.

For reasons of clarity for any parties interested in this decision, I have considered the objections of the IDA and the two relevant third parties in the context of the different exemptions cited with regard to the report as a whole rather than in piecemeal fashion for the many separate elements of it remaining withheld at this point.

Submissions

.

Findings

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that a decision of a public body to exempt a record from release is not justified unless it can be demonstrated to my satisfaction that the decision was, in fact, justified. Therefore the onus at all times lies on the public body to justify its decision. Also, while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where this is disagreement with a decision I might make. In the circumstances of this case, section 43(3) requires me to exercise caution with my consideration of the identity of a third party service provider and a former official of the IDA (I have no difficulty in the context of 43(3) in confirming that one of the identities at issue is of a former IDA official as it is clear from the parts of the report released to the applicant that, firstly, such a person was involved in the exchange of lands, and, secondly, that person's identity has been redacted from the parts of the report released to the applicant).

Analysis

As stated above, this decision deals with the exemption provisions cited by the IDA (and inferred from the submissions of the two relevant third parties) to justify its decision to withhold various excerpts of the report from release to the applicant. I will consider each exemption and basis for withholding the remainder of the record in the order cited by the IDA in its correspondence with my officials, and what I consider to be relevant points made by the IDA and the third parties in that correspondence. I have considered but not summarised in this decision points made in various stages of the correspondence by the IDA or the third parties that they have not sought to rely on following the correspondence with my officials.

Section 21(1)(a)

This section provides that

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

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof".

The IDA has argued that release of the withheld excerpts of the record would reveal comment on how different people performed their respective roles in the exchange of lands, and that such revelation would result in reduced co-operation from people in similar circumstances in any future investigation that the IDA may be involved in. While it accepted that it has secured full co-operation in the investigation relevant to this review, it argued that the exemption could be used to protect future investigations and that it was not necessary to have regard to a current investigation when invoking the provision. It cited a decision by my predecessor, in case number 99273, that investigations based on information received in confidence could prejudice such investigations or the procedures for conducting such investigations in the future. Accordingly, it contends that section 21(1)(a) applies to the withheld excerpts. My officials responded that the IDA had secured full co-operation in this investigation, both from serving and former employees, and had not provided any evidence to support their assertion that future co-operation would not be forthcoming if the excerpts in the report were released. My officials also pointed out that officials of public bodies are duty bound to co-operate with investigations into how that body, or the officials who work in it, performs its functions, irrespective of whether or not such a report may subsequently be made publicly available. Furthermore, my officials pointed out that the circumstances in case number 99273 were that my predecessor accepted information relevant to the investigation had been received and given in confidence, and that the IDA had not provided any evidence that this was the case in the investigation relevant to this review.

Having considered this correspondence, I agree with the points made by my officials and find that the IDA has not made a convincing argument in support of, nor produced evidence to justify, its position that release of this particular record would prejudice its ability to conduct similar investigations in the future. Therefore, I find that section 21(1)(a) does not apply to the withheld excerpts of the report.

The Public Interest

A number of the exemption provisions of the FOI Act, including section 21, have a public interest clause. This means that, even if it is the case that an exemption applies, a decision to exempt a record will not be justified where, on balance, the public interest would be better served by granting than by refusing to grant the request for access to the record. As I have found that section 21(1)(a) does not apply to the record in this case, it is not necessary for me to consider whether or not the public interest applies to the withheld excerpts.

Section 22(1)

The IDA initially cited sections 22(1)(a) and (b) in support of its decision to exempt the excerpts, but in later correspondence sought to rely on 22(1)(b) only. Therefore I will not consider 22(1)(a) further in this decision. Section 22(1)(b) provides

"A head shall refuse to grant a request...if access to the record concerned (b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court".

The IDA has informed my Office that two separate sets of legal proceedings relating to the land transfer are currently under way. It argues that release of the record in this context would create the risk that the course of justice would be severely impeded or prejudice, that it would create comment and interest that could influence witnesses called to give evidence in those court proceedings, that it could expose the report author and the IDA to judicial sanctions, and that these outcomes would amount to contempt of court. My officials informed the IDA that this Office did not accept that contempt of court would arise unless there was a court order prohibiting or limiting discussion on, or publication of, matters relating to the current legal proceedings. The IDA had not provided evidence of any such court order in this case. They also informed the IDA that it had not produced evidence to demonstrate how release of the record would prejudice the fairness of the proceedings or influence witness testimony.

My understanding of contempt of court is that for contempt to have occurred a party would have to contravene a court order or undertaking made to a court, commit an act of resistance to the court or engage in conduct liable to prejudice the trial of an accused person. I cannot see how such a scenario arises in the current case. Accordingly, I do not accept that either the record's author on the IDA would be subject to judicial sanction should the record be released. Also, although this argument has not been specifically put forward by the IDA, it is difficult to see how release of the record could prejudice the fairness of proceedings even if such proceedings existed. In its correspondence with my Office, the IDA has emphasised that the terms of reference of the investigation leading to production of the report excluded determination of matters subject to court proceedings. That being the case, I do not see how release of that report could prejudice those proceedings. Regarding the IDA point on witness testimony, all witnesses to court proceedings provide their evidence under oath, and I do not accept that possible media or other comment on a record released under FOI would lead a witness to give evidence under oath different to what that witness would otherwise have given.

For the reasons set out above, I find that section 22(1)(b) of the FOI Act does not apply to the record.

Sections 27(1)(b) and (c)

Although the IDA relied on section 27(1)(b) but did not seek to rely on 27(1)(c) in its original decision on this record, as it cited the latter provision in subsequent correspondence to this Office I have considered the case made by the IDA under both provisions. These sections provide as follows:

"....a head shall refuse to grant a request...if the record concerned 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, or

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

Section 27(1)(b)

The IDA initially argued that release of the report could damage the commercial interests of the third party service providers identifiable from the report as it contains commentary on how at least some of these third parties carried out the tasks for which they were contracted. In order to address any concern on this point, my Office consulted with all third parties identifiable from the report. The outcome of this consultation, as set out above, is that two third parties objected to references to them being released, three did not reply, and the remaining six confirmed that they had no difficulty with such release. The IDA also argued that release of the references to Waterford County Council would show the mechanism through which the Council acquired land in this case, and that this would adversely affect the Council's ability to acquire land in the future in the most effective manner.

Third party service providers

I am satisfied that the record contains some information of the type envisaged by section 27(1)(b) relating to persons, and that the harm feared in this case is that prejudice could occur to those persons (the service providers) in the conduct of their business or occupation. What I have to decide is whether the decision maker's expectation of harm is reasonable in the circumstances.

The IDA contended that release of comments in the report on particular service providers would damage those providers' professional reputations. My officials informed the IDA of their view that the record does not reveal the private business affairs of the third parties, any financial information in the record has been overtaken by events (the exchange of land took place in 2002), and any comment on the quality of the work of third parties is insubstantial and benign. My officials also pointed out that the Council is not in competition with other public bodies on the matter of land acquisition, and that it, as are other public bodies, is obliged to maximise value for money in any financial transaction it conducts on the public's behalf. One of the third parties that objected to release of the record made a number of additional points in separate correspondence with my Office. Those points were responded to, and as the third party has not availed of the opportunity given to them by my Office to make a further reply, I am taking it that their concerns have been addressed and do not intend to reproduce that correspondence in this decision. However, as that third party has not specifically stated that they no longer object to release of the references to them, I have copied this decision to them to preserve their right of appeal to the High Court.

Having considered the references to third parties in the report, the correspondence on the matter between the IDA and my Office, and the passage of time since the exchange of lands, I agree with the points made by my officials and find that the IDA has not made a sustainable case that release of the record would commercially damage the third parties in that the harm envisaged could not reasonably be expected to result from disclosure of the record. Accordingly, I find that section 27(1)(b) does not apply to the references to third parties.

There is one exception to this element of my finding. The IDA contends that the reputation of a particular firm which provided services relevant to the land exchange would be damaged by release of the record. Section 43(3) requires me to be circumspect on this point as that party's identity has been withheld from the applicant. I must have regard to that party's right of appeal to the High Court, even though that party did not respond to correspondence from my Office informing them that non-reply would be taken as that party having no objections to the references to them in the report being released. All I can reasonably say is that, given the nature of the references to that party in the report, I can accept that the party's reputation could be damaged by release of the report and such reputational damage could lead to financial loss for that party. Accordingly I find that section 27(1)(b) applies to those references.

The Public Interest

Like section 21, section 27 contains a public interest clause which provides that exemption on the grounds of commercial sensitivity

"does not apply in relation to a case in which...the public interest would, on balance, be better served by granting than by refusing to grant the request..concerned".

As I have found that section 27(1)(b) applies to the references to the relevant third party in the exception dealt with above, I must now consider where the public interest lies. In deciding whether or not to release a record on public interest grounds, the FOI Act requires me to strike a balance between the competing public interest factors in favour of release of a record against those favouring exemption of a record. In this case, the factors I considered in favour of release are:

• the accountability of a public body in the performance of its functions, to the public generally and in this case to the party directly affected by such performance (the applicant);
• the principles of openness and transparency in the conduct of public business; and
• demonstration of fairness in procedures, both in the way the public body performed its functions and the way it conducted the investigation into such performance.

The public interest factor I considered against release are

• the possible reputational damage to the service provider.

While it is regrettable that release of records under FOI might cause embarrassment or damage to any party, in this case I am satisfied that it was the contribution and judgement of the individual third party as opposed to any actions by the IDA which gave rise to the potential for damage to a reputation. While section 43(3) prevents me from going into more detail on this point for fear of identifying the third party, I can say also that there is no question of fraud or other wrongdoing in the information at issue. Therefore, in the circumstances of this case, I find that the public interest would, on balance, be better served by granting than by refusing to grant the request.

Section 27(1)(c)

The IDA has argued that this provision applies to protect ongoing negotiations with the applicant. It provides that

"....a head shall refuse to grant a request...if the record concerned contains

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

The IDA informed my Office that negotiations are ongoing with the applicant on resolution of the legal proceedings arising from the land exchange, and a settlement proposal has been sent to him in this regard. It is concerned that release of the record would prejudice the outcome of these negotiations. As the applicant has been provided with that proposed settlement, it is in order for me to refer to it here. The IDA also informed my Office that it would be prepared to release the record on conclusion of those proceedings, whether such conclusion is by settlement or formal court resolution. It has offered my Office sight of its records on this aspect of the matter.

It is not for me as Information Commissioner to comment one way or the other as to how the IDA performed its functions in this matter, nor as to how it is conducting the negotiations with the applicant. Therefore, I do not require sight of the records on that point. It is for me, however, to comment on how the IDA applied the terms of the FOI Act, and in this instance I am required to find whether release of the record in this case could (my emphasis) prejudice ongoing negotiations between the public body and the applicant. In that context, I must have regard to the wording of 27(1)(c). The test in that provision only requires that the prejudice could occur. This requires a relatively low standard of proof. However, the Commissioner has found in previous cases that some evidence of prejudice is required as opposed to assertions that this could occur. While the word "prejudice" implies a strongly negative effect, I am prepared to concede that there is a possibility that release of the record could affect the negotiations insofar as the report deals with the negotiations of the applicant as the representative of his late relatives. Arguably, it is the outcome of the negotiations from the applicant's perspective which could be prejudiced by release of the record as opposed to that of the public body - negotiations of public bodies are dealt with separately under section 21 of the Act which was not relied upon by the IDA in its decision to exempt the record at issue in this case. Given the relatively low standard of proof required to invoke 21(1)(c), I think it reasonable to take the view that the IDA is concerned that prejudice could occur and thus lead to the possibility of rejection by the applicant of its proposed settlement. In this case, I find that the record does contain information of the kind that section 27(1)(c) potentially covers.

The Public Interest

As I have found that section 27(1)(c) does apply to the record, it is necessary for me to consider whether or not the public interest override in section 27(3) applies. The relevant considerations are similar to those already discussed in the he context of the section 27(1)(b) exemption above and I will not repeat them here except to say that, on balance, I consider that the arguments in favour of the public interest in openness and transparency where individuals are dealing with public bodies in business matters are, on balance, stronger than the public interest in the protection of these negotiations in this case. I find that the record should be released in the public interest.

Personal Information

The FOI Act provides that the personal information, as defined in the Act, of an identifiable individual is exempt from release under section 28(1) of the Act, unless the public interest in release of such personal information outweighs that person's right to privacy. Both the IDA and the former IDA official involved in the land exchange contend that the references to that former official in the report are that person's personal information and should not be released. I will deal with the points raised by both parties in order.

The IDA

The IDA has argued that release of the remainder of the record would reveal the personal information of identifiable individuals, in particular a former IDA official (henceforth referred to as Official A). The following were among the points it made in correspondence with my officials:

• it is unjust for comments on Official A's job performance to be put in the public domain simply because they worked for a public body;
• there is potential for the contents of the report to be misconstrued and used selectively;
• release would leave Official A open to ridicule;
• release would amount to an evaluation of the performance of Official A being made public where such evaluations are exempt under section 6(6)(a) [which provides that records relating wholly or mainly to the evaluation of the performance of an official of a public body are personal to that official];
• the references to Official A are personal as they relate to that person's employment or employment history; and
• release would undermine Official A's right to privacy as provided for in the Long Title to the FOI Act .

I deal with each of these points in the following paragraphs.

Section 8(4) of the Act requires any opinion a public body may have on the motivation of a requester in making a request under FOI to be disregarded for the purposes of making decisions under FOI. Therefore any potential the IDA may see for the contents of the report to be misconstrued and used selectively is not relevant to my decision in this case. Further more, in case 98078 [Wall and the Department of Health and Children - see www.oic.gov.ie], the previous Commissioner held that the possibility of information being misunderstood could rarely if ever, be a good cause for refusing access to records. I take the further comments of the IDA to be an argument that release of this part of the record would be tantamount to release of a de facto performance evaluation of Official A, and that such release would be disclosure of Official A's personal information and thus against the public interest. The IDA cited a decision of my predecessor (case number 020311 - see www.oic.gov.ie) in support of its contention that performance evaluations of officials of public bodies are personal to those people and exempt from FOI release under section 6(6)(a). The IDA initially contended that all references to Official A, including many where only that person's job title were mentioned, were personal and should be exempt. In correspondence with the IDA, my officials pointed out that Official A's identity and the fact of that person's involvement in the land exchange had been confirmed to the applicant by the IDA through release of a particular record on foot of a previous FOI request. Following this correspondence, the IDA accepted that references identifying Official A could be released but that any comments on the performance of that person's functions in the land exchange remained personal and exempt.

Section 6(6)(a) provides for exclusion from release of staff records insofar as they are personnel records "relating wholly or mainly to..an evaluation of the performance" of the person in question. While I agree with the conclusion of my predecessor in case number 020311, the records in that instance comprised entirely of performance objectives and how the relevant officials' performances were ranked against those objectives. In this instance, the record describes the chronology of events relating to the land exchange, and considers and comments on how the IDA, through its various officials and third party service providers, carried out its functions on that matter. It is not a personnel record. I accept that the record contains commentary on how different tasks within the chronology of events were carried out by different people, including Official A. However, I do not accept that these comments amount to an evaluation of the performance of the people in question, as opposed to the IDA as a body corporate, or that they relate "wholly or mainly" to "an evaluation of the performance" of those people. Accordingly, I find that section 6(6)(a) does not apply to that part of the record.

I deal with the points as to whether the references to Official A in the record are personal as they relate to that person's employment or employment history, or that release would undermine Official A's right to privacy, below.

Official A

As a party identifiable from the report, my officials corresponded with Official A and outlined their preliminary view that the references to that person in the report were not personal and should be released. Official A availed of the opportunity my officials provided to respond to that preliminary view. I have considered that response, and my position following such consideration is set out below.

Official A expressed concern that release of the remainder of the record would adversely affect that person's standing in the locality and the intention of the original request, and hence this review, could only be construed as a deliberate attempt to damage that person's reputation and standing in the locality. I note that Official A did not specifically dispute my officials' preliminary view that the references in the record do not constitute the Official A's personal information, nor their view that the public interest in any event justifies release of such references. However, I propose to take it that Official A's concern regarding their standing in the locality and what they saw as a deliberate attempt to damage Official A's reputation and standing are arguments that the information is in fact personal, would undermine that person's right to privacy, and that the public interest does not justify release of the references to Official A in the report. I propose to deal with the IDA's argument that the references to Official A in the record are personal as they relate to that person's employment or employment history here also.

In my opinion, the FOI Act makes all serving and former employees of FOI public bodies accountable for their actions undertaken on behalf of those public bodies through the provision at paragraph (I) which excludes the following from the definition of "personal information":

"in a case where the individual..held officer as a ..member of the staff, of a public body, the name of the indidivual...or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of ..functions".

Therefore, records of the output of former officials acting in their former employment as officials are not personal to those people for FOI purposes and, accordingly, are subject to release under FOI. Accordingly, such references are not private to the people in question. In my view, the former official's actions in the transactions relevant to the report in this case fall into that category. On that basis, the FOI Act makes Official A (as a former IDA official) accountable for any actions undertaken in that former capacity, irrespective of any view readers of records of those actions may take of the nature of that person's role with regard to them. Furthermore, if it were to be the case that release of the references would adversely affect that standing in the locality, this in my view could only come about if the local perception was that the former official had in some way acted improperly in the performance of their official functions.

In such circumstances the public interest, in my opinion, would demand release as it is very much in the public interest that officials should be held to account for any improper action while acting in their official capacity. On the other hand, I do not see how a local perception that a person acted properly could affect that person's standing in that locality as in my view such a positive perception would enhance rather than detract from that standing. Therefore I see no basis on public interest grounds for withholding the references as the public interest would be better served by release of records in the event of Official A having acted improperly, and I see no reason to withhold a record that casts that person in a positive light in the event of their actions having been properly undertaken. I stress that I am not making a judgement as to whether or not Official A acted properly in the discharge of public functions on this matter.  In light of the above, even if I had found the information to qualify as personal or personnel information, I do not accept the argument that the public interest in protecting Official A's standing in the locality justifies exemption of the references to that person in the record.

I will now consider the point that release of the references could only be construed as a deliberate attempt to damage reputation and standing. I see two parts to this point, firstly the possible effect of release of the record on Official A's reputation and secondly the motivation of the applicant in seeking the record. I consider that I have dealt with the point on the effect of release on Official A's reputation in the preceding paragraph. Regarding the motivation of the applicant, in my opinion section 8(4) provides that the motivation of a requester in submitting a request under FOI is irrelevant to any decision as to whether or not such a request is granted. Accordingly, I must disregard whether or not this request is a deliberate attempt to damage Official A's reputation and standing.

For the reasons set out above, I find that the references to Official A are not personal and that section 28(1) does not apply.

Decision

Summary

I have considered the various arguments made by the IDA, the third party service provider who objected to my officials' preliminary view, and the former IDA official, and considered the position of the firm that provided services relevant to the land exchange but which did not reply to my officials' correspondence. Following such consideration, I find that most of the exemptions provisions cited or implied do not apply. While I find that sections 27(1)(b) and 27(1)(c) do apply to references to the above firm and the negotiations under way between the IDA and the applicant respectively, I find that the public interest would, on balance, be better served by granting than by refusing to grant access to the parts of the record relevant to those matters. Therefore, I find that the remaining parts of the record at issue in this case are not exempt from release under the FOI Act and should be released to the applicant.

Right of Appeal:

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 the decision. Such an appeal must be initiated not later than eight weeks from the date of this decision.

Emily O'Reilly

Information Commissioner

07 October 2008