Dear Mr. X

I refer to your application to the Information Commissioner, under the Freedom of Information (FOI) Acts, 1997 and 2003, for a review of the decision of Cork County Council (the Council) in relation to your request, dated 5 October 2007, for access to "any correspondence and reports prepared ... for the Cork County Council/National Roads Authority in regard to the proposed new N ... and the Cork County Council/National Road Authority. The correspondence and reports sought are between 1 April 2006 and 1 June 2007."

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

Background

In its decision, dated 5 November 2007, the Council refused access to the records in question on the basis that sections 21(1)(a) & (c) of the FOI Act applied. You applied, by letter dated 16 November 2007, for an internal review of the Council's decision. In its internal review decision, dated 28 November 2007, the Council affirmed the original decision. By letter, dated 7 December 2007, you applied to the Information Commissioner for a review of the Council's decision.

In carrying out this review, I have had regard to the following matters:

• the correspondence which passed between you and the Council in relation to this request;
• the Council's conclusions on the matter
• the application to this Office;
• the correspondence/communications between this Office and the parties and;
• the contents of the records in question (copies of which have been provided to this Office by the Council for the purposes of this review); and,
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information [Amendment] Act, 2003.

Scope of the Review

The issue in this review is whether or not the Council is justified, within the terms of the FOI Act, in refusing the request.

Findings

Section 21(1)

The Council relied on sections 21(1)(a) & (c) to withhold the information sought. Section 21(1) of the FOI Act 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-
(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,
..........
(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 purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body".

Of the two exemption grounds relied upon by the Council, it seems to me that the latter ground is the more relevant in the circumstances of this case.

The FOI Act provides strong protection for negotiating positions as the only requirement for the exemption to be met is that release of records could reasonably be expected to disclose such positions. There is no requirement that disclosure would have an adverse effect on conduct by the body of its negotiations.

I have had regard to the records in question which concern a process of analysis and examination of information supplied by your accountants ... to the Council's advisers ... in relation to your claim for losses which may be suffered should the Council/National Roads Authority compulsorily purchase land at ... Co. Cork. The Council says that while formal negotiations have not yet commenced it does intend to deal with the claim as soon as possible. The Council says that the file is ongoing and that to release the records sought would prejudice future negotiations between you and the Council/its representatives. It is clear that release of the records would disclose the professional advice given to the Council in its preparation of its negotiating position relating to possible future negotiations to be carried on by/on behalf of the Council. Therefore, I find that the records are exempt from release by virtue of the provisions of section 21(1)(c) of the FOI Act.

Section 21(2) provides that a head may decide to release records even when any or all of the conditions set out in section 21(1) are met if, in his or her opinion, "the public interest would, on balance, be better served by granting than by refusing to grant the request". I note that, while Mr O'Neill of this Office invited submissions in response to his preliminary views letter of 18 February 2008, your replies did not deal explicitly with public interest considerations.

I consider the following public interest factors favour release of the records in this case:
the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for courses of action taken by a public body;

• the public interest in members of the public knowing how a public body performs its functions and, as in this case, what a public body does to ensure effective oversight of public expenditure and to ensure the public obtains value for money spent;
• the public interest in public bodies being held accountable for the use of public funds, and,
• the public interest in increasing the openness and transparency of the entire process of government expenditure.

The following public interest factors which favour withholding the records must also be taken into account:

• the public interest in ensuring that FOI is not used to the detriment of public bodies being able to protect their negotiating position and thus prevent the waste of public funds;
• the public interest in public bodies being enabled to perform their functions effectively and efficiently particularly in relation to issues relating to the good management of public finances;
• the public interest in public bodies obtaining best value for money in relation to purchases; and,
• the public interest in avoiding the premature disclosure by public bodies of negotiation plans and positions.

Your application to this Office makes reference to your perception that you have been unfairly treated by the Council in this matter. It appears to me that this is in support of an argument that the Council has not followed fair procedures in its dealings with you and/or that non-release of the records would constitute a significant unfairness. Were it the case that the Council had failed to follow fair procedure, or that non-release of the records would result in a significant unfairness, this would constitute a significant public interest argument in support of releasing the records in question. For this reason, it is necessary that I take account of this issue as raised in your submission. Compensation legislation specifies that payments must relate to the market value of the land, severance, injurious affection and disturbance. Where it is not possible for the claimant and the local authority to reach agreement on the compensation payable, the law provides for an independent arbitration process whereby an arbitrator, after hearing evidence from the respective parties, determines the amount payable. The arbitrator may also adjudicate on the liability for costs of the parties concerned. The process of acquiring land compulsorily is subject to the full rigours of the law. Therefore, while the Council may not have opened negotiations with you as speedily as might be desired, I have to accept that the overall process is a legal one and that the in-built procedures will ensure fairness.

In weighing up the relative strengths of these opposing public interests I find that the public interest would be better served by protecting the information in the records concerned, rather than by releasing this information to you. In conclusion, therefore, I find that section 21(2) does not apply in this case and the records are exempt from release under section 21(1)(c) of the FOI Act. As I find that the records in question are exempt records under section 21(1)(c) of the Act, it is not necessary for me to consider the application of other exemptions in the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended), I hereby affirm the decision of Cork County Council in this case.

Appeal Rights

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 letter.

Yours sincerely

Fintan Butler
Office of the Information Commissioner