Whether the decision of TCD to refuse access to records concerning the Office of the Director of Buildings (including the Buildings Office and agents of the College) is justified under the FOI Act

Case Summary

Issue

Whether the decision of TCD to refuse access to records concerning the Office of the Director of Buildings (including the Buildings Office and agents of the College) is justified under the FOI Act

Decision                   

The Senior Investigator found that the decision of TCD to refuse access to the records at issue is justified under sections 26(1)(b) and 27(1)(c) of the FOI Act and affirmed the decision accordingly.

Date of Decision: 28.05.2009

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

Background:

Mr. John Burns, on behalf of The Sunday Times, made a request for access under section 7 of the FOI Act to details of all correspondence between TCD and the Building and Allied Trade Union (BATU) since 1998.  TCD dealt with the request in two parts.  In its decision dated 20 May 2008, TCD granted access to the relevant records held by its Staff Office, with the exception of the personal information contained in seven of the records concerned.  In its decision dated 21 May 2008, however, TCD refused the request in full in relation to the relevant records concerning the Office of the Director of Buildings (including the Buildings Office and agents of the College).  In refusing the request, TCD invoked numerous exemptions, including section 26(1)(b) and sections 27(1)(b) and (c) of the FOI Act.

In his internal review application, the applicant challenged TCD's decision to refuse the request in relation to the records concerning the Office of the Director of Buildings (including the Buildings Office and agents of the College).  The applicant did not seek review in relation to the Staff Office records.  In his internal review decision dated 2 July 2008, Mr. Paul Mangan, Director of Buildings, affirmed the earlier decision to refuse the request in full.

This review concerns Mr. Mangan's decision dated 2 July 2008.  With the authority delegated to me by the Commissioner, I have now completed the review in accordance with section 34(2) of the FOI Act.  In conducting my review, I have had regard to the submissions made by TCD and the applicant, including the applicant's comments in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 9 April 2009.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review). 

Scope of Review

My review in this case is concerned solely with the question of whether TCD's decision to refuse the applicant's request for access to the relevant records concerning the Office of the Director of Buildings (including the Buildings Office and agents of the College) is justified.

Submissions

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Findings

Preliminary Matters

Before dealing with the exemptions claimed by TCD, I wish to make the point that, while the Commissioner is required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that she take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record.  This means that I am somewhat constrained in the references I can make to the content of the records at issue.  However, like Ms. Campbell, I am also mindful of the burden of proof under section 34(12)(b) of the Act, which requires TCD to show to my satisfaction that its decision to refuse to grant the request is justified.

TCD's Submissions

TCD's submissions include sensitive background information that I am not at liberty to discuss because of the risk that, in doing so, matter which would be exempt under the FOI Act would be disclosed.  However, I do not feel that I would be revealing exempt information in violation of section 43(3) of the FOI Act by restating TCD's pertinent arguments as follows:  The records at issue relate to an alternative dispute resolution process that involved negotiations between Michael McNamara & Co. (McNamara) and BATU that were conducted on a strict understanding of confidence.  The purpose of the process was to resolve an industrial relations dispute that had left a number of McNamara building sites strike-bound at the time.  TCD was affected by the dispute, but it was not a party to either the dispute or the agreement that was reached as a result of the negotiating process.  The negotiating process did not cost any public funds.  Moreover, as disclosure of the records at issue would reveal the details of the negotiating process, the records are commercially sensitive to the parties concerned.

The Applicant's Submissions

In his application for review, the applicant argued that there is an over-riding public interest in the relevant correspondence being made available in light of the court settlement reached in March 2008 between BATU and Kilburn Developments.  He supported his application for review with a news report entitled, "Building union pays for campaign of violence".  The report states that the court case between BATU and Kilburn "exposed a paramilitary-style campaign of intimidation on Dublin building sites".  According to the report, "[t]he settlement means that the bricklayers's union has accepted responsibility for the violent mass-picketing that attempted to dictate who worked on certain building sites during the construction boom."  The report mentions TCD as one of the parties affected by the BATU pickets and also refers to an indemnity agreement reached between McNamara and BATU on 7 February 2000.  It states:  "On February 7, 2000, Bernard McNamara, the company's managing director, signed an agreement with Batu indemnifying the union against liabilities arising from the Kilburn action.  Industry sources believe this was done to ensure peace on its sites and to allow McNamara to complete projects that it had in progress."

In her preliminary view letter to the applicant, Ms. Campbell noted the records at issue contain details of the negotiating process that led to the indemnity agreement between McNamara and BATU and also subsequent meetings held for reasons relating to the terms of the agreement.  Ms. Campbell explained that she considered section 26(1)(b) of the FOI Act as the most relevant of the exemptions claimed in this case.  Describing the records as relating to "what is essentially a private matter", Ms. Campbell expressed the view that she could find no public interest which would outweigh TCD's duty to preserve the confidences of McNamara and BATU in relation to the records at issue and therefore concluded that section 26(1)(b) should apply.  She also noted that she considered sections 27(1)(b) and (c) of the FOI Act as very relevant, especially section 27(1)(c).

In his reply to Ms. Campbell's letter, the applicant takes issue with her definition of the public interest.  He states:  "I cannot accept that such a violent campaign waged in a public place, and which was reported in the press both in 1999/2000 and again in 2008, is 'essentially a private matter'.  Indeed it could even be argued that there may well have been an indirect cost to the taxpayer, as some building projects such as that at Leinster House and at Trinity College appear to have been done in a different manner due to Batu's activities."  He also notes that the agreement reached in 2000 is historical and considers it extremely unlikely that similar such negotiations should rise in the future.  In support of his submission, he has provided another news report regarding the settlement.

Section 26(1)(b)

I agree with Ms. Campbell that section 26(1)(b) of the FOI Act is the most relevant exemption to consider in this case.  Section 26(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provisions of an agreement or enactment (other than a provision specified in column(3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".  The confidentiality exemption generally does not apply, however, to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, "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 a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services" (section 26(2) refers).

According to TCD, there was an express understanding of confidence in relation to the negotiating process and confidentiality was expressly agreed in writing between McNamara and BATU, but it does not claim that it is itself bound by any explicit agreement or enactment providing for confidentiality.  Rather, TCD argues that it owes an equitable duty of confidence to both McNamara and BATU in relation to the information in the records concerned.

The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611).  The tests require that:  (1) the information has the necessary quality of confidence about it; (2) the information was imparted in circumstances imposing an obligation of confidence; (3) there is an unauthorised use of that information to the detriment of the party communicating it. 

I further note that the Commissioner interprets the term "confidence" for the purposes of section 26(1) by reference to the following definition:  "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose."  ("B" v. Brisbane North Regional Health Authority, (1994), 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.)  Based on this definition, the Commissioner considers that, first, information given in confidence is concerned with private or secret matters rather than information which is trite or which is already in the public domain, i.e. that it is necessary to establish that the information has the necessary quality of confidence.  Second, the communication must be for a restricted or limited purpose.  Third, there must be an understanding that the information is being communicated for a restricted purpose.

The records at issue in this case relate to the dispute resolution process surrounding the indemnity agreement between McNamara and BATU.  In support of its claim of confidentiality with respect to the records, TCD has provided a statement from Mr. Tim Cooper, the former Director of Buildings, and documentary evidence showing that the McNamara/BATU agreements were placed in "safeholding" facilities at the time of their signing.  The contents of the records at issue also bear indications of confidentiality.  They include the costs involved for McNamara and reflect a candid tone that is unlikely to have been used unless the participants believed that their communications were for a limited purpose and would remain confidential.  I also note that alternative forms of dispute resolution, such as the process that led to the indemnity agreement between McNamara and BATU typically requires confidentiality in order to be effective.  The significance of confidentiality to an alternative dispute resolution process is examined by the Administrative Appeals Tribunal of Australia in SRGGG and Department of Defence [2001] AATA 1029, at para. 52 (quoting from F Crosbie, Confidentiality in Mediation in Australasian Dispute Resolution).

Moreover, I agree with Ms. Campbell that the records relate to what is essentially a private matter.  The records concern the resolution of an industrial relations dispute between a private sector employer and the union representing some of its employees.  Although the underlying dispute affected a number of publicly funded building projects, I do not consider that private entities such as McNamara or BATU can be held accountable to the public for their actions under FOI in the same manner as public bodies or public servants.  In order to displace the confidentiality of the dispute resolution process underlying the records at issue in this case, I consider that the circumstances would have to show a sufficient nexus to the public interest through, for instance, the expenditure of public money.  I wish to emphasise here that the records at issue do not deal directly with the dispute itself or its impact on the building works, but rather the resolution of that dispute so that one or more of the building projects could be completed at no extra cost to the taxpayer.

Applying the Coco tests, I find that the information in the records has the necessary quality of confidence about it.  I also accept that TCD is obliged in the circumstances to treat the information as confidential.  Moreover, given the confidentiality of the process and the sensitive nature of the information in the records, I consider that release of the records under FOI would be an unauthorised use of the information to the detriment of the parties concerned.  Therefore, subject to public interest considerations, I find that release of the records at issue would constitute a breach of an equitable duty of confidence by TCD to McNamara and BATU in relation to the dispute resolution process.

It is not necessary for me to consider section 26(3) of the FOI Act, which provides for a public interest test in relation to the confidentiality provision at section 26(1)(a).  Nevertheless, although not stated in the FOI Act, the Commissioner takes the view that public interest considerations may be taken into account in determining whether disclosure of information under FOI would constitute a breach of a duty of confidence.  I have therefore considered whether any relevant public interest considerations are present in this case.  As stated above, however, the records relate to what is essentially a private matter.  I am aware of no public interest which would outweigh TCD's duty to preserve the confidences of McNamara and BATU in this case.  On the contrary, I consider that alternative forms of dispute resolution, such as the confidential process that led to the indemnity agreement between McNamara and BATU, generally serve the public interest.  As stated by the Australian Capital Territory Administrative Appeal Tribunal in De Domenico Tony and Chief Minister's Department [2000] ACTAAT 2, at para. 39:  "It is clear that the interests of justice require the expeditious settlement of proceedings.  . . .  It is important in that context that parties are able to negotiate in the knowledge that their exchanges are confidential.").  I have also had regard to the decision of the Queensland Information Commissioner in Rees and Queensland Generation Corporation [1996] QICmr 10; (1996) 3 QAR 277, at para. 27 ("I consider that the public interest in the accountability of the QEC, for its conduct and settlement of the proceedings brought by the third party in the Commission, is counterbalanced in this instance by the public interest in assisting to secure a lasting settlement of a sensitive dispute . . . by respecting the agreement of the parties that the terms of settlement remain confidential.").  I conclude that section 26(1)(b) applies to the records in full and that TCD's decision to refuse to grant the applicant's request is justified on this basis.

Section 27(1)

Alternatively, I agree with Ms. Campbell that section 27(1)(c) of the FOI Act applies in this case.  Section 27(1)(c) prohibits the release of a record that contains "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) does not apply, however, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 27(3) refers).

As noted above, the records at issue in this case relate to the resolution of an industrial relations dispute between McNamara and BATU.  The records show how the parties conducted themselves during the process and the lengths to which they, particularly McNamara, were willing to go to settle the dispute.  Although economic conditions have changed since the time of the signing of the agreement, industrial relations disputes remain a feature of the current climate.  I therefore accept that disclosure of the information in the records concerned could be damaging to one or both of the parties if they were to engage in similar such negotiations in the future. 

Moreover, I consider that the release of the records under FOI would generally be likely to deter parties from engaging in such forms of dispute resolution, which would be contrary to the public interest as indicated above.  As the Commissioner indicated in Case Number 030624, The Sunday Times and the Office of the Revenue Commissioners (2005), while certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily this mean that there is a public interest in disclosing the information.  As I find no overriding public interest in the release of the records at issue in this case, I conclude that section 27(1)(c) also applies to the records at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of TCD in this case.

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

28 May 2009