Having carried out a review under section 34(2) of the FOI Act, the Commissioner found that the Council is not justified in its refusal of access to the records at issue. She examined the provisions of section 21(1)(c), section 27(1)(c) and section 31(1) of the Act. She accepted that section 27(1)(c) could apply but found under section 27(3) that the public interest in granting the request outweighed the public interest in refusing it. She annulled the decision of the Council and directed it to grant access to the records

Case Summary

Whether the Council is justified, under sections 21 and 27 of the FOI Act, in its decision to refuse access to  records relating to a site investigation contract requested by the Applicant.

Date of Decision: 07.12.2009

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

Background:

The FOI request to the Council for access to records relating to all site investigation contracts which it entered into with regard to the N7 Nenagh to Limerick High Quality Dual Carriageway during 2005 and 2006, was received from the Applicant on 9 July 2008.  The Council dealt with the request under reference FOI/13/08. In its decision on the request, dated 6 August 2008, the Council granted access in full to the following records:

• The invitation to tender documents for each site investigation contract
• The contract documents relating to the site investigation works
• Details of who supervised the site investigation works on behalf of the Council

Access to the remaining requested information, viz.

• Details of any meetings held with the site investigation companies who were awarded the contracts
• Details of any communications between the supervising engineer and the relevant site investigation company was refused.

In its decision, the Council said that the records were exempt from release under section 27(1)(c) of the FOI Act. On 14 August 2008, the Applicant requested an internal review of the Council's decision.  The Council's decision following internal review issued on 10 September 2008 affirming the original decision and adding the section 21(1)(c) exemption to the section 27(1)(c) exemption as the grounds on which the application was being refused.  The Applicant applied to my Office on 30 September 2008 for a review of the Council's decision. That application was accepted on 16 October 2008.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner (''the Commissioner'')

Scope of the Review

The issue for review is whether or not the Council is justified, within the terms of the FOI Act, in refusing access to some of the records requested (as described above). The Council has provided the records to my Office for examination.  The accompanying schedule identifies almost 300 records dating from August 2005 to December 2006 [116 on CD and 183 paper records].

In conducting this review, I have had regard to the following:

• all communications between the Applicant and the Council in relation to the FOI request;
• all communications between the Applicant and this Office
• all correspondence/communications between the Council and this Office, including a letter dated 6 March 2009 in which Mr. Desmond O'Neill, Investigator of this Office set out his preliminary views on the review to the Council and the Council's detailed response;
• the contents of the records and
• the provisions of the FOI Act.

Submissions

.

Findings

Preliminary Matters

At the outset, and as Mr. O'Neill did in his letter dated 6 March 2009, I wish to highlight that the exemptions at sections 21(1) and 27(1) are among those exemptions which are subject to the application of the public interest balancing test.  This means that, under sections 21(3) and section 27(3), a decision to refuse access to a record cannot be made until the body concerned determines whether or not the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.  The decision-making process applied by the Council to the Applicant's FOI request did not include any reference to the public interest dimension.  As such,  neither the initial decision nor the subsequent decision following internal review, can be regarded as having been properly reached in accordance with the FOI Act.

Under section 8(2)(d)(ii), a notification of refusal under certain sections of the Act must specify particulars of any matter relating to the public interest considered for the purposes of the decision. Given that the FOI Act has been in operation for local authorities since October 1998 and having regard to the advice and guidance published on the operation of the Act for decision makers since then, I find it surprising and disappointing that the Council's decisions failed to apply the public interest balancing test. I note that the Council subsequently made submissions to my Office on the public interest factors; however, the Act clearly requires that requesters are put on notice at decision stage of the public body's position on the public interest and considerations affecting it.

It is also relevant to note the provisions of section 34(12)(b) of the FOI Act which provide that, in a review by the Commissioner, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." The underlying presumption of the FOI Act which has been supported and elaborated upon by the judgment of O'Donovan J. in the High Court in the case of  Minister for Agriculture and Food v The Information Commissioner [2001] 3 IR 439 which was cited with approval by the Supreme Court in  Barney Sheedy v The Information Commissioner [2005] 2 IR 2723) is that requests for access to records will be granted, subject only to prescribed exemptions. 

For the avoidance of doubt, it is important to stress that I do not have any role as Information Commissioner in examining how the Council dealt with the matter of the roads contract. In this instance, given that the Council has made much of the fact that the Applicant is the contractor appointed to design and build the road at issue, it is particularly relevant also to point out that the FOI Act, at section 8(4), specifically provides that a decision maker should, "[s]ubject to the provisions of this Act", disregard any reason that the requester gives and any belief or opinion that the public body might have as to the requester's reason for making the request.

Section 27(1): Commercially Sensitive Information

The Council has claimed that the records to which access has been refused are exempted by section 27(1)(c) of the FOI Act.  Section 27(1)(c) provides that: 

".... a head shall refuse to grant a request under section 7 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".

Section 27(3) provides that section 27(1) shall not apply where, in the opinion of the head, the public interest would, on balance, be better served by granting than by refusing the request.

Is the Council a ''person'' for the purposes of Section 27(1)?

It is arguable that, given the separate provision for the protection of the financial and economic interest of the State in section 31 of the FOI Act, the section 27 exemption is intended primarily to protect commercially sensitive information relating to persons other than public bodies. I am inclined to this view given the terms of section 27 as a whole and the provision in section 29 of the FOI Act for, inter alia, notification of the person to whom the information relates in cases where release of records in the public interest is being contemplated under section 27(3). I also take into consideration the purpose of the FOI Act as set out in the long title -  to enable members of the public to obtain access to information ''to the greatest extent possible''.

The Council's submissions in this regard argue that, as a public body, it should be regarded as a person for purposes of section 27 because the Interpretation Act 2005 provides that "person" shall be read as importing a "body corporate" and that, under the Local Government Act 2001, a County Council is a body corporate.  However, one interpretation in the context of the FOI Act could be that any public body to whom an FOI request is directed can only be a "public body'' as construed in accordance with the First Schedule of the Act  for the purposes of a particular request made to it. The question is whether the Council can simultaneously be a ''person'' for purposes of section 27 and a ''public body'' for other sections of the FOI Act.  In Case Number 000528 (John Burns and North Eastern Health Board - published on www.oic.ie) I expressed the view that the confidentiality exemption in section 26(1)(b) does not operate to protect public bodies but is concerned with the interests of third parties who convey information to public bodies. I note also that section 26(2) of the Act dis-applies section 26(1) so that a public body cannot rely on the confidentiality exemption in respect of records prepared by a staff member or a person with a contract for services to a public body unless a duty of confidence is owed to a third party. I take this as evidence that information of public bodies is treated differently in the FOI Act when compared to information supplied or created by other persons.

I do not disagree with the Council's submission that public bodies will sometimes generate commercially sensitive information. It does not necessarily follow that the holding of its own commercially sensitive information by a local authority causes the relevant records to be exempt from disclosure under section 27(1) of the FOI Act. Having considered the matter and having regard to the fact that there appears to be some uncertainty as to the position of public bodies under section 27, I am prepared to accept in the circumstances of this case that the FOI Act does not prohibit the Council  from relying on section 27(1)(c) in circumstances where it is claiming that disclosure of information it holds could prejudice the conduct or outcome of its negotiations as a body corporate. However, I am not convinced that the FOI Act requires that the holding of information generated by or for a public body must be treated in the same way as similar information held or transmitted by a private company or individual which is the position that the Council appears to be adopting;  I return to this issue in considering the public interest balancing test later in this decision.

As explained by Mr O'Neill in the preliminary views already referred to, the tests in section 27(1) are based, not on the nature of the information itself, but on the nature of the harm which might be caused by its release. The standard of proof required to meet the section 27(1)(c) exemption is relatively low in the sense that the test is not whether harm is certain to materialise, but whether it could do so.

In several decisions of the previous Commissioner (e.g. Case No. 99035 - X and the Department of Enterprise , Trade and Employment and Case No. 98049 et al - Henry Ford and Sons Ltd and the Office of Public Works - published on www.oic.ie), two tests have been applied in respect of this exemption. The first is that the public body would be able to show that contractual or other negotiations were in train or were reasonably foreseen. This first test is satisfied in that the negotiations at issue have been identified by the Council as those relating to claims made by the Applicant in its capacity as contractor pursuant to the terms of the agreement between the parties. The negotiations apparently include claims that the site investigation materials supplied by the Council misrepresented the actual ground conditions thereby causing delay in the completion of the works with possible repercussions for the contractor in regard to the costs of the project.

Having regard to my comments above on the issue of section 27 being capable of applying to a public body,  I do not accept the submission of the Applicant that the negotiations between itself and the Council are irrelevant to the matter of whether the records should be disclosed. The Applicant says that section 27(1)(c) should be interpreted as relating only to the negotiations of the site investigation company. The Council has not made the case that the site investigation companies interests would be affected by any disclosure.  As discussed above, while the matter is not beyond doubt,

I am proceeding on the basis that, in the circumstances of this case, the exemption is capable of being applied to negotiations of the Council.

The second requirement is that the person claiming the exemption would explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations. The Council, in its submissions, states that the threshold imposed by this Office's previous decisions is higher than that set out in the exemption itself and that the Act does not require the prejudice to be defined or predicted. It seems to me that, in dealing with reviews in which the onus of justifying any decision to refuse a request is, under section 34(12) (b) of the FOI Act, placed unequivocally on the public body, it is reasonable for me to require information to be submitted to allow me to properly assess whether a claim of prejudice has any basis. Clearly, my position is that an assertion of harm would be insufficient to satisfy the test. This approach was approved in the context of a claim for exemption under section 21 of the FOI Act in the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35 in which Mr. Justice Kearns stated, in relation to section 21(1),  that the onus to produce evidence of prejudice fell on the Department and, in the absence of same, the Commissioner was entitled, under section 34 of the Act , to hold against the Department. He said " A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard...".

Notwithstanding its position that it should not be required to demonstrate how disclosure could result in the prejudice claimed, the Council has, in fact, set out how, in its view, the conduct or outcome of the negotiations with the Applicant could be prejudiced if the records were disclosed. I am precluded from going into all of the Council's concerns as section 43(3) requires that I take all reasonable precautions to prevent the disclosure of information claimed to be exempt. However, I can say that the Council's position is that, while it sees no merit in the Applicant's claims which are the subject of the negotiations, disclosure of the records might facilitate the Applicant in making certain arguments which could prejudice the conduct or outcome of the negotiations. While the Council has not pointed to specific parts of the records might disclose matter which could cause prejudice through, for example, affecting any settlement reached or contributing to a failure to reach a settlement, it has put forward some examples of scenarios on which its fears of prejudice are based.

Conclusions on section 27(1)(c)

I am not convinced that prejudice to the conduct or outcome of  negotiations is inevitable as a result of the release of the type of  information in the withheld records.  However, the use of the word "could" means that the exemption is capable of applying even where the prejudice is not certain to materialise but could do so. I think that it is arguable that knowledge of the contents of the records the subject of this review could, in some way, affect the conduct or the outcome of the  negotiations. I have reservations about the extent to which such prejudice is at all likely given that the negotiations appear to be part of a conciliation process to achieve settlement of claims brought by the Applicant in a context of an express provision in the contract whereby the contractor is responsible for obtaining all information necessary for the carrying out of the works. The information is factual, historic information based mainly on work carried out by contractors  as opposed to, for example, details of the Council's negotiation strategy, ''bottom line'' settlement position or costings.

I do not accept all of the Council's arguments in regard to the relevance of how the Applicant might or might not use or interpret the information at issue. I would expect that the outcome of negotiations would primarily depend upon the substance of the claims advanced and interpretation of the terms of the contract having regard to the contractor's performance and the Council's liabilities.  However, having considered the Council's submissions, I have decided to accept that section 27(1)(c) has the potential to apply in the circumstances of this case subject to the application of the public interest test under section 27(3) set out below.

The Public Interest

Section 27(3)

Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) are not to 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 .....".  Since I have accepted the Council's position that section 27(1)(c) applies in this case, I must now examine whether the public interest is better served by disclosure than by non-disclosure of the records.

In attempting to strike a balance between openness, on the one hand, and the need to protect commercially sensitive information on the other, both the positive public interest which is served by the granting of access and the extent to which the granting of access may be contrary to the public interest must be considered. 

Likelihood of prejudice occurring

I must say at this point that I am taking into account the reservations I have expressed above as to the extent to which the harms envisaged by the Council and which I accepted could possibly occur, are likely to occur.  In balancing the public interest, a prejudice which is no more than a mere possibility has to carry a great deal less weight than a prejudice which is likely to occur. I outlined above the relevance of the fact that the negotiations appear to be part of a conciliation process to achieve settlement of claims brought by the Applicant in the context of a provision in the contract whereby the contractor is responsible for obtaining all information necessary for the carrying out of the project. I also note that the records comprise factual, historic information arising from the work of the site investigation specialists contracted by the Council which reveal neither negotiating strategies nor sensitive financial information. No case has been made that the interests of the site investigation company involved would be in any way affected by the release of the records or that there is a public interest factor to be considered in favour of withholding the information which entails the safeguarding of any interests other than those of the Council, and, by extension, the taxpayer.

Identity and Motives of Requester

There is a positive public interest in requesters availing of their rights under the FOI Act. I take this to apply to all requesters and I see no basis for affording fewer or restricted rights to certain classes of requester. The Council is suggesting that I should give significant weight to the public interest in its withholding the records on the basis that the FOI request was made ''by a commercial entity seeking to promote claims against a public body with which it has contracted... where the Request can be shown to relate almost exclusively to the Requester's own interests."

Much of the Council's submissions on the public interest focus on the identity and motives of the Applicant. I consider that I must treat arguments based on identity and motive with a degree of caution. The underlying principle of the FOI Act is that it enables members of the public to obtain access to records without having to have any particular standing or interest in the matter the subject of the records. In the light of this and the specific prohibition in section 8(4) referred to above,  I do not consider that I can give significant weigh to the Applicant's  motive or identity.  I can see nothing in the Act which allows me to discriminate between requesters seeking information of the kind covered by the request in this case or to judge one requester to be more worthy than another simply because he or she has no commercial interest.  In my view, therefore, there is a public interest in any member of the public availing of their rights under the Act and it is a factor which cannot be lightly dismissed.

I accept that the public interest balancing test cannot be operated in a vacuum and that the relationship between the Applicant and the Council and the circumstances of the creation of the records are relevant circumstances to be considered. I agree also with the Council's submission - supported by the previous Commissioner's views in his decision in Cases Nos. 98104 et al (The Sunday Times Newspaper & Others and the Department of Education and Science published on www.oic.ie) - that a public body is often required to form an opinion as to the result of releasing information and it must make some assumptions as to how the information may be used. However, that is not to say, as implied by the Council, that, in order for the records to be released,  there is any requirement that the Applicant must be acting in the public interest by reference to the use to which the information disclosed might be put. Neither can I accept the Council's view that the FOI Act envisages that, for the purposes of the public interest test, ''the individual is assumed to represent the public''. Release under FOI must normally be taken as "release to the world" and a position whereby records held by the Council might  be made available to a requester who represented, for instance, an environmental or residents' association but denied to others is not tenable.

The Council also quotes the previous Commissioner in Case Number 99001 (ACF and the North Eastern Health Board - published on www.oic.ie) when he observed that section 8(4) does not necessarily mean that the identity of the requester may not be relevant to a decision regarding the public interest in release of information. I would distinguish that particular case from this one because, in Case 99001,  the records sought related to extremely sensitive personal and private matters concerning the requester and members of her family.

Rights of Applicant versus Rights of Public Body

On the issue of the Applicant's rights, the Council puts forward the view that, in entering into a contract with it, the Applicant has forfeited the rights which the FOI Act confers on members of the public at large and has effectively agreed that its rights under FOI are substituted by its rights to information under the terms of the agreement. While it is not a matter for me to interpret the terms of the contract, I consider this to be a position which is not tenable and could have inequitable results not least because the terms of the contract quoted by the Council in support of it make no reference to the methods by which the contractor is to obtain all information necessary for the carrying out of the works. In any case, I would expect that, if a party was purporting to ''contract itself out'' of a statutory right,  this would be explicitly stated in the terms of the contract. Accordingly, I reject this view.

The Council further submits that, if the Applicant is entitled to avail of the provisions of the FOI Act with regard to the information to which access has been refused, then the Council is placed at a commercial disadvantage vis à visthe Applicant because it does not enjoy reciprocal rights of access to information held by the Applicant who is not a public body. As mentioned above in the context of section 27(1)(c) and the Council as a "person'', my approach is that the FOI Act clearly sets out to treat public bodies differently from private entities in relation to the level of protection from disclosure afforded to the records they hold. Of their nature, they are different entities from individuals or commercial entities and the interests of the public which they serve may not always coincide with the interests of the management or staff of public bodies. In addition, I do not see how the fact that one party's rights of access might be different from another's means that the public interest must operate to favour the ''rights'' of the Council. The FOI Act recognises, both in its long title and in its individual provisions that here is a significant public interest in government being open and accountable. Clearly, this applies to local government as well as to central government.

The Public Interest as it affects negotiations

I accept, of course, the Council's view that there is a "clear public interest in public bodies efficiently performing commercial agreements, and thereby obtaining value for public money."  The Council submits that "any prejudice caused to the outcome or the conduct of the negotiations would constitute harm that would outweigh the negligible positive public interest to be found in releasing the records". It says that any prejudice caused would be likely to incur "escalated" costs in administering, defending and, if necessary, settling the claims and that this is ultimately contrary to the public interest because it "will cause rather than prevent the waste of public funds." However, it must be borne in mind that it by no means certain that disclosure of the records will cause the Council a loss of revenue. I make no comment on the merits of the claims or on the likely outcome but  I have insufficient grounds on which to make any assumptions other than that the process will be fair and thorough with an equitable outcome and that the Council and its advisors are well -equipped to defend the Council's and the taxpayers'  interests.

I take it that the contract contains, in the normal way, provisions for claims, disputes and arbitration and it could be argued that such mechanisms could only be enhanced where neither party is seeking to suppress information from the other. I note the Council's position that the claims made are without foundation and its view that the claims cannot succeed under the terms of the contract. I consider that in weighing up the public interest factors, I cannot ignore the contents of the records which are primarily concerned with communications between the Council and the site investigation contractors. The phase of the works which included the site investigation tests is over and the records date from 2005 and 2006.  The communications include details of test results and it is fair to say that they are relevant to the management by the Council's staff of the roads project. Given the content of the records, I do not accept the Council's assessment that release of this type of information would necessarily place it at a commercial disadvantage relative to the Applicant. If there is a possibility of this, I consider it to be relatively remote in the circumstances. Neither do I accept that the public interest in releasing this kind of information is ''negligible'' as contended by the Council.

In assessing whether records fall to be released under the FOI Act, I do not believe that very significant weight can be given to speculation as to the arguments that the Applicant might make about, for example, whether the Council or its contractors should have acted differently. I think that parts of what the Council is arguing come very close to submitting that there is a public interest in withholding records lest the information in them be misunderstood or misrepresented. My Office has, in the past, rejected similar arguments and found on several occasions that this fear is based on an unreasonable assumption that  public bodies are incapable of explaining their records to the public and unable to present information in a away which will allow any objective observer to draw accurate and balanced considerations (see, for example, Case No. 99168 - Richard Oakley and the Sunday Tribune Newspaper and the Houses of the Oireachtas published on www.oic.ie).

Expenditure of Public Monies

The Council contends that there is "little or no such public interest served" by the granting of access to the Applicant; that the "records concerned have a very narrow focus, do not have a tangible bearing on openness in relation to the use of public funds, and are not being sought on that basis." The Council also says that the Applicant has not referred to the expenditure of public money in connection with the contracts concerned and  that there is no allegation or assertion of fraud or corruption of any kind. I accept that this is not a case where there are concerns about possible misuse of public funds.

While the Council appears to be arguing that the negotiations on matters ultimately relating to the cost of the project are, in effect, part of a commercial undertaking on its behalf, the records themselves could not be said to relate primarily to commercial transactions. In my view, there are some public interest considerations arising from the fact that the records document aspects of the management of a site investigation project for which contractors were paid relatively substantial amounts from public funds in respect of work which presumably was to contribute to the efficient delivery of the planned infrastructure. Notwithstanding the identity or motive of the Applicant, the public interest in openness and transparency in the management and delivery of such public works is significant. The sum of money involved in the Applicant's claims is very substantial in terms of the Council's budget; however, the site investigation works were carried out by another contractor. 

The Council states that the FOI request was "made with a view to substantiating very specific allegations solely relating to the Requester's own interest in the agreement to design and build the N7 project." The Council says that the Applicant is alleging that it was negligent in planning, supervising and managing the  site/ground investigations. The Council further says that, even if such allegations were true - which it strenuously denies - the liability for such matters is clearly excluded by a  clause of the agreement. It states that, despite this, the Applicant is "persisting in pursuing the claims" thus causing additional costs to the Council in administering and defending the claims which is contrary to the public interest.

I have taken into account the Council's argument that it will incur ''escalated costs'' in administering, defending and, if necessary, settling the claims which will, in its view, cause waste of public funds. However, any liability will depend on the progress and outcome of the negotiations and I cannot prejudge the result; nor would it be appropriate for me to express any view on the appropriateness of the Applicant pursuing the claims. Further, I am not entitled to assume that the disclosure of the records would inevitably cause the Council to have to pay more or that the Applicant's claims have no basis. Indeed, there is always the possibility that if one party cannot gain access through less formal means to information held by the other party which it deems necessary to pursue a claim, it would exercise its right to go to the Courts to, for instance, seek an order for discovery of documents which could involve the Council in additional expenditure. Therefore, in considering the public interest, I must bear in mind that while there is a possibility that this process will have cost implications for the Council, it is by no means certain that any costs incurred will be as a direct result of the disclosure of the records or that withholding of the records will result in a saving of public funds. 

As set out above, I have accepted that release of the records could possibly prejudice the conduct and outcome of the negotiations as far as the Council is concerned.  It seems to me that the core of the Council's argument is that the better informed the other party is, the more likely it is to succeed in its claim to the detriment of the Council's interests. This may well be so, but what has to be determined is whether the public interest in the records being released outweighs the public interest in the Council's withholding of them in the circumstances of this case.

The public interest factors favouring the granting of access can be summarised as follows:

• the public interest in fostering openness in relation to public sector contracts, thus allowing effective oversight of public expenditure and how public bodies deal with contractors and the management of projects ;
• the public interest in individuals being able to understand the reasons for courses of action taken by a public body;
• the public interest in members of the public knowing that information supplied to, and held by, public bodies is accurate;
• the public interest in members of the public knowing how a public body performs its functions, and being able to form an opinion as to whether those functions are being properly discharged and  
• the public interest in conciliation and negotiation processes having a reasonably expeditious and fair outcome and
• the public interest in allegations of negligence and mismanagement by public bodies being investigated.

I note the Council's objection to the setting out of the public interest factors in similar terms to the above in Mr O'Neill's preliminary views letter on the basis that ''the cited factors presuppose a commercially disinterested member of the public acting in a civic oversight role  vis à vis the Local Authority". I consider that this Office's approach to the public interest in terms of the extent to which the motive and identity of the requester is relevant is adequately dealt with earlier in this decision.

The public interest factors identified in favour of refusing access are:

• the public interest in public bodies being enabled to perform their functions, including commercial undertakings, effectively without undue interference;
• the public interest in public bodies not being disadvantaged in defending claims against them;
• the public interest in public bodies being able to engage specialist contractors to conduct technical investigations;
• the public interest in public bodies being able to achieve best value for money in the provision of infrastructure;
• the public interest in public bodies not having to incur excessive costs in defending claims and
• the public interest in public bodies conducting effective negotiations.

Having weighed up the relative strengths of these opposing public interests in the circumstances of this case as discussed above, my conclusion is that the public interest would be better served by granting the requested access. 

Section 31:  Financial and Economic Interests of the State and Public Bodies

Mr. O'Neill, in his preliminary views, put forward the position that the financial and economic interests of public bodies, insofar as they may require protection, are dealt with under section 31 of the FOI Act as opposed to section 27. He put it to the Council that section 31(1)(a) is a relevant consideration and pointed out that the threshold to be met for this limb of the exemption is a reasonable expectation of ''serious adverse affect''. Accordingly, I will consider whether the exemption applies here.

Section 31 provides that:

"(1) A head may refuse to grant a request under section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head-

(a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy,

(b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or

(c) access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

Examples of the categories of records envisaged by this section are listed in section 31(2). They include information which, if disclosed, could adversely affect the competitive position of a public body, commercial information of substantial value belonging to the State or public bodies and records relating to the economic and financial circumstances of a public body.

The Council says that section 31 is not intended to apply to the full range of public bodies including Local Authorities but only to the State at national and international level. It submits that section 31(1)(a) refers to the financial interests of the State and is not applicable to a "small to medium Local; Authority (classified on the basis of its annual budget)" where disclosure of a record "could reasonably be expected to bankrupt the Local Authority". It is clear from the terms of the exemption however that it can apply to the information of public bodies provided that disclosure of the records could cause serious adverse affects to the interests of the State. I accept that disclosure of the records would be unlikely to have serious adverse consequences for the State although the sum of money involved in the claims seems very substantial in terms of the Council's budget. In any event, even if section 31(1) were found to exempt the records in the first instance, section 31(3) makes it mandatory to apply a public interest test.  In the circumstances, the  public interest factors arising in the context of section 27(3) arise here also and I consider that the balance would again lie in favour of the granting of access to the records.

Section 21:  Functions and Negotiations of Public Bodies

The Council, in its internal review decision  added section 21(1)(c) of the FOI Act to its reasons for refusal of access to the records. Section 21(1)(c) provides that:

"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 purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body".

Section 21(2) states that section 21(1) does not apply where the public interest would, on balance, be better served by granting than by refusing the request concerned.

The Council's response to Mr. O'Neill's preliminary views letter did not address the section 21(1)(c) exemption but instead relied entirely on the section 27(1)(c) exemption. It may be that the Council is no longer relying on this exemption. Mr O'Neill's view was that release of records containing historic factual information (as opposed to positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed in negotiations), would not disclose a negotiating position relating to past, present or possible future negotiations carried on by the Council. I agree that the records do not contain information of the kind envisaged by section 21(1)(c) and find that the Council has not justified its reliance on this exemption having regard to section 34(12) of the Act.  

Even if the Council's original claim that section 21(1)(c) of the FOI Act applies was to be upheld, I would be obliged to consider whether, on balance, the public interest favoured release of the records. My conclusions in this respect would be similar to those outlined above in relation to section 27.

Decision

Having carried out a review under section 34(2) of the FOI Act,  I hereby annul the decision of the Council in so far as it relates to details of any meetings held with the site investigation companies who were awarded the contracts and communications between the supervising engineer and the relevant site investigation company.

I hereby direct the Council to release of the records containing this information to the Applicant. The records at issue are those identified by the Council in the ring binder and CD supplied to the Commissioner excluding records created after 9 July 2008 - the date of receipt of the FOI request by the Council.

Right of Appeal

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

Emily O'Reilly

Information Commissioner

07 December 2009