The Commissioner's authorised official annulled the decision of the OPW that the record at issue was exempt under section 27 of the FOI Act. He directed that it be released and stated that he would consider the public interest to warrant its release in any event. He also did not accept BMT's claim that the details at issue were subject to a duty of confidence (section 26), or that section 28 applied to them.

Case Summary

Whether the OPW is justified in its decision to refuse access to a record, sought in a request under section 7 of the FOI Act, concerning its purchase of land in the Great Blasket Island (the Island) from An Blascaod Mór Teoranta (BMT) in January 2009.

Date of Decision: 31.03.2010

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

Background:

The Applicant's original request of 12 March 2009 referred to the OPW's payment of 2 million euro to BMT in January 2009 for the purchase of lands on the Island. It said that newspaper articles had reported that the monies also included compensation for ferry rights and sought "a breakdown of the monies paid and clarification of what the amounts were for", as well as "a copy of any other terms and conditions associated with the deal".

The OPW refused the request, on 7 April 2009, on the grounds that the details at issue were exempt under section 27 of the FOI Act. It did not explain why it considered the provision to be applicable and stated that a third party had objected to their release. The Applicant's internal review application of 20 April 2009 disputed how any of the provisions of section 27 could apply, and argued that the public interest would warrant release of the details in any event. The OPW's internal review decision of 13 May 2009 upheld its earlier refusal of the request, and, on 18 May 2009, the applicant sought a review by this Office of the matter.

In carrying out my review, I have had regard to the above correspondence. I have also had regard to a copy of the one record at issue (the contract setting out the terms and conditions of the deal, which was provided to this Office for the purposes of this review), and to the provisions of the FOI Act.

I have also had regard to details of various contacts between this Office and the OPW (including various supporting documentation, again provided to this Office for the purposes of this review) and between this Office and BMT's legal advisors.

Having regard to section 34(12)(b) of the FOI Act, which provides that a decision to refuse a request "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified", I feel it is useful to briefly outline the extent of the submissions made in this case.

Conducted in accordance with section 34(2) of the FOI Act, by Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of the Review

My review is confined to the sole issue of whether or not the OPW's decision to withhold the one record at issue (the contract) is in accordance with the provisions of the FOI Act.

The contract includes a schedule of documents (including the "draft Declaration of Identity" of a particular Engineer; the Letter of Offer from the OPW to BMT; and BMT's Certificate of Incorporation). I note that Ms Moran wrote to the applicant advising that she considered such documents to be outside the scope of the request and this review, and therefore that the ensuing decision would make no direction in respect of them. I concur with Ms Moran's views and have proceeded on this basis, particularly as I note that the applicant did not object to those views.

Submissions

Submissions From The Parties

Firstly, the OPW's arguments in respect of section 27 simply refer to its understanding that BMT considers that release of the information would be detrimental to its interests, and to BMT's objections to release of the details concerned. The OPW did not offer any view of its own as to why section 27 of the FOI Act is appropriate in this case. Accordingly, this decision does not refer to the OPW's submissions in respect of this provision of the FOI Act.

Secondly, the OPW made no argument that section 26 was relevant in this case until specifically asked to by Ms Anne Moran, Investigator in this Office, in November 2009. The ensuing response was five sentences in length, and I agree with Ms Moran's view that the details therein did not meet the burden of proof required by section 34(12)(b).

However, Ms Moran also sought the views of BMT on the application of sections 26 and 27 of the FOI Act, as the party whose interests would be affected by the release of the details at issue. Thus, I have had particular regard to BMT's submission to this Office of 1 December 2009 and to the OPW's subsequent comments on claims therein regarding the application of section 26(1)(b).

I have also had regard to the facts that:

1. BMT is agreeable to the release of the total sum paid and details of the folios sold on foot of the transaction (again, its letter to this Office of 1 December 2009 refers);

2. BMT has not disputed Ms Moran's understanding that OPW had made the other landowners on the Island an identical offer for their holdings (in terms of euro per folio) to that made to BMT and thus that the price per folio offered and paid to BMT was in the public domain;

3. BMT has not disputed Ms Moran's contention that further financial aspects of the transaction could be gleaned from the details at 2. above and other details in the public domain; and

4. no party has a right of veto over the release of records sought under the FOI Act.

All references to BMT may be taken as including references to its legal advisors, where applicable.

Findings

Relevant Provisions of the FOI Act

Section 26

Section 26(1)(a) provides that a FOI request shall be refused where the record concerned contains information:

• given to the public body concerned in confidence and,
• on the understanding that it would be treated by it as confidential and,
• its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

All four requirements above have to be met in order for section 26(1)(a) to apply to a record.

Section 26(1)(b) provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law". There is no evidence that there is a duty of confidence provided for by a provision of an agreement (the contract itself) or enactment in this case. Accordingly, the only duty of confidence that may exist is one that exists "otherwise by law" i.e. an equitable duty of confidence. In order for such a duty to exist, this Office considers that three conditions must be met, viz.

• the information contained in the record must have the necessary quality of confidence about it and
• that information must have been imparted in circumstances imposing an obligation of confidence and
• there must be an unauthorised use of that information to the detriment of the party communicating it.

Should section 26(1)(a) apply to a record, section 26(3) of the FOI Act requires that the public interest in its release must be considered.

Section 27

Section 27(1) of the FOI Act provides that, subject to the public interest, a head shall refuse to grant a request for a record if the record concerned contains

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

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

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

A record found to be exempt under section 27(1) may be released if the public interest in its release outweighs the public interest in it being withheld (section 27(3)).

Section 28

Section 28(1) provides for the refusal of information where the granting of a request would disclose the personal information of a person other than the requester. Section 28(5)(a) provides that a record, to which section 28(1) applies, may still be released if it can be demonstrated that the public interest in protecting the rights to privacy of the persons concerned is outweighed by the public interest in releasing the record.

Findings

Section 26

Ms Moran advised BMT, on 11 November 2009, that the OPW had not relied on this provision of the FOI Act. However, having noted that BMT's submission to the OPW of 1 April 2009 stated that the agreement with the OPW was "negotiated in good faith on the clear understanding that its contents were confidential", she said that it seemed to her that the Commissioner's review would have to consider the relevance of this provision. She then outlined her preliminary view as to why she considered sections 26(1)(a) and 26(1)(b) not to apply.

In respect of section 26(1)(a), Ms Moran outlined her view that the contract at issue, setting out factual information as to what the OPW was prepared to purchase from BMT for an appropriate consideration, contains details that belong as much to the OPW as to BMT. She thus disputed whether the details therein could be said to comprise information given to the OPW in confidence. She also explained how she had formed a view that there was no evidence of a mutual understanding of confidence in respect of the purchase agreement.

Regarding section 26(1)(b, Ms Moran outlined her view that factual information regarding the amount of, and terms under which, public monies were spent cannot be said to have the "necessary quality of confidence about it". She also noted that, in the normal relationship of a vendor/purchaser, there is no general expectation that a purchaser will keep secret the price paid for particular goods or services and that she did not consider the sale of the lands on the Island to have obliged the OPW to keep confidential the details of the monies paid to BMT, especially given the existence of an FOI regime in Ireland since 1998.

However, BMT's response of 1 December 2009 stated that the OPW had given it a verbal assurance of confidentiality at a meeting in 2005. It provided a copy of a minute it had taken at the meeting concerned and argued that, contrary to Ms Moran's preliminary views, section 26(1)(b) of the FOI Act was relevant in this case. OPW's comments on BMT's claims are summarised below, are as the details of Ms Moran's further letter to BMT of 23 February 2010, to which I note BMT has not responded.

(i) Duty of Confidence by Way of Agreement

In her letter to BMT of 23 February 2010, Ms Moran firstly said that she considered the Commissioner would be unlikely to accept that the OPW would have been in any position to give a guarantee of confidentiality in this case. She reiterated that the FOI regime had been in existence for over 10 years when the deal at issue was concluded, and that the Commissioner's views on the release of material involving expenditure of taxpayers monies (whether on foot of tenders or other matters) would have been well known to public bodies at that stage. She also referred BMT to comments made by the previous and current Commissioners, in their respective decisions in case numbers 99591, 99594, 99596, 99598 & 99606, (a composite decision, dated 27 November 2001), and case number 000528 of 14 October 2004 (both of which are available on the Office website www.oic.ie).

Ms Moran's letter went on to outline that the OPW had said it could not have given BMT an assurance of confidentiality. She provided BMT with copies of minutes taken by the OPW at meetings with it on 20 December 2005 and 19 December 2006, neither of which, according to the OPW, seemed to "record or support the contention in [BMT's] aide memoire". Ms Moran also noted that those minutes contain no reference to any verbal or other duty of confidentiality having been sought by or given to BMT in relation to any aspect of the deal, at any stage in the negotiations up to December 2006. She also advised BMT that, insofar as the OPW had been able to make enquiries of those involved in the negotiations concerned, it had said that none of those persons recalled any assurances of confidentiality having been given by the OPW to BMT. She said that she considered there to be no evidence to support BMT's contention that section 26(1)(b) would be applicable on the grounds that the OPW had given it a verbal assurance of confidentiality in relation to the sale.

Ms Moran then went on to outline that she considered any agreement as to confidentiality, as negotiated and agreed between BMT and the OPW, would have been referred to in the contract for sale (capacity of the OPW to enter into such an agreement aside). She noted that the contract, as signed by and thus binding on both parties to the deal, contains no such condition. Furthermore, she noted that condition 8 thereof states that "[t]his Agreement and the Conditions contained herein and the copy Documents of Title furnished set forth the entire Agreement and Understanding between the parties in connection with this transaction ..." and that "... [n]o other ... terms, conditions or provisions shall be implied or deemed to exist." Finally, Ms Moran drew attention to the fact that the OPW's Letter of Offer to BMT states that any ensuing contract between the two parties "... shall specify that it contains the entirety of the agreement between the parties ... and save as may be expressly referred to or referenced therein, supersedes all prior representations, writings, negotiations or understandings with respect thereto." Ms Moran's view was that, even if the OPW had been in a position to give BMT a verbal assurance of confidentiality in respect of the transaction and if there was evidence to such effect, such assurance would have been superseded by the signing of the contract (the "entire Agreement and Understanding" between the two parties) which does not refer to any such confidentiality.

Ms Moran's view was that section 26(1)(b) could not be applicable to the record at issue, in that there is no evidence of a duty of confidence arising from the final contract for sale.

I agree with Ms Moran's views as set out in her letter of 23 February 2010. I do not consider that further comment is necessary, particularly as BMT did not seek to counter any of those views. Accordingly, I find that section 26(1)(b) cannot apply in this case by way of agreement, firstly because of the lack of evidence that a verbal assurance of confidentiality was given to BMT and secondly because of the wording of the final contract for sale and Letter of Offer.

(ii) Equitable Duty of Confidence

From the findings set out above, it follows that I do not accept that the OPW can be bound by any equitable duty of confidence in relation to the details of the transaction when the contract to which it is party does not refer to the confidentiality of the transaction and is stated to be "... the entire Agreement and Understanding between the parties in connection with this transaction ..." and, in particular, states that "... [n]o other ... terms, conditions or provisions shall be implied or deemed to exist."I find that section 26(1)(b) cannot apply "otherwise by law", accordingly.

(iii) Section 26(1)(a)

Again, from the analysis above, I have no reason to accept that any mutual understanding of confidence arises in respect of the details at issue in this case. Furthermore, it cannot be said that details of rights and obligations accruing to both parties to the deal on foot of the payment of public monies by the OPW to BMT is information given to the OPW in confidence. I agree with Ms Moran's view that there is no reason to accept that section 26(1)(a) is relevant in this case, particularly as BMT did not seek to counter the views she set out in her letters of 11 November 2009 and 23 February 2010. I find accordingly.

Section 27

Ms Moran's letter of 11 November 2009 explained that, even if the various terms under which BMT agreed to sell the relevant holdings on the Island were a "trade secret" during the relevant negotiations, this can no longer be the case where negotiations have concluded and that section 27(1)(a) cannot apply. I note that BMT's letter of 1 December 2009 did not take issue with this view. I have no reason to disagree with Ms Moran and I find accordingly.

In response to her views that sections 27(1)(b) and (c) cannot be applicable to the record at issue, BMT's letter of 1 December 2009 said that the special conditions of the contract set out matters which are secret and commercially sensitive to BMT, which if disclosed could prejudice its competitive position in buying or dealing with other property on the Island. It claimed that it is inequitable that other landowners would become aware of details of the easements, privileges and rights reserved or granted by BMT, when they would not be required to make similar disclosure to BMT.

Ms Moran's further letter of 23 February 2010 noted that, as the OPW is already aware of the details at issue, she considered that section 27(1)(b) would only be applicable if such release would provide other owners of land on the Island with information that would prejudice BMT in buying from them, or dealing with them in relation to, other properties on the Island. She noted that the price per folio paid to BMT is already known to the other landowners. She also suggested that while other financial details in the contract also appear to be known to the other landowners, they were unlikely to be of use to those landowners in any future negotiations they might have with BMT in any event. Thus, she did not see how any detriment to BMT's position in the purchase of further land from, or general dealings with, the other landowners could arise from release of the financial details in the contract, in which case section 27(1)(b) cannot apply to them. Equally, she outlined that she did not see how release of such details would impact negatively on any negotiations in which BMT might engage with those landowners, in which case she considered section 27(1)(c) not to apply.

While accepting that the remaining details (i.e. of easements, privileges and rights reserved or granted by BMT) would not ordinarily be known to other landowners on the Island, Ms Moran advised BMT that she did not see how such details would be advantageous to those landowners in any future negotiations that they may enter into with BMT for the latter's purchase of their holdings, or in any other dealings. She said that presumably the extent to which similar or other rights may be granted or reserved on foot of such a deal between BMT and those parties would be open to negotiation, and would depend on their intrinsic value as well as the overall value of the deal concerned. She said that she was not persuaded that section 27(1)(b) (or section 27(1)(c), if claimed to be applicable) can apply to details of the special conditions.

Finally, Ms Moran also stated that BMT appeared to contend that section 27(1)(c) was applicable in respect of future dealings it may have with the OPW. In this regard, she noted BMT's view that such dealings could be said to be reasonably foreseen. However, Ms Moran went on to say that while the contract anticipates future negotiations, she was of the view that it could not be said with any certainty when these negotiations might take place, in which case she considered it debatable that such negotiations can be said to be "reasonably foreseen".

In any event, Ms Moran noted that BMT's submission had not specified how such negotiations may be affected by the release of the details at issue. She said that release of the details cannot provide the OPW with information that it does not already know, and that it was not clear what was meant by BMT's reference to various conditions in the contract that require consultation with and permission from the OPW or BMT, as appropriate. She noted, however, that where consent is required from BMT for the exercise by the OPW of certain rights, (and vice versa) such consent "shall not be unreasonably withheld". Thus, it appears that neither party to the agreement has any right of veto over any such requests that might be made to it by the other party. She said she was not persuaded that section 27(1)(c) can apply to the details at issue in so far as they might impact on future dealings between BMT and the OPW. Ms Moran invited BMT to elaborate further in this regard but no details were received.

Turning to the public interest, Ms Moran's letter went on to say that even if sections 27(1)(b) or (c) apply, the public interest would warrant the release of the details concerned.

Her letter to BMT in her letter of 11 November 2009 had identified the relevant public interests as being those in ensuring openness as to the amount of public monies spent and the reasons for that expenditure, and in ensuring that the OPW is accountable for its actions in this regard, versus those in ensuring the confidentiality of transactions and in minimising the impact on BMT of release of the information.

She noted that, while one could argue that the former set of public interests have been met by the release of the total cost of the deal and the effective release of the other financial aspects of the transaction, release of the remaining details will further ensure openness as to the extent to which the State (via the OPW) is now entitled to particular rights, and the extent to which other rights have been restricted in favour of BMT, on foot of the agreement. She said that this will thus enable an assessment of the value for money of the overall transaction, and ensure that the OPW is held accountable for all decisions it made in this regard.

As regards the latter set of public interests, Ms Moran said that there is a lesser public interest in protecting the outcome of concluded negotiations than there is in ensuring the confidentiality of ongoing negotiations. As set out above, she also felt that the impact on BMT's interests that would be caused by the release of the details at issue were insufficiently grave to warrant the withholding of those details.  In explaining that she considered the public interests in favour of release to outweigh those in favour of withholding the record at issue, she said that she held the view that a private party entering into a contract with the State must accept that a much higher level of transparency is required in relation to the transaction than would be the case if only private, non-State, parties were involved, because taxpayer money (and in this case, rights and privileges to which the State may or may not be entitled as a result of the transaction) are at issue.  

I note that BMT have not made any arguments that would cause me to question Ms Moran's views. I concur with her views that neither section 27(1)(b) nor (c) is applicable to the details at issue, and as to why the public interest would warrant release of these details in any event. I find accordingly.

Section 28

Ms Moran's letter to BMT of 23 February 2010 noted that, while its letter to this Office of 1 December 2009 claimed that disclosure of the details at issue will reveal personal information, it did not clarify what individuals are involved.

Firstly, she outlined that she considered the "Draft Declaration of Identity ..." to be outside the scope of the request (a view with which I have concurred).

Ms Moran then went on to advise that the decision issued by the previous Information Commissioner, Mr Kevin Murphy, in case 98022 (Mr AAG and the Office of the Director of Consumer Affairs, on the Office website) would be relevant to any contention BMT might make that release of the contract will disclosure information about the company's directors. In that decision, Mr Murphy found that the definition of "personal information" can only apply to information about an identifiable individual, meaning a natural person as opposed to a legal person such as a company. He found that there was "no basis for seeking to treat a company as the same person as its directors or shareholders ... for the purposes of the FOI Act", given that a company can only act through the agency of natural persons, generally its directors or employees.

Ms Moran outlined to BMT her view that any information that would be disclosed about the directors, employees (or any other agent of BMT) through release of the record at issue would be information about them in their capacity as such directors, employees or agent. She said she saw no reason for section 28 to apply under such circumstances. As noted above, BMT did not respond to this letter. I have no reason to disagree with Ms Moran's view, and I find that section 28(1) does not apply to any details in the record at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the OPW in this case and direct that the record at issue be released (this finding does not apply to the excerpts referred to earlier as being outside the scope of the request).

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.

Seán Garvey

Senior Investigator

31 March 2010