Whether the Council has justified its refusal of the applicant's request for records concerning compliance with financial and bond conditions in certain planning permissions granted for the Central Park Development at Leopardstown, Dublin 18 (the development).

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

Background

On 10 March 2011, the applicant made an FOI request as follows:

"1. As of the 6th April, 2009 please furnish documentation to show that the financial conditions relating to [the] development were compliant to include the conditioned contributions and bonds associated with:

D09A/0850;
D08A/0486;
D06A/0681;
D05A/0578;
D04A/0944 &
D98A/0886

identifying the dates and each amount paid.

2. Please also furnish copies of any written agreements that may have been issued in relation to the contributions and bonds prior to the 6th April, 2009. The planning permissions granted state "prior to commencement or as otherwise agreed in writing with the Planning Authority pay the sum of €xxx, with any outstanding balance being updated at the 1st of January each year ... .".

Copies of all such agreements are requested."

The Council's decision of 18 May 2011 refused the request on the basis that the information in the records requested was "considered [to be] commercially sensitive" and that sections 27(1)(b) and (c) of the FOI Act applied. The Council gave no further explanation for its refusal, nor did it say how many records it considered to be relevant to the request. The applicant sought an internal review of the Council's decision on 9 June 2011. On 4 July 2011, the Council upheld its earlier refusal of the requested records. Again, it cited sections 27(1)(b) and (c) of the FOI Act and gave no description of the volume of records at issue. Neither did the Council explain why the records were being withheld other than to say it considered the information therein to be commercially sensitive.

On 9 August 2011, the applicant sought a review by this Office of the Council's refusal of the request.

In carrying out my review, I have had regard to copies of the records considered by the Council to be relevant to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Council and the applicant as set out above; to details of various contacts between this Office and the Council and between this Office and the applicant; and to details of a letter sent by Ms Anne Lyons, Investigator, to what the Council has described as the "current" developer, dated 8 May 2013.

I have also had regard to the provisions of the FOI Act.

As the timeframe in which Ms Lyons invited a response to her letter of 8 May 2013 to the developer has elapsed without reply, I have decided to conclude the review by way of a formal binding decision.

Scope of the Review

The scope of this review is confined to assessing whether or not the Council has justified its refusal of those records it considers relevant to the applicant's request.

Preliminary Matters

Records Under Review
The Council supplied copies of 131 records to this Office, but did not identify which were relevant to Part 1, or Part 2, of the FOI request.

Part 1
It is the Council's position that "in order to demonstrate compliance all debits and credits including indexation, invoicing and payments are required to be accounted for". Presumably, any agreements entered into between the Council and the developer would also have a bearing on the question of the latter's compliance with the various planning permissions. Furthermore, the Council has at no stage identified any records, or excerpts of records, that it considers to fall outside the scope of the request. Thus, this review has proceeded on the basis that the Council considers all details in the 131 records concerned to be relevant to part 1 of the applicant's request.

Further to this Office's examination of the records at issue, the oldest of which it should be noted date from 2000, it appeared as at 6 April 2009:

• that the conditions under 98a/0886 were compliant;
• that the financial conditions required by the other specified planning permissions (bar that which was granted after 6 April 2009 - see below) had not been fully paid. However, this was further to an agreement between the Council and the developer, to the effect that the monies paid to date would be allocated in full to two particular blocks in the development (F and L), with the outstanding monies to be paid later in 2009 and allocated to a third and final block (K); and
• that the bonds due had been lodged.

It also transpired, further to internet searches by this Office, that planning permission reference number D09A/0850 was granted in 2010.

The Council agrees that the above is correct. It follows that, under such circumstances, any records concerning planning permission reference number D09A/0850, which can only have come into existence after 6 April 2009, are not covered by the scope of the request or this review.

Part 2
This Office noted that records 27 and 122 appeared to comprise the Council's written agreement to "compliance submissions" made by the developer (it would appear that "compliance submissions" are proposals made by the developer for, in this case, the phased payment of monies due, and that the planning permissions require the Council to agree to these proposals in writing). The Council was asked to identify any other such documents.

It replied that "[r]ecords numbered 112, ..., record number 113 and record number 111 ... confirms (sic) the clear existence of a phasing agreement." I am taking it, thus, that these five records are the only records that are relevant to part 2 of the request (although, as previously mentioned, these records are in any event relevant to part 1 of the request). This Office, and the FOI Act, has no role if it is the case that further such records should have been created but were not.

It was also noted that record 1 referred to a solicitor's undertaking, which the Council has stated does not concern financial contributions. I am taking the Council's assurance at face value and thus have not considered the undertaking that is referred to in record 1 as part of the review.

Third Party Consultations
I understand there to have been a change in ownership of the development between the dates that the planning permissions were granted and 6 April 2009. I have therefore consulted only with what the Council has referred to as the "current developer", as it appears from the records at issue that any responsibility for matters outstanding further to the various planning permissions passed on to that "current" developer. The Council, as the relevant authority on planning matters, has not indicated otherwise.

Although the records also refer to a number of other third parties, these appear to have been the various developers' agents. The Council has not highlighted any details in the records that, if released, it would consider to impact on any of these third parties. Having examined the records, I see no reason as to why this might be the case and therefore, I have not consulted with the agents concerned.

Other Points of Note
It is relevant to note that section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. In the circumstances of this case, this requires me to give only a summary decision to the applicant until such time as the period for appeal has elapsed.

It is also relevant to be aware that the Courts have recognised that the decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than facts and circumstances applicable at an earlier point in time.

Finally, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. In a case such as this, involving a third party, it is important that the third party is given an opportunity to make whatever submissions it wishes and that any such submissions received are taken into account in the final decision on the case.

Findings

Section 27(1)(b)
Section 27(1)(b) of the FOI Act requires that a request for a record shall be refused if it contains "financial, commercial, scientific, 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". Section 27(3) provides that a record to which section 27(1)(b) applies may be released if the public interest in its release outweighs the public interest in withholding it.

It should be noted that none of the Council's arguments distinguished between the two different types of record sought in the request, presumably on the basis that the records of relevance to part 2 are also amongst the records of relevance to part 1 of the request.

The Council's submission of 24 October 2012 outlined, in a very general sense, the concerns it had over the release of details in the records at issue, including "prejudice [to] the developer's competitive edge and ... [a] risk [of] reputational damage resulting in financial loss ...". Ms Lyons' email to the Council of 8 March 2013 queried this view in light of the requirements of section 34(12)(b) of the FOI Act. The Council's reply of 28 March 2013 reiterated that release of the records at issue would damage the developer's reputation. It argued that release of the details concerned "could seriously undermine any future sale of the site", and would be a "declaration of debt [that] could, if generally viewed by the public, have serious consequence for the developer in obtaining credit from financial institutions."

It was put to the Council on 10 April 2013 that any potential buyer would presumably have to be made aware of any outstanding levies or other liabilities associated with the development, and that there did not seem to be any impediment to that buyer disclosing details of any debt due to a wider audience. It argued, in its submission of 26 April 2013, that details of account balances are "disclosed to the solicitor involved in the specific sale and revealed to the parties involved in the sale only on a client/solicitor arrangement which is built on trust and confidentiality" and that releasing the records at issue "would breach this arrangement". The Council also argued that release of the records in such circumstances would be "contrary to established practice and place an unfair burden on planning authorities to furnish and produce records which are not in the public interest and are commercially sensitive."

The Council was also asked to explain how it considered that a developer's credit facilities could be impacted on by release of the details in the records at issue, in that the developer would presumably have to disclose all debts when seeking credit in any event. It replied that the "onus is on the developer to declare any debt to the Bank, private party or creditors and his capacity as a going concern is dependant on the goodwill between these parties. To jeopardise such goodwill by declaring debt openly where other competitors do not so declare is surely giving unfair advantage and has to be described as commercially sensitive and could prejudice the outcome of contractual or other negotiations of the person to whom the information relates. This is therefore commercially sensitive information."

Section 34(12) clearly requires the Council to justify its refusal of the records at issue under the provisions of the Act upon which it has relied. It does not require me to accept that a particular provision of the FOI Act is applicable merely because the Council considers it to be applicable. Neither is it the case that records must be treated as commercially sensitive merely because of any "established practice", or because it is contended that release of records under FOI will ultimately result in an "unfair burden" on a public body.

As set out earlier in this decision, the financial requirements of one planning permission had been met in full as at 6 April 2009. Whilst the conditions required of the remaining permissions had not been met at that date, this was in accordance with arrangements entered into between the developer and the Council. The making of such arrangements is contemplated by the various planning permissions granted in respect of the development. It is not clear to me how disclosing such details would, of themselves, have damaged the developer's reputation, or prejudiced it in the conduct of its business, or caused it to suffer a material financial loss, even if released in or around April 2009.

Be that as it may, and generally speaking, I can accept that the strength of an entity's reputation contributes to its competitiveness and plays a role in the conduct of its business. It follows that records containing information that, if disclosed, could weaken an entity's reputation are capable of exemption under section 27(1)(b) of the FOI Act. Thus, it could be argued that disclosure of records showing the extent to which a developer is in debt to a local authority, whether further to an agreement or otherwise, could be exempt accordingly.

However, information becomes less sensitive over time. Thus, whilst a developer's reputation might suffer because of the disclosure of certain information at a particular point in time, subsequent release of that information may have little, or no, such consequence. It is the impact of release at the time of this Office's review that is relevant. The records at issue do not disclose whether or not the remaining contributions were, or were not, paid subsequent to 6 April 2009, and thus whether or not the agreements entered into in this regard were or were not fully complied with, or what other events might have taken place in the intervening time. In short, they reveal nothing about the developer's affairs now, and in such circumstances, I find that the Council has not justified how the various scenarios it appears to envisage could arise.

Furthermore, one would expect that the developer is in a better position than the Council to put forward arguments as to how release of the records at issue could, at this point in time, impact on its reputation or otherwise cause it to suffer a material financial loss or prejudice it in the conduct of its business - whether by affecting its ability to sell the development, or by affecting its relationship with its bankers or other creditors, or for other reasons. Thus, this Office's letter to the developer of 8 May 2013 gave that party an opportunity to explain to this Office why section 27(1)(b) should be found to apply to the records at issue. The letter made it clear that it was likely a decision would be made to direct the release of the records, in the event of no response. However, no response has been received. Neither was the letter, which had been sent to its registered office, returned as undelivered.

In short, the Council has given insufficient detail, and the potentially affected developer has given no detail at all, as to why release of the records at this point in time could reasonably be expected to result in a material financial loss or gain to the developer, or could prejudice its competitive position in the conduct of its business. Under such circumstances, I see no basis to consider that the details in the records at issue should be found to be exempt under section 27(1)(b) of the FOI Act. I find accordingly.

Section 27(1)(c)
Section 27(1)(c) requires the refusal of a request for a record containing "information whose disclosure could prejudice the outcome or conduct of contractual or other negotiations of the person to whom the information relates." Again, a record to which this provision applies may be released if the public interest in its release outweighs the public interest in withholding it (section 27(3) refers).

The arguments made by the Council to this Office clearly pertain to its desire to protect its own ability to negotiate payment of outstanding financial contributions with any developer that has not fulfilled the relevant planning permission requirements.

The focus of section 27(1)(c) is on protecting the third party's ability to conduct negotiations, rather than that of the Council. I cannot disregard the fact that the developer did not, as it was invited to, explain how the release of the records at issue could prejudice specific negotiations in which it was at that time involved, or which could reasonably be anticipated. I therefore do not have an argued basis on which to conclude that the developer considers that release of the records at issue at this point in time would have any impact on any such current or impending negotiations.

I find, thus, that section 27(1)(c) does not apply to the records at issue.

Other arguments made by the Council
The Council's stated reasons for applying section 27(1)(c) to the records at issue seem to me to be more relevant to the discretionary provisions of sections 21(1)(b) or (c) of the FOI Act, on which the Council has not relied.

Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused "if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)". Section 21(1)(c) of the FOI Act provides for the refusal of a record where, in the opinion of the head, its release could "reasonably be expected to 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". Both provisions are subject to section 21(2), which provides that a record found to be exempt under section 21(1)(b) or (c) may be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned).

In its submission of 24 October 2012, the Council said that release of the records at issue would impact on "any/all future efforts to reach agreement with developers in relation to outstanding financial contributions due to the Planning Authority". The Council was asked, by way of this Office's email of 8 March 2013, to elaborate on the nature of such negotiations, including how it considered that they could reasonably be expected to be impacted upon by release of the records at issue. The email questioned whether any developer's willingness to engage in such negotiations would be affected by release of the records at issue, given that they would nonetheless have an interest in negotiating with the Council to deter enforcement action that might otherwise be taken against it.

The Council's reply of 28 March 2013 cited various reasons for withholding the records, none of which I consider to be relevant to the provisions of the FOI Act, along with concerns already dealt with under the heading of section 27(1)(b). While it said that "[n]egotiations in relation to Central Park are ongoing with the developer/s", it gave no details of those negotiations, or of how they might be impacted on by release of the records at issue.

It was asked for specific details in relation to these "ongoing" negotiations in this Office's further email to the Council of 10 April 2013. However, the Council's response of 26 April merely referred to an explanation it had given elsewhere in that submission regarding the process of "proving" a debt through the Courts. Other than, apparently, contending that said process will be impacted upon because the details in the records will be "misunders[tood]", it has not elaborated further on the ongoing negotiations that it considered would be impacted upon by release of the records at issue. Thus, I see no reason to accept that release of the records at issue could impact on the Council's ability to negotiate with the third party developer in this case, or with other developers, in relation to outstanding contributions or bonds.

The Council's arguments also seemed to suggest a contention that release of the records will interfere with its debt collection processes, and impact on its ability to collect monies due to the public purse. Thus, the Council was asked to elaborate on those debt collection methods, and how they might be prejudiced by release of the records at issue. It merely replied that this "is commercially sensitive information".

If it is the case that a public body wishes to protect information under the FOI Act, which if released might impact on its ability to collect debts due to the public purse, it is obliged by section 34(12)(b) to explain to this Office how such damage will occur and how the relevant provision of FOI Act is thus applicable. The Council did not do so in this case. It will be well aware that public bodies regularly provide this Office with sensitive information when justifying their application of the provisions of the FOI Act, and that this Office treats such information in accordance with the requirements of section 43(3).

The Council has given other general explanations as to why it considers the records should be exempt from release. Again, it has not cited the relevant provisions of the FOI Act nor made sufficient argument as to why such provisions of the FOI Act might apply. I do not intend to speculate as to the provisions that might have been potentially applicable, and intend to make only brief observations on the issues raised.

Firstly, the Council contended that it "could at some stage" initiate legal proceedings against the developer (although it subsequently said that, for various reasons, it is "impossible to indicate a timeframe for legal action"), and that it is "policy to pursue all outstanding amounts through the Courts if necessary." It was asked, on 8 March 2013 to explain, in terms of the relevant provision of the FOI Act, how such legal proceedings could be impacted on by release of the records at issue. Its reply of 28 March said that release of the records "would indicate the level of compliance to the outside world prior to legal proceedings being issued", which it contended "could seriously undermine [its] debt collection methods and would be sub judice as the debt is required to be proven should the case proceed through the Courts ... [which] would surely cause serious reputational damage [to the developer]".

I have already commented on the Council's arguments concerning the impact of release on its debt collection procedures. In its further submission of 26 April 2013, it gave a general outline of the process of proving a debt and how matters "outside of the financial contributions sphere" are relevant. It appears to consider that this process will be impacted on by the potential for "misunderstanding and confusion" arising from release of the records at issue. As already stated, any potential for general confusion arising from the release of a record under FOI is not a basis for its refusal. The Council has not explained the basis for its contention that the Courts would become "confus[ed]" further to release of the records at issue, or otherwise "misunderstand" the relevant issues before it. Neither has the Council provided any basis for its contention that the matters to which the records at issue relate are sub judice (a term that I understand to relate to matters that are before the Courts and have yet to be decided, rather than matters that "could at some stage" come before the Courts).

In addition, although the Council has also contended to this Office that its dealings with individual developers in relation to such matters is confidential, it has given no supporting argument in this regard other than its view that developers "would not expect such dealings to be released through the FOI process".

Other general arguments made by the Council in support of its view that the records should be withheld include: the potential for this Office's decision on this review to set a "serious precedent" that must be bound in other cases; the contention that the applicant "has no legal interest" in the development bar a small number of units that are owned by its clients; that release of the records will give rise "to misunderstanding and confusion"; and that by releasing records that would tell a third party what levels of financial contributions due in a specific case, that party gains an unfair advantage compared to other potential buyers who are "required to hire solicitors to do such work". None of these general arguments, in my view, demonstrate that the records are exempt under any of the provisions of the FOI Act.

Finally, the Council has also claimed that the records should be withheld as, in its view, it will be exposed to claims for damages further to any release of third party commercially sensitive information. This concern is immaterial, given that section 45 of the FOI Act provides that no civil or criminal action may lie against the Council or against this Office arising from the release of the records at issue (it is the case, however, that the FOI Act confers no such privilege or immunity in the event of further publication of such records by the applicant or any other party).

Leaving aside the opportunities it had to make its case at the decision, and internal review decision stages of the FOI process, the Council has had at least three opportunities in the course of this review to discharge its responsibilities under section 34(12)(b) of the FOI Act (indeed, it did not provide any submission upon initial acceptance of the case, as it was invited to do). However, I do not consider that the Council has shown how release of the details at issue, at this point in time, could give rise to the many harms it envisages could arise from their release, or that it has a reasonable basis for such views. I do not consider the Council to have met the requirements of section 34(12)(b) of the FOI Act. Thus, I have no basis to accept that its arguments, in the manner in which they have been presented, require me to find that the records should be withheld.

The Public Interest
It is not necessary for me to make any finding on the public interest, given the above findings (granted, certain of the provisions of the FOI Act alluded to by the Council's general arguments would not require the consideration of the public interest, had the Council met the requirements of section 34(12)(b) of the Act).
 

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Council's refusal of the applicant's request and direct that the records it has considered relevant to that request be released.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

As revealing the arguments made in this case would, of itself, disclose information that the Council considers to be exempt from release, the detailed explanation of why I have directed the release of the records will not be provided to the applicant until after the expiry of the eight weeks concerned.

Sean Garvey
Senior Investigator