Whether the Department was justified in deciding to refuse access to records relating to the sale of Siteserv on the ground that the records are exempt under sections 31, 35 and 36 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 March 2015 the applicant made an FOI request to the Department for a copy of the Department's review into the sale of Siteserv to Millington; any correspondence with the Irish Banking Resolution Corporation (IBRC) regarding the sale; and any internal reports, memos or internal correspondence regarding the sale. By letter dated 17 April 2015, the Department granted partial access to the records and refused access to the remaining records on the ground that they are confidential under section 35 of the FOI Act and commercially sensitive under section 36 of the FOI Act. On 23 April 2015, the applicant applied for an internal review of the decision in respect of the remaining records. The Department issued an internal review decision by letter dated 5 June 2015, in which it affirmed its original decision. On 24 June 2015 the applicant applied to this Office for a review of the Department's decision.
In conducting my review, I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the content of the withheld records, provided to this Office by the Department for the purposes of this review.
Preliminary Matters
Before I consider the exemptions claimed, I wish to make three general points. First, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy me that its decision is justified. Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the withheld information and elaborate on my reasoning is limited. Finally, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Scope of the Review

The Department listed five records on its schedule of records. In the course of this review, the applicant confirmed to this Office that he only sought records 1, 2 and 5, since records 3 and 4 are now in the public domain. Following the intervention of an Investigator of this Office, the Department released record 1 to the applicant and certain information in records 2 and 5. Accordingly, the scope of my review is confined to records 2 and 5, which I will refer to as "the records" from now on.

Analysis and Findings

Section 31(2) - Commission of Investigation
In its submissions to this Office dated 21 October 2015, the Department states that it now relies on an additional exemption, under section 31(2) of the FOI Act. This is on the basis that the Siteserv transaction now falls within the scope of a statutory commission of investigation into certain matters in the IBRC. An Investigator in this Office drew this fact to the applicant's attention and invited submissions from him on the matter, but did not receive any submissions. I have taken the Department's submissions into account.
The Department submits that subsequent to the applicant's FOI request, a commission of investigation was established to investigate certain transactions, which included the sale of Siteserv. It says that the release of the records would not be in the public interest, since the resulting public discourse may compromise the commission's ability to conduct the investigation.
As my jurisdiction is to make a new decision in light of the current circumstances, I am entitled to consider this additional exemption.
Section 31(2) provides, among other things:
"A head may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of - ...
(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member, or the sole member, of which holds or has held judicial office or is a barrister or a solicitor
...
and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed".
On 16 June 2015 the Commission of Investigation (IBRC) Order 2015 Statutory Instrument No. 253/2015 established a commission to investigate certain matters (Commission), under section 3 of the Commissions of Investigation Act 2004. I am aware from the Commission's First Interim Report submitted to the Taoiseach with a request for the revision of the time frame for submitting a final report under section 6(6) of the Commissions of Investigation Act 2004(Interim Report) that Mr Justice Brian Cregan of the High Court was appointed as Sole Member of the Commission on 9 July 2015. As the Interim Report makes clear, the Commission has not completed its investigation. Having regard to these facts, I accept that the Commission is a body whose functions have not been completed for the purposes of section 31(2) of the FOI Act.
The matters for investigation by the Commission include all transactions which occurred between 21 January 2009 and 7 February 2013 and resulted in a capital loss to IBRC of at least €10,000,000 or which are specifically identified by the Commission as giving rise or likely to give rise to potential public concern. I note from the Interim Report and the Commission's Determination on assertions of a duty of confidentiality and legal professional privilege over certain documents dated 5 November 2015 (Determination) that the Commission directed the special liquidators of IBRC to furnish it with all documents in their possession or power relating to Siteserv. I further note that the special liquidators of IBRC furnished it with 276 lever-arch files in respect of the Siteserv transaction running to approximately 186,498 pages of documentation, over which they have asserted a duty of confidentiality.
I have reviewed the records. As is evident from the redacted versions provided to the applicant, they relate to the sale of Siteserv and consist partly of correspondence from, and the identities of, unsuccessful bidders for Siteserv. The Interim Report notes that Siteserv featured in public discourse preceding the Commission's establishment. According to reports of Daíl proceedings and media reports, the sale of Siteserv in May 2012 resulted in a write-down of €110 million. As I have noted, the Commission has directed the IBRC special liquidators to provide it with documentation relating to the Siteserv transaction. Having regard to these circumstances and the Commission's terms of reference, set out in SI 253/2015, I consider that records which concern the sale of Siteserv in 2012 relate to the business of the Commission. I therefore find that section 31(2) applies to the records.
Moreover, the records do not relate to the general administration of the Commission and therefore in my view, section 31(3) does not disapply section 31(2).
Section 31(2) does not provide for consideration of whether a harm is likely to occur upon release of the records in question. Furthermore, unlike several other of the exemptions contained in the FOI Act, section 31(2) does not provide for the setting aside of that exemption where to do so would serve the public interest. Having considered the Department's submissions on the matter, I find that its decision to exercise its discretion to refuse access to the records on the ground that 31(2) applies is justified.

In view of this finding, I am not required to consider the exemptions claimed under section 35 or 36 of the FOI Act.

Section 42 - Restriction of the FOI Act

Section 42(e) of the FOI Act provides that certain records relating to an investigation by a commission of investigation within the meaning of the Commissions of Investigation Act 2004 are excluded from the application of the FOI Act. However, records which were created before the making of the order establishing the relevant commission are not excluded. As the records were created before the making of SI 253/2015 on 16 June 2015, I consider that section 42 does not exclude the records from the application of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision, under section 31(2) of the FOI Act.

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 four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator