Case Number: 140108

Whether the Department's decision to refuse to grant access to certain records concerning the Codling Bank wind farm project was justified under sections 26 and 27 of the FOI Act

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

Background

In a request dated 11 September 2013, the applicant sought access to copies of all correspondence (2005 to 2013) between the developers (and/or their agents) and the relevant Minister/Department relating to the construction of a 1100MW offshore wind farm on the Codling Bank off County Wicklow, including any notification regarding a change of ownership. The project is known as Codling I, and the developer is a company called Codling Wind Park Ltd. In its original decision dated 31 October 2013, the Department identified 153 records as relevant to the applicant's request. The Department granted access to 75 of the records concerned and refused access to the remaining 78 records.

On 28 November 2013, the applicant sought an internal review of the Department's decision. On internal review, the Department granted access to a further six records in full and four records in part. Access to the remaining 68 records identified at the time was refused. On 2 May 2013, the applicant sought a review by this Office of the Department's decision.

Regrettably, a long delay arose in bringing this review to conclusion, which was due to unavoidable exigencies affecting my Office. I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant, the Department, and the third party company affected by this review. I have also examined the records concerned. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The submissions made by the third party company and the Department gave rise to some confusion over the scope of the review because of a different numbering system used by the company and also because certain records were belatedly identified by the Department as either duplicates or as relating to a separate project (referred to as "Codling II"). The confusion was compounded by the fact that neither the Department nor the company listed the records in strict chronological order or in any other consistent, systematic manner. In addition, some documents are attached together that should have been given separate record numbers. I would expect the Department at least, which has been subject to FOI since 1998, to follow the long-standing guidelines for preparing a schedule that have been published by the Central Policy Unit.

I note that the material redacted from record 109 also relates to Codling II. In addition, the Department accepted that record number 90 on its schedule of records should have been released, but that an additional record, namely, a letter dated 20 May 2013 from Ms. Lorraine O'Donoghue to Mr. Nick Emery, had been overlooked in the original decision-making process; this record has been assigned number 154.

I also note that record number 120 on the Department's schedule of records is a letter from the Chief State Solicitor's Office (CSSO) to the Minister. This letter does not fall within the scope of the applicant's request, which sought correspondence between the developers and the relevant Minister/Department and would, in any event, fall outside the ambit of the Act by virtue of section 46(1)(b) of the FOI Act.

Therefore, as my Office advised the applicant (apart from an oversight regarding the exclusion of record 109), following the numbering system used by the Department in its schedule of records, the scope of this review is concerned with whether the Department was justified in refusing access to records 19, 21, 24, 32, 36, 37, 40, 53 - 55, 60, 63, 66, 67, 70, 80 - 82, 85, 86, 92, 96 - 100, 105, 107, 115 - 119, 122 - 126, 131 - 137, 140, and 142 - 154 in full, and in granting only partial access to records 68, 69, and 101.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited.

In addition, I wish to explain my approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. 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 this case, the Department's decision to refuse access to the records at issue was based primarily on section 26(1)(a) and section 27(1) of the FOI Act. However, in submissions made in response to queries raised by this Office during the course of the review, the Department indicated that all of the records at issue may in fact fall within the scope of a confidentiality agreement and that section 26(1)(b) may therefore apply.

Relevant Exemption Provisions

Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, 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, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".

The confidentiality exemption generally does not apply to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services" (section 26(2) refers). In addition, section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

Section 27 of the FOI Act provides protection for three different classes of commercially sensitive information as follows:
"27.-(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 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."

Section 27(1) does not apply, however, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 27(3) refers).

Section 26 - bi-monthly reports
As many of the records at issue in this case consist of reports that are largely similar in content, I will address these records first in the context of the confidentiality claims that have been made.

Codling I is a project that is or was being carried out under a lease granted to Codling Wind Park Ltd on 15 November 2005 under the Foreshore Act 1933. The lease was issued for the development of what is described by the Department as "a major strategic infrastructure project, an 1100 MW windfarm (200 turbines), at Codling Bank off the coast of County Wicklow". Previously, on 9 August 2000, the company had been granted a foreshore licence for the purpose of allowing it to assess the suitability of the proposed Codling site for the construction of an off-shore electricity generating station.

It is a matter of public knowledge, however, that the project encountered delays arising from the failure to secure a grid connection. In submissions made to my Office during the review, the company claimed that Codling I was a "live project", but that it had been placed in a "moth balled" status pending an agreement between the UK and Irish Governments to allow Irish offshore wind projects to connect to the UK grid. To my knowledge, the project's development status remains dormant.

Records 67, 86, 96, 99-100, 105, 107, 125, 131-135, 148-153 are described by the Department in its submissions as bi-monthly reports that the company is required to submit to the Department. The Department explained that the requirement to submit the reports initially arose as a condition of the foreshore licence that had been granted to the company on 9 August 2000. According to the Department, following the execution of the foreshore lease in 2005, the practice of submitting reports on a bi-monthly basis to the Minister continued as a means of keeping the Minister informed on progress towards meeting the conditions of the lease. Although the Department did not refuse any part of the request under section 26(1)(b) of the Act, it indicated during the course of the review that the bi-monthly reports may fall within the scope of a confidentiality clause contained in the lease.

Section 26(1)(b)
As noted above, section 26(1)(b) applies where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by agreement. Section 29 of the foreshore lease provides:
"29.1 Subject to clause 29.2, a Recipient must keep confidential and must not disclose any Confidential Information which the Recipient receives or acquires pursuant to this Lease, other than with the consent of the Disclosing Party.

29.2 It will not be a breach of clause 29 for a Recipient to disclose Confidential Information:

(1) to the extent required by Law; or

(2) to such of its Affiliates, employees, servants, agents, contractors or advisors who require access to such Confidential Information, provided that such Affiliates, employees, servants, agents, contractors or advisors are:

(a) made aware of the fact that the information is Confidential Information; and

(b) made aware of and bound by the obligations of Recipient under this clause 29." [Emphasis added.]

"Confidential Information" is defined in turn to mean any information in whatever form:
"(a) in relation to a party to this Lease or an Affiliate of a party to this Lease;
(b) in relation to any employee, servant, agent, contractor or advisor of a party to this Lease or an Affiliate of a party to this Lease;
(c) in relation to the business, products, services, methods or work of a party to this Lease or an Affiliate of a party to this Lease;
(d) which is by its nature commercially sensitive and/or confidential;
(e) which is designated by the Disclosing Party as Confidential Information at the time of disclosure to the Recipient; or
(f) which the Recipient knows or ought reasonably to know is Confidential Information;

but does not include:

(g) this Lease;
(h) information which is or becomes generally available to the public (other than by reason of a breach of this Lease);
(i) information which is known to the Recipient at the time of its disclosure; or
(j) information which is subsequently acquired by the Recipient from a third party on terms that permit it to be disclosed and/or used, provided that such third party is lawfully entitled to disclose the information on such terms. "

I wish to emphasise that neither the Department nor the company expressly claimed that the confidentiality clause applies to the bi-monthly reports or to any other records at issue. Indeed, when given an opportunity to comment on the matter, the company made a submission dated 31 March 2015 in which it acknowledged that the 2005 Foreshore Lease contains a confidentiality clause, but nevertheless did not actually argue that the clause applies to the records at issue in this case, relying instead on the provisions of section 26(1)(a) in addition to section 27(1) of the Act. I therefore question whether the confidentiality clause was regarded by the parties as an enforceable agreement (quite apart from the question of its compatibility with the Department's obligations under FOI and the Access to Information on the Environment Regulations 2007 to 2014).

In any event, the Department acknowledged in a submission dated 7 January 2016 that the reports were provided as a result of a "practice" that was established under the conditions of the foreshore licence. The contents of the reports themselves refer to "Work Under Licence" dated 2 April 2001, not the lease dating from 2005. Moreover, in its submission dated 7 January 2016, the Department outlined the specific information that the company is required to provide under the lease; the bi-monthly reports relating to the licence, which do not appear to deal with the operational phases of project, are not expressly mentioned, though there is overlap in the nature of the reporting requirements. In the circumstances, I do not accept that the reports were provided "pursuant to the lease" as required in order for the confidentiality clause to apply.

I have also considered whether a duty of confidence may exist in relation to the reports "otherwise by law". A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity.

In the Supreme Court case of Mahon v. Post Publications [2007] IESC 15, Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

As regards the circumstances in which the information was imparted, I think that it is important to note that in the case of House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611, Costello J characterised the obligation of confidence which is based on equity as a duty to act in good faith and as a moral obligation.

In this case, I note that that the reports are marked "Confidential - Commercially Sensitive", but this Office does not accept that such labelling is sufficient, in the absence of other evidence establishing the necessary quality of confidence, to impose an obligation of confidence with respect to the records concerned. The reports, which contain a large amount of repetition, provide updates on the following matters relating to the Codling projects:

• the survey work and assessments done in relation to the environmental impact of the proposed projects,
• applications for the authorisation, licences, and planning permission needed to progress the projects,
• the recording of wind strengths and wave conditions,
• seabed conditions,
• archaeological remains encountered, and
• progress generally on the Environmental Impact Assessment.

The reports thus contain information regarding the natural and archaeological resources of the State in the context of a proposal for the development of what is described by the Department in its submissions as "a major strategic infrastructure project". As stated above, these reports were provided to the Department as a condition of the foreshore licence granted to the company. I do not accept, as a general matter, that information that a licensee is required to provide on the natural and archaeological resources of the State in relation to a proposed development of a major infrastructure project with significant environmental impacts could properly be regarded as information of a confidential nature.

Indeed, one aim of the Environmental Impact Assessment (EIA) process is to ensure public participation in relation to the environmental impacts of such projects. Information on authorisations and generation licences issued by the Commission for Energy Regulation (CER) is published on the CER's website. EirGrid also publishes a list of all generation applicants seeking connection to the Transmission or Distribution system, whether received by ESB, ESB Networks, or EirGrid itself. Moreover, it is not a private or secret matter that a major generation project will involve the surveys required for an EIA or Environmental Impact Statement (EIS) as well as the applications needed for the authorisations, licences, and connections required in order to advance the project.

In the circumstances, I do not accept that the reports have the necessary quality of confidence for the purposes of section 26(1)(b). Moreover, I do not accept that the State is obliged, as a matter of law, to treat as confidential the information that it requires in order to determine whether a particular foreshore site owned by the State is suitable for a major infrastructure development project such as a wind farm. I also find no basis for concluding that the release of the reports under FOI would constitute an unauthorised use the information contained therein to the detriment of the licensee, particularly in light of the passage of time since the reports were prepared. In the circumstances, subject to the isolated exceptions below, I am not satisfied that section 26(1)(b) applies.

This Office recognises that private individuals, corporations or interest groups may, in the course of making their views known to a public body, disclose such details of their own private affairs in circumstances that might impose an obligation of confidence on the public body in relation to those details. In this case, the author of the cover letters to a number of the bi-monthly reports disclosed information of a personal nature for the purpose of explaining to the Department the timing of the submission of the reports. In the circumstances, I accept that section 26(1)(b) applies to the following excerpts:

• record 67: "I will be . . . leave"
• record 86: "I have . . .leave"
• record 105: "as . . . of June".

 

Section 26(1)(a)
The Department and the company claim that the bi-monthly reports are also exempt under section 26(1)(a). For section 26(1)(a) to apply, the following requirements must be met:

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

 

Based on the submissions of the Department and the company, I accept that the bi-monthly reports were given to the Department in confidence and on the understanding that they would be treated by the Department as confidential. This is not to say that I accept that the understanding was necessarily reasonable in the circumstances. As noted above, the reports concern the environmental impacts of the proposed projects. The foreshore site involved is not privately owned; it is a State-owned asset and thus involves the natural and archaeological resources of the State. Moreover, I do not accept that information on the applications required for the necessary authorisations, licences, and planning permission is of a confidential nature. However, in the case of Rotunda Hospital v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26, the Supreme Court found that it is the circumstances in which the information was imparted and received, rather than the nature of the information, that is important in determining whether the first two requirements of section 26(1)(a) are met. Thus, a technical, legal interpretation of "confidence" does not apply in relation to section 26(1)(a), which means that the information need not be concerned with "private or secret matters" or otherwise have the "necessary quality of confidence". I note that the circumstances in the Rotunda case involved a professional relationship between a health professional and patient and are thus very distinguishable from a case involving information imparted and received under the Foreshore Act. Nevertheless, I accept that the Department and the company had an understanding of confidence in relation to the bi-monthly reports and that the first two requirements of section 26(1)(a) have been met.

In light of the contents of the reports and the circumstances in which they were provided to the Department, however, I do not accept that disclosure would be likely to prejudice the giving to the Department of further similar information from the same person or other persons. As noted, the reports were provided to the Department as a condition of the foreshore licence granted to the company. Moreover, I do not see that the reports contain information of a confidential or commercially sensitive nature. In the circumstances, I am not satisfied that the third requirement of section 26(1)(a) has been met. I find that section 26(1)(a) does not apply.

As I have found that the reports do not qualify for exemption under section 26(1)(a), strictly speaking, it is not necessary for me to consider them in relation to the public interest test under section 26(3) of the Act. Nevertheless, I consider it worthwhile to comment on the matter of the public interest in light of the very strong arguments presented by the applicant. The applicant has stressed the need for public participation in decisions affecting Irish coastal waters. She states: "[T]he public has a right to know how a large tract of our coastal waters has been managed and disposed of under legislation which is acknowledged to be inadequate and is now under reform." She argues that the foreshore lease was awarded to the company in a manner that was "clouded in secrecy" and contrary to the Aarhus Convention [i.e. United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters]. She is also aware that the project has stalled for failure to secure a grid connection in Ireland and that the company sought a connection to the UK grid instead.

I agree that there is a very strong public interest in optimising accountability and transparency in relation to the manner in which the Department carries out its regulatory functions in relation to the foreshore of Ireland. Again, I stress that the foreshore of Ireland is a public asset involving natural and archaeological resources that belong to the State. As stated on the Department's website, consent is required for any proposed development of the foreshore in order to ensure that the foreshore is protected. Previous decisions of this Office, such as Case 080232 (Mr Colin Coyle, Sunday Times & Dublin City Council), available at www.oic.ie, have recognised that there is a need for transparency and accountability in the use of public property and public assets. Moreover, Directive 2003/4/EC, which has been transposed into Irish law through the European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014, recognises a very strong public interest in maximising openness and transparency in relation to environmental matters. Thus, even if I were satisfied that all four requirements of section 26(1)(a) were met in relation to the reports, which I am not, I would find that the public interest would, on balance, be better served by the release of the reports in their entirety.

Section 26 - other records
I note that the Department has not taken an entirely consistent approach in this case. According to its schedule of records, only certain of the remaining records at issue were also refused under section 26(1)(a) of the FOI Act, namely, 21, 24, 82, 85, 91, 92, 123, 124, and 154. According to the Department's submission dated 28 May 2014, however, the following records (but not 82, 123, 124) were also refused under section 26(1)(a): 19, 32, 36, 37, 63, 66, 68 (in part), 69 (in part), 80, 81, 92, 98, and 101 (in part). Moreover, during the course of the review, the Department stated that all of the records at issue were created "pursuant to the Foreshore Lease" and thus may in fact fall within the scope of the confidentiality clause contained therein.

Records falling within the ambit of section 26(2)
I find that section 26(2) precludes the Department from applying 26(1) to the following records unless a duty of confidence of exists: 21, 40, 55, 60, 63 (in part - the attached letter dated 26 October 2012), 82, 92 (in part - the attached letter dated 30 January 2009), 117, 119, and 154.

Records directly relating to the terms and conditions of the lease
In my view, the following records directly relate to the terms and conditions of the lease: 21, 40, 55, 60, 63, 82, 92, and 154. Record 82 consists of Schedule 4 of the lease setting out the up-front fees. Records 40, 55, 60 are invoices and other correspondence seeking payment of the fees owed. (The company does not even object to the release of record 55, but this is dealt with below.) Record 154 is a letter from the Department dated 20 May 2013 agreeing to a change to the Longstop Dates in the lease. Record 21 is a letter from the Department dated 19 June 2013 providing clarifications sought in relation to the letter dated 20 May 2013. Record 63 includes an attached letter from the Department dated 26 October 2012 regarding a request for an extension of the Longstop Date. Record 92 includes a letter dated 30 January 2009 from the Department of Agriculture, Fisheries and Food responding to a request for relief from certain obligations with respect to timescales under the lease.

The terms of the lease itself specify that the lease is not to be regarded as confidential information. No exception is made for its Schedules. Moreover, as the lease is not confidential information, I see no basis for regarding information directly related to the fees payable under the lease or to changes in the terms and conditions of the lease to be treated as confidential. I also note that it is generally known to the public that the project encountered delays arising from the failure to secure a grid connection; it follows in the circumstances that the timescales specified in the lease would need to be revisited.

In light of the claims made by the Department and the company, however, it needs again to be stressed that the records concerned relate to the lease of a foreshore area that belongs to the State. The terms and conditions of the lease were not "imparted to" the Department; they were granted or agreed to by the Department or its predecessor in the matter, the Department of Communications, Marine and Natural Resources. In certain circumstances, the terms of a contract may be subject to a confidentiality clause. However, this is not the case here. In any event, the lease itself acknowledges that the disclosure of information designated as "confidential" may be required by law. I do not accept that the Department could reasonably be expected, as a matter of law, to treat the terms and conditions governing the use of a public asset such as the foreshore of this country as confidential almost 20 years after FOI was first enacted in Ireland. In Case 98049 (Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and the Office of Public Works), available at www.oic.ie, Kevin Murphy, the first Information Commissioner, commented:

"[O]ne would have to question, having regard to the coming into force of the Freedom of Information Act, how any public body could have an understanding that the details of its expenditure of public money would be kept confidential."

These comments reflect a principle of openness that also applies to the use of public assets. As my immediate predecessor, Emily O'Reilly, observed in Case 080232 (referenced above):

"[T]here is a need for transparency and accountability in the usage of public property and public assets. There is a strong public interest in the proper administration of public contracts and ensuring that value, in the broadest sense of that term, is obtained. I believe that there is a compelling public interest in openness and transparency in transactions/agreement involving the finances and assets of public bodies whether or not expenditure or revenue is involved."

She also recognised that "the very existence of secrecy carries with it the scope for abuse".

Case 080232 involved a concession contract for the provision of outdoor advertising and public amenity services, referred to as the "bikes - for - billboards scheme". This case involves the use of an area of the foreshore of this country, including its natural resources. I do not accept that the Department could properly be regarded as being under any obligation to keep secret information that is directly relevant to the terms and conditions on which it has chosen to allow such usage. I find that section 26(1) does not apply.

Records 117 & 119
Records 117 and 119 consist of correspondence between the Department and the CER referring to an application for authorisation and a proposed change of control of the company. As indicated above, I do not accept that the mere fact that a generation project involved applications for the authorisations or licences required in order to advance the project qualifies as confidential information. The fact that the company was jointly owned by two other companies, each with a 50% shareholding, is in the public domain. The company stated in its submission dated 31 March 2015 that it does not object to the release of record 124, which makes reference to the proposed change of control, though I note that the proposal does not appear to have been implemented. Given the very limited amount of information contained in these records about the proposal, I find no basis for concluding that section 26(1) applies.

Records 53-55, 68, 124, 145, and 147
The company has stated that it does not object to the release of these records. I therefore find no basis for concluding that section 26(1)(a) or (b) applies.

Other records directly relating to the terms and conditions of the lease
I consider that the following records are also directly related to the terms and conditions of the lease: 24 (attachment dated 5 June 2013), 63 (in part - the cover letter dated 29 November 2012), 66, 69 (insofar as within scope), 70, 80, 81, 92 (the letter dated 24 April 2009), 98, 101 (insofar as within scope), and 137.

Section 26(1)(b)
These records concern the fees payable under the lease and/or delays encountered with the project that resulted in the need for changes to the terms and conditions specified in the lease. I have commented above on information that is directly related to the fees payable under the lease or to changes in the terms and conditions of the lease. I also note that it is generally known to members of the public with an interest in the matter that, related to the problems arising from the lack of a grid connection in Ireland, there was an intention to connect to the UK grid in the event of an Inter-Governmental Agreement with the UK on the export of renewable energy being reached. Media reports on the situation are available on the Internet, and records which have been released (e.g., records 78, 93, 102, and 112) or to whose release the company does not object (record 68) refer to the failure to secure a grid connection and the intention to connect to the UK grid in the event of an intergovernmental agreement.

In other words, it is no secret that the issue of a grid connection gave rise to significant problems with the project and hence the terms and conditions of the lease. The records also include discussion of other matters such as turbine layout and environmental requirements, but as this is a project that required planning permission, I do not accept that such matters are of a confidential nature. Therefore, even assuming that the records contain information that was provided "pursuant to the Lease", I do not accept that the information qualifies as "confidential information" within the meaning of the confidentiality clause. Likewise, I do not accept that the information has the necessary quality of confidence in order for an equitable duty of confidence to exist. I also do not accept that the Department is obliged, whether as a matter of contract or in equity, to treat such information as confidential. Moreover, I find no basis for concluding that disclosure of the information concerned under FOI would be an unauthorised use of the information to the detriment of the company, particularly in light of the passage of time since the records were created. In the circumstances, I am not satisfied that section 26(1)(b) applies.

Section 26(1)(a)
Arguably, in light of the Rotunda judgment, even information that is directly related to the terms and conditions of lease may be regarded as having been given in confidence and on the understanding that it would be treated as confidential for the purposes of section 26(1)(a) of the Act. However, information that is directly related to the terms and conditions of a foreshore lease must necessarily be given to the Department if the lessee wishes to maintain the lease. As noted, moreover, information about the delays encountered by the project is in the public domain. I therefore do not accept that these records meet the third requirement of section 26(1)(a). In any event, given the strong need for transparency and accountability in relation to the terms and conditions governing the use of the foreshore of Ireland, I find that these records should be released in the public interest.

Records relating to pre-construction surveys
Records 24 (apart from the attached letter from the Department dated 5 June 2013) and 36 relate to pre-construction surveys that the company proposed to undertake in the summer of 2013 and also in 2014/15. The records do not contain the results of the surveys but rather identify the surveys proposed and discuss the related requirements. In addition, record 36, which is a risk assessment report, identifies the European protected species that have been recorded in the Irish Sea and discusses the potential impacts that could result from carrying out a proposed geophysical survey, including from vessel use.

Section 26(1)(b)
I note that these records relate directly to the environmental requirements associated with the project. The surveys and assessments required with respect to certain environmental matters are set out in Clause 15 and Schedule 5 of the lease itself; as noted above, the lease is not confidential information. Thus, for instance, it is in the public domain that Clause 15.1(4) requires the ongoing monitoring of sites containing valuable species or species of interest or Protected Species during the pre-construction, construction and operational phases of the development. According to record 24, the aims of the surveys proposed here were to address these requirements and to update the data provided in the EIS that had been submitted.

Moreover, according to the Department, the proposed surveys relate to an intended application for consent under the Foreshore Act. As the Department itself acknowledged in its submission dated 28 May 2014, once a foreshore consent application is lodged, it is subject to "the usual public consultation procedures, including those arising under the Public Participation Directive". The Department's website states in relation to public participation in the foreshore consent process: "At pre-application, stage when the developer initially discusses the project with DECLG (Marine Planning and Foreshore Section), the developer is encouraged to engage in pre-application consultations with stakeholders." In this case, the importance of consultation with stakeholders in the project was acknowledged by the company in one of the records concerned. I also note that a number of the released records refer to the survey works. One of the released records (record 13) is an email from the company stating that its website had been updated to include the proposed surveys for the summer of 2013; this appears to be in response to an email from the Department (record 22, also released) stating: "We would regard it as important that the website would have details of all on-going survey works as part of the dialogue with local community and interest groups." Given the acknowledged importance of public participation in relation to environmental matters affecting the foreshore, I do not accept that an enforceable obligation of confidence may exist, whether as a matter of contract or in equity, with respect to information relating to environmental conditions or to the environmental impacts of proposed activities in the foreshore. In any event, the records concerned are now over three years old. It is not clear whether the surveys were ever carried out, but either way, the records are now historic and obsolete. In the circumstances, I do not accept that disclosure of the information concerned under FOI would be an unauthorised use of the information to the detriment of the company. I therefore am not satisfied that section 26(1)(b) applies.

Section 26(1)(a)
As these records relate to important environmental matters requiring public consultation in the event of a foreshore consent application being made, it is difficult for me to accept, even arguably, that the information concerned was given in confidence and on the understanding that it would be treated as confidential. However, according to the Department, the information would have been "given to [it] on the understanding that such information would remain confidential until at least a formal application had been lodged". I note that the Department's claim is somewhat undermined by the statement on its website acknowledging the importance of pre-application consultations with stakeholders and also the information in the released records regarding the survey works. Nevertheless, if the project did not proceed to the application stage, I can accept that that the first two requirements were met at the time of the Department's decision.

However, I do not accept that there could have been an understanding that information relating to the proposed surveys would be treated as confidential indefinitely. I also find no basis whatsoever for concluding that disclosure of the information contained in these records would be likely to result in any prejudice to the giving to the Department of further similar information in future. Again, I emphasise that this is information that was prepared in the context of an eventual public participation exercise. In any event, in light of the strong need for openness and accountability in relation to the environmental monitoring requirements of the foreshore lease, I find that the reports should be released in the public interest.
I note that records 19, 32, and 37 also refer to the pre-construction surveys, but in comparison to the records discussed above, they are largely about the internal business matters of the company (process for website updates, staffing, and the contracts required) and are therefore dealt with below.

Information about the company's business and approach to the project
In Case 98188 (Mr. Mark Henry and the Office of Public Works), available at www.oic.ie, which involved tender-related records, this Office accepted that details of a company's internal business as well as its understanding of and approach to a particular project are generally regarded as commercially sensitive and may be entitled to confidential treatment even following the award of a contract. It was also accepted that disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of the goods or services purchased by the public body. A lease is a form of contract, though it is, in a sense, the oppositie of the type of contract involving the purchase of goods or services by a public body. As in Case 080232, it involves a company agreeing to pay the State for the use of a public asset.

In this case, the company disclosed to the Department details such as its IP address, its equipment, and what may be described as its "know-how" in respect of the development of wind farms, as well as information relating to a proposed change of control that does not appear to have been implemented. The relevant records are the following: 19, 32, 37, 63 (in part - the attachments apart from the Department's letter), 85, 97, 115, 116, 118, 122, 123, 126, 136, 140, 142, 143, 144, and 146.

I note that I draw a distinction here between records that directly relate to the terms and conditions of the lease, such as the specified dates and payable fees, and those that were provided simply because of their relevance to the project, for instance, as background information or supporting documentation for changes requested in relation to the terms and conditions. I accept that the business and project details contained in the records concerned were provided "pursuant to the Lease", but as noted above, the status of the confidentiality agreement is unclear. Moreover, I note that the status of the project and thus the company itself is also unclear. It is therefore questionable whether a duty of confidence by way of contract or equity could exist regardless.

Nevertheless, I accept that the information was given in confidence and on the understanding of confidence. Although section 26(1)(a) was not claimed in relation to all of the records concerned, the Department and/or the company has claimed that the information is commercially sensitive. I also note that the information is not directly related to environmental matters requiring public consultation, apart from certain references in records 19, 32, and 37 that are intermingled with information about internal business matters and which reveal nothing of significance about the environmental matters beyond what is said in records 24, 36, and records which have already been released. I therefore accept that there was an understanding that the records would be treated as confidential in the circumstances notwithstanding the passage of time.

I note that the lessee is required under the terms and conditions of the lease to provide certain information to the Minister regarding its business operations, including, at Clause 15.3, any "additional information" as the Minister "reasonably requires" with respect to any "Special Force Majeure Event". Despite these requirements, I accept that a company is likely to be more circumspect with the Department if information about its internal business operations, equipment, and know-how is disclosed under FOI, especially where the information was only provided as background or support for changes requested in relation to the terms and conditions of the lease. Indeed, if such information is not protected under FOI, companies are likely to be deterred from doing business with the State in the first instance. I therefore accept that disclosure would be likely to prejudice the given to the Department of further similar information from the same person or other persons in future. I also accept that it is important to the Department that it should continue to receive any information that may be relevant to its role in monitoring the terms and conditions of a lease and protecting the interests of the State with respect to the foreshore of this country. Therefore, I accept that it is of importance to the Department that such further similar information should continue to be given to the Department. I find that the four requirements of section 26(1)(a) are met.

On the matter of the public interest, I note once again that there is a significant public interest in openness and accountability with respect to the terms and conditions governing the use of foreshore, including in relation to the environmental monitoring requirements provided for in the lease. On the other hand, however, the provisions of section 26 itself reflect the public interest in protecting confidential information. The records under consideration here are relevant to the manner in which the Department carried out its functions with respect to monitoring the terms and conditions of the lease, but they say more about the company than they do about the Department's role in relation to the lease or the potential environmental impact of the project. The purpose of the public interest test is to strike a balance between competing interests insofar as they are relevant. As I have stated in previous decisions, I take the view that the FOI Act was designed to increase openness and accountability in the way in which public bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of private enterprises to scrutiny. Accordingly, I find that, on balance, the public interest would be better served by refusing access to the records concerned.

Section 27
Having found records 19, 32, 37, 63 (in part - the attachments apart from the Department's letter), 85, 97, 115, 116, 118, 122, 123, 126, 136, 140, 142, 143, 144, and 146 exempt under section 26(1)(a), I need not consider these records in relation to the claims made under section 27(1) of the Act.

Of the remaining records at issue, I note that one or more of the exemption provisions under section 27(1) have been claimed by the Department and/or the company (albeit not necessarily consistently) in relation to the bi-monthly reports and also records 21, 24, 36, 40, 53-55, 60, 63 (remaining part), 66, 68 (insofar as within scope), 69 (insofar as within scope), 70, 80-81, 82, 92, 98, 101 (insofar as within scope), 117, 119, 124, 137, 145, 147, and 154.

Records 53, 54, 55, 68, 124, 145, and 147
In a submission dated 8 October 2015, the Department conceded that the company, when consulted, stated that it had no objection to the release of records 53, 54, 55, 68, 145, and 147 to the requester. Nevertheless, the Department has continued to withhold record 68 in part without any explanation for the refusal of the redacted material other than that it relates to the 2005 lease and "progressing the project within the terms of the lease". The Department's only explanation for withholding records 53-55 is that they relate to fees payable by the company. Records 145 and 147, in turn, are simply identified as relating to the company's application to EirGrid to connect the proposed wind farm to the national grid. In its submission to this Office, the company said that it also has no objection to the release of record 124, which relates to a proposed change in control of the company.

Section 27(2)(a) provides that access shall be granted where the person to whom the record concerned relates has consented to access being granted to the requester. In any event, having regard to the burden of proof under section 34(12) of the Act, I find no basis for concluding that these records qualify for exemption under any of the provisions of section 27(1) of the Act.

Other records
The company made submissions supporting the Department's refusal of access to the other records concerned under section 27(1), but its claims are very general and summary in nature. In relation to section 27(1)(a), it stated that the records are "extremely valuable" to the company and contain information used in trade which gives it "an opportunity to obtain an advantage over its competitors". It said that "[s]ubstantial efforts and money" were spent in developing the information and that its dissemination is "strictly controlled". The company also said that, if its competitors were to gain access to the records concerned, "it could be used by them to (a) weaken the competitive position [of the company] or (b) cause [the company] real (or significant) harm".

In relation to section 27(1)(b), the company maintained that the records contain commercially sensitive information which, if disclosed, "could reasonably be expected to result in (substantial) financial loss for [the company] (and consequently its investors) as it would detrimentally affect the commercial operations of [the company] (including detrimentally affecting the operation and extension of the Development as well as future operations) or prejudice its competitive position". The company said that disclosure could not only damage future projects and operations of the business, but also "negotiations with future suppliers". The company stated: "[i]f released, this commercially sensitive information could (and would) provide an unfair commercial advantage to competitors (for example, given the proximity to other proposed developments within the planning framework) as well as be used to the detriment of [the company], thereby prejudicing its competitive position or cause commercial harm as it would result in the company (as well as its investors) suffering a financial loss, thereby detrimentally affecting the commercial operations of [the company] (including the operation and extension of the Development as well as future operations)."

In an appendix attached to its submission dated 31 March 2015, the company purportedly outlined its reasons for considering each individual record to be commercially sensitive and therefore exempt under section 27(1)(b), but in reality it merely described the type of data concerned in relation to certain documents (e.g., "wind, wave and geotechnical data") and restated the provisions of the exemption.

Section 27(1)(a)
The Department refused access to the bi-monthly reports and record 154 under section 27(1)(a). However, in its submission to this Office dated 31 March 2015, the company itself did not claim trade secrets in relation to the bi-monthly reports. It also did not claim trade secrets in relation to record 154 when consulted. Where an affected third party company has been consulted in relation to requested records and does not claim that the information concerned contains trade secrets, it follows that a refusal of access under section 27(1)(a) was not justified.

The company has claimed that the following relevant records contain trade secrets: 21, 24, 63, 66, 69, 70, 98, 101, 117, 119, 137. Record 63 has been found exempt in part under section 26(1)(a) and is only relevant here in relation to the cover letter dated 29 November 2012 and the attached letter dated 26 October 2012.

My Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication. My Office also accepts that an exact definition of a trade secret is not possible, but that the some factors that are considered relevant to the determination are as follows:

(1) the extent to which the information is known outside of the business concerned;
(2) the extent to which it is known by employees and others involved in the business;
(3) the extent of measures taken by the business to guard the secrecy of the information;
(4) the value of the information to the business and to its competitors;
(5) the amount of effort or money expended by the business in developing the information;
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

In this case, it is apparent that the company is aware of how a trade secret has been described by this Office and the courts, but it has not specifically explained how the description applies to the particular contents of the records concerned. It simply has not substantiated its claim that access to the records could be used by competitors to weaken its competitive position or to cause it real (or significant) harm. Having considered the contents of the records concerned insofar as they are relevant, I am not satisfied that they contain trade secrets. I find, therefore, that section 27(1)(a) does not apply.

Section 27(1)(b)
It is well settled that the essence of the test in section 27(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release. In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J. held that it is not sufficient for a party relying on section 27(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position. No such explanation has been provided in support of the claim for refusal under section 27(1)(b) in this case. Moreover, I note that even the most recent records are now over three years old. Also, as discussed above, the status of the project is unclear. In the circumstances, and having regard to the burden of proof under section 34(12) of the Act, I find no basis for concluding that section 27(1)(b) applies.

Section 27(1)(c)
The standard of proof required to meet the exemption under section 27(1)(c) is relatively low. Nevertheless, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

In this case, the company has made no express claim for refusal under section 27(1)(c) apart from citing the provision in a letter to the Department dated 17 October 2013 and referring generally to "negotiations with future suppliers" in its submissions to this Office. No effort has been made by either the Department or the company to show how disclosure could prejudice the conduct or outcome of any contractual or other negotiations. I conclude that section 27(1)(c) also does not apply.

Section 27(3)
The Department and the company have failed to show that section 27(1) applies. I note, nevertheless, that I have addressed all of the relevant records above in relation to section 26. My comments on the public interest apply equally in relation to section 27(3). Therefore, even if I accepted that some or all of the records concerned contained commercially sensitive information, which I do not, I would find that they should be released in the public interest.

Section 20(1) - record 68
For the sake of completeness, I note that record 68 was initially refused under section 20(1) of the FOI Act, but no reference to section 20(1) was made by the Department in its submissions. I take in the circumstances that the claim for refusal under section 20(1) was withdrawn. In any event, having regard to section 34(12) of the Act, I find that section 20(1) does not apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department in the following terms:

I annul its decision in relation to the bi-monthly reports (records 67, 86, 96, 99-100, 105, 107, 125, 131-135, 148-153) and direct that access be granted in full with the exception of the isolated excerpts specified above.
I annul its decision in relation to the following records and direct that access be granted apart from the company's attachments included in record 63: 21, 24, 36, 40, 53-55, 60, 63, 66, 68, 69, 70, 80-81, 82, 92, 98, 101, 117, 119, 124, 137, 145, 147, and 154.
I affirm its decision in relation to the following records on the basis that section 26(1)(a) applies: 19, 32, 37, 63 (in part - the attachments apart from the Department's letter), 85, 97, 115, 116, 118, 122, 123, 126, 136, 140, 142, 143, 144, and 146.

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

 

Peter Tyndall
Information Commissioner