Case Number: 150185

Whether the Council was justified in refusing to release details of water rates levied on Leopardstown Racecourse Limited (the Company) under section 36 of the FOI Act

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

Background

On 7 April 2015, the applicant made a request for details of the water rates levied by the Council on Leopardstown Racecourse Limited for the period 1998 to 2014. On 28 April 2015 the Council refused the request on the ground that the information sought is commercially sensitive. The applicant applied for an internal review of that decision on 13 May 2015. The original decision was upheld at internal review stage. On 12 June 2015, the applicant sought a review by this Office of the Council's decision.

During the course of the review, the Company was notified of the review as an affected party and was invited to make a submission on the matter. It did so on 8 October 2015. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out the review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to communications between this Office and the Council, the Company, and the applicant on the matter.

Scope of the Review

The scope of this review is concerned with whether the Council was justified in refusing to grant access to details of the water rates levied on the Company for the period 1998 to 2014 under section 36 of the FOI Act.

Preliminary Matters

I wish to draw attention at the outset to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body concerned shows to the satisfaction of the Commissioner that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the information sought was justified.

Secondly, in its submission to this Office, the company expressed concerns as to the lack of information provided by this Office concerning the identity of the applicant or the rationale for the request. Under section 13(4), any reasons a requester gives for a request must be disregarded, as must any belief or opinion of the body as to the reasons for the request. Furthermore, as the Act imposes no constraints on how information released under the FOI Act may be used, such release should, in effect, be regarded as release to the world at large. Nevertheless, given the nature of the arguments presented by the Council as considered below, it should be apparent to the Company as to the identity of the applicant in this case.

Analysis and Findings

The Council refused the request under section 36 of the FOI Act. That section provides for the mandatory refusal of a request 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.
Both the Council and the Company argued that sections 36(1)(b) and 36(1)(c) apply.

Section 36(1)(b)
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. For the exemption at section 36(1)(b) to apply, the only requirement that has to be met is that disclosure of the information could reasonably be expected to result in financial loss or gain to the person to whom the information relates or could prejudice the competitive position of the person concerned.

The Council stated that an organisation's water charges are a private issue between the Council and the organisation concerned and that such information has always been considered as commercially sensitive. It argued that disclosing financial information relating to the Company could result in a financial loss or gain. However, it gave no indication as to how the release of the information sought in this case could result in such a loss or gain. In essence, it did no more than repeat the wording of the exemption.

Similarly, the Company argued that all income and operating expenses, including water rates, are considered commercially sensitive. It argued that release of the information could give rise to the harms identified in section 36(1)(b), without giving any indication as to how such harms might arise, or as to the likelihood of such harms arising.

In Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J. held that it is not sufficient for a party relying on this exemption to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. It must be explained why disclosure of the particular records could prejudice the competitive position of the third party. In my view, neither the Council nor the Company have explained how the release of details of water rates levied on the company for the period 1998 to 2014 could give rise to any of the harms identified in section 36(1)(b). Accordingly, having regard to the provisions of section 22(12)(b), I find that the Council has not justified its decision to refuse access to the information sought under section 36(1)(b).

Section 36(1)(c)
In its internal review decision, the Council argued that the release of the information sought could prejudice the outcome of contractual or other negotiations between the Company and the applicant. According to its submission to this Office, the Council has been advised that the applicant is a tenant of the Company and that the Company has made the water supply available to the applicant. It stated, however, that it is not a party to the relevant contractual negotiations between the parties.

The Company stated that it has a number of other tenants in situ at the racecourse. It argued that the release of information relating to the operating costs, and in this case water rates, could prejudice the conduct or outcome of current and future contractual or other negotiations of the Company.

As with section 36(1)(b) above, the essence of the test in section 36(1)(c) is the nature of the harm which might be occasioned by its release. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, this Office 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, as importantly, explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

While the Company made reference in its submission to ongoing contractual or other negotiations in relation to a range of matters including water rates, it did not provide any specific details of such negotiations, although it offered to provide further clarification if required. On 18 January 2016, this Office requested further clarification from the Company in relation to any relevant ongoing or future contractual or other negotiations as well as details of how disclosure would prejudice the conduct or outcome. No response was received to this correspondence.

I am not satisfied, from the submissions received from either the Council or the Company, that the release of the information sought could prejudice the conduct or outcome of contractual or other negotiations of the Company. Accordingly, I find that section 36(1)(c) does not apply.

Section 30
For the sake of completeness, I wish to address the Company's argument, as set out in its submission of 8 October 2015, that sections 30(1)(b) and (c) apply. Section 30 is concerned with protecting the functions and negotiations of public bodies. It is a discretionary exemption that the public body processing the FOI request may apply if it deems it appropriate to do so. As the Council made no argument that section 30 applies, and having regard to the provisions of section 22(12)(b), I find that the section does not apply in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse access to details of the water rates levied by the Council on the Company for the period 1998 to 2014 and I direct that the information sought be released to the applicant.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator