Case Number: 150234

Whether the Council was justified in its decision to refuse access to records concerning the sale or transfer of certain lands to the National Asset Management Agency (NAMA) or the National Treasury Management Agency (NTMA) on the basis that sections 15(1)(a) and 36(1)(b) of the FOI Act applied

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

In its FOI request of 27 April 2015, the applicant sought access to records relating to the sale, transfer or proposed sale of lands adjacent to The Square Shopping Centre by South Dublin County Council to the National Asset Management Agency(NAMA) and/or the National Treasury Management Agency(NTMA) as referred to in the Council's minutes of 14 October 2013. In its decision of 28 May 2015, the Council identified 17 records (Schedule A) as relevant to the request and granted access in full. In a letter of 10 June 2015, the Council stated that eight further relevant records (Schedule B) had been discovered. It granted access to one of these in full and partial access to the remainder. It refused access to the redacted information on the basis that it was commercially sensitive (section 36 of the FOI Act refers). The applicant submitted an internal review request on 25 June 2015, raising various issues, including a claim that not all relevant records had been identified. The Council's internal review decision of 16 July 2015 affirmed the original decision on the redacted information and addressed the issues raised by the applicant. It said that certain further records were not held. The applicant submitted an application for review to this Office on 30 July 2015.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Council, to the content of the records and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Council to refuse access to the information sought was justified on the basis of the exemptions claimed.

Preliminary Matters

Section 18
I should explain the 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 18 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. In this case, it became necessary to examine relatively small amounts of information in parts of the records since the Council's decision on Schedule B records effectively redacted occasional paragraphs throughout the eight records.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies me that its decision was justified. In the normal course, failure by the body to justify its decision is sufficient for me to find that the body had not justified its refusal to release certain records. However, given the nature of the records at issue, and while having regard to the provisions of section 22(12)(b) in conducting this review, I have also had regard to the fact that the release of certain records may affect the interests of third parties as it seems to me that the Council's failure to properly engage with this Office should not result in unwarranted adverse consequences for the various third parties.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the records or disclose in any detail particulars of the third parties interests is limited.
The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Handling of the Request by the Council
Apart from the very significant question of whether, as claimed by the applicant, the Council's decision failed to identify and consider many additional relevant records which it holds, my review must address the refusal of access to relatively small parts of the eight records in Schedule B. However, the way in which the Council dealt with the request and with my Office has meant that a disproportionate amount of time and effort was required in an attempt to bring clarity to the matters at issue. The Council's decision making did not comply with section 13(2)(d) of the Act in that the relevant exemption provisions were not properly identified and applied to particular records and the public interest balancing test was not considered at all. Further, the Investigator discovered discrepancies in the redacted and unredacted versions of the records (e.g. the same information released in one record but redacted in another; conflicting accounts as to what parts had been redacted and what, exactly, had been released) so that there were protracted exchanges between my Office and the Council to try to establish what remaining withheld material had to be considered in this review.

I do not intend to set out the full detail of the various difficulties that arose. It will be clear from what follows that the Council's handling of the matter was so poor that two statutory notices were necessary followed by a meeting between senior staff of my Office and the Council before any real progress on the review could be made. I also deal below with the Council's worrying failure to identify additional records and to satisfy my Office's queries as regards the adequacy of its searches. I find it hard to understand why after 18 years of the Act's operation, FOI bodies do not make use of the substantial training and other resources available including the guidelines, manuals and templates available from the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform at www.foi.gov.ie and from my Office (www.oic.ie). I intend to raise the handling of this case further with the Chief Executive of the Council.

Statutory Notices - Section 23 and Section 45
Both the original and internal review decisions of the Council failed to provide adequate reasons for the decisions and there was no consideration of the public interest as required. Therefore, I issued a notice under section 23 of the Act directing the Chief Executive Officer to furnish to me and to the applicant an adequate statement of reasons for the decision. At the same time, my Office sought a submission from the Council focussing on the issues likely to be central to the review. The Council was invited to consider previous decisions of my Office together with advice and guidelines on justifying the exemptions claimed. The Council's response to the section 23 notice was very disappointing. In particular, it failed to address the public interest as required. I must say that I was surprised by the Council's attitude and by its failure to engage with the requirements of the Act at that stage.
My Office issued a further statutory notice on 5 November 2015 under section 45 of the Act. This required the Council to provide certain information and expressed my Office's disappointment that the Council had failed to clarify important issues so that the review could proceed. The Council responded in a limited fashion.

Identification of relevant records
It was evident at an early stage that an "adequacy of search" issue arose in this review. The applicant made it clear to the Council in its internal review request that, in its view, there were considerably more relevant records than had been identified by the Council. The applicant set out numerous omissions which it had been able to identify. The applicant also informed the Council that it had made an FOI request to another FOI body in relation to the same issue and as a result of the response received, it was aware of records, to which the Council was a party, which had not been identified by the Council. The request to the other FOI body is the subject of a separate review by my Office. On the basis of the information provided by the applicant and given the nature of the transaction the subject of the request, the Investigator was satisfied that the Council was likely to hold more relevant records which it should have identified. In order to address this, she raised (by letter dated 9 October 2015) a number of "search questions" with the Council. The Council responded to these questions in what I would describe as a minimalist manner and referred to the "detailed and comprehensive search of all Council records on the matter" ; it did not identify any further relevant records.

Meeting
In its response to the section 23 and 45 notices, the Council referred to the "sensitivities" associated with the underlying issue to which the FOI request related. In view of this and the deficiencies in the responses provided by the Council, my staff considered that a meeting with the Council was the best way to progress matters. This meeting took place in early January 2016. Its purpose was to clarify the requirements of this Office, set out the issues which required to be addressed and to give the Council a final opportunity to provide the relevant information. At the meeting, the Council thanked my staff for clarifying certain matters. It accepted that there were, in fact, more relevant records which had not been considered to date. It seemed to accept that records had been created by e.g. its legal advisors and/or its valuer that were not addressed in its decision. It undertook to identify those records. It is not clear to me why the Council did not consider these records relevant at the outset and deal with them in its decisions. As a body which has been subject to the FOI Act since 1998, at best, it demonstrates a very poor understanding of what the FOI Act requires and at worst, a shocking disregard for the Act and the rights of access to information that it provides for requesters.

Failure to identify third parties
The Council was specifically asked, both at the meeting and in writing, to provide this Office with details of the third parties whose information was contained in the relevant records. My Office told the Council that it might be necessary to make contact with the third parties. Neither the identity nor contact details of the third parties was obvious from the records themselves, but the records certainly contain information, the release of which has the potential to affect third parties' interests. The Council provided some information on 16 February 2016, following a reminder. The information provided was in the form "Parties to X licence". It has not been possible for my Office to identify these third parties and therefore, it could not have made contact with them should records affecting their interests be considered for release. It is clear from the content of the records, including the information which has already been released, that the Council was engaged in negotiations which would have an impact on these third parties. I cannot see how the Council could have envisaged bringing those negotiations to a conclusion without being in contact with these third parties and therefore, it is difficult to believe that the Council could provide my Office with no more information than the title of a licence. I must state that the third party entities to whom I refer here are not NAMA or the NTMA who are FOI bodies even though Part 1 of Schedule 1 to the Act provides that they are "Partially Included Agencies" i.e. that access is restricted insofar as certain types of records are concerned.

Issues with copies of records provided by the Council to my Office
In view of the discrepancies and inconsistencies discovered in the various versions of the records, it was necessary, after much engagement with the Council, to obtain copies of the released information from the applicant. Therefore, where detailed contents of records are referred to in this decision, it is on the basis of the released versions supplied by the applicant. This is of particular relevance in the cases of Schedule B Records 6, 7, and 8.

Analysis and Findings

Section 15(1)(a)
As stated above, it is clear that section 15(1)(a) is relevant in this review, though the exemption was not claimed by the Council at any point. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.]( available on www.oic.ie)

Despite the issues identified by the applicant and the fact that the Investigator raised this on a number of occasions with the Council, it was not until the meeting in January 2016 that the Council admitted that it did, in fact, hold further relevant records which it had not identified or considered. This calls in to question the nature of the "detailed and comprehensive search of all Council records on the matter". I do not accept that the Council took all reasonable steps to ascertain what records it held.

On 21 January 2016, the Council wrote to my Office providing three further schedules and over 80 additional records which it had identified. The schedules list the records and the Council's position of that date on those records now identified as coming within the scope of the request. No reasonable explanation was put forward by the Council as to why these were not identified previously. Neither did the Council indicate that it had considered refusal by reference to section 15(1)(b) or section 15(1)(c ) i.e. that it had difficulty identifying the records sought or that the nature or number of records would cause difficulty. It is a matter of serious concern to me that the procedures in place in the Council failed to identify (or worse, identified and failed to consider releasing) these records until a very late stage, and only following repeated interventions by my Office. In the circumstances, I cannot find that section 15(1)(a) applies.

As far as I am aware, the Council has not notified the applicant of the existence of these "new" records or of its position on them. It appears that they have not been released. I do not consider that, in this case, my Office should be required to make a first instance decision on these records or, indeed, embark on a further investigation as to whether all the records held have now been identified and considered. I am satisfied that it is appropriate to annul any decision of the Council in respect of any additional records held and to direct that it conducts a fresh decision making process under section 13 of the FOI Act.

Section 36(1)(b)
The Council clarified that it is claiming that section 36(1)(b) applies to the information redacted in seven of the records in Schedule B. There are a number of redactions in each of these records - most of which comprise the same information appearing in various versions of records. In some cases, information has been redacted in one version of the record and released in another. Section 36(1)(b) protects 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.

The essence of the test in this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified.

The Council's position is that the information is commercially sensitive. In support of its position, it states that there are significant and ongoing legal issues surrounding sale of lands adjacent to The Square. It says that disclosure of the details of the parties involved would prejudice the outcome of ongoing "legalities". It also submits that court rulings from previous and ongoing litigation processes are clear indicators of the forms of legal and commercial sensitivities involved. The Council failed to identify which limb(s) of section 36(1)(b) it was relying on and did not address the question of identifying the harms that might arise or the expectation that such harms might arise. The justification provided by the Council for the application of section 36(1)(b) is weak and is such that I considered finding that refusal of access to the redacted parts of the records had not been justified as required under section 22(12)(b) of the Act. Clearly, where redacted information has been released in another version of the record, the harm envisaged by section 36(1)(b) cannot now arise from its release at this time. Some of the redacted information comprises comments by Council officials on the content of the records. This is not commercially sensitive information as envisaged by the exemption.

The remaining redacted information relates to third parties. Despite the poor justification of its decision by the Council, I must be mindful of the interests of the third parties to whom the information relates. The FOI Act recognises that disclosure of records may affect the interests of parties other than the applicant and the FOI body. The standard of proof required in the second part of the sub-section is relatively low in the sense that the test is not whether prejudice is certain to materialise but whether it could do so. Although the records are several years old, it appears that at least some of the contents concern matters that are still "live".

Having examined the information at issue, I am satisfied that release of some information relating to third parties could prejudice the competitive position of those entities by revealing information which would not otherwise be known to competitors. I find that section 36(1)(b) applies to the following information in the Schedule B records:

 

Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Having found that section 36(1)(b) applies to the information above, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. In this regard, the Council sets out the context for the transaction the subject of the request. It states that The Square is and remains a significant driver of economic activity in Tallaght. It also says that the terms of the transaction as negotiated were presented to the elected members of the Council at its meeting in October 2013.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. However, section 36(1) itself reflects a public interest in the protection of commercially sensitive information. Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how the Council carries out its functions is served to some extent by the substantial amount of information already released. I take the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, was not designed as a means by which the operation of private enterprise would be opened up to scrutiny. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the small amount of information to which I have found section 36(1)(b) applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council; I annul any decision of the Council in respect of the additional records and any further records that might be held within the scope of the request and direct that a fresh decision making process be undertaken under section 13 of the FOI Act, which will be subject to the same rights of review as the original request. I further find that section 36(1)(b) applies to the withheld information as detailed in the table above. I direct the release of the remainder of the information in respect of which I find that the Council has not justified its refusal of access under section 36(1)(b) of the Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Peter Tyndall
Information Commissioner