Case Number: 150344 & 150345

Whether the Department was justified in its decision to part grant a request for access to records that relate to the applicant.

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 20 August 2015, a journalist submitted two separate requests to the Department for records relating to the proposed redevelopment of Páirc Uí Chaoimh. In both cases, the applicant, a third party objector, applied to this Office for a review of the Department's decisions. Given the similarities of the issues arising, I have decided to deal with both reviews in a single composite decision.

The reviews arise from decisions made by the Department to part grant access to records following requests to which section 38 of the FOI Act applies. Section 38 applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information relating to third parties, respectively) but that the record(s) should be released in the public interest.

Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

In his first request (case 150344), the requester sought copies of any correspondence received by the Department from the applicant in relation to the redevelopment of Páirc Uí Chaoimh since June 1, 2015 and copies of any formal responses issued to the applicant following receipt of such correspondence. In his second request (case 150345), he sought copies of internal correspondence between Department officials in relation to a Business Plan and Addendum for Páirc Uí Chaoimh Stadium Development dated May 2015, copies of correspondence with the Department of Public Expenditure and Reform in relation to the documents, and copies of any formal responses issued to the applicant following receipt of the documents.

On 27 August 2015, the Department notified the applicant of the requests, and invited it to make submissions within three weeks. On 17 September 2015, the applicant submitted a submission in relation to both requests, wherein it objected to the release of any of the records. On 1 October 2015, the Department informed the applicant that it had decided to partially grant both requests. On 13 October 2015, the applicant sought a review of the Department's decisions by this Office.

I have decided to conclude both reviews by way of a formal binding decision. In conducting the reviews, I have had regard to the contents of the relevant records, to the submissions of the parties and to the provisions of the FOI Act.

Scope of the Review

In case 150344, the Department identified 15 records as falling within the scope of the request. It decided to grant access to three records in full and to grant partial access to the remaining 12 records. The applicant objected to the inclusion by the Department of some of the records, including cost benefit analyses, business cases and other reports. It argued that the requester was seeking correspondence or letters, and was not seeking reports. I do not accept the applicant's argument. The reports and other documents identified by the Department were enclosed with/attached to the relevant letters/emails, and I am satisfied that they form part of the correspondence sought by the requester.

In case 150345, the Department identified 12 records as coming within the scope of the request. It decided to grant access in full to 11 records, and to grant partial access to the majority of the remaining record with one minor redaction.

Accordingly, the scope of this review is concerned with whether the Department was justified in deciding to release the records in question, either in full or in part. For the avoidance of doubt, I should clarify that the review is not concerned with the information contained in the records that the Department has decided to redact.

Preliminary Matters

This review of the Department's decisions has been sought by the applicant as an affected third party. Section 22(12)(a) provides that the applicant bears the onus of showing to my satisfaction that the Department's decision to part grant the request was not justified. Furthermore, this review is de novo, and my decision is made in light of the facts and circumstances as they apply on the date of the review. It is important to bear in mind that I am not obliged, in making this decision, to ensure that all redactions previously made by the Department are uniformly applied to all the records before me.

Findings

The background to the original FOI request is that the applicant is engaged in a project to redevelop Páirc Uí Chaoimh stadium in Cork. It sought funding from the State for the project and in May 2014, the Government announced that it would award funding of ‚¬30 million. Subsequently, the applicant engaged with the Department in relation to the State grant, with a view to satisfying the requirements of the Public Spending Code. In October 2015, the Government formally approved the grant.

In a composite principal submission dated 12 October 2015, the applicant argued that access to the records should be refused in their entirety under sections 35, 36 and 37 of the FOI Act. It would appear that the majority of the arguments put forward by the applicant pertain to the records at issue in case 150344. Even on a cursory examination of the records at issue in case 150345, I am satisfied that they contain little that could be said to be confidential or commercially sensitive. Notwithstanding this observation, for completion I will address each contended exemption in turn in respect of all of the records at issue. The bulk of this decision addresses the arguments set out in the applicant's submission of 12 October 2015. However, it subsequently furnished an additional submission on 12 February 2016, which raised new arguments against release of the records following the decision of the European Union to subject the decision to grant State funding to a "Notification to and Assessment by the European Commission" process. In my opinion, the arguments put forward in this latter submission involve substantively different considerations to those concerning the principal submission, and therefore I consider it appropriate to address these additional arguments separately towards the end of this decision.

Section 35
Section 35(1)(a) provides for the protection of information given to a public body in confidence. For the exemption to apply, it is necessary to show the following;

that the information was given to an FOI body in confidence,
that the information was given on the understanding that it would be treated by the FOI body as confidential,
that 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, and
that it is of importance to the body that such further similar information should continue to be given to the body.

It is the circumstances in which the information was imparted and received that is important in determining whether these first two requirements of section 35(1)(a) are met. The applicant argued that the information contained in the records was submitted to the Department in confidence. The fact that the applicant may have submitted the records in confidence does not, of itself, mean that they were given to the Department on the understanding that they would be treated by the Department as confidential. I take the view that an understanding of confidentiality has to be mutual. In considering this point, a number of factors are relevant, including, but not limited to, whether any assurances were given at the time the information was given, the purpose for which the information was sought or provided, and the nature of the relationship between the provider of the information and the FOI body receiving it.

As I have outlined above, the applicant submitted the records at issue to the Department in connection with an application for a very significant level of grant aid. Given the amount of public funds involved, I find it difficult to accept that the Department could legitimately have given an assurance to the applicant that the records would be treated as confidential, nor has it argued that it did so. The applicant argued that a previous FOI request to the Department of Public Expenditure and Reform (DPER) in respect of similar, but less sensitive, information was rejected, and that this created an implied understanding that the information had been given to the Department in confidence. I disagree. Regardless of the views of DPER on the matter, the records at issue are held by the Department, as the body charged with considering the State funding application. No evidence has been presented to this Office to suggest that the Department gave any such assurance that the records had been accepted on the understanding that they would be treated as confidential.

It seems to me that the applicant's primary concern is to protect any and all commercially sensitive information contained in the records. However, such concerns fall more appropriately for consideration under section 36 and I have addressed those concerns below. Furthermore, I note that the Department agreed to redact certain information having regard to the applicant's concerns as to the commercial sensitivity of the records. In any event, even if I were to accept the applicant's argument that all such commercially sensitive information was given in confidence and on the understanding that it would be treated by the Department as confidential, I do not accept that the third and fourth requirements of section 35(1)(a) are met in this case. I do not accept that the disclosure of information of the type at issue would be likely to prejudice the giving to the Department of further similar information from the same person or other persons in circumstances where such a significant amount of grant aid is being sought.

Furthermore, it is not clear to me that it is of importance to the Department that such further similar information should continue to be given to the Department. The consequences of failing to provide such information are borne by the applicant, not the Department. In all of the circumstances, I find that section 35(1)(a) does not apply. I should add that even if I had found section 35(1)(a) to apply, the public interest balancing test as set out in section 35(3) would remain to be considered. I have set out below my findings on where the balance of the public interest lies in the context of protecting commercially sensitive information.

Section 36
This is a mandatory exemption that protects commercially sensitive information. Section 36(1) states;

"Subject to subsection (2), a head shall refuse to grant an FOI 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."

Subsection (2) contains a number of exceptions to the exemption. Subsection (3) contains a public interest balancing test.

The applicant has contended that the records fall within each of the three categories of commercially sensitive information.

Section 36(1)(a)
In its submission to this Office, the applicant stated that "Throughout the documents there are references to historical and projected future match attendances (for other GAA stadiums and for the new Stadium), current operational costs of Croke Park, projected operational costs of the new Stadium, and other data which is the intellectual property of the GAA...it amounts to trade secrets of the GAA."

This Office has previously accepted 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. Having considered the records before me, I am not satisfied that the applicant has adequately demonstrated that the information within them could properly be classified as trade secrets. It seems to me that the applicant's concerns more properly relate to section 36(1)(b). I am not satisfied that the applicant has satisfactorily shown that the records contain trade secrets and I find, therefore, that section 36(1)(a) does not apply.

Section 36(1)(b)
While the applicant's arguments as to the applicability of section 36(1)(b) are not entirely clear, it appears, in essence, that it is concerned that the release of the records, even in redacted form, could prejudice its competitive position in so far as the disclosure of certain details could provide useful information for competitors or could cause cost overruns on the overall project. It also argued that the release of certain information could provide persons with a business interest in the project a competitive advantage over other competitors but I fail to see how this is relevant to section 36(1)(b) as it has not argued that such a competitive advantage would be to its detriment.

The standard of proof necessary to meet the second part of the test in section 36(1)(b) (could prejudice the competitive position etc.) is relatively low. All that is required is the possibility of prejudice. Having considered the records, I am satisfied that section 36(1)(b) is applicable in the case of records 2 to 5, 12, and 13 in case 150344, but not to any of the remaining records. However, that is not the end of the matter. Subsection (3) provides that "Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request." I have examined the relevant public interest considerations separately below.

Section 36(1)(c)
It is public knowledge that the Government has agreed to provide funding of ‚¬30 million for the redevelopment project. It would appear, therefore, that the applicant's primary concerns in relation to section 36(1)(c) relate to the potential prejudice to the outcome of negotiations with other funding sources. The applicant suggested that this could happen were the records to be misinterpreted as raising doubts concerning the availability of the State grant. It seems to me that this argument is now irrelevant, given that agreement to provide such funding has since been made.

Essentially the applicant is keen to avoid the possibility of any adverse consequences for its ability to raise funding for the project. While this is entirely understandable, the applicant has not, in my view, shown how the release of the records could give rise to the harm identified in section 36(1)(c). Furthermore, this Office does not accept as a general proposition that the possibility of a record being misunderstood provides a sufficient ground for refusing access. Indeed I note that the applicant has previously issued media releases to clarify what it regarded as inaccurate reporting of issues relating to the project and I see no reason why it could not do so again if the need arose. I find that section 36(1)(c) does not apply.

Section 36(3)
The applicant has identified the public interest in openness and transparency regarding the expenditure of public funds as favouring the release of the records. Against release, it has identified the public interest in securing the best possible value for money in contracts through the tendering process for the construction and future operation of the stadium. It contends that the tendering process will be "jeopardised" by the release of the records.

This Office has previously found that there is a public interest in openness, transparency and accountability of public bodies, particularly as regards the expenditure of public funds; see e.g. Case 140194 (X Solicitors and Westmeath County Council, available on www.oic.ie). I am satisfied that, in principle, the public interest favouring release of the records in this instance is particularly strong. This is because the applicant has been granted approval for the receipt of a very significant amount of public funds in order to redevelop its own, privately owned, stadium. In my view, any public interest factor favouring the withholding of the records would have to be compelling in order to outweigh the public interest favouring release. Having carefully examined the relevant records, I find that the public interest would, on balance, be better served by the release of the records at issue, subject to redaction of the following extracts from the records at issue in case 150344:

Record 2 P. 16 - All material (text and graphic) on page 16 from "Specifically ..." and above the sentence "The Stadium will have a number of attributes that will attract business."

P. 21 - The third sentence of the first paragraph, which relates to Croke Park
Record 3 P. 8 & 9 - Entirety of Section 2.5 "Croke Park Experience" -
Record 4 P. 23 - The third sentence in the first paragraph under the heading "Repairs and Upgrades" which relates to Croke Park.
Record 12 P. 51 - Table 8.1

I should add that the applicant has drawn attention to alleged inconsistencies in the redactions applied by the Department, and has submitted that this Office should ensure that all redactions are applied consistently across all of the records. The fact that the Department, in its original decision, may have found certain material to be exempt from release in respect of one record, does not oblige me to agree that the same or similar material should be exempt from all the records under review. As I have explained above, this review does not extend to examining the information that the Department has decided to redact.

Section 37
The applicant argued that the records contain personal information about certain individuals, including names and contact details of consultants who compiled reports on behalf of the applicant. It argues that the release of this information in what it says are "draft and out of date documents" could be misconstrued and could risk the professional reputations of the individuals concerned.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. It goes on to identify fourteen categories of information that is deemed to be personal information. I am satisfied that the disclosure of the names of the individuals in question would involve the disclosure of information relating to the employment or employment history of the individual. Therefore, I find that the information is personal information for the purposes of the FOI Act.

In my opinion, the principal public interest factor in favour of release is fostering access to the greatest extent possible to information held by public bodies. Against this is the public interest in preserving the constitutionally recognised right to privacy of individuals. In this instance, having considered the nature of the information, I am generally of the view that the public interest is favour of release is not particularly strong, and I do not consider that it outweighs the public interest in protecting the individuals' privacy. However, given the potential significance and influence of senior members of the GAA and the applicant vis-à-vis their dealings with the Department in respect of the stadium project, I find that there is a stronger public interest in the release of their names (but not their contact details), and I conclude that these names should not be redacted from the records. Additionally, this Office has previously determined that the definition of personal information can only apply to natural persons, and not companies or other legal persons; see e.g. Case 98022 (AAG & Office of Director of Consumer Affairs).

Therefore, I find that the names and contact details of all persons who are not employed by the Department or another FOI body, other than the names of senior members of the GAA and the applicant, should be redacted from the records, as follows:

Case 150344:

Record 4 Names of two persons in third and fourth paragraph on page 5 who assisted in drafting of report
Record 6 Email address of recipient
Record 7 Email address of sender of second email
Record 8 Email address of sender of third email
Record 9 Email address of sender of third email
Record 11 Email address of sender of second email
Record 15 Email addresses of senders of second and third emails

Case 150345:

Record 2 Email address of the sender of the third email
Record 7 Email address of the sender of the final email (at very bottom of page)
Record 12 Email address of recipient of email

The applicant's additional submission
The applicant furnished additional submissions to this Office on 12 February 2016. It stated that the grant of State funding of ‚¬30 million is now subject to a "Notification to and Assessment by the European Commission" under provisions of EU state aid law. It stated that it has prepared a submission for the Commission that "drew upon and incorporated much of the information from the documents" which are under consideration in this review. It further stated that it is unknown how long the Commission might take to consider the matter, or whether it might revert to the applicant and/or the Department for further information.

The applicant contended that the Department has provided oral confirmation to it that its communications with the Commission are part of an ongoing deliberative process and therefore confidential. It argued that the ongoing EU process provides a further reason why this Office should vary the Department's decision and direct that the original request be fully refused. Specifically, it contended that

Any information relating to the submission to the Commission and/or the Commission's assessment is equivalent to being sub judice and the release of such information would be contrary to section 35(1)(b).
The State funding is vital to the redevelopment project and therefore the release of the records would be contrary to section 35(1)(b).
The release of the records could prejudice the outcome of the Commission's assessment, and therefore release would be contrary to section 36(1)(c).
Litigation privilege attaches to the records during the performance of the Commission's functions and therefore the release is prohibited by section 31(1)(b).

As a general point, I am not satisfied that the fact that the request and approval for State funding is now subject to an assessment by the European Commission should fundamentally alter how I approach this review. While I note the applicant's contention that its submission to the Commission "drew upon and incorporated" much of the information contained in the records, that submission is not a record under consideration by me in this review. Rather, the records within scope concern the applicant's request for funding from the State, and I remain of the opinion that the public interest factors in favour of release of these records are generally stronger than those favouring their withholding. I consider that these factors in favour of release are not lessened by the subsequent decision of the European Commission to review the State grant.

In respect of the specific arguments raised by the applicant, I do not accept that it has demonstrated that the Commission's assessment procedure has created a duty of confidence over the records within the scope of this review, and therefore I do not agree that it has shown that their release would be contrary to section 35(1)(b). Additionally, I am of the opinion that it has not shown how the disclosure of the records could prejudice the outcome of the negotiations with the Commission, and consequently I do not accept its argument that section 36(1)(c) should apply to prevent their release. Finally, the applicant has not referred to any contemplated or pending litigation, nor has it shown that the records under review were created for the dominant purpose of any such litigation, and therefore I am satisfied that litigation privilege does not attach to the records.

In conclusion, therefore, I affirm the Department's decision to release the records at issue apart from the limited number of additional redactions that I have identified above.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. I find that the following parts of the records at issue are exempt from release:

Case 150344:
Record 2 P. 16 - All material (text and graphic) on page 16 from "Specifically ..." and above the sentence "The Stadium will have a number of attributes that will attract business."

P. 21 - The third sentence of the first paragraph, which relates to Croke Park
Record 3 P. 8 & 9 - Entirety of Section 2.5 "Croke Park Experience"
Record 4 P. 23 - The third sentence in the first paragraph under the heading "Repairs and Upgrades"

P. 5 - Names of two persons in third and fourth paragraph who assisted in drafting of report
Record 6 Email address of recipient
Record 7 Email address of sender of second email
Record 8 Email address of sender of third email
Record 9 Email address of sender of third email
Record 11 Email address of sender of second email
Record 12 P. 51 - Table 8.1
Record 15 Email addresses of senders of second and third emails

Case 150345:
Record 2 Email address of the sender of the third email
Record 7 Email address of the sender of the final email (at very bottom of page)
Record 12 Email address of recipient of email

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 requester 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.

Stephen Rafferty
Senior Investigator