Case Number: 160248

Whether the OPW was justified in its decision to refuse access to reports relating to the Irish Jewish Museum under section 36 of the FOI Act

The Senior Investigator varied the decision of the OPW. While he affirmed the decision of the OPW to refuse access to records 2, 4, and 5, he directed the release of records 1 and 7.

Background

This review has its background in proposals for the development of a site by the IJM involving two properties under the control of the IJM (nos. 3 and 4 Walworth Road) and a further three adjoining properties (nos. 5, 6 and 7 Walworth Road) under the control of the Raphael Siev Charitable Trust (RSCT). The OPW assisted the IJM in the preparation of the planning application for the proposed development, during which a number of related reports were procured.

The current position appears to be that the development for which planning permission was sought is no longer proceeding and that only one of the properties under the control of the RSCT has been made available to the IJM and contracts for sale have been entered into with a developer for the sale of the two remaining properties.

On 11 November 2015, the applicant submitted a request to the OPW for copies of certain reports relating to the development. On 15 January 2016, the OPW refused access to five reports it identified as coming within the scope of the request on the ground that they were commercially sensitive. On 20 January 2016, the applicant sought an internal review of that decision. The OPW affirmed its original decision on 16 February 2016, following which the applicant sought a review by this Office of that decision.

In conducting this review I have had regard to the correspondence between the applicant and the OPW, and to correspondence between this Office and both the applicant and the OPW on the matter. The IJM was given an opportunity to make submissions to this Office on the review but did not do so. An investigator in this Office made contact with a trustee of the Raphael Siev Charitable Trust (RSCT) and a verbal submission was made on the matter but no written submission was made when the RSCT was afforded the opportunity to do so.

Scope of the Review

The applicant sought access to the following reports:

1. Brady Shipman Martin - Planning and Consultancy 2007
2. Asbestos Survey - McAllister Devereux Keating
3. Site Clearance to facilitate investigation works. KAG Building Contractors Ltd.
4. Site Investigations by Glover Site Investigations Ltd
5. Structural Condition Survey & Drawings by Mark O Reilly & Assoc Ltd
6. Mechanical & Electrical Consultancy by Axis Mechanical & Electrical Engineering Design Ltd
7. Heritage Report by Molloy & Assoc.

The OPW refused access to reports described at 3 and 6 above on the ground that no such reports exist. It explained that while services were provided by the contractors in question, no reports were produced. It also explained that while the report described at 1 above does not exist, a subsequent report from 2013 exists and it treated the request as a request for that report. Accordingly, this review is concerned solely with whether the OPW was justified in refusing access to the reports described at 1, 2, 4, 5 and 7 above and identified by the OPW as coming within the scope of the applicant's request.

Preliminary issues

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the OPW of satisfying this Office that its decision to refuse to release the records sought was justified.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116 and in The National Maternity Hospital and The Information Commissioner[2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

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

Analysis and Findings

The OPW has refused access to the reports at issue under sections 36(1)(b) & (c) of the FOI Act. Record 1 is a submission to An Bord Pleanála in relation to an appeal on the grant of planning permission for the proposed development involving the five properties at issue. Records 2, 4 and 5 are an asbestos survey (relating to properties 4 to7), a site investigation report (relating to properties 4 and 5) and a structural survey (relating to all five properties) respectively. Record 7 is a heritage report relating to all five properties which uses a considerable amount of public information such as census records and international charters to discuss the surrounding area and the proposed project.

Section 36(1)(b)
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. In effect, this section provides for the protection of commercially sensitive information subject to certain exceptions and to the consideration of a public interest balancing test.

For section 36(1)(b) to apply, it is not sufficient that the information at issue comes within the description of information in the exemption, it is also necessary that the relevant harm test is met. The essence of the test is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection 1(b) is that disclosure "could reasonably be expected to result in material loss or gain ". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. All that is required is the possibility of prejudice.

The OPW explained that, unusually but not uniquely, it was assisting a client (the IJM) whose property was not in state ownership. It explained that in the event of the development not proceeding, all of the properties would revert to being privately owned with the potential to be sold, individually or collectively. It argued that the release of the reports could influence the market value of these privately owned properties. The RSCT informed this Office that that contracts for sale have been signed in relation to the sale of properties 6 and 7, and that property number 5 will be donated to the museum. The development as proposed is clearly not proceeding. Given their contents, I am satisfied that the release of records 2, 4 and 5 could reasonably be expected to result in a material financial loss or gain to the owners of the properties and that section 36(1)(b) applies.

Record 1, on the other hand, is already in the public domain. All records submitted to An Bord Pleanála in relation to planning appeals are held on files that are available for public viewing in the offices of An Bord Pleanála by a member of the public. Accordingly, I find that section 36(1)(b) does not apply to this record.

Record 7, being a heritage report, utilises a considerable amount of information that is already in the public domain to describe the area and reports primarily on the proposed design as opposed to any detailed report on the properties themselves. Having carefully considered the contents of the record, I do not consider it reasonable to expect that its release would result in a material financial loss or gain to the owners of the properties. I find, therefore, that section 36(1)(b) does not apply to this record.

In summary, therefore, I find that section 36(1)(b) applies to records 2, 4 and 5 but not to records 1 and 7. However, the fact that I have found section 36(1)(b) to apply to records 2, 4 and 5 is not the end of the matter as section 36(1)(b) is subject to a public interest balancing test.

Section 36(3) - the public interest
Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing the request. The OPW argued that as the properties are privately owned, release of information relating to the properties would not be in the public interest. It also argued that because the planning permission in relation to the project was already been granted, any interest in the records at this point would merely have a curiosity value to the public.

The position in this case is that considerable resources were expended by the OPW during the course of the assistance provided for the project, both in terms of time spent and in the expenditure of public funds. This Office considers that there is significant public interest in openness, transparency and accountability of public bodies, particularly where the use of public funds is concerned, although it is worth noting that the OPW was not the beneficiary of the reports that were commissioned. On the other hand, I have already accepted that the release of the three records at issue could reasonably be expected to result in a material financial loss or gain to the owners of the properties. It seems to me, therefore, that the key issue to be considered is whether the release of these records would significantly contribute to the public's understanding of the OPW's involvement and expenditure on this project to the extent that it would outweigh the commercial harm identified.

On this point, it seems to me that the applicant has a considerable knowledge of the extent of the OPW's involvement in the project. Given that these records relate to the condition of privately owned dwellings and do not, per se, set out what time or resources the OPW expended, I am not satisfied that their release would, to any significant extent, promote transparency and accountability relating to the OPW's role in the project. In the circumstances, I find that the public interest would not, on balance, be better served by the release of the records.

Accordingly, I find that section 36(3) does not apply and that the OPW was justified in refusing access to records 2, 4 and 5.

Section 36(1)(c)
As I have found section 36(1)(b) to apply to records 2, 4 and 5, it remains for me to consider whether section 36(1)(c) applies to records 1 and 7. That section protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The section is also subject to a public interest balancing test.

While no specific contractual or other negotiations were identified by the OPW, it is likely that it was concerned about the potential effect on contractual negotiations relating to the sale of properties 6 and 7. However, as I have explained above, record 1 is already in the public domain while record 7 contains no specific details relating to the properties that could, in my view, prejudice the conduct or outcome of such negotiations. I am mindful of the obligation under section 22 that a decision to refuse a request is presumed not to have been justified unless the FOI body can show to the Commissioner's satisfaction that the decision was justified. As no party has identified the information within the records that could affect any contractual or other negotiations, I find that the decision to refuse access to records 1 and 7 under section 36(1)(c) was not justified.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby vary the decision of the OPW in this case. I direct the release of records 1 and 7, and I uphold the OPW's refusal of access to records 2, 4 and 5.

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.

Stephen Rafferty
Senior Investigator