Case Number: 160438

Whether the Department was justified in refusing access to certain financial records insofar as they relate the disposal by Coillte Teoranta (Coillte) of lands and forestry at Kilcooley Abbey Estate

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

Background

In a request dated 25 January 2016, the applicants sought access to information held by the Minister relating to the disposal by Coillte of land and forestry at Kilcooley Abbey Estate, Thurles, Co. Tipperary. In their request, the applicants referred specifically to the disposal by Coillte of 402.92 hectares of land and forestry at Kilcooley Abbey Estate on 16 December 2013. In a decision dated 15 February 2016, the Department identified 25 records as relevant to the request and granted access to 12 records in full and a further 11 records in part. Access to two records, identified as records 1 and 12, was refused in full under section 36(1) of the FOI Act on the basis that they contain commercially sensitive information.

On 15 March 2016, the applicants applied for an internal review of the decision to refuse access to records 1 and 12. The applicants argued that there is a strong public interest in the sale of the 402.92 hectares of land and forestry at Kilcooley Abbey Estate given that the sale concerned State assets that were "not sold by public auction or competitive tender as per Section 18 of the Code of best Practice for the Governance of State Bodies". In a decision dated 12 April 2016, the Department affirmed its original decision. On 10 October 2016, the applicants applied to this Office for a review of the Department's decision to refuse access to records 1 and 12.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Department and Coillte as the affected third party in this case. I have also examined the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

Record 1 is an extract from a document headed "Coillte Teoranta Summary of Financial Performance Half Year period ended 30th June 2012". Record 12 is an extract from a similar document but relating to results for the year ending 31 December 2013. Only a small part of each record relates to the sale of lands at Kilcooley Abbey Estate. Record 1 refers to the contribution from Land Added Value in relation to the sale of Kilcooley Abbey in H1 2011. Record 12, in turn, refers in pertinent part to the contribution from the disposal of leasehold lands at Kilcooley in December 2013. While it is unclear, the reason for the disparity in the dates seems to relate to the protracted nature of the sale process. The remainder of both records concerns financial information that is unrelated to Kilcooley Abbey, however. Information that is unrelated to the disposal of land and forestry at Kilcooley Abbey Estate does not fall within the scope of the applicants' request and therefore does not form part of this review. The question before me is whether the Department's decision to refuse access to the parts of records 1 and 12 relating to the disposal by Coillte of lands and forestry at Kilcooley Abbey Estate was justified under the FOI Act.

Analysis and Findings

Section 22(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 by this Office under section 22 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.

Section 36
In their submissions, both the Department and Coillte argue that section 36(1) applies to the information concerned. Section 36 of the FOI Act provides protection for three different classes of commercially sensitive information as follows:
"36. (1) 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."

Section 36(1) does not apply, however, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 36(3) refers).

In its submission dated 1 February 2017, Coillte notes that the records in question disclose pricing information with respect to the sale of the lands at Kilcooley. Coillte states:

"This by definition is commercially sensitive information. Coillte does not disclose the individual consideration applicable to the many land transactions that it enters into. Disclosure of that information on an individual transaction basis would prejudice Coillte's competitive position in the market in that subsequent transactions or future negotiations could be compromised by other parties having access to the information with respect to prior transactions."

For its part, the Department claims that sections 36(1)(b) and (c) apply to the parts of records 1 and 12 that are relevant to the review. Record 1 is described as stating the "amount of income" from the sale of the lands at Kilcooley. Records 12 provides the amount of a release of a provision relating to the disposal of the leasehold lands following the completion of the sale. The Department considers that the amount of provision in the accounts could serve as an indicator of the sale price and that disclosure could harm Coillte in any subsequent disposal of leasehold lands. In its view, the harm could arise by potential purchasers of Coillte's other leaseholder property referring to the income of the Kilcooley disposal in similar negotiations "without having regard to the specific circumstances of either the Kilcooley transaction or any proposed similar disposal e.g. age profile of forest, species, location, duration left on lease, any conditions attaching to lease etc". Alternatively, the Department considers that potential purchasers may be deterred from expressing interest in property disposals if purchase prices were ultimately disclosed to the public.

No argument has been made, nor do I find any basis for concluding, that the information at issue qualifies as trade secrets for the purposes of section 36(1)(a) of the Act. Regarding sections 36(1)(b) and (c), I note that the standard of proof is relatively low in that the mere possibility of prejudice to the competitive position, or to the conduct or outcome of negotiations, of the person concerned is sufficient. (The first part of section 36(1)(b) sets a higher test, however.) However, the information at issue relating to the sale of lands at Kilcooley is now historic. Neither record appears to give the actual sale price as opposed to the "contribution" (the amount of income or the release) to Coillte's accounts in the financial period concerned resulting from the sales referred to. No other details relating to the sale are provided.

I further note that media reports relating to the sale of the leasehold in 2013, as well as the requested records to which access has already been granted, indicate that the buyer's interest was related to the purchase of the freehold interest in the Estate. Indeed, it seems to me that the circumstances of this sale are unlikely to be particularly relevant to any future transactions given the various distinguishing factors relating to the transaction, such as the age profile of the forest or the conditions attaching to the lease. It is also to be expected that Coillte's negotiators would be in a position to refer to the specific circumstances of the Kilcooley transaction that distinguish it from other leasehold properties that Coillte may wish to dispose of in future, including the market conditions that existed in the 2011-2013 period. Moreover, I consider the Department's concern that disclosure could deter potential purchasers from expressing interest in future property disposals to be entirely unfounded and inconsistent with its claim that disclosure of the income from the Kilcooley disposal may be used by potential purchasers in future negotiations. I am therefore not satisfied that section 36(1)(b) or (c) applies.

In any event, Coillte is a State-owned company whose shares are held on behalf of the State by the Minister for Agriculture and the Minister for Finance. Information relating to the sale of lands and forestry at Kilcooley Abbey Estate is information on the sale of valuable State assets. Previous decisions of this Office, such as Case 140108 (Ms. X & The Department of the Environment, Community and Local Government), Case 080232 (Mr Colin Coyle, Sunday Times & Dublin City Council), and Case 99183 (McKeever Rowan Solicitors & The Department of Finance), all available at www.oic.ie, have recognised that there is a need for transparency and accountability in the sale or use of public property and public assets whether or not expenditure or revenue is involved. In the circumstances, I find that the information concerned should be released in the public interest.

Section 35(1)(a)
Coillte also considers that section 35(1)(a) applies to the records concerned. 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.

Section 35(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 35(3) refers).

Coillte explains that it attends quarterly review meetings with the Department at which it provides the Department with significantly more information than is contained in its published Financial Statements. Coillte acknowledges that it is important to provide the Department as its shareholder with detailed information, including commercially confidential information. Nevertheless, Coilte states: "Were Coillte to apprehend that such confidential commercially sensitive information could be subject to disclosure under FOI, this may cause it to have to be more restrictive in the information provided to the Department as part of its quarterly review meetings." It adds: "Coillte is of the view that it should be able to provide such information to the Department in order to facilitate a thorough review by the Department of Coillte's ongoing performance. We also consider that this is in the public interest."

I note that the Department indicates that it considered section 35 as well as section 40 in relation to the records concerned, but it has made no case that either of these exemptions applies. Even assuming, however, that an understanding of confidence exists in relation to the information relating to the sale of lands at Kilcooley, a claim that the Department does not expressly make, I find no basis for concluding that disclosure would be likely to prejudice the giving to the Department of further similar information in future. It is my understanding that the information at issue was given to the Department to meet its reporting requirements to the Minister as its shareholder. Moreover, as noted above, the information relates to sale of valuable State assets. It simply is not plausible that Coillte would be less likely to give to the Department information about future such sales in the event of the disclosure of the information about sale of lands at Kilcooley in 2011 and 2013. I am therefore not satisfied that the third requirement of section 35(1)(a) has been met. I find that section 35(1)(a) does not apply. In any event, for the reasons stated above, I find that the public interest would, on balance, be better served by granting rather than by refusing access to the information concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department and direct the release of the records concerned insofar they relate to the disposal by Coillte of lands and forestry at Kilcooley Abbey Estate.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator