14 June 2018

Whether the Council was justified in refusing to grant the applicant's request for breakdowns of visitor numbers to the Cliffs of Moher for 2016 and 2017 under sections 36(1)(b) (commercially sensitive information), 36(1)(c) (information prejudicial to the conduct or outcome of negotiations), and 40(1)(d) (information access to which could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons)

Background

The Council owns a company called the Cliffs of Moher Centre Limited (the company), which I understand operates the visitor centre at the Cliffs of Moher. 

References to the Council in this decision may be taken as including references to the company.

On 7 November 2017, the applicant made an FOI request to the Council for information and records concerning all visitors to the Cliffs of Moher in 2016 and 2017. Further to the Council's request to specify what particular visitor information he was seeking, on 13 November 2017 the applicant clarified that he wanted access to the following:

1. The amount of visitors to the Cliffs of Moher for each calendar month.
2. The divide of visitors to the Cliffs of Moher between coach and car for each of the calendar months.
3. The divide of visitors to the Cliffs of Moher between coach and car and between adults and children under 16 for each of the calendar months.

The Council's decision of 4 December 2017 refused access to three records under sections 36(1)(b) (commercially sensitive information) and 36(1)(c) (information prejudicial to the conduct or outcome of negotiations). 

The applicant sought an internal review of the Council's decision on 7 December 2017, which the Council affirmed on 27 December 2017. On 10 January 2018, the applicant sought a review by this Office of the Council's decision. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Council, and the applicant. I have had regard also to the records considered by the Council and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the Council has justified its refusal of access to the three records (all Excel spreadsheets). 

Record 1 lists the daily, monthly and annual number of visitors for the relevant years. Record 2 breaks these figures down into numbers of visitors who arrived by car and by three other means of transport. Record 3 breaks down the number of visitors who arrived by car into various categories, including whether those visitors are adults or children. It gives what seems to be the number of vehicles in which visitors arrived other than cars. Finally, while it sets out the numbers of visitors who arrived by the three means of transport other than cars, it does not categorise them further. 

The Investigator dealing with this review noted that the records appeared to contain more detail than what was requested. She asked the Council whether it held records containing only the requested information. The Council responded to the effect that it considers all the information in the spreadsheets to be covered by the request. I have proceeded accordingly. 

Findings

Sections 36(1)(b) and (c) 
In general terms, section 36 enables the protection of third party commercially sensitive information. However, previous decisions from this Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests. While it is thus possible for section 36(1)(b) or (c) to apply to records concerning the Council's interests, section 22(12)(b) of the FOI Act places the onus on the Council to justify its application of the provisions.

This Office's approach to the exemptions claimed
Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. 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. 

The harm test in the first part of section 36(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.  However, the Commissioner considers that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. 

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. 

Finally, section 36(1)(c) must be applied to "information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates". 

The conduct and the outcome of negotiations are separate matters. 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, the Commissioner 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 explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. 

Arguments Made
The applicant did not make any arguments in his correspondence with either the Council or this Office. 

The Council's decisions simply say that disclosure of the records could reasonably be expected to result in material financial loss to the company's business and to prejudice the competitive position of coach and tour operator customers.

The Council's submission to this Office refers to a court case that it says was taken by the applicant regarding [a business with which he is involved]. It says that an unfavourable judgment could potentially lead to a "major loss of revenue" through potential closure of the main car park which may result in a complete restructuring of the organisation. It says that disclosure of the breakdowns could give the applicant a "competitive advantage ... in his ongoing High Court case ...".

The submission also says that there are in place contractual arrangements with a large number of coach tour operators, the pricing structures of which are commercially sensitive. Following on from this point, it says that granting the request will enable the applicant to determine "a price that could be charged ultimately giving them the competitive advantage [in his business] ...". 

The Council says that, because its admission rates are publicly available (but which it did not describe in its submission), the requested breakdowns would enable the applicant to calculate the company's turnover and formulate a pricing structure that would result in a material financial loss to the company and a competitive advantage to the applicant. 

Finally, the Council says that overall visitor numbers are published each January on its website. 

Analysis

The Council's submission does not meet the requirements of section 22(12)(b). 

It contains none of the details or arguments expected by the Commissioner in relation to a claim for section 36(1)(c). I find this provision not to apply to any of the records. 

The Council does not explain how the information in the records is relevant to the ongoing legal action (which it did not describe in any detail), how access to the records could give the applicant a "competitive advantage ... in his ongoing High Court case ...", or why it considers section 36(1)(b) to apply in such circumstances. 

While one bus operator is identified in records 2 and 3, the submission does not suggest that there is any arrangement in place between the Council and that operator. The records do not describe the pricing structures of any contracts there may be between the Council and any coach tour operator, which based on the Council's comments must be taken to differ in some way from the prices charged for group bookings on the Council's website. The Council has not explained how access to the records could cause the harms set out in section 36(1)(b) to any coach tour operator. 

The Council's final argument is clearly based on a desire to protect the revenue it generates from its car park. At this point, I should say that section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request and to, essentially, disregard the identity of the applicant. That said, disclosure of records under FOI is generally accepted to be equivalent to the publication of those records to the world at large. This would include an enterprise's competitors - however few there may be. Accordingly, while the Council's arguments are couched in terms of the usefulness of the information to the applicant, I do not consider this, of itself, to be in breach of section 13(4).

However, the issue of car parking aside, the Council does not explain why what it describes as the second most visited attraction on the island of Ireland is otherwise in competition with [the applicant's business]. 

According to the Council's website, admission fees to the Cliffs of Moher site include entry to various parts of the Cliffs, the surrounding site and the Cliffs Exhibition, provision of first aid facilities and safety onsite and unlimited same day vehicle parking. As one would expect, it is also stated to "contribute toward the visitor management and conservation provided at the Cliffs of Moher." While it is clear that admission fees covers more than just the cost of car parking, the records do not give any indication of how the various fees are apportioned between car parking and the other contributions they cover. 

Furthermore, this argument does not take account of the specific content of the requested records. The information in records 1 and 2 is general. The Council has not explained how, based on that information and having regard to its published admission prices, one could calculate the total admission fees it received in 2016 and 2017. Neither do I see any way in which this could be possible. On this basis alone, I find records 1 and 2 not to be exempt under section 36(1)(b). 

The information in Record 3 is more detailed. I accept that, generally speaking, a breakdown of a commercial enterprise's customer numbers/customer types, in conjunction with related sales or ticket prices, could enable a competitor to calculate the enterprise's turnover from such sales. The competitor could then assess if it can reduce its own prices, which could prejudice the original enterprise's competitive position.

I note from the Council's website that children under 16 enter the Cliffs of Moher site for free. Otherwise, there are set admission fees (the "gate rate") for visitors who do not pre-book, depending on whether one is an adult, a student or a senior (over 65). Should those three categories of visitor pre-book online, the relevant admission fees vary depending on whether they visit at peak or off-peak times. For group bookings (10 or more persons visiting together), a set rate per person is charged, which only applies when the group pays collectively rather than individually. There is also a reduced pre-booked group rate, while pre-booked groups who arrive at off peak times can avail of a further discounted fee. Residents of Co. Clare qualify for a local pass that gives them unlimited access for a year for a set fee. Finally, those with a "Burren Discovery 7 Day Pass" can visit the Cliffs of Moher and two other nearby visitor attractions, which (according to the relevant website) costs a set amount for all persons over the age of four. 

Thus, even if I were to accept that a visitor attraction such as the Cliffs of Moher competes with [the applicant's business], the Council has not explained how access to record 3 could enable one to calculate its admissions ticket turnover with any accuracy. For instance, the figures given for visitors who booked on line and arrived by car do not indicate whether those visitors arrived at peak or off peak times. The figures do not identify how many visitors had a Burren Discovery 7 Day Pass or were eligible to avail of group rates. Furthermore, and as already noted, the Council's reference to the confidentiality of pricing structures of contracts it has with coach operators suggest that there may be further prices charged for group bookings, additional to those listed on the Council's website. 

Based on the Council's arguments and having regard to the information in Record 3 and admission fee information on the Council's website, it seems to me that, at most, a competitor could only estimate the Council's turnover from admission fees based on a variety of best case and worst case scenarios. It strikes me that any competitor for the Council's car park facilities that may be contemplating reducing its prices would need reasonable accuracy as to the Council's turnover from admission fees, as well as information regarding the extent to which that turnover is apportioned to car parking costs, before being able to make a meaningful decision on the matter. 

I do not accept that the grant of access to record 3 "could prejudice the competitive position" of the Council in so far as its car park is concerned, and I find section 36(1)(b) not to apply. 

I should also add that, even if the Council's arguments were sufficient to meet the low standard of harm of the "could prejudice the competitive position" element of section 36(1)(b), I would have to consider whether the public interest in ensuring openness and accountability outweighs the public interest in protecting the records. 

In this regard, I note that the Council says it is currently investing in the site to transform it into a world class visitor attraction and that the investment in infrastructure "has to be funded wholly by the Cliffs of Moher, through revenues generated through [the] main car park". I also note it says that any profits made by the company are invested back into the company and the surrounding site. Thus, the Council's position is that there is a public interest in not disclosing information that could prejudice revenues in relation to the Cliffs of Moher site. I would accept that there is a public interest in ensuring that the Council is able to invest in the site and to preserve it for future generations. 

On the other hand, the FOI Act recognises a public interest in ensuring that FOI bodies are open about and can be held accountable for how they carry out their functions and activities and make decisions. There is a significant public interest in ensuring openness and accountability for decisions made regarding the State's natural attractions. While it is already evident from the Council's website as to the various services included in its admission fees, it seems to me that disclosure of numbers of different types of visitors to the site can enable greater analysis of the decisions it has made regarding the setting of such admission fees. There is also a public interest in disclosing information regarding the environmental impact of the manner in which visitors arrive at the Cliffs of Moher.

It would seem to be the Council's position that the public interest in favour of the grant of access has been sufficiently served by its publication of overall visitor numbers. However, the Investigator noted that the figures in records 1-3 for visitors in 2016 differ from the overall number reported for the year on the Council's website and that the website seems to give no figures for visitors in 2017 other than a press release from August 2017 that marked the one millionth visitor for that year.  

The Council has clarified that, due to a clerical error, visitor figures for 2016 as reported on its website are incorrect. It confirms that the figures in the records supplied to this Office for 2016 are correct. It also says that for the first time in 10 years there was no press release on visitor numbers for 2017, but that figures have been circulated to the media and will be uploaded to the website. 

As matter stand at the time of writing this decision, the Council's website does not appear to have been updated. Furthermore, I note at least one article on the internet concerning visitor numbers to the Cliffs of Moher for 2017, which contains a total figure different to that in the records under review.  

Accordingly, I would not consider the material posted on the Council's website to have served the public interest in favour of the grant of access to any extent. Thus, in the circumstances of this case, I would find that, on balance, the public interest in granting access to the records outweighs the public interest that access should not be granted.

Section 40(1)(d)
For the same reasons it has given regarding section 36, the Council argues that the records are exempt under section 40(1)(d) of the Act. Section 40(1)(d) is a discretionary exemption that provides for a refusal to grant access to records whose release could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.  

Section 40(2) lists various records to which section 40(1)(d) may apply. I do not intend to consider the Council's argument that the records fall into four categories of record listed in section 40(2). Even if they do, the Council must still justify its refusal of the records under section 40(1)(d). Thus, its submission should identify the potential harm - unwarranted benefit or loss to a person or class of persons - that might arise from the grant of access to the records, and also consider the reasonableness of any expectation that the harm will occur. Further to my analysis of the Council's arguments in relation to sections 36(1)(b) and (c) of the FOI Act, I find that it has not justified its refusal of the records under section 40(1)(d). 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision and direct it to grant access to the three records. 

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