Whether the Department was justified in refusing to grant the applicant's request for correspondence between Airbnb and the Department (including the Minister and Minister of State) from 1 April 2017 to 8 April 2018

30/10/2018

Background

On 8 April 2018, the applicant made an FOI request to the Department for all correspondence, submissions, documents and replies between Airbnb and the Department between 1 April 2017 and 8 April 2018, including direct correspondence between the Minister/Minister of State and Airbnb. 
The Department's decision of 24 April 2018 granted access to one record (record 19) and refused 24 others under section 29 (deliberative process) of the FOI Act. The applicant sought an internal review of the Department's decision on 24 April 2018. The Department's internal review decision of 17 May 2018  affirmed its refusal to fully grant the request, again relying on section 29. On 24 May 2018, the applicant sought a review by this Office of the Department'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 Department, Airbnb (which was consulted with by this Office as a third party whose interests may be affected by my decision) and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the Department has justified its refusal to fully grant the applicant's request. The applicant confirms that he is not seeking any personal information, which may be excluded from any records that I direct should be granted to him. 

Preliminary Matters

It is relevant to note a number of preliminary matters. 
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. 
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in my analysis and reasoning is very limited. 

Finally, 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 rather than any facts and circumstances that applied at an earlier date.

Findings

Section 29 (deliberative process)
Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. 

The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. 

The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies. 

Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make. 

The Department's Arguments

On 21 June 2018, this Office invited the Department to make submissions in relation to section 29 and any other provisions of the Act it considered relevant. The invitation highlighted the requirements of section 22(12)(b) and the need for the Department to justify its decision. The Department made no submission. However, I have had regard to its original decision, which simply says that the records refer to an ongoing deliberative process, and to the explanations given in its more detailed internal review decision. 

The internal review decision says that the records concern deliberations on an aspect of housing policy i.e. short term lettings, "which includes the role of Airbnb". It says that a working group has been established to consider policy in this area and has submitted its report to the Minister, who is "currently considering policy decisions". It also says that in October 2017 the Department issued a circular regarding planning law and short term lettings further to some of the work carried out by the group. It says that other matters considered by the group concern the licensing and regulation of short term lettings and that the requested records "can be considered as inputs into this process". 

The internal review decision also says that granting the request could be more harmful than beneficial to the public interest, because it could undermine the finalisation of public policy deliberations in an important area. The arguments made include that the records disclose various incomplete policy considerations that are "under active consideration in the context of wider inputs from other policy perspectives." It says that it is important for inputs to the policy process to be allowed to be considered in their totality and a conclusion reached. It says that a key factor is that there is a "defined process with an identified policy group, assigned with a particular task, and that is about to reach a conclusion", and that the policy decisions that would emerge will be subject to wider scrutiny. It also says that if the process involving the working group had reached a conclusion, a different view on granting the records could be reached. 

Analysis

I am satisfied that the records arose from consideration of policy on short term lettings and contain matter relating to a deliberative process of a kind to which section 29(1)(a) can apply.
In so far as section 29(1)(b) is concerned, as already outlined, I would expect the public body to be in a position to identify a specific harm to the public interest flowing from release and to explain how that harm might arise. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case.
Of itself, the fact that the working group had submitted its report in May 2018 does not mean that at that point further deliberations would not have been required. However, as outlined above, it is the facts and circumstances at the time I make my decision that are relevant. On 25 October 2018, the Minister announced details of reforms he proposes to make to planning legislation in relation to the use of homes for short-term letting purposes. He says that draft regulations are to be submitted to the Oireachtas for its consideration and approval before coming into effect. He also says that he will be requesting the Oireachtas to carry out a review of the draft proposals, with a view to the changes being finalised and endorsed by the end of the year. 
Even if further deliberations may still be required in the circumstances, and while I believe that FOI bodies are entitled to appropriate time and space to consider all matters relevant to a deliberative process, this does not mean, of itself, that it is contrary to the public interest to refuse access to all information in any way relevant to the process. As the then Commissioner said in Case 98127, if the purpose of the exemption was to protect matter relating to the deliberative process until that process had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

Furthermore, while I accept that the records do not reflect the entirety of the deliberative process on short term lettings, this does not, of itself, mean that the granting of access is contrary to the public interest. Granting the records would give better insight into at least some aspects of the process than would otherwise be the case. 
The Department does not seem to have had regard to the content of the individual records - a point also identified by the applicant. For instance, some records appear to concern the circular that issued in October 2017. Records 1 and 4 include a copy of a written statement from Airbnb to an Oireachtas Joint Committee, which is in the public domain. Record 7 appears to be a draft of the circular issued by the Department in October 2017. 
Other records concern the drafting of a Memorandum of Understanding (MOU) between the Department and Airbnb. As reported in the Irish Times on 21 June 2017, it is a matter of public record that the Department engaged with Airbnb with a view to agreeing an MOU to "facilitate home sharing while preventing unwelcome and unauthorised rentals being advertised on the Airbnb platform." When the Department did not make a submission, the Investigator asked it, by way of clarification, to provide various factual information relevant to my decision, including the current position regarding the MOU. As at 31 August 2018, the Department says that there are no plans at present to "revisit" the drafting of the MOU. While I cannot describe them in detail, it is fair to say that some of the records concerning the MOU are general in content. 

In short, the Department has not explained how disclosure of any of the records might impact on either the MOU process if it recommences, or any other ongoing or future related deliberations. It has not satisfied me that granting access to the records would be damaging to the deliberative process at this point in time because of a specific harm to the public interest flowing from such access. 
I find that the Department has not justified its refusal of the records under section 29 of the FOI Act. For the sake of completeness, I have no reason to consider that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)). 

However, a decision by me to direct that access be granted to the records on this basis alone would affect the interests of Airbnb. The FOI Act gives certain third parties a right to make submissions to this Office and have those submissions taken into account. This Office invited Airbnb to make submissions as a party whose interests would be affected by the grant of access to the records. 

Airbnb's arguments - general 

Three provisions in the FOI Act are relevant to third parties i.e. sections 35 (confidential information), 36 (commercially sensitive information) and 37 (personal information). Airbnb's submission of 27 July 2018 argues that sections 35(1)(a), 35(1)(b) and 36(1)(b) apply. I have carefully considered its submissions in this regard, which I will detail below.

However, Airbnb also argues that I should find the discretionary sections 29 (deliberative process, as dealt with above) and 30(1)(c) (negotiations being carried out by or on behalf of an FOI body or the Government) to apply. It seems to me that sections 35, 36 and 37 were deemed by the Oireachtas to cater for all circumstances where third parties' interests might be affected by release of records. I also accept that a third party's submissions may require me to consider whether a mandatory exemption applies, such as that concerning contempt of court, for example. However, it is only a decision making FOI body i.e. the Department in this case, which can rely on discretionary exemptions and, furthermore, the body must comply with section 22(12)(b). The Department has made no submissions in relation to section 29 and at no stage relied on section 30. Therefore, I have not had regard to Airbnb's submissions in relation to these provisions of the FOI Act. 

Airbnb's submission lists what it says it understands to be the records under review and asks for a further chance to make submissions if other records are under consideration. In fact, most of the records listed by Airbnb differ to those considered by the Department and some are outside the time frame specified in the request, which was clearly stated in this Office's initial contact with Airbnb. This Office told Airbnb that it could not disclose the content of the records under review or provide it with copies. It was made clear to Airbnb that it could make further contact with the Department to clarify the records under review and that this Office would consider any further submission it may be able to make before a final decision is made. In the absence of further contact from Airbnb, I have considered its submission as applied to the records considered by the Department as falling within the scope of the request and of this review. 

Section 35 - confidential information

Airbnb argues that both sections 35(1)(a) and (b) apply to the records. The applicant says that it is significant that the Department did not claim confidentiality. 
Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:
given to a public body in confidence and, 
on the understanding that it would be treated by it as confidential and, 
in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law.

 
However, some of the records were created by the Department. In general terms, section 35(2) provides that section 35(1) cannot apply to records created by an FOI body in the course of the performance of its functions unless granting those records would breach of a duty of confidence owed to a person that is not an FOI body or a service provider. Airbnb is not a service provider and thus it is possible for the Department to owe it a duty of confidence. In turn, it is possible for either section 35(1)(a) or (b) to apply to the records. I will deal with section 35(1)(b) first. 
Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law. 

Airbnb says that granting the records would breach an equitable duty of confidence (a duty provided for "otherwise by law") owed to it by the Department. In considering if there exists such a duty of confidence, I have regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41) which were confirmed in the Supreme Court decision in Mahon v Post Publications Ltd [2007] 3 IR 338:
"First, the information itself -¦ must -˜have the necessary quality of confidence about it-™. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it." 
Airbnb's position is that the details in the records have the necessary quality of confidence about them. I accept that most of the information in the records is not in the public domain and has the necessary quality of confidence. Release is clearly unauthorised by Airbnb. I understand that "detriment" can arise simply where information is disclosed (which, under FOI, is equivalent to publication of the material concerned to the world at large) without the consent of the party to whom it relates. Thus, I accept that release of the records would result in detriment to Airbnb. 

Airbnb also argues that the information at issue was imparted in circumstances importing an obligation of confidence. It says that it voluntarily expended skill, time and labour on its engagement with the Department, which it says was for the benefit of the Department, particularly in relation to the MOU. It says it provided various proposals and opinions about how the voluntary self-regulation process might work based on its understanding of its own platform and experience in other jurisdictions. It relies on the comments of Costello J. in House of Spring Gardens Ltd v Point Blank Ltd [1984] 1 I.R. 611 (the Spring Garden case). who said that where an informant "has expended skill, time and labour on compiling the information, then he can reasonably regard it as of value and he can reasonably consider that he is conferring on its recipient a benefit. If this benefit is conferred for a specific purpose then an obligation may be imposed to use it for that purpose and no other purpose." 

While I accept that Airbnb voluntarily engaged with the Department in relation to the MOU process and that the Department has an interest in agreeing an MOU, it seems to me that Airbnb also has an interest in ensuring that its own requirements for any form of self-regulation are met. 
The Spring Garden case concerned, generally speaking, breach of contract, misuse of confidential information and infringement of copyright. The records under my review do not concern contractual or copyright matters. The question appears to me to be whether Airbnb's contacts with the Department can be described as containing confidential information in the overall circumstances. Airbnb's assertion that it titled some records as "Privileged and Confidential" when saving those records on its system is not a determinative factor in this regard. 

Airbnb says that it made it clear to the Department that any information it provided was being provided on the basis and understanding that it would be treated as confidential. It says that an email sent to it by the Department in March 2017 says it could "be assured that all data and information provided by Airbnb will be treated in the strictest confidence". It also says that the Department assured it that any commercially sensitive or personal information it provided would not be placed in the public domain or in the hands of its competitors. It says that while this assurance was given in the context of Airbnb's reluctance to provide particularly detailed information to the Department, it ought to be taken as applying generally to all aspects of Airbnb's voluntary engagement with the Department concerning the proposed MOU. 

This Office asked the Department to comment specifically on Airbnb's contentions regarding assurances of confidentiality. The Department says that it gave Airbnb assurances regarding specific data and information that it had requested as part of agreeing the MOU but which Airbnb did not provide. In light of that response, it is reasonable to conclude that the Department does not consider itself bound by a duty of confidence regarding the contents of the records under review.

Thus, I do not accept Airbnb's arguments that the information in the records was imparted in circumstances importing an obligation of confidence. I find that section 35(1)(b) does not apply. It follows that I am not satisfied that the second test of section 35(1)(a) has been met in relation to the records, which I also find not to apply. 

Section 36(1)(b) - commercially sensitive information

Airbnb claims that section 36(1)(b) applies to the records. Section 36(1)(b) requires the refusal of access to records containing 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". This Office 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, this Office takes the view 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. 

Airbnb's arguments and analysis

Airbnb says that the records contain commercial and other information regarding how it might self-regulate its platform. It submits that this was provided in an effort to assist the Department, and includes Airbnb's proposals and opinions as to how this might best work based on its understanding of its platform and experience in other jurisdictions. It says that this information would be of interest to its competitors and would provide an insight into its approach to the discussions with the Department. 

Generally speaking, I accept that information regarding Airbnb's platform and experience in other jurisdictions could be of interest to similar operators that are competing with Airbnb. I accept that disclosure of such details to the world at large would provide Airbnb's competitors with insights into its commercial affairs that they would not otherwise have and which they could incorporate into their own offerings to the detriment of Airbnb. I accept that access to such information, again generally speaking, could prejudice Airbnb's competitive position in the conduct of its business. 
However, the content of the records themselves must be considered in deciding if section 36(1)(b) applies to them. Records 1-3 generally concern the MOU, while records 12 and 17 and part of record 20 (i.e. the first paragraph only - one sentence and four bullet points) describe Airbnb's proposals for self regulation. Record 20 is a note of a meeting between the Minister of State and Airbnb. Record 18 is a briefing note that the Department says it prepared for the Minister of State in advance of meeting Airbnb, which concerns various matters and also refers generally to the MOU. 
Records 4, 5, 8, 9, 10, 11, 13, 14, 15, and 16 concern the November 2017 circular. Some of these records comprise correspondence sent by Airbnb before the circular was issued that it asked the Department to take into account. Some comprise correspondence sent by Airbnb after the circular was issued. As already outlined, record 7 is a draft of the issued circular. 

The Department confirms that it created record 6, which its schedule describes as a draft proposal on the regulation of short term lettings.
Records 21 and 22 are requests from Airbnb for a meeting with the Minister. Record 23 is an email from Airbnb to the Department concerning a published Airbnb report and record 24 is a briefing note that the Department says it created in relation to that Airbnb report. Finally, record 25 is a further request for a meeting, which includes information about Airbnb that seems to me to be based on information contained in Airbnb's statement to the Joint Committee and in the published Airbnb report.

Having regard to the contents of the records, it seems to me that only records 12 and 17 and record 20 (in part) might contain information of a potentially commercially sensitive nature. That said, it is not entirely clear to me how disclosure of the details concerned could be of use to Airbnb's competitors either in a commercial setting or in any discussions they might at some stage have with either the Department or similar bodies whether in Ireland or elsewhere. However, I note Airbnb's argument about its proposals being based on its understanding of its platform and experience in other jurisdictions. Furthermore, there is a relatively low standard of proof required me to find that access to details could prejudice an entity's competitive position in the conduct of its business. I find, therefore, that section 36(1)(b) applies to records 12 and 17 and record 20 (in part).
However, the rest of the records contain general and/or publicly available information relating to Airbnb, the MOU and short term letting policy generally. I do not consider them to contain any detailed information regarding Airbnb's operations or its platform that qualifies for exemption under section 36(1)(b).

Exceptions to section 36(1)(b) - the public interest

A record that is exempt under section 36(1)(b) may be released if certain circumstances apply (section 36(2) refers), or if the public interest in favour of its release outweighs the public interest that it be withheld (section 36(3) refers). I do not consider section 36(2) to be relevant in this case. 
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. 

At the outset, I wish to make clear that it would not be appropriate for me to direct that access be granted to records 12 and 17 and 20 (in part) on the basis of assertions regarding the impact of Airbnb's business model on the housing market. 
The FOI Act recognises, both in its long title and in its individual provisions, that there is a significant public interest in government being open and accountable. The applicant argues that there is a strong public interest in knowing what influence any commercial body has over public policy and in having an open and transparent process around the determination of future housing policy. I agree with him. In this regard, section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. It provides that FOI bodies shall, in performing any function under the Act, have regard to a number of matters including the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs. 
On the other hand, section 36(1)(b) itself reflects the public interest in the protection of records containing information that could prejudice a private company's competitive position in the conduct of its business. This Office takes 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, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. 

This does not mean, however, that all contacts between an FOI body and a private enterprise should as a matter of course be required to be withheld. This Office generally distinguishes between the public interest in disclosing information which relates purely to the business of a third party and information which relates to the activities of the FOI body, e.g. the development of policy, the exercise of a regulatory function or the use of State resources. Where the information of a third party and an "FOI body" overlap, this Office aims to strike a balance between ensuring openness on the part of an FOI body and limiting the impact of disclosure on the affairs of the third party. 

For instance, decisions issued by this Office have made it clear that persons entering into business arrangements with FOI bodies should have a diminished expectation of privacy or confidentiality in relation to those arrangements, particularly with respect to the payment to them of public monies. However, such decisions have also found that disclosure of other successful commercially sensitive tender information (for example, details of the internal organisation of a tenderer's business, analyses of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) in the public interest ordinarily would not be required unless it were necessary to explain the nature of the goods or services purchased by the public body. 
Records 12 and 17 and 20 (in part) concern the development of housing policy. However, they concern a particular, focussed aspect of policy i.e. efforts to agree a voluntary MOU between the Department and a third party the terms of which would be in addition to existing requirements under the planning code. Furthermore, for whatever reason, it seems that the MOU has either stalled or will not conclude. In such circumstances, it is not clear to me how disclosure of the records will enable insight into future general developments in housing policy. The fact that it may be of interest to the public to know Airbnb's proposals for voluntary self-regulation does not equate to there being a public interest in disclosure of such details. Accordingly, I do not consider that the grant of access to records 12 and 17 and record 20 (in part) will significantly further the public interest in favour of disclosure. 

On balance, I do not consider that the public interest in granting the request insofar as it concerns records 12 and 17 and 20 (in part) outweighs the public interest in protecting exempt information. I find that section 36(3) does not require the grant of access to those records which I have found to be exempt under section 36(1)(b). 

I should also make it clear that I distinguish between records 12 and 17 and 20 (in part) and other records containing Airbnb's views regarding general housing policy, such as those concerning the circular. Even if I had found section 36(1)(b) to apply to such records, I would consider that the public interest in ensuring openness and accountability in developments in housing policy would outweigh the public interest that the records be refused. 
I also wish to make clear that I am directing that access be granted to the written statement from Airbnb to the Oireachtas Joint Committee as contained in records 1 and 4, in that the Department did not exercise its discretion to rely on section 15(1)(d) (information in the public domain) and refuse the request in relation to the document concerned. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. 
I affirm the Department's refusal of access to records 12 and 17 and part of record 20 i.e. the first paragraph only (one sentence and four bullet points).
I annul the Department's effective refusal of the remaining records (including the rest of record 20) and direct that access be granted to them.
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI 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 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.





Elizabeth Dolan
Senior Investigator