Whether the Council was justified in refusing access to records relating to the purchase of apartments as off-site provision for compliance with Part V of the Planning and Development Act 2000, on the ground that they are exempt under sections 30, 31, 35, 36 and 37 of the FOI Act

30 August 2019

Background

The applicant acted through his solicitors in this matter. On 14 March 2018, he made an FOI request to the Council for documents relating to the purchase of named apartments and all documents relating to the agreement which was made between the Council and Chartered Land regarding this purchase, and particularised a number of documents in this regard. He also sought records relating to planning conditions attaching to planning permission and documents relating to the Council's engagement with the owners of named apartments.

On 16 April 2018, the Council granted access to some records and refused access to the remaining records on the ground that they were exempt under section 36 of the FOI Act. On 9 May 2018, the applicant applied for an internal review of the decision. The Council issued an internal review decision on 13 July 2018, in which it varied its original decision. It granted access to further records and refused access to the remaining records under sections 30(1)(c), 31(1)(a), 35, 36(1)(b) and (c) and 37 of the FOI Act. On 14 August 2018, the applicant applied to this Office for a review of the Council's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Council for the purposes of this review. I have also had regard to submissions from third parties.

Finally, this review process has taken longer than I would have liked and I apologise to the applicant for that. The reasons for much of the delay are explained below.

Handling of the case by the Council

The Council’s handling of this review was unsatisfactory. It delayed on various occasions in replying to queries from this Office and its replies often required further clarification. Months after the review process began, it transpired that some of the records which the Council gave to this Office were different to its own copies. Its staff were very courteous in dealing with the Investigator’s inquiries and attended this Office to compare all the records on a page-by-page basis. However, it is disappointing that this was necessary and I do not understand why the Council failed to manage the case properly in the first place. Its handling of the matter complicated the review process and contributed to its lengthiness. As will be seen below, it has necessitated a remittal so that a further decision can be made. I appreciate that FOI bodies are under various pressures. Nonetheless, compliance with the FOI Act is a statutory obligation. It is incumbent on FOI bodies to put the resources in place to ensure that they process FOI requests and reviews properly.

Scope of this Review

Remittal

As noted above, some of the records which the Council gave to this Office were different from the versions that it held on its own file. This appears to have arisen because of various attachments being incorporated into numbered records. It has confirmed that it did not take original or internal review decisions on two letters contained in Record 50, dated 1 June 2017 and 6 June 2017 and a letter contained in Record 61, dated 7 June 2017. It is not this Office’s function to make first-instance decisions for FOI bodies. I therefore consider it appropriate to remit the matter of these records for a fresh decision by the Council. Record 61 also contains information which the Council did not originally give to this Office and which comprises a draft of one of the letters above. I therefore consider it appropriate for the Council’s fresh decision to deal with Record 61 as a whole.

Furthermore, I note that the Investigator made enquiries with the Council about documents which were originally attached to Records 6 and 9 and the Council confirmed that it does not hold them. Having reviewed the matter, I cannot see a decision by the Council to refuse access to the records on the basis that it cannot find the records. I therefore consider it appropriate for the Council’s fresh decision to address the documents originally attached to Records 6 and 9 and if relying on section 15(1)(a), to give the applicant details of reasonable searches carried out and/or an explanation as to why the records are not held.

I am very conscious of the delays in this matter to date. I therefore direct the Council to make a fresh decision on the records listed below in bullet-points within four weeks of the date of this decision. If it is necessary for the applicant to return to this Office on an application for review, I undertake to expedite any such review.

• Documents originally attached to Records 6 and 9
• Two letters dated 1 June 2017 and 6 June 2017 in Record 50
• Record 61

Remaining Scope

At various times during the review process, the Council granted access to the following information: Records 8 (in part), 9, 20, 31, 32, 48, 50 (in part) and 75. This Office welcomes the opportunity to narrow the differences between parties in reviews. However, the very piece-meal basis on which the Council released records in this particular case prolonged the process. The applicant helpfully agreed that he does not seek access to the drawings attached to Record 8 or to any of Records 56, 57, 58, 70 or 78. I deal with the remaining part of Record 8 under section 37 below. The remaining parts of Record 50 are the two letters referred to above and an unsigned copy of the declaration of trust which has now been released to the applicant. The information scheduled as “Record 63” is a duplicate of Record 60.

Accordingly, the scope of this review concerns the information which remains withheld in Records 2, 6, 7, 8, 28, 34, 37, 40, 42, 43, 46, 49, 51, 54, 55, 60, 64, 71, 72, 76 and 77. The question for me is whether this information is exempt under sections 30, 31, 35, 36 or 37 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, 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. The Courts have endorsed this approach. Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. Finally, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 31 - Legal Professional Privilege

Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication: confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

I have examined Records 49 and 72 and considered the Council’s submissions. I am satisfied that these records are confidential communications made between the Council and a solicitor who was acting in a professional capacity as legal adviser to the Council, for the purpose of giving legal advice. I therefore find that the Council was justified in refusing access to these records under section 31(1)(a) of the FOI Act.

Section 36(1) - Commercial Sensitivity

Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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.

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.

Section 36(1)(c) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet section 36(1)(c) 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 section 36(1)(c) 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.

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

Submissions

In summary, the Council and Chartered Land say that releasing commercial or financial information relating to costs and pricing strategies could prejudice the competitive position of Chartered Land, or could reasonably be expected to result in a material financial loss to them. They say that releasing information submitted to Chartered Land by third parties could lead those third parties to be reluctant to engage with Chartered Land in future. They say that releasing the records could prejudice future negotiations that may arise in relation to a certain site and generally prejudice any future negotiations between the Council and Chartered Land, since Chartered Land had understood that all documents submitted to the Council were confidential. They also submit that releasing the information could attract negative publicity, which would impact on sales of the relevant development.

Analysis & Findings

The records disclose financial and commercial information such as valuations, costings, draft commercial proposals and offers, the breakdown of a surveyor's fees and details of surveyors’ tender proposals. I accept that section 36(1)(b) applies to this information, on the basis that releasing these commercial details could prejudice the competitive position of the respective parties (Chartered Land, the surveyor and the tenderers), by providing insights into information which would not otherwise be available to their competitors. The records in question are Records 2, 7, 28, 34, 37, 42, 43, 46, 51, 55, 64, 71.

However, I do not accept that sections 36(1)(b) or (c) apply to Record 6. This is a cover letter which does not contain the information on costs etc. referred to on the Council's schedule and which is said to be commercially sensitive. Having regard to the parties’ submissions and the content of this cover letter, I am not satisfied that disclosing it could result in the harms alleged under section 36(1)(b) or (c).

Neither do I accept that sections 36(1)(b) or (c) apply to Records 40 or 54. They outline the planned purchase, the details of which are now known from Records 75, 81 and 82, which the Council released to the applicant. I cannot accept that releasing information which is already effectively disclosed could result in the harms alleged under section 36(1)(b) or (c).

Finally, I do not accept that sections 36(1)(b) or (c) apply to Record 60. This is an agreement between the Council and its trustee on the one hand, and a property consultant on the other hand. During the review process, this Office invited submissions from the property consultant on sections 35 and 36(1)(b) and (c). The property consultant replied that it does not object to releasing this record. I have no basis on which to conclude that sections 36(1)(b) or (c) apply insofar as the property consultant is concerned. Neither am I satisfied from the parties’ submissions and my review of this record that disclosing it could cause the harms alleged under sections 36(1)(b) and (c) to other parties. For completeness, I should note that I consider the Council’s submissions under section 30 below.

In view of these findings, I am not required to consider sections 36(2) or (3) in relation to Records 6, 40, 54 or 60. I find that the Council was not justified in refusing access to Records 6, 40, 54 or 60 under section 36 of the FOI Act.

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances.  I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3)

Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request.

On the one hand, section 36(1) itself reflects the public interest in protecting commercially sensitive information. On the other hand, 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. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs.

I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure.

In relation to the positive public interest in disclosure, I recognise that there is a public interest in transparency and accountability around the expenditure of public funds. Having regard to section 11(3) of the FOI Act, I also believe that there is a public interest in transparency and accountability around the need to strengthen the accountability of FOI bodies. In relation to the harm which might be caused by disclosure, I have already identified the potential prejudice above. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. I have also taken into account the fact that the release of records to date has served the public interest to some extent.

On balance, I do not believe that the public interest would be better served by granting access to the records to which I have found section 36(1)(b) to apply. I find that the Council was justified in refusing access to these records, under section 36(1)(b) of the FOI Act.

Section 35 - Information obtained in confidence

Given my finding under section 36, I am only required to consider section 35 in relation to Records 6, 40, 54 and 60. In view of my finding under section 37 below, I am not required to consider Records 8, 76 and 77 here.

Section 35(1)(a) of the FOI Act applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; 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 it is important to the body that such further similar information should continue to be given to the body.

The Council says that the records refer to information which was provided to the Council by Chartered Land on a voluntary basis in confidence and on the understanding that it would be treated by the Council as confidential. It says that Chartered Land has indicated that if the records were released, it would be likely to prejudice the future supply of similar information. It says that it is in the Council's interest to continue to be supplied with similar information by Chartered Land and developers generally in the future, to enable it to fully and efficiently assess all applications under Part V of the Planning and Development Act.

Chartered Land say that they provided the records to the Council in confidence and with the expectation that they would be treated in confidence and would not be disclosed to any other party. They submit that the obligation on developers to comply with Part V and the process through which compliance is met is widely understood to be confidential. They submit that releasing the records would be likely to prejudice the future supply of similar information to the Council in as full and frank a manner and that it is in the Council's interest to continue to be supplied with similar information.

As noted above, Record 6 is a cover letter without the enclosures referred to. Having regard to its content, I do not accept that of itself, it contains information which was given in confidence or on the understanding that it would be treated as confidential; i.e. that the first or second requirements of section 35(1)(a) could be said to apply. For the avoidance of doubt, even if I had accepted this, I would not have accepted that disclosing the cover letter alone would be likely to prejudice people from giving similar information; i.e. that the third requirement could apply.

Records 40 and 54 comprise correspondence from the Council to Chartered Land. As noted above, the information in these records has effectively been disclosed in the release of other records to the applicant. In those circumstances, I cannot accept that disclosing this record would be likely to prejudice the giving to the Council of further similar information from the same person or persons; i.e. that the third requirement of section 35(1)(a) could be said to apply.

Finally, I do not accept that section 35(1)(a) applies to Record 60, as it does not contain information supplied to the Council by Chartered Land or as otherwise described in the parties’ submissions on section 35. As noted above, the property consultant concerned in Record 60 does not object to release and did not make submissions on section 35 when invited to by this Office.

As I am not satisfied that section 35(1)(a) applies to Records 6, 40, 54 or 60, I am not required to consider the public interest balancing test under section 35(3). I find that the Council was not justified in refusing access to these records under section 35(1)(a) of the FOI Act.

Section 30 - Functions and negotiations

Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to have a significant adverse effect on its functions relating to management. Section 30(1)(c) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to disclose positions taken or to be taken or plans, procedures etc used or followed or to be used or followed for the purpose of negotiations. Section 30(1) is subject to a public interest balancing test in section 30(2).

The Council says that it has a statutory function to deliver social housing under Part V of the Planning and Development Act. It says that to discharge this function, it is necessary to engage with developers and obtain commercially sensitive information. It says that disclosing such information will harm relationships with developers, which will affect the management of the Part V process. It also says that to achieve compliance with Part V, it enters into complex negotiations with developers in which it obtains financial details in relation to the proposed development and that developers understand that the information obtained is for the purpose of obtaining compliance with Part V. The Council submits that there is a considerable public interest in ensuring that it can carry out its housing function and assessment of Part V applications. It says that the public interest is best served by maintaining a situation where parties cooperate voluntarily with the Council, rather than having to rely on its enforcement powers.

Chartered Land say that the records detail the commercial discussions, negotiations, structures and mechanisms used to comply with Part V and that release would disclose positions taken in those negotiations and those to be used or followed in future by the Council.

I do not consider that Record 6 contains the kind of information referred to in the parties’ submissions above and it is not apparent to me how disclosing this cover letter could result in the alleged harm under section 30(1)(b) or disclose positions etc. for the purpose of negotiations, under section 30(1)(c). The Council says that releasing Record 54 would undermine its ability to manage and negotiate, as it formed part of confidential dealings with the developer. However, as noted above, I consider that Records 40 and 54 contain information which has already effectively been disclosed. Accordingly, I cannot accept that disclosing these records could result in the alleged harm under section 30(1)(b) or disclose positions etc. for the purpose of negotiations, under section 30(1)(c). Finally, I do not accept that section 30 applies to Record 60, as it does not contain information supplied to the Council by Chartered Land or as otherwise described in the parties’ submissions on section 30.

I find that section 30 does not apply to Records 6, 40, 54 or 60 and am therefore not required to consider the public interest balancing test under section 30(2). I find that the Council was not justified in refusing access to these records under section 30 of the FOI Act.

Section 37 - Personal Information

I will consider the withheld information in Records 8, 76 and 77 under section 37 of the FOI Act. Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The withheld information in Records 8, 76 and 77 comprises the names, addresses and telephone numbers of individuals other than the applicant and I am satisfied that this constitutes personal information within the meaning of the FOI Act.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. I am then required to consider section 37(5) as it applies to the information.

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

I do not consider that releasing this particular information would serve the public interest in transparency around public bodies. On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third parties to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the Council was justified in refusing access to the withheld information in Records 8, 76 and 77 under section 37(1) of the FOI Act.

For completeness, I should note that Chartered Land made submissions under section 37 in relation to the names of its employees. The names of the Chartered Land employees in Records 6 and 54 have already been released by the Council in the descriptions of those records on the schedule that it provided to the applicant. I therefore do not consider it necessary to consider this point further.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Council's decision as follows. I affirm its decision to withhold certain records under sections 31, 36 and 37 of the FOI Act, as outlined above. I annul its decision to withhold the remaining information and direct its release. For the avoidance of doubt, the information which falls for release is as follows: Records 6, 40, 54 and 60. Finally, I direct the Council to make a fresh decision on the information listed in bullet-points on page 3 of this decision, within four weeks of the date of this decision.

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.

 

 

 

                                                  

Elizabeth Dolan

Senior Investigator