Whether the Council was justified in refusing to grant the applicant's requests for the numbers employed in each department at the Cliffs of Moher for 2014 to 2018 and information relating to closures of the visitor carpark at the Cliffs of Moher from 2015 to 2018 under sections 36(1)(b) (commercially sensitive information) and 36(1)(c) (information prejudicial to the conduct or outcome of negotiations) of the FOI Act

11 March 2019

Background

This is a composite decision arising from decisions on two separate FOI requests from the same applicant. 

The Council owns a company called the Cliffs of Moher Centre Limited (the company), which operates the Cliffs of Moher visitor centre (the centre). References to the Council in this decision may be taken as including references to the company.

Case No. 180467arises from the applicant's FOI request to the Council of 14 August 2018 (as clarified on 21 August 2018) seeking access to the numbers employed in each department at the centre for the years 2014 to 2018. 

The Council's decision of 17 September 2018 refused access to five records under sections 36(1)(b) (commercially sensitive information) and 36(1)(c) (information prejudicial to the conduct or outcome of negotiations) of the FOI Act. The applicant sought an internal review of the Council's decision on 24 September 2018. The Council's internal review decision of 15 October 2018 affirmed its refusal to grant the request. On 30 October 2018, the applicant sought a review by this Office of the Council's decision (Case No. 180467 refers). 

Case No. 180501is concerned with the Council's refusal to grant the applicant's FOI request of 10 July 2018 (as clarified on 23 July 2018) for access to: 

1. The number of days the visitor car park at the centre was fully and/or partially closed.
2. The periods of time for such closures. 
3. The number of days the visitor car park at the centre was closed in relation to all car parks at the site. 

The Council's decision of 18 September 2018 refused access to four records under sections 36(1)(b) and 36(1)(c) of the FOI Act. The applicant sought an internal review of the Council's decision on 2 October 2018, which the Council affirmed in its internal review decision of 30 October 2018. On 28 November 2018, the applicant sought a review by this Office of the Council's decision. 

The Council's submissions in Case Nos 180467 and 180501 are largely identical and referred to both requests. Thus, I have decided to conclude my reviews on both applications by way of one formal, binding decision. In carrying out my reviews, I have had regard to 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 was justified in refusing to grant both requests. 

The records in Case No 180467 comprise five tables for 2014 to 2018 listing the numbers employed in the centre's various departments. Those in Case No 180501 comprise three tables for 2015 to 2018 listing the dates and durations of the car park's closure. 

Findings

Sections 36(1)(b) and (c) 
While section 36 generally provides for the protection of third party commercially sensitive information, it can also be applied to records concerning an FOI body's interests, provided the Council satisfactorily shows the requirements of the exemption are met. 

This Office's approach to sections 36(1)(b) and (c)
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. 

The Council's decisions
I do not intend to repeat those matters of fact and/or argument that are contained in the decisions.

Case No 180467
The Council's decision outlines why it believes that the applicant's business is competing with the centre's car park. It says that part of the centre's business model is to provide a staff shuttle scheme from nearby towns during peak season to reduce the number of staff cars parked in the main customer car park. It says that granting the request will enable the applicant to formulate a pricing structure for his own business that would result in a material financial loss to the centre. 

The decision also refers to negotiations that had taken place in relation to certain litigation. It says that granting access the request "could prejudice the conduct or outcome of any negotiations which may have taken place or take place in the future with regard to the utilisation of the car park by employees." 

The internal review decision also says that the company is publicly owned with any profits being reinvested into it and the surrounding site. It refers to further litigation concerning the payment of damages. It says that, in the context of negotiations arising from the first litigation,  enabling the applicant "to formulate a price structure relating to [the centre's] staff shuttle business model, could prejudice the conduct or outcome of commercially sensitive negotiations."

Case No 180501
The decision says that granting the request will give the applicant sensitive commercial information and a competitive advantage. It says that granting the request could prejudice the conduct or outcome of any negotiations that "may take place" in the context of the second litigation. 

The internal review decision says that disclosure of details of the car park closures could enable the applicant to "determin[e] the capacity through turnover of all vehicles and the availability of spaces within the car parks to determine a pricing structure through carpark capacity that could be charged" at his business. It refers to the first litigation and says that granting the request would enable the applicant to formulate a price structure for his business based on the capacity of the centre's car park, the turnover of spaces and the availability of car spaces at peak times, which could prejudice the conduct or outcome of commercially sensitive negotiations. 

It also says that the company has contracts with a large number of commercial tour operators, the pricing structure of which is commercially sensitive. It says that granting the request could enable the applicant to "determin[e] the capacity through turnover of coach parking spaces and the availability of coach spaces and in so doing determine a pricing structure through carpark capacity that could be charged" at his business. 

The Council's submissions
In both cases, this Office invited the Council to make submissions as to why it considers sections 36(1)(b) and (c) to apply and to answer some specific queries. The Investigator notified the Council of the implications of its failing to satisfactorily show that the requirements of the exemption are met.  

Furthermore, my recent decision in Case No 180098 concerned the Council's refusal to grant the same applicant's request for breakdowns of the centre's 2016 and 2017 visitor numbers. I found that the Council was not justified in its reliance on the exemptions and I directed it to grant access to those request.

Therefore, as the Council knows, it must describe the harms it envisages arising from the grant of access, and also explain how those harms could arise based on the particular content of the records. 

The Council's submissions refer to various litigation claiming that at least some of the issues between the parties are still sub judice and that granting access to the requested details could be used by one of the parties to the proceedings "to formulate its claim for damages". It  also refers to "the flow of traffic in a particular day". It argues that the information should be obtained under Discovery procedures. 

The submissions give further information about the staff shuttle scheme. They say that granting both requests would enable calculation of how many cars use the main car park in any one day during peak summer season, that the applicant could "determine through the car park closure the flow of traffic in a particular day" and enable him to "formulate a pricing structure [for his business] that could result in material financial loss to the [Company]."

In relation to section 36(1)(c), the submissions say that the information in the records "could prejudice the conduct or outcome of the High Court case to which the information relates" and would provide the applicant with "information and breakdown of visitors to the [centre] and determine a price that could be charged, ultimately giving them the competitive advantage. "

The Council's submissions do not answer the Investigator's queries as regards how the exemptions might apply.  

Analysis
As I noted in Case No 180098, the Council's refusal to grant the requests is clearly based on a desire to protect the revenue it generates from its car park. 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. Thus, 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).

The Council's submissions describe various outcomes and harms that it says will result from granting the requests. However, it does not explain how those outcomes or harms, or the other harms set out in its decisions on the requests, could arise. I do not intend to comment on each harm described but, for instance, I note that it does not explain how granting the requests would enable calculation of how many vehicles use, or could use, the car park in any one day. Neither does it explain how a competitor could use this calculation, whether on its own or with other information in the public domain, to formulate a pricing structure for its business. By way of further example, the Council does not explain how the records are, of themselves, relevant to the substance of any ongoing litigation or to a claim for damages. I should also make it clear that the fact that information may be sought under discovery does not mean that it cannot be requested under FOI. 

Having considered the matter, I  find that the Council was not justified in refusing access to the records under section 36(1)(b) or (c). In the circumstances, there is no need to consider the arguments made by the Council in relation to the public interest test at section 36(3). 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decisions on the applicant's requests and I direct it to release the records concerned. 

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