Whether the Council was justified in refusing to grant the applicant's request for information relating to visitor numbers to, and carpark closures at, the Cliffs of Moher in 2018 under sections 36(1)(b) (commercially sensitive information), 36(1)(c) (information prejudicial to the conduct or outcome of negotiations) and 40(1)(d) (unwarranted benefit or loss to a person or class of persons) of the FOI Act
20 June 2019
Background
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.
On 6 February 2019, the applicant made an FOI request to the Council for the following information:
1. The amount of visitors to the Cliffs of Moher per month for 2018.
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.
4. The amount of days the car park at the Cliffs of Moher was closed in 2018 due to inclement weather.
5. The amount of days the car park at the Cliffs of Moher was closed in 2018 due to capacity issues.
The Council's decision of 5 March 2019 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 6 March 2019. The Council's internal review decision of 27 March 2019 affirmed its refusal to grant the request. On 2 April 2019, the applicant sought a review by this Office of the Council's decision. During the review, the Council also sought to rely on section 40(1)(d) (unwarranted benefit or loss to a person or class of persons).
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 is justified in refusing to grant the applicant's request.
Findings
This Office has issued decisions in other cases involving FOI requests made by the applicant to the Council for information on the centre's car park and other matters. Case No 180098 concerned the Council's refusal under sections 36 and 40 to grant a request for the same information as that at parts 1. to 3. above in relation to visitors to the centre in 2016 and 2017. Part of the composite decision in Case Nos 180467 and 180501 concerned the Council's refusal under section 36 to grant the applicant's FOI request of 10 July 2018 for access to the number of days the visitor car park at the centre was fully and/or partially closed, the periods of time for such closures and the number of days the visitor car park at the centre was closed in relation to all car parks at the site. I found that the Council was not justified in refusing the requests and I directed it to grant access to the relevant records.
For reasons that it has not explained, the Council has apparently chosen not to have regard to this Office's previous findings in its consideration of this similar case. I therefore reviewed its decision in the context of the submissions made in this case and the contents of the particular records that I examined.
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.
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. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner [2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35 Kearns J. stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
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
The Council outlines why it believes that the applicant's business is competing with the centre's car park. It says that the requested details comprise commercial information the disclosure of which could enable the applicant to formulate a pricing structure for his own business that could result in a material financial loss to the centre and prejudice its competitive position. It says that by using all of the requested information one can determine how many cars use the main car park in any one day during the peak summer season. It says that one can determine the flow of traffic in a particular day from the car park closure information. The Council also refers to contractual arrangements with coach tour operators and says that the pricing structures of such arrangements are commercially sensitive.
The Council refers to ongoing litigation and says that negotiations may take place between the parties with regard to the car park. It says that granting 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 car park." It refers to further ongoing litigation concerning the payment of damages.
Finally, the Council says that the company/centre is a special purpose vehicle which is funded entirely from admission fees. It says that the site is in need of large scale investment and that as part of its strategic plan, a significant capital investment has gone to tender to be rolled out from 2020. It refers to challenges and opportunities that "may warrant consideration of additional investment during the period of the plan" and says that "[t]his funding can only be met through admission charges ... including all carpark charges."
The Council's submission
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.
In response, it describes the ongoing litigation and repeats arguments that I have summarised above in support of its position that granting the request could give the applicant an opportunity to formulate a pricing structure for his own business that would result in a material financial loss to the centre. It says that this would result in a reduction of the numbers using the car parks and the company's main source of revenue. Otherwise, the Council says that the company is publicly owned and any profits are reinvested into it and the tourism product in Co. Clare. It emphasises that most of the revenue raised for the upkeep of and investment in the site is generated through the public and coach car parks. It outlines the percentage of business that arrives to the site by coach and says that if the litigation is decided against the Council, it is possible that all car parks associated with the centre would have to close and that its competitor will have a monopoly on prices that can be charged to tour operators and visitors. It says that there are strict restrictions on the facilities that can be placed on the site, which is in a special conservation area. The Council does not answer the Investigator's queries regarding how the exemptions might apply.
Analysis
As I noted in Cases No 180098, 180467 and 180501, 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 describes various outcomes and harms that it says could result from granting the request and thus could prejudice the centre's competitive position in the conduct of its business. However, it does not explain how those outcomes or harm could arise. For instance, I note that it does not explain how disclosing the total visitor car park closures because of inclement weather and/or capacity issues could enable a competitor to determine the flow of traffic in a particular day. It is worth noting that parts 4. and 5. and the associated records are concerned with the total numbers of days closed rather than, say, the dates concerned. By way of further example, it does not explain how disclosure of all of the requested information could enable calculation of how many cars use the main car park on any one day during the peak summer season. Similarly, it has not explained how disclosing the requested information, whether on its own or in addition to other information in the public domain, could enable a competitor to determine a pricing structure for its own facilities. The records do not contain any information in relation to the pricing structure of arrangements made between the Council and coach tour operators and it has not been explained how granting the request could disclose such details. 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, or to any negotiations that may take place in respect of these or other issues, or how these matters could be impacted upon by granting the request.
Having considered the matter, I find that the Council is not justified in refusing access to the records under sections 36(1)(b) or (c). In the circumstances, there is no need to consider any arguments made by the Council that may be relevant to the public interest test at section 36(3).
Section 40(1)(d)
The Council argues that the records are also 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. The provision may be applied to various examples of records set out in section 40(2). The Council says that the records fall into four examples of record listed in section 40(2), including at (l) records relating to "trade between persons in the State and persons outside the State" and at (p) records relating to "investment or provision of financial support by or on behalf of the State or a public body". It says that granting the request could reasonably be expected to impair any future decision regarding investment by the company or the Council into the site. It says that the expenditure needed to secure the future needs of the business and the employment of its staff would be at risk due to the applicant's business having a competitive advantage. It also refers to ongoing litigation.
While it is not apparent to me how the records covered by this request fall, in particular, into the examples set out at sections 40(2)(l) and (p) of the FOI Act, in any event they must be exempt under section 40(1)(d) in the first place in order to be withheld. I am not satisfied that section 40(1)(d) applies for the same reasons that I do not accept that the records are exempt under section 36 as set out above. Furthermore, even if such an argument is relevant to the consideration of section 40(1)(d), the Council has not explained how granting the request could impair future investment decisions regarding the site. I find that the Council is not justified in refusing access to the records under section 40(1)(d). In the circumstances, there is no need to consider the public interest test at section 40(3).
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council's decision on the applicant's request and I direct it to grant access to 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