Whether the IDA was justified in refusing access to a report on strategic land bank identification for a large-scale data centre project

20 September 2019

Background

On 24 January 2019, the applicant made an FOI request for “a Jacobs Engineering study undertaken to identify strategic land banks that could be suitable for data centre developments”. By letter dated 8 March 2019, the IDA refused access to the report on the basis that: “the findings of this report will be commercially sensitive and as a result IDA Ireland has decided the document when complete will remain internal”. On 12 March 2019, the applicant applied for an internal review. The IDA issued an internal review decision by letter dated 26 April 2019. It refused access to the report on the grounds that it was exempt under sections 29, 30, 36 and 40 of the FOI Act. On 30 April 2019 the applicant applied to this Office for a review of the IDA's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the IDA as outlined above and to the correspondence between this Office and both parties, as well as the content of the record that was provided to this Office by the IDA for the purposes of this review.

Scope of the Review

During the review process, the IDA released small parts of the report to the applicant. It also made submissions claiming that section 37 of the FOI Act applied, in addition to the other exemptions claimed. Accordingly, this review is concerned with whether the IDA was justified in refusing access to the rest of the report under sections 29, 30, 36, 37 or 40 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points. First, the IDA’s original decision letter fell well short of the requirements under the FOI Act. It failed to cite any provision of the FOI Act, let alone give reasons by addressing the relevant parts of any such provision, together with the public interest balancing test where relevant. Requesters are entitled to have a proper decision notified in response to their FOI requests and the IDA failed to do this. I would urge FOI bodies to use the tools and resources which are available at the website of the Central Policy Unit of the Department of Public Expenditure and Reform, on www.foi.gov.ie. Guidance Notes and Sample Questions are also available on our website www.oic.ie. I should also note that although the IDA said in its original decision that the report “will be commercially sensitive”, the record before me is dated 23 April 2018.

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 at issue is very limited. Thirdly, 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. Finally, 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 36(1) - Commercial Sensitivity

Section 36(1)(c)

I consider it appropriate to consider section 36(1)(c) of the FOI Act first. Section 36(1)(c) 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. However, 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).

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. Where an FOI body is relying on this exemption for the refusal of a record, it must go on to consider the public interest and whether section 36(3) applies in relation to the record concerned.

Submissions

The IDA says that it is reasonably foreseeable that negotiations will take place in the future. The negotiations will be with landowners for the purchase of certain land banks identified in the report and will be carried out by or on behalf of the IDA. It says that the records disclose the criteria used in selecting potential data centre sites, the locations of those sites and the fact that they are being considered for purchase. It says that this knowledge would encourage speculative bidding and would drive up the value of the lands. The IDA submits that disclosing the records would prejudice the conduct and outcome of the IDA’s negotiations for the purchase of the land in question.

The applicant submits that section 36 has been incorrectly applied, as the opinion of an external third party could not reasonably be expected to prejudice future contractual negotiations or cause harm to the FOI body’s competitive position, particularly as both the IDA and the State have been open about their desire to attract more data centre developments.

Analysis & Finding

I accept that it is reasonable to foresee future negotiations in relation to the purchase of land for data centres. I further accept that releasing details of the relevant land banks to the world at large could prejudice the competitiveness of the IDA in future negotiations and therefore, the conduct and outcome of such negotiations could be prejudiced as far as the IDA is concerned. I consider that releasing these details at this time could prejudice both the conduct and outcome of contractual or other negotiations of the person to whom the information relates. It is true that the State has been open about its desire to attract data centre developments. However, it does not follow that it has been open about the potential sites identified for this. I find that section 36(1)(c) applies to the withheld information, insofar as it gives details and analysis which could identify the specific locations of a number of sites.

As noted earlier, the IDA released certain information to the applicant during the review process. This followed a question from the Investigator, who had asked if it would be practicable to release the parts of the report which did not disclose the specific locations of the sites. I accept that both information about the sites and the detailed criteria used to identify potential sites could identify the specific locations of the sites. However, I am not satisfied that the following information could identify the specific locations of the sites:

• The names of two staff members of Jacobs Engineering on the page after the Cover Page
• The names of the regions in paragraph 4 of the Contents Page
• The redacted paragraph directly above paragraph 1.1.1 on Page 1

I find that section 36(1)(c) applies to the withheld information, apart from the information listed above in bullet points. I will proceed to consider sections 36(2) or (3) below.

I find that section 36(1)(c) does not apply to the information listed in bullet points, which I will now refer to as the remaining information. Given this finding, I am not required to consider sections 36(2) or (3) in relation to the remaining information. I find that the IDA was not justified in refusing access to the remaining information under section 36(1)(c).

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.

The IDA submits that the public interest in protecting the State and the taxpayer from the loss caused by prejudicing negotiations for the purchase of the land outweighs the public interest factors in favour of release. The applicant says that there is a strong public interest in the disclosure of sites that have been ear-marked for potential data centres, as these projects can be of concern to local communities.

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 consider that there is a public interest in transparency and accountability around the expenditure of public funds and decision-making by FOI bodies. In relation to the harm which might be caused by disclosure, I have already identified the potential prejudice above.

In deciding where the public interest lies, I consider it relevant that at this time, the negotiations have not occurred. In my view, the potential harm to future negotiations outweighs the positive public interest in release at this time. Regarding the public interest in disclosing this information to local communities, I believe that as part of the planning process for any future data centres, public consultation will, at least to some extent, serve this public interest.

In the circumstances and on balance, I consider that the public interest would not be better served at this time by granting access to the information to which I have found section 36(1)(c) to apply. I find that the IDA was justified in refusing access to this information, under section 36(1)(c) of the FOI Act.

Given this finding, I am required to consider the IDA’s claims under sections 29, 30, 36(1)(b), 37 and 40 of the FOI Act in relation to the remaining information - as identified above - only.

Section 36(1)(b)

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.

The IDA says that the commercial information is the suitability of various sites for use for data centres. It says it can reasonably be expected that disclosing this information will see an increase in the value of the land to the market value, resulting in a material financial gain to the respective landowners. It says that there will be a commensurate substantial loss to the IDA and therefore the taxpayer. It also says that disclosing the information can reasonably be expected to prejudice the competitive position of the IDA and of the State. As noted above, I do not accept that the remaining information could identify the sites in question. I am therefore not satisfied that the remaining information contains the commercial information referred to in the IDA’s submissions.

Having regard to the content of the remaining information and the IDA’s submissions, I do not accept that section 36(1)(b) applies to this information. Given this finding, I am not required to apply the public interest balancing test under section 36(3). I find that the IDA was not justified in refusing access to the remaining information under section 36(1)(b) of the FOI Act.

Section 40 - Financial and Economic Interests of the State

The IDA claims sections 40(1)(a), (b), (c) and (d) over the remaining information. Section 40(1) provides, insofar as is relevant:

"(1) A head may  refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head -

(a) access to the record could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the national interests of the State,

(b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature,

(c) access to the record could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states,".

Where an FOI body relies on section 40(1), it should identify the potential harm specified in the relevant paragraph that might arise from disclosure and then consider the reasonableness of any expectation that the harm will occur. The FOI body should show the link between granting access to the record concerned and the harm identified. It must go on to consider the public interest test under section 40(3) before reaching a conclusion on the application of the exemption.

In relation to section 40(1)(a), the IDA says that disclosing the records would result in potential market disruption due to an increased expectation of land value at the locations identified, which would lead to a loss of competitiveness for the State and ultimately will have a serious adverse effect on the financial interests of the State. In relation to section 40(1)(b), the IDA says that disclosing the records would unduly disturb investment in the establishment and construction of data centres, for the reasons outlined in its submission on section 40(1)(a). In relation to section 40(1)(c), it says that the effectiveness of the State’s industrial development strategy can reasonably be expected to be negatively impacted, for the reasons outlined in its submission on section 40(1)(a). In relation to section 40(1)(d), it says that knowledge of the locations of potential data centre sites and the fact that they were being considered as such would greatly increase the potential value of the land banks. It says that in addition to the loss that would be suffered by the IDA and the taxpayer, there would be an unwarranted benefit accruing to third parties.

It is fair to say that the principal basis of the IDA’s submissions under section 40 is that the information could identify the relevant sites and disclosing such information will affect land value. The alleged harms flow from the identification of those sites. As noted above, I do not accept this premise in relation to the remaining information. The IDA also submits that competitors could use the detailed criteria in a way which would result in adverse effects for the State. I do not accept that this is a credible claim in relation to the remaining limited information. Having regard to the content of the remaining information and the IDA’s submissions, I am not satisfied that section 40(1)(a), (b), (c) or (d) applies to the remaining information.

Given this finding, I am not required to consider the public interest balancing test under section 40(3) of the FOI Act. I find that the IDA was not justified in refusing access to the remaining information under section 40(1) of the FOI Act.

Section 30 – Functions and Negotiations of FOI Bodies

The IDA claims section 30(1)(a), (b) and (c) over the remaining information. Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1)(c) of the FOI Act provides that an FOI body may refuse to grant an FOI request if access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1) is subject to a public interest test under section 30(2).

Section 30(1)(a)

The IDA says that disclosing the criteria for data centres could allow some of the sites to be identified, thereby prejudicing the effectiveness of the report. As noted above, I do not accept that disclosing the remaining information could identify the sites. The IDA also says that releasing the information would prejudice the effectiveness of future reports, as the fact that “this type of report” would potentially not remain confidential would impact on the carrying out of future reports and the use of procedures in conducting such reports. Under FOI, the content of records is considered on a case-by-case basis. The fact that the remaining information may fall for release in this case does not mean that “this type of report” will fall for release generally. My decision on section 36(1)(c) above illustrates that findings under FOI are content-specific. Having regard to the content of the remaining information and the IDA’s submissions, I do not accept that section 30(1)(a) applies to the remaining information.

Section 30(1)(b)

The IDA says that disclosing the records can reasonably be expected to have significant adverse effects on strategic planning and management of the IDA’s financial resources, as the IDA would ultimately pay greater than market value for the purchase of the sites in question. Once again, this alleged harm flows from the identification of the sites and I do not accept this premise in relation to the remaining information. Having regard to the content of the remaining information and the IDA’s submissions, I do not accept that section 30(1)(b) applies to the remaining information.

Section 30(1)(c)

The IDA says that disclosing the records can reasonably be expected to disclose the criteria for selecting sites and the fact that the sites themselves are being considered, which are positions taken for the purpose of a negotiation. I do not accept that this argument applies to the remaining information or that the remaining information otherwise discloses positions taken for the purpose of a negotiation. Having regard to the content of the remaining information and the IDA’s submissions, I do not accept that section 30(1)(c) applies to the remaining information.

I am not satisfied that section 30(1) applies to the remaining information. Given this finding, I am not required to consider the public interest balancing test under section 30(2) of the FOI Act. I find that the IDA was not justified in refusing access to the remaining information under section 30(1) of the FOI Act.

Section 29 – Deliberations of FOI Bodies

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met.

The IDA says that the record is being considered as part of deliberations on whether or which of the sites to invest in and the impact data centres in those locations would have and that the deliberations are ongoing. It says that the record contains opinions, advice and recommendations by the consultants that input into the decision-making processes.

Section 29(2) - Factual Information

The exemption at section 29(1) does not apply to a record insofar as it contains factual information (section 29(2)(b)). Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation.

I believe that the remaining information constitutes factual information, rather than information in the form of proposal, opinion or recommendation. I therefore do not accept that section 29(1)(a) applies to it. Given this finding, I am not required to consider section 29(1)(b). I find that the IDA was not justified in refusing access to the remaining information under section 29 of the FOI Act.  

Section 37 – Personal Information

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 definition of personal information under section 2 of the FOI Act excludes certain information relating to service providers. It does not include: “(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.” Section 2 of the FOI Act defines a “service provider” as “a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI Body under a contract for services and contract for services includes an administrative arrangement between an FOI body and another person”.

The IDA withheld access to the names of two staff members of Jacobs Engineering. The IDA commissioned Jacobs Engineering to prepare the report under review. During the review process, the Investigator drew the IDA’s attention to the issue around personal information and service-providers and invited its submissions. In response, the IDA acknowledges the definition of personal information in section 2 of the FOI Act, but says that the names are not relevant to the content of the report and would not provide any information of public interest. It makes no argument to refute the point that Jacobs Engineering was a service provider to the IDA.

The fact is that the names are contained in the report to which the applicant sought access under the FOI Act. The Investigator contacted the applicant and he confirmed that he seeks access to this information as part of the report. The question of whether releasing this information is in the public interest is not relevant to determining whether it falls under the definition of personal information. I find that the information comprises the names of staff members of a service provider to the IDA and is therefore excluded from the definition of personal information under paragraph II of section 2 of the FOI Act. I therefore find that section 37(1) does not apply to this information and the IDA was not justified in refusing access to it under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the IDA’s decision. I affirm its decision on the majority of the report, under section 36(1)(c) of the FOI Act. I annul its decision on the remaining information (as listed in bullet points on page 4 above) and direct its release.

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