Whether the Council was justified in refusing access to records relating to a fire risk assessment presented to the Clare Fire Department for the Brú na Sionna development, Shannon

10 March 2021

Background

In a request dated 28 July 2020, the applicants sought access to records relating to a fire risk assessment presented to the Clare Fire Department for Brú na Sionna, a residential and commercial development in Shannon. In a decision dated 24 August 2020, the Council refused the request under sections 29, 35, and 36 of the FOI Act. On 30 August 2020, the applicants requested an internal review of the Council’s decision. On 22 September 2020, the Council affirmed its original decision in reference to sections 29(1), 35(1)(a), and 36(1)(b) of the FOI Act. On 17 December 2020, the applicants applied to this Office for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the application for review and the submissions made by the affected third party company (the Company). I have also examined the records at issue. I note that, on 11 January 2021, this Office invited the Council to make focused submissions in support of its decision. To date, however, no submissions have been received from the Council apart from a statement included with the schedule of records dated 6 January 2020. I have now decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The Council has identified the following records as relevant to the request in this case:

• A1 – emails dated 26 February 2019 and 6 March 2019, respectively, and a Technical Note that was issued on 15 January 2019 by International Fire Consultants (IFC);
• A2 – email dated 23 October 2019 and a letter from IFC dated 23 October 2019.

My review in this case is concerned solely with the question of whether the Council was justified in refusing access to records A1 and A2 under the FOI Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the Council to justify its decision to refuse access to the records concerned. However, as the Supreme Court recently confirmed, the onus is the starting point for a review. The Commissioner’s review functions are inquisitorial in nature. Thus, as indicated above, the Council’s failure to make focused submissions in support of its decision was not the end of the matter. This Office has sought the views of the Company, the affected third party in this case, and has also had regard to the contents of the records concerned.

Section 29(1)

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 processes of an FOI body 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 satisfy this Office that both requirements are met.

The section further provides that, without prejudice to the generality of paragraph (b), in determining whether to grant or refuse to grant the request, the body must consider whether the grant of the request would be contrary to the public interest by reason of the fact that the requester would become aware of a significant decision that the body proposes to make. Moreover, the exemption does not apply insofar as the record concerned contains any of the information or matter referred to in section 29(2) of the Act.

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the 'deliberative processes' of an FOI body. An FOI body relying on this exemption should identify both the deliberative process(es) concerned and any matter in particular records which relates to these processes. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it 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.

In this case, the Council did not identify any relevant deliberative process in response to this Office’s request for focused submissions. It appears that the Council holds the records in its capacity as the fire authority for the County under the Fire Services Acts 1981 to 2003 (the Fire Safety Act). The main document contained in record A1 is a Technical Note dated 15 January 2019 that is, as its heading suggests, of a technical nature. It includes a detailed risk analysis that was used to identify and prioritise fire safety works that needed to be undertaken at the time. Record A2 includes a letter dated 23 October 2019 providing an update on the works carried out and consequent progress made in the risk assessment. The records would therefore largely fall within the exceptions to the section 29 exemption found at subsections (2)(b) and (e). In its statement dated 6 January 2020, the Council referred to the process of determining and agreeing priority works at Brú na Sionna, but I consider that this relates to the Council’s monitoring and supervisory role under the Fire Safety Act rather than to a deliberative process of an FOI body. I am not satisfied that section 29(1)(a) applies in the circumstances. I also find no basis for concluding that release of the records would be contrary to the public interest for the purposes of section 29(1)(b).

Section 35(1)(a)

Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. For the exemption to apply, it is necessary to show the following –

• That the information contained in the records was given to an FOI body in confidence,
• That it was given on the understanding that it would be treated as confidential,
• That the disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same or other persons, and
• That it is of importance to the body that such further similar information should continue to be given to it.

Section 35(3) provides that section 35(1)(a) does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request.

In this case, the Company objects to the release of the records on the basis that the information is commercially sensitive, but it does not claim that the information was given to the Council in confidence and on the understanding that it would be treated as confidential. As this Office noted in its correspondence to the Company, it would be difficult to accept that an understanding of confidence could reasonably be expected to exist in relation to fire safety issues. This Office also pointed out that there are a number of media reports in the public domain about the fire safety issues affecting Brú na Sionna. Moreover, the Company does not dispute that it is required to provide relevant information to the Council under section 22(4) of the Fire Safety Act. In the circumstances, I am not satisfied that the requirements of section 35(1)(a) are met in this case.

Section 36(1)(b)

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

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 Supreme Court confirmed in University College Cork v The Information Commissioner [2020] IESC 58 that the standard of proof in relation to the second limb of section 36(1)(b) is “very low”. Nevertheless, 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 its competitive position. Bare assertions do not provide an adequate basis for meeting even the low test in section 36(1)(b).

In this case, the Company states that the release of the record may prejudice the tender process that will be undertaken to address the works and construction issues referred to in the records. The Company also suggests that the records may be relevant to a number of ongoing legal proceedings involving other parties and that disclosure could prejudice such proceedings before the Courts.

As noted above, the records date from 2019 and provide technical information about fire safety works that needed to be undertaken at the time, with a certain amount of progress having been made by October of that year. Moreover, the fact that there are fire safety issues affecting Brú na Sionna has been well publicised. A request for tender could reasonably be expected to specify the remaining relevant works for which contractors are needed. It is therefore entirely unclear how the release of the records from 2019 could prejudice any tender process that the Company may be undertaking. I also find that it has not been adequately explained how the release of the records could prejudice any ongoing legal proceedings and thus the Company’s competitive position for the purposes of section 36(1)(b). It is relevant to note that the discretionary exemption relating to the fairness of court proceedings has not been invoked by the Council in this case (section 32(1)(a)(iv) of the FOI Act refers).

I find, moreover, that the public interest favours disclosure in this case. In The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57) (“the eNet case”)), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. The records at issue relate to fire safety issues affecting a residential and commercial development. They include typical findings made based on investigations of common residential areas and a sample of apartments. Observations were also made regarding certain tenancies in the commercial development, areas that may be accessible by members of the public. I do not believe that I would be revealing exempt information in violation of section 25(3) of the FOI Act by noting that some of the defects identified were of a concerning nature. Indeed, as noted, the issues affecting Brú na Sionna have been well publicised. The progress that was made by October 2019 is also noteworthy. Unnecessary secrecy breeds distrust, which is itself harmful. In this case, it seems to me that withholding the records has the potential to damage public trust in the Council’s role as the fire authority, which in turn would be damaging to the public interest. In the circumstances, I am not satisfied that section 36(1)(b) applies.

Section 37(1)

However, the records include names, email addresses, a mobile telephone number, and qualifications of private individuals involved in preparing the reports (the fire consultants, the project managers and the former management agent). Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual". I am satisfied that the names, email addresses, the mobile telephone number, and qualifications of the private individuals are personal information within the meaning of the Act. I am also satisfied that none of the exceptions set out in section 37(2) applies and that the public interest in releasing the personal information does not outweigh the privacy rights of the individuals concerned. I find no basis for withholding the names of the firms involved, however.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision in this case. I direct the release of the records at issue subject to the redaction of the names, email addresses, mobile telephone number, and qualifications of private individuals therein.

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.

 

Stephen Rafferty

Senior Investigator