Whether the Council was justified in refusing access to records relating to the use of taxi shelters for advertising under sections 15(1)(a), 31(1)(a), 35 and 36 of the FOI Act

 

OIC-104247-M8V7C5

 

Background

On 3 April 2020, the applicant, acting through a solicitor, made an FOI request to the Council for all records in respect of taxi shelter sites used by a named company (the company) for advertising purposes. On 1 May 2020, the Council issued a decision and released records to the applicant. On 5 June 2020, the applicant, acting through a solicitor, applied for an internal review and said that the Council had considered their FOI request in narrower terms than it should have. On 24 July 2020, the Council issued an internal review decision. It granted access to certain records and refused access to the remaining records on the ground that they were exempt under sections 31(1)(a), 35(1)(a), 36(1) and 37 of the FOI Act. On 24 February 2021, 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 obtained from the company.

 

Scope of this Review

During the review, the Council released further information to the applicant. That information falls outside the scope of this review. The applicant confirmed that she does not seek access to the withheld contact details of individuals (e.g. mobile telephone numbers and email addresses). That information therefore also falls outside the scope of this review.

The scope of this review is therefore confined to whether the withheld records are exempt under sections 31(1)(a), 35(1)(a) and 36(1) of the FOI Act. The applicant queried whether the Council had included all documentation and said that a contract from 2000 should exist. I will therefore also consider whether section 15(1)(a) applies.

 

Preliminary Matters

Before considering the exemptions claimed, I would like 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 and with certain limited exceptions (e.g. section 37(2), which I consider below), 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.

Finally, in correspondence with this Office, the applicant provided reasons for her FOI request. However, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest. The applicant has outlined queries about certain procurement matters relating to the Council and contracts for taxi shelter sites. However, I must emphasise that it is not the role of this Office to adjudicate on how public bodies perform their functions generally. My remit is governed by the FOI Act.

 

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decisionmaker in arriving at his or her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decisionmaker was justified in coming to the decision that the records sought do not exist or cannot be found.

During the review process, the Investigator invited the Council to make submissions on section 15(1)(a) and specifically asked the Council to address the applicant’s claim about other documentation, including the existence of the contract from 2000.

Regarding the existence of other documentation, the Council says that it located a licence agreement during the review. I note that it released this in part to the applicant and scheduled it as Record 10. I consider the withheld information in Record 10 below. Regarding a contract from 2000, the Council says that it entered into a contract for taxi shelters in early 2000, which appears to have been misplaced. It says that it located some relevant documentation, which it scheduled as Record 38. It says that it is not possible to definitively state that the record was misplaced. However, it says that it is highly likely that no formal written contract was put in place and that the acceptance of the tender by way of manager’s order was confirmation of the contract. The Council says that it attempted to regularise the situation through a temporary licence, which (as noted above) it released in part to the applicant.

The Investigator asked the Council if it had asked the company if it held a copy of the contract. I note that section 11(9) of the FOI Act provides: “A record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of this Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances”. In response, the Council says that it contacted the company, who was not in a position to search as it was largely still out of the office, but the relevant person would be able to check at the end of July. The Council has provided no update on this.

In my view, the Council’s explanation for the possible non-existence of a 2000 contract is plausible. It may well be the case that no such document exists. That said, at this point in time, I cannot find that the Council has taken all reasonable steps to ascertain the whereabouts of this record. Although the Council recently contacted the company about it, it has not yet obtained an answer one way or the other. In the circumstances, I consider it appropriate to direct the Council to complete its searches for the 2000 contract and if it finds a relevant record, to make a decision on it in accordance with the provisions of the FOI Act.

 

Section 31(1)(a) – Legal Professional Privilege

The Council claims that the following records are exempt under section 31(1)(a) of the FOI Act: Records 4, 11-17, 19, 21-26, 28, 29, 31 and 33-36. Section 31(1)(a) 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).

The Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications which was for the purpose of giving or receiving legal advice. The former Commissioner has referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]: "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." The Commissioner has adopted this approach and takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

I have examined the records. I am satisfied that the following records disclose confidential communications made between the Council and its legal advisers for the purpose of obtaining and/or giving legal advice and form part of a continuum of correspondence that results from the original request for advice: Records 4, 11, 14, 15, 16, 17, 19, 21, 22, 23, 24, 25, 26, 28, 29, 31, 33, 34, 35 and 36. I therefore find that the Council was justified in refusing access to these records under section 31(1)(a) of the FOI Act. Given this finding, I do not need to consider other exemptions claimed over these records. However, Records 12 and 13 comprise correspondence between the parties, as opposed to confidential communications between a client and its legal adviser. I am therefore not satisfied that section 31(1)(a) applies to them. I find that the Council was not justified in refusing access to these records under section 31(1)(a) of the FOI Act. I consider them below under the other exemptions claimed.

 

Section 36(1) - Commercial Sensitivity

The Council claims that the following records are exempt under section 36(1) of the FOI Act: Records 5, 6, 10, 12, 13, 18, 20, 37, 38 and 40. During the review, the investigator obtained submissions from the company. The company says that Records 5, 6, 10, 12, 13 and 38 are exempt under section 36(1)(b).

 

Section 36(1)(b)

Section 36(1)(b) 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. 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 Council says that the records contain trade secrets and were supplied by third parties. It says that disclosure could reasonably be expected to result in material financial loss to third parties and the Council. The Council also says that disclosure could prejudice the competitive position of third parties and the Council when seeking to deliver the public good, specifically in relation to outdoor advertising as part of the Dublin City Development Plan.

The company says that it operates in a highly competitive market and any information that can be gleaned from contract arrangements can provide insights to competitors on how to compete when a contract expires and is available for renewal. It says that disclosing this information would pass on its methodology and costs to its competitors. It says that the information falls within the definition of a trade secret, in that it is material that is not known to others that normally deal with this kind of information. The company says that the records contain information about their designs and materials, how they manage advertising sites and what they pay for them. It says that this discloses details of their methodology and costs.

I have examined the content of the records and considered the parties’ submissions. Records 5, 6, 10, 12 and 13 comprise correspondence between the Council and the company, including draft copies of the licence agreement. They disclose discussion around agreeing the terms of the agreement, the proposed and agreed licence fees and the amounts invoiced. Records 18, 37 and 40 comprises internal Council correspondence, which discloses discussions with the company around agreeing the terms of the licence agreement and planning issues. Record 38 contains the manager’s order approving the company’s offer, and a tender offer from the company from 2000, which discloses details of the company’s methodology and approach to the tender. I consider it appropriate to address Pages 2 and 8-10 of Record 38 under section 35 and do so below.

I accept that disclosing these records would provide the world at large, and therefore potential competitors, with insights into the company’s methodology as well as the financial terms agreed between the company and the Council. This could prejudice the company’s competitive position, e.g. regarding future contracts in a competitive market. I find that section 36(1)(b) applies to the records. However, I do not accept that section 36(1)(b) applies to Record 20. This is a one-line internal Council email. On examining its content, it is not apparent to me how disclosing this could prejudice the competitive position of the parties or reasonably be expected to result in material loss to them. I am not then required to consider section 36(3). I find that the Council was not justified in refusing access to Record 20 under section 36(1)(b).

 

Section 36(3)

Having found that section 36(1)(b) applies to certain records, I am now required to consider whether, on balance, the public interest would be better served by granting than by refusing the request, under section 36(3). On the one hand, section 36(1)(b) itself recognises a public interest in protecting commercially sensitive information. In this case, I accept that there is a public interest in protecting information that could prejudice the competitive position of the company in relation to future contracts. On the other hand, I must consider whether there is a public interest in disclosing the specific content of the withheld information.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”.

In deciding where the public interest lies, I consider it appropriate to distinguish between the different content in these records. The company agreed to pay licence fees to the Council for the use of sites owned by the Council, which generate revenue for the company through selling advertising spaces. I consider that disclosing the specific licence fees which the Council agreed would allow for an insight into what the Council received in return for the use of publicly-owned sites and thereby allow scrutiny of the value achieved by the Council in this particular case. I consider that there is a public interest in disclosing this specific content which, on balance, outweighs the public interest in protecting its commercial sensitivity. I therefore find that the Council was not justified in refusing access to the withheld information in Records 5, 6 and 10. I also find that the Council was not justified in refusing access to details of the fees for the relevant contract period on Page 9 of Record 38 (in the Manager’s Order from “Annual Contribution” to “10 years” and “The above contribution” to “as required in the Brief”).

However, I find that on balance, the public interest would be better served by withholding the remaining information. It discloses details of discussions between the parties about agreeing the terms of the agreement and planning, as well as the company’s methodology and proposals in a tender offer. I cannot identify a public interest in disclosing this specific content which, on balance, outweighs the public interest in protecting its commercial sensitivity. I find that the Council was justified in refusing access to the rest of the withheld information under section 36(1)(b) of the FOI Act.

 

Section 36(1)(c)

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. 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. As noted above, 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 Council says that disclosing the fee details would prejudice the future position of the Council in negotiations with other parties in terms of the rates paid for existing advertising, in addition to future advertising that may be developed, which would not benefit the common good.

The remaining information comprises Record 20 and the fees in Records 5, 6, 10, 20 and Page 9 of Record 38 (in the Manager’s Order from “Annual Contribution” to “10 years” and “The above contribution” to “as required in the Brief”). The Council has not elaborated on exactly how disclosing this information could prejudice the conduct or the outcome of negotiations. I take it that it means that the knowledge of fees which it has agreed with one party could affect another party’s bargaining. However, it has not shown how this particular fee information would be relevant to another specific set of negotiations. I am therefore not persuaded that disclosing this information could prejudice the conduct or outcome of negotiations.

In any event, even if I am wrong on this and if I were to accept that section 36(1)(c) applied, I would find that the public interest was best served by releasing this specific content, for the same reasons outlined above under section 36(3) of the FOI Act. Specifically, it is my view that the information contained in these records reveals the value for money achieved by the Council for the fees that it paid from public funds. I believe that the public interest is better served by disclosing this specific information in this case.

I find that the Council was not justified in refusing access to this information under section 36(1)(c).

 

 Section 36(1)(a)

For completeness, I note that both parties refer to “trade secrets” in their submissions. Section 36(1)(a) of the FOI Act applies to a record containing trade secrets of someone other than the requester. The Commissioner has accepted that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit widespread publication. The Commissioner also accepts that an exact definition of a trade secret is not possible and that some factors to be considered in determining whether information is a trade secret are: (1) the extent to which the information is known outside of the business concerned; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Finally, the Commissioner expects that a party relying on section 36(1)(a) for the refusal of access to a record will show how the information concerned falls within the meaning of a trade secret. Having regard to the nature of its content, I do not believe that the fees information or the email in Record 20 qualify as trade secrets and the parties have not shown how this might be the case. I therefore do not propose to consider section 36(1)(a) further.

 

Section 35(1) – Information obtained in confidence

The Council claims that Records 10, 37 and 38 are exempt under section 35(1)(a) of the FOI Act. During the review, the investigator obtained submissions from the company. The company says that Records 5, 6, 10, 12, 13 and 38 are exempt under section 35(1)(a). As I have found Records 12, 13 and Record 38 (except for Pages 2, 8-10 and Page 9 (in the Manager’s Order from “Annual Contribution” to “10 years” and “The above contribution” to “as required in the Brief”) to be exempt under section 36(1)(b) above, it is not necessary for me to consider that information here also.

Section 35(1)(a) 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.

Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (see section 35(3)).

Section 35(2) disapplies section 35(1) to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset.

The Council says that the information was created on an expectation of confidentiality and disclosure would prejudice the future provision of information, which would limit the Council in its advisory and decision-making roles and this would not be in the public interest.

Page 2 of Record 38 contains a letter from a bank with a reference, which is stated to have been given in confidence. Pages 8-10 of Record 38 disclose details of a tender obtained in 2000 from an unsuccessful tenderer. Record 38 was created by the Council, which is an FOI body. Therefore, pursuant to section 35(2), section 35(1) will not apply to the records at issue unless disclosing them would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. Having examined the specific content of these pages, I accept that the third parties concerned gave the information concerned to the Council for specific purposes and with an expectation of confidentiality. I therefore accept that these records were given to the Council in confidence and on the understanding that they would be treated by the Council as confidential. Given the Council’s function, I also accept that it is important for it to continue to receive further similar information. I am further satisfied that disclosure would be likely to prejudice the giving of further similar information to the Council. Furthermore, neither the bank nor the unsuccessful tenderer is an FOI body or a service provider and therefore section 35(2) does not operate to disapply section 35(1).

Having found that section 35(1)(a) applies, I am then required to consider whether the public interest would, on balance, be better served by granting than by refusing to grant the FOI request, under section 35(3). On the one hand, section 35 itself recognises a public interest in protecting confidentiality. In this case, I accept that there is a public interest in protecting the confidentiality of these particular records. On the other hand, I must consider whether there is a public interest in disclosing the specific content of these records. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”.

I have described the content of the pages above. I find no relevant public interest in disclosing this specific content, which, on balance, outweighs the public interest in the confidentiality of these records, which serves the flow of information from such third parties to the Council. I am therefore satisfied that the public interest would be better served by refusing access to them. I find that the Council was justified in refusing access to Page 2 and Pages 8-10 of Record 38 under section 35(1)(a) of the FOI Act.

However, I am not satisfied that section 35(1)(a) applies to the withheld information in Records 5, 6, 10 or Page 9 of Record 38 (in the Manager’s Order from “Annual Contribution” to “10 years” and “The above contribution” to “as required in the Brief”). I do not accept that the fees agreed between the parties constitute information “given to an FOI body in confidence”. I therefore find that this information does not meet the criteria of section 35(1)(a). I am not then required to consider section 35(3). I find that the Council was not justified in refusing access to these records under section 35 of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Council’s decision. I affirm its decision on certain records under sections 31(1)(a), 35(1)(a) and 36(1)(b), as outlined above. I annul its decision on the remaining records and direct their release, subject to the redaction of the withheld contact details. For the avoidance of doubt, the information which falls for release is as follows: Records 5, 6, 10, 20 and Page 9 of Record 38 (in the Manager’s Order from “Annual Contribution” to “10 years” and “The above contribution” to “as required in the Brief”). I direct the Council to complete its searches for the 2000 contract. If the Council finds a relevant record, I direct it to make a decision on that record in accordance with the provisions of the FOI Act. 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.

 

Deirdre McGoldrick

Senior Investigator