Whether the Board was justified in refusing access to records concerning its proposal to relocate the Waterford Legal Centre (the Centre)

 

OIC-110470-S1F6M9

 

Background

 

In a request dated 15 January 2020, the applicant sought access to all records relating to its proposal to relocate the Centre. The Board’s decision of 11 February 2020 refused the request on the basis that the records were exempt under section 30(1)(c) of the FOI Act (negotiations of an FOI body). On 5 March 2020, the applicant sought an internal review. The Board’s internal review decision of 13 May 2021 affirmed its refusal of the request. On 19 July 2021, the applicant applied to this Office for a review of the Board’s decision.

 

During the review, the Board granted access to some of the records and sought to rely on various provisions of the FOI Act in relation to the remainder.

 

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Board and the applicant. I have taken account of the content of the withheld records and the provisions of the FOI Act.

 

Scope of the Review

The Board identified 44 records as covered by the request. It initially fully refused the request on the basis that the records related to then ongoing negotiations with a landlord for the lease of part of a building. During this review, it granted access to records 1, 2, 4, 5, 7, 9, 12, 13, 17, 18, 21-24, and 30-43 because matters had progressed in the interim. I will not consider these records further. Accordingly, the scope of this review is confined to whether the Board’s decision to withhold records 3, 6, 8, 10, 11, 14-16, 19, 20, 25-29 and 44 was justified under the FOI Act.

 

Further to the release of the records listed above, the applicant described further records that he said would be covered by his request. He said that he was unable to raise this issue at any earlier stage, because he had no access to any records. I note that the Board’s original decision gives a general description of the records it had identified further to the applicant’s request, which the applicant did not challenge. This Office can only consider the adequacy of the Board’s searches for records where that issue has been raised at internal review stage. It is open to the applicant to make a fresh request for any further records he considers are missing from those identified to date. As such, I have not considered the adequacy of the searches carried out by the Board as part of this review.

 

Preliminary matters

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the a withheld record for the purpose of granting access to those particular sentences or paragraphs.

 

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld records. Equally, I must limit my description of certain parts of the Board’s submission regarding why the records are exempt.

 

I acknowledge the applicant’s position in relation to the application of exemptions under FOI when he is of the view that the Board should be willing to release the records to him personally. I cannot ignore the fact that under the FOI Act, records are released without restriction as to how they may be used. As such, disclosure under FOI is accepted as equivalent to publication to the world at large.

 

Finally, it is also noted that, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.”

 

Findings

The Board says that the records withheld at this point concern (i) the terms of the lease and (ii) drawings of the building. It says that the category (i) records are exempt under sections 29(1) (deliberative processes), 30(1)(c), 36(1)(b) (commercial sensitivity) and 36(1)(c) (negotiation positions). It relies on section 32(1)(a)(ix) in relation to the category (ii) records. Its schedule of records also cites section 32(1)(a)(iii) (safety and security of persons and property) but its submission does not mention this exemption or deal with its application.

Having regard to their contents, it seems to me that records 3, 6, 20, 25-27 and 44 fall into category (i) and that records 8, 10, 11, 14-16 and 19 fall into category (ii). However, I do not agree with the Board’s view that records 28 and 29 fall into category (i) and neither do I consider them to be category (ii) records.

 

I will deal with what I have listed as the category (i) records first. In the overall circumstances, it seems to me that section 36(1)(b) is the most relevant exemption to consider at the outset.

 

Section 36(1)(b) – commercially sensitive information

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". 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(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that access to a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.

 

What I have identified as category (i) records comprise internal Board documents describing and discussing various aspects of the lease, and drafts and final version of a recommendation for approval of the proposal.

 

The Board says that disclosure of these records could prejudice the landlord’s position in other negotiations in which he may engage for the rental of commercial property. For instance, disclosure of the amount of agreed rent could affect the amount of rent he may be able to seek and obtain in such other negotiations. The Board also says that while a lease has been negotiated and signed, it will not come into effect until a particular outstanding matter is resolved to its satisfaction. It expects the matter to conclude by the end of the year, at which point the building will be handed over and the lease will come into effect. The Board says that disclosure of the records at this point in time will reveal the basis on which it will decide that the matter is so concluded and therefore the point at which the lease becomes operable.

 

The applicant says that he is making submissions without knowledge of the contents of the records at issue. He does not accept that release of the records would in any way commercially prejudice either the landlord or the Board.

 

I accept that the landlord in this case is likely to engage in similar negotiations to those the subject of the records at issue. I am satisfied that the records disclose current information regarding rent and other aspects of the lease. It seems to me that placing such information in the public domain will give other parties a benchmark against which they could seek equal or better terms from the landlord than might otherwise have been the case. Therefore, the landlord’s ability to maximise terms from the perspective of his own business could be limited by release of the records. I accept that this could prejudice the landlord’s competitive position in the conduct of his business. Accordingly, I find that section 36(1)(b) applies to the records.

 

I should say that while section 36 enables the protection of third party commercially sensitive information, previous decisions from this Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests. The applicant says that the Board must disclose the nature of the outstanding matter referred to above if it is seeking to reply on it as a basis for refusing records. The Board’s submissions describe the matter for the purposes of the Commissioner’s review. While it is open to the Board to give the applicant further information outside of the FOI process, I do not consider it appropriate to include such details in my decision.

 

I accept that disclosure of records relating to the lease terms and related issues, before the resolution of the outstanding matter and before the lease comes into effect, could impact on the Board’s ability to have the matter concerned properly resolved to its satisfaction. Thus, it seems to me that the records also contain information that could prejudice the Board’s competitive position in the conduct of its business in relation to the resolution of the outstanding matter for conclusion of the contract. I consider that this is a further basis for finding that section 36(1)(b) applies to the records.

 

Section 36(2) - exceptions to section 36(1)

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) arise in this case.

 

Section 36(3) - the public interest

Having found that section 36(1)(b) of the FOI Act applies in respect of the records above, I shall now consider section 36(3) of the FOI Act. In relation to the public interest test contained in section 36(3), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in the eNet judgment, 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”.

 

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. I should also say that I consider the Court’s comments in the above judgments relevant to the consideration of public interest tests generally.

Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. It follows that I cannot take account of any private interest that the applicant may have in obtaining access to the records.

The Board says that once the lease is registered, it will notify the PSRA to publish certain details of the lease as provided for in the Property Services (Regulation) Act 2011 (see https://propertypriceregister.ie/website/npsra/pprweb-com.nsf/PPR?OpenForm). It indicates that the public interest will be served to a sufficient extent by such publication, which is available free of charge. 

 

The applicant describes matters relating to the property which he says have health and safety implications for staff and members of the public who attend the premises as clients. He says that there is a compelling and overriding public interest in the disclosure of all matters relating to the lease in such circumstances.

 

I accept that disclosure of the lease terms and related matters will give an insight into the Board’s analysis of issues relating to the prospective lease (including health and safety), into the negotiation positions and processes it adopted and into the contractual arrangements. Release will also enable an assessment of matters relating to the value for public money that will be achieved by the Board further to the above. I am not aware of any information in the public domain that achieves the above purposes.

 

On the other hand, disclosure of the records will reveal current information about the landlord’s lease with the Board that I accept could prejudice the landlord’s commercial interests. I have also accepted that disclosure could affect the Board’s position in respect of the outstanding matter, which itself could have implications for the Board’s prudent management of resources.

 

Having considered the matter carefully, I believe that the public interest weighs in favour of protecting the above records at this particular point in time. However, I should also say that the passage of time may well reduce the sensitivity of the details from the perspective of the landlord and/or the Board, although it would not be appropriate for me to speculate on when this might be.

 

In light of this finding, there is no need for me to consider the other exemptions relied on by the Board in respect of the category (i) records.

 

Section 32(1)(a)(ix) - security of a building or other structure

Section 32(1)(a)(ix) of the FOI Act provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair the security of a building or other structure or a vehicle, ship, boat or aircraft. The FOI body should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm, which it has identified.

The Board says that the category (ii) records disclose the specifications and drawings of the office layout, including access points, emergency exits, positioning of IT equipment, etc. It says that it holds a significant amount of legal files containing sensitive client information. It says that it has committed significant expenditure to protecting its offices and staff by preventing non-authorised access. It says that releasing these records to the world at large could enable non-authorised persons to gain access, thus placing client records, the office and staff at risk.

I accept that the premises the subject of the lease is a structure for the purposes of section 32(1)(a)(ix). I understand that while some of these drawings have been circulated internally amongst some staff, this was for a limited purpose and on the basis that they would not be disclosed further e.g. to the world at large. I also note that one of the released records comprises a general lay out of the relevant premises. However, I accept that placing more detailed information about the layout in the public domain, such as that contained in what I have identified as category (ii) records, could reasonably be expected to prejudice or impair its security. I find that section 32(1)(a)(ix) applies. The public interest at section 32(3) is only required to be considered in the event that any of three circumstances apply, which is not the case here. 

Records 28 and 29

Records 28 and 29 are email threads, concerning a possible response to a particular request made by the applicant. The Board appears to consider these to be category (i) records. However, it has not explained why they are exempt under the exemptions claimed, having regard to their particular content.

I have already set out the provisions of sections 36(1)(b). Section 29(1) provides that a head may refuse to grant an FOI request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the head, be contrary to the public interest, and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

The exemption has two requirements: i.e. the record must contain matter relating to the deliberative process, and disclosure must 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 FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.

Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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. There is no requirement to take a view on the consequences of the disclosure of those positions etc. or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2) of the FOI Act.

Section 36(1)(c) provides that, subject to subsection (2), a head 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 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.

Records 28 and 29 do not disclose anything about the terms of the lease, or the Board’s position in relation to the negotiations or the lease. Rather, they concern a possible response to a particular request made by the applicant. The Board’s submission does not explain how release of the contents of these records could result in the outcomes relevant to the exemptions claimed. In such circumstances, and having regard to the particular content of records 28 and 29, I see no basis for sections 29(1), 30(1)(c), 36(1)(b) or 36(1)(c) to apply to them.

For the sake of completeness, I will deal with the exemptions claimed regarding the category (ii) records in relation to records 28 and 29. As noted above, the Board’s schedule also refers to section 32(1)(a)(iii) but its submission does not address its application to any of the records. Section 32(1)(a)(iii) is relevant where access to the record could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property. This provision is not directly concerned with the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Where, for example, a system operates to ensure safety and that system could reasonably be expected to be prejudiced or impaired, then this exemption may be relevant. Records 28 and 29 contain no details of the specifications for the office or its safety/security systems. In the circumstances, I see no reason to find that sections 32(1)(a)(iii) or 32(1)(a)(ix) of the FOI Act applies to records 28 and 29.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Board’s decision.

I affirm the Board’s decision to refuse records 3, 6, 8, 10, 11, 14-16, 19, 20 and 25-27 under sections 32(1)(a)(ix) and 36(1)(b) of the FOI Act. I direct that access be granted to records 28 and 29 on the basis that they are not exempt under the provisions of the FOI Act relied on by the Board.

 

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