Whether the Department was justified in refusing access to records relating to Galway 2020 (G2020) under sections 35(1)(a) and 36(1)(b) of the FOI Act

8 November 2022

Background

This case relates to the funding and organisation of a programme of events to mark the designation of Galway as a European Capital of Culture for the year 2020. G2020 is a company set up for the purposes of executing that programme of events.

On 8 January 2021, the applicant sought access to various records and correspondence held by the Department relating to G2020, European Capital of Culture. On 5 February 2021, the Department granted access to some records and refused access to the remaining records on the grounds that they were exempt under sections 29, 35(1)(a), 36(1)(b) and 37 of the FOI Act. On 12 February 2021, the applicant requested an internal review. On 12 March 2021, the Department issued its internal review decision. It released three additional records and affirmed the rest of its original decision. On 14 May 2021, the applicant applied to this Office for a review of the Department-�s decision.

During the course of this review, following correspondence with this Office, the Department released additional records to the applicant, including all of the records withheld on the basis of section 29 of the FOI Act. The applicant confirmed to this Office that he does not seek access to the information contained in the records withheld under section 37 of the FOI Act (such as mobile telephone numbers and personal email addresses).

I have decided to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the Department for the purposes of this review. For ease of reference for the parties involved, I will use the same numbering to identify the records as set out in the schedule of records provided by the Department.

Scope of the Review

This review is solely concerned with whether the Department was justified in refusing access to the following records, or parts thereof, under sections 35(1)(a) and 36(1)(b) of the FOI Act: records 1, 12, 60, 61, 75, 77, 83, 86, 88, 92, 94, 100, 102, 104, 113, 132, 141, 142, 159, 160 and 162 in part; and record 74 in full.

Preliminary Matters

It is important to note that section 18(1) of the FOI Act 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 FOI 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 neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. This Office is not in favour of the cutting or "dissecting" of records to such an extent, as being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

It is also important to note that a-� review by the Commissioner under section 22 of the FOI Act is considered to bede novo, which means that it is based on the circumstances and the law as they apply on the date of the decision. 

Analysis and Findings

In my view, the information contained in the remaining records fall into three distinct categories as follows:

1. Information relating to the funding, operations and monitoring of G2020.
2. Information relating to funds provided via G2020 to third party organisations for the purposes of projects, etc.
3. Information which solely relates to the financial and operational data of third party organisations, such as Macnas, Druid Theatre Company, Music for Galway, etc., including details of payments to named contractors or individuals providing services to these organisations.

Some records contain a mixture of all three categories of information.

The Department relied on sections 35 and 36 in its decision to refuse access to the records in full or in part. It seems to me that under the circumstances, section 36 is the most relevant exemption. Therefore, I will consider its application to the records first.

Section 36(1) - Commercial Sensitivity

The Department claims that the following records are exempt under section 36(1) of the FOI Act in full or in part:Records 1, 12, 60, 61, 74, 75, 77, 83, 86, 88, 92, 94, 100, 102, 104, 113, 132, 141, 142, 159, 160 and 162.

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.

It is my view that section 36 is primarily aimed at protecting the commercial interests of third parties engaged in commercial activity. Nevertheless, depending on the circumstances of the case, I accept that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to this Office, from relying on the provisions of section 36. In this case, G2020 indicated that it agreed with the Department-�s position that the release of the records at issue could cause harm to its own commercial interests. I am satisfied that, in principle, it is reasonable for G2020 to seek to rely on the provisions of section 36.

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).

Submissions

The Department stated that a number of the records concerned contained information relating to third party organisations. It stated that these records contained information such as detailed budgets for particular projects, details of individual organisation-�s income, expenditure and cash flow, invoices from named individuals and details of individual-�s salaries, letters of indemnity from insurers for third parties, bank statements, credit card bills and insurance policy details. The Department-�s position was that the release of this type of information could reasonably be expected to prejudice the competitive position of the organisations concerned.

The Department also refused access to details of payments made by or via G2020 to its cultural partners. The Department further contended that the release of the records could reasonably be expected to impede on G2020-�s financial competitive position, as -�part of its remit as European Capital of Culture was to obtain the widest possible supports and build sponsorships and partnerships nationally and internationally-�. The Department also considered the information withheld to comprise commercially sensitive information relating to the financial position of G2020, such as details of its income and expenditure or financially sensitive information relating to payments to third parties. I note however, that the Department did not expand on this view, nor did it explain the specific harm expected to arise to G2020 from the release of the information contained in the records or how it could reasonably be expected to arise from the release of the records concerned.

In his submissions to this Office, the applicant acknowledged that much of the information contained in the records related to third party companies. However, his position was that the organisations concerned were -�wholly or almost entirely funded by the taxpayer-� and he referred to funding from the Department of €15 million for projects for G2020. His view was that the Department, G2020 and the relevant third party arts organisations were all either fully or mostly funded by the public purse, especially in terms of the funding for European Capital of Culture projects. The applicant-�s view was that the Department was essentially -�hiding behind-� commercial sensitivity in relation to what amounted to -�transfers of public money-�. He also referred to the Department-�s funding of various arts organisation for example through the Arts Council. He said that details of these allocations were not only publically available without FOI, but that they were -�almost celebrated-� by the Department and relevant Minister. Essentially his view was that the provision of public funds by a Government Department to publicly funded arts organisations channelled through G2020 should receive the same level of openness and transparency as other similar funding allocations.

G2020 also made submissions during this review. It stated that it was set up as a CLG, and was not a subsidiary of Galway City Council. G2020 also stated that all or most of the European Capital of culture events/performances had taken place and confirmed that its activities have been mostly wound down. It noted that some partners had published amounts received from it in their annual returns, but also indicated that it agreed with the Department-�s updated position following the release of additional records in April 2022. It also stated that G2020 issued contracts for services to partners in respect of the delivery of projects, but that it was not a -�grant giving organisation-�. G2020-�s position was that it wished to ensure as much information was made available to the public as possible. It referred to its websitewww.galway2020.iein this regard, which it stated contained a -�vast amount of information-�.  However, it also referred to a confidentiality clause in the formal agreements signed between G2020 and various partners.

Analysis

As noted above, the standard of proof to be met in terms of the second limb of section 36(1)(b) is considerably lower than the "could reasonably be expected" test in the first part of the exemption. Having carefully examined the records concerned, I am satisfied that a number of records contain a level of detail relating to the day to day expenses, bank accounts and operations of third party organisations and/or identifiable individuals beyond what is available in the public domain. I am also satisfied that the release of this level of financial and operational details could reasonably be expected to prejudice the competitive position of the third parties concerned in terms of their day to day business.

Accordingly, I find that section 36(1)(b) applies to the information withheld from release in the following records which solely relates to third party companies and/or individuals:

• Records 74, 75, 100, 102, 104, 142, 159 and 160 (in full)
• Records 1, 12, 77, 83, 86, 88, 92, 94 and 141 (in part)

However, I am not satisfied that details of grants or payments in relation to G2020 to the various organisations could be said to be commercially sensitive under section 36. It seems to me that most, if not all, of the organisations that received such funding publish annual reports and financial statements. It also seems to me that many of the organisations are registered charities and publish details of their accounts on the website of the Charities Regulator. In fact, as acknowledged by G2020 itself, many of these organisations have already published details of the relevant funding for G2020 projects in their own published reports or accounts for 2020/21. Furthermore, the Department has not explained to my satisfaction how the release of details of these particular payments to these organisations could reasonably be expected to cause harm to their competitive position, or to that of G2020. I also note that G2020 has not made any arguments in this regard. I further note that Galway City Council was contacted during the review and informed of the review and invited to comment in relation to records which contained details of its own financial information. I understand that the Council did not consider that there would be any prejudice to its interests from the release of this information and it decided not to make a submission.

As this review is conductedde novo, it takes account of all relevant facts and circumstances applying at the date of my decision. However, while the passage of time may have implications for the application of a particular exemption, it is not necessarily the determinative factor in considering the public interest.

Galway City-�s tenure at European Capital of Culture came to an end in early 2021. My understanding is that a review of G2020 has taken place and has been reported on. While I also understand that the legacy aspects of Galway-�s time as Capital of Culture are still being examined, in the circumstances, the Department has not satisfied me that section 36(1)(b) applies to the details of funding by and/or agreements between G2020 and the various third party organisations, to any of the information relating to Galway City Council, or to information solely relating to G2020 itself. Accordingly, I find that section 36 does not apply to the information withheld from the following records: records 1, 12, 77, 83, 86, 92, 94, 141 9 (in part) and records 60, 61, 113, 132 and 162 (in full).

Section 36(3)

Having found that section 36(1)(b) applies to certain information in the records concerned relating to third party organisations, I am now required to consider whether, on balance, the public interest would be better served by granting than by refusing access to this information, 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 these organisations in relation to future contracts and projects. 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 inThe 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-�.

The Department

In its submissions to this Office, the Department stated that there was a public interest in the right of the public to be informed in accordance with their rights under the FOI Act and a public interest in openness and transparency among FOI bodies. In terms of the public interest against the release of the records, it stated that this lay in protecting the flow of information to public bodies, in allowing a public body to hold commercial information without undue public access and in protecting the right of entities to provide commercially sensitive information in confidence to public bodies. G2020 did not make any public interest arguments, although as noted above, it indicated that it agreed with the Department-�s decision.

The Applicant

In correspondence with this Office, the applicant stated that there was -�an overwhelming public interest-� in the release of the information concerned. He was also of the view that the fact that the media had to go through this Office in order to access it was a -�sad reflection on the attitude of the Department and these organisations to transparency-�.

Analysis

I have examined the content of the records which I have found to be exempt under section 36(1)(b) and considered the parties-� submissions in full. I accept that there is a public interest in ensuring that there are proper controls and oversight in relation to the expenditure of public funds such as in relation to the G2020 programme. I also accept that details of payments to the various third parties concerned by way of agencies such as G2020 are reported in the organisations-� annual reports and public returns to the Charities Regulator and, as such, are in the public domain. However, in the circumstances of this case, it seems to me that the granular detail contained in the records at issue provides an insight into the operations of third party organisations which is above and beyond what is generally publicly available. It is also relevant, in my view, that these organisations are not public bodies or subject to FOI.

It also seems to me that many of these records were solely provided in support of applications for funding so that the Department/G2020 could adequately vet and approve grant payments. I have already found above that the release of this information could reasonably be expected to impede on the competitive position of the organisations concerned. It further seems to me that openness and transparency concerning the relevant funding and the Department-�s oversight of the G2020 programme does not necessarily mean revealing the day-to-day operational and financial data of third party organisations. In the circumstances of this case, I find that the public interest, on balance, does not favour the release of the information contained in the records relating to the third party organisations. Therefore, I find that the Department was justified in refusing to allow access to this information on the basis of section 36(1)(b) of the FOI Act.

Section 35

The Department also relied on section 35(1)(a) of the FOI Act in support of its decision to refuse access to the information in the following records which I have not already found to be exempt under section 36(1)(b) above:Records 1, 60, 61, 77, 83, 86, 89, 94, 113, 132, 141 and 162.

Section 35(1)(a) of the FOI Act 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(1)(a)

I have examined the specific content of the remaining records concerned and considered the parties-� submissions. I am satisfied that the information remaining at issue in this case solely relates to the evaluation and ongoing monitoring of G2020 by the Department and to the funding of various projects for the Capital of Culture programme.

As noted above, 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.

Department-�s Submissions

The Department stated that the records at issue contain commercially sensitive information which was given to the Department in confidence. It says that disclosure would likely prejudice the giving of further similar information in the future and it is important as part of its oversight of G2020 that the Department receives such comprehensive information.

G2020-�s Submission

As noted above, G2020 stated that the contracts between it and its cultural partners contained a confidentiality clause, as follows: -�the Partner and G2020 shall not, during or after the term of this Agreement, disclose the terms of this Agreement to the any other person or persons (except to their accountants and/or legal advisors) whether directly or indirectly except when required by law to do so-�. It did not make any further argument in this regard

Applicant-�s Submissions

As noted above, the applicant-�s view is that there is an -�overwhelming public interest-� in the release of the information concerned. He has also indicated his disappointment that the media has to seek access to this information by way of FOI. He has not made any particular comments in relation to the application of section 35.

Analysis and Findings

As noted above, G2020 has been all but wound down at this point and most if not all of the projects have either taken place or been cancelled. I accept that it may have been the case that details of the funding allocations and income and expenditure of G2020 were submitted in confidence at the time of the programme. However, I do not accept that the release of the information concerned at this time would be likely to prejudice the giving of further similar information to the Department.

The programme appears to have been closely monitored by the Department. I note from the records that G2020 was party to a service level agreement with Galway City Council in this regard, and that it undertook to provide quarterly progress reports on its day to day expenditure. I also note from the records released that G2020 was set up to carry out the -�creation, organisation, promotion and sustainable development of artistic and cultural activities as a cultural programme of activity for the European Capital of Culture 2020 in Galway City, County and the wider community-�. It seems to me that the circumstances in this case are very different to those where, for example, an external third party commercial organisation who provides services to an FOI body reports on those service alone and has some control over what aspects of its business are reported on in that regard.

I am satisfied that G2020 was set up solely to carry out its functions in relation to the European Capital of Culture 2020. I am also satisfied that the funding provided by the Department for these purposes was from public funds. In the circumstances, I do not accept that G2020 or similar organisations set up in comparable circumstances would refuse to provide such information to the relevant oversight body or that an option to refuse to do so would be available to such organisations. Based on the above, the Department has not satisfied me that section 35 applies to the remainder of the information concerned. Accordingly, I find that section 35(1)(a) does not apply and that the Department was not justified in refusing to grant access to the remaining information in the records on the basis of section 35(1)(a) of the FOI Act.

As I have found section 35(1)(a) not to apply, I do not need to consider the public interest test at section 35(3).

Records to be released

I am satisfied that some of the records at issue contain information relating to identifiable individuals relating to their employment and/or financial affairs, which would fall to be refused under section 37. As noted above the applicant has confirmed that he is not seeking access to personal information contained in the records, therefore I am not directing its release.

Having regard to section 18 of the FOI Act, set out above, I am satisfied that part of a bank statement submitted to the Department (attached to records 12 and 77) was submitted originally in such a redacted format as to render it misleading or effectively useless. However, I have directed the release of the second page of the bank statement which contains details of payments made.

In the interest of clarity, I affirm the Department-�s decision to refuse access to all of the information withheld from release contained in records 74, 75, 100, 102, 104, 142, 159 and 160. I annul the Department-�s decision to refuse access to the remaining records in full or in part and I direct their release as follows:

• Records 60, 61, 88, 113, 132 and 162 in full, including attachments
• Record 1: the figure representing the amount of the Galway 2020 grant remaining
• Record 12: Grant agreement between Druid Theatre and G2020 and the second page of Galway City Council bank account
• Records 83 and 86: bank statement (in part -� subject to the redaction of the name of identifiable individuals), cash flow statement and Galway status report in full
• Record 92: bank statement, office bank statement and Summary of Payments (in part - subject to the redaction of the name of identifiable individuals)
• Record 94: attachment (in part - subject to the redaction of the names/account names of identifiable individuals)
• Record 141: bank statement (in part -� subject to the redaction of any identifiable individuals/names)

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm its decision to refuse access to certain information contained in the records relating to third party organisations on the basis of section 36(1)(b) of the FOI Act. On balance, I find that the public interest does not favour its release. I annul its decision to refuse access to information relating to G2020, Galway City Council and the amount of grants paid to various third parties on the basis of sections 35(1)(a) and 36(1)(b), as the Department has not satisfied me that these exemptions apply. I direct the release of certain records as set out above.

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