Whether the LDA was justified in refusing access to various records of meetings and correspondence between the LDA and a named third party company (the company) under sections 35, 36 and 37 of the FOI Act

30 September 2022

Background

In a request dated 31 May 2021, the applicant sought access to copies of the minutes of meetings and correspondence including attachments between the LDA and the company. In a decision dated 30 June 2021, the LDA part granted the applicant-�s request. It identified 193 pages as coming within the scope of her request, 122 of which it released in full and two in part. It withheld the remaining 69 pages in full. The LDA relied on sections 35 and 37 of the FOI Act to withhold access to the records concerned.

On 22 July 2021, the applicant applied for an internal review. The LDA affirmed its original refusal of the records concerned, this time relying on sections 35, 36 and 37. On 26 August 2021, the applicant applied to this Office for a review of the LDA-�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 submissions made by the applicant, and by the LDA in support of its decision.  I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matters                                                                        

It appears that neither records schedule provided to the applicant by the LDA was numbered. The schedule provided to this Office during the course of the review is in the same order as the earlier versions and the records are numbered 1-22. For ease of reference, I shall use this numbering. In the interest of clarity, I have attached a copy of the updated schedule as an Appendix to this decision.

Scope of Review

The LDA released records 2-6 in full and record 1 in part. In her application for review to this Office, the applicant stated that she was not seeking a review of the redactions made by the LDA in relation to section 37 (i.e. the information withheld from release in record 1).

During the course of the review, this Office-�s Investigator contacted the applicant and noted that her application for a review solely referred to LDA-�s refusal to release records under section 35(1) and did not mention its reliance on section 36 in relation to the attachment to the email contained in record 7. She informed the applicant that on that basis, the LDA-�s refusal to release the attachment to record 7 would not form part of this review. The applicant did not object.

Accordingly, this review is solely concerned with whether the LDA was justified in refusing to grant access to record 7 in part and records 8-22 in full on the basis of sections 35(1) of the FOI Act.

Analysis and Findings

By way of background, the LDA (as set out on the homepage of its websitewww.lda.ie), is a -�commercial, State-sponsored body that has been created to coordinate land within State control for more optimal uses where appropriate, with a focus on the provision of housing.-� In its submissions to this Office, the LDA stated that its purpose, among other matters, was to -�enable urgent measures to be taken to increase the supply of housing in the State and in particular affordable housing-�. It also said that its statutory functions include -�promoting the sustainable development of communities and affordable housing-�.

Section 35

The LDA refused access to all of the records at issue on the basis of section 35(1) of the FOI Act. Section 35(1) concerns information given to an FOI body in confidence. The LDA-�s original and internal review decisions did not specify whether it was relying on section 35(1)(a) or 35(1)(b) in support of its decision to refuse access to the records sought. In its submissions to this Office, it indicated that it was relying on both subsections.

However, section 35(1) cannot apply to the records created by an FOI body or service provider unless disclosure of the information 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 a public body or a service provider (section 35(2) refers).

In her application to this Office for a review of the LDA-�s decision, the applicant referred to section 35(2) and stated that it seemed as though at least some of the records at issue were prepared by the FOI body in the course of the performance of its duty. She indicated that she did not accept that releasing these records would constitute a breach of a confidence of duty owed to any outside party and argued that they should be released.

The records concerned comprise email threads between the LDA and the company concerning its engagement. They also refer to and enclose various drafts and a final copy of a non-disclosure agreement (NDA) signed by the parties. From a careful examination of the records, records 7 and 20 appear to have been solely created by the LDA. While it appears as though the LDA created the initial draft of the NDA, later versions contained input from both organisations, so that it seems to me that later drafts or versions could not be said to have been wholly created by the LDA. The remaining records appear to have been created by the company (record 16) or were amended or annotated by the company and/or comprise correspondence threads containing emails back and forth from both organisations (records 8-15, 17-19 and 21-22).

As an FOI body created records 7-15 and 17-22 in full or in part, the LDA-�s refusal to release these records on the basis of section 35(1) cannot apply unless a duty of confidence is owed by way of an agreement, etc., to a third party which is not an FOI body or a service provider.

In its submissions to this Office, the LDA said that it undertakes -�continuous market research and on-going engagement with external stakeholders-� in order to fulfil its statutory functions. Its position is that its engagement with the company in this case was undertaken as part of its usual research and stakeholder engagement process. It stated that it and the company had agreed to protect the -�commercial sensitivity-� of their engagement and related communications by way of an NDA. Essentially, the LDA-�s position is that this external third party company was under no obligation to discuss its own business model or the LDA-�s plans with the LDA and that in order to be in a position to discuss these matters freely, they both entered into an NDA. The LDA argued that disclosure of the records at issue would constitute a breach of a duty of confidence owed to the company arising from the NDA.

The LDA stated that its engagement with the company in this case was a discussion around relevant financial and delivery models, including best practice in other jurisdictions.  The LDA also stated that the discussions were not related to an individual LDA project or scheme. It described the company as providing information as part of a workshop or discussion and stated that the company was not paid for its time. As there is no evidence before me to suggest otherwise, I accept that the parties in this case had no contractual relationship outside of the NDA and that the company was not acting as a service provider to the FOI body.

I have carefully examined the NDA in question. While the matter of whether the agreement provides for a duty of confidence is relevant in this case, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the NDA is limited. I can state, however, that the agreement requires that the discussions between the parties remain confidential and that the matters specified in the NDA, including the execution and content of the NDA itself, shall not be disclosed to third parties, except as required by law and then only with prior written notice to the other party.

I accept that a confidentiality agreement is in place between the LDA and the company. I also accept that both parties entered into it in an effort to protect their respective interests. In the circumstances, I am satisfied that the LDA owes a duty of confidence to the company arising from an agreement, as required by section 35(2).

The LDA-�s view is that the definition of confidential information set out in the NDA means that all of the correspondence between the parties is exempt from release. Having carefully read the definition in full, I do not agree. It seems to me that the NDA provides that correspondence of a certain type or referring to certain specified matters should be treated as confidential by the parties. On that basis, I am satisfied that records relating to the substantive matters discussed by the parties and/or the execution and content of the NDA itself are subject to the confidentiality agreement and that their release would breach a duty of confidence owed to the company by the LDA.

However, having carefully examined the content of the records concerned in light of the provisions of the NDA, I do not accept that routine correspondence between the parties concerning times and dates for phone calls or details of Zoom meetings could be said to be substantive or to be captured by the agreement. Furthermore, I do not see how the release of such correspondence would breach a duty of confidence owed to the company.

Accordingly, I find that section 35(2) disapplies section 35(1) in relation to the administrative or routine information contained in records 7-15 and 17-22 which was created by the LDA.

As the LDA has not relied on any other exemption in support of its decision to refuse to grant access to this information, I direct its release to the applicant. However, I also find that section 35(2) does not disapply section 35(1) in relation to the substantive information relating to the discussions or the NDA contained in these records. I shall consider this information under section 35(1) below.

Section 35(1)(b)

As noted above, the LDA relied on sections 35(1)(a) and (b) in respect of the remainder of the records at issue which I have not already found to be outside the scope of section 35(1). Of these subsections, I consider section 35(1)(b) to be the most relevant in this case. Section 35(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law". 

The applicant argued that section 35(1)(b) does not apply in this case. She stated that while there -�may have been assurances of confidentiality-�, it was also relevant to consider whether those expectations were -�reasonable, the purposes of the assurances and the broader context-� in which the information was provided. The applicant contended that as the LDA was subject to the FOI Act, that this allowed for the possibility of disclosure. She stated that, due to its position, the company was in a strong position to influence policy and she was of the view that its engagement with the LDA -�could be characterised as lobbying-�. She was also of the view that its engagement with the LDA was of benefit to the company.

In response to queries from this Office, the LDA stated that it engaged with the company as part of a workshop in order to gather information to assist in its statutory function. It stated that while the applicant referred to transparency around policy formation, that the LDA has no role in formulating policy, nor did it -�seek to modify public policy-�. The LDA also stated that the company did not have any opportunity to influence policy by virtue of the provision of information to the LDA, as -�the Government formulates the policy which the LDA must have regard to in its day-to-day operations-�. Its position was that the company was not lobbying the LDA.

As set out above, I am satisfied that the remaining records at issue contain details of discussions and comments as to the substance of the NDA and the various drafts of the agreement itself. I am also satisfied that this information comes within the ambit of the confidentiality agreement. I accept the LDA-�s assertion that the company was not carrying out lobbying activity as part of its engagement with the LDA. I have already found above that, in the circumstances of this case, the release of this type of information would breach a duty of confidence owed to the company on foot of an agreement. On that basis, I find that the LDA was justified under section 35(1)(b) in refusing to grant access to the parts of the remaining records which contain substantive information about the agreement/the parties-� engagement.

However, as above, I do not accept that the release of information contained in the remaining records solely concerning the setting up of meetings or telephone calls would breach a duty of confidence owed by the LDA to the company. Accordingly, I find that the LDA was not justified in refusing to grant access to this information on the basis of section 35(1)(b).

Section 35(1)(a)

The LDA also relied on section 35(1)(a) in respect of its refusal to grant access to the remaining information contained in the records at issue. Section 35(1)(a) applies to a record containing information given to an FOI body in confidence.  In order for section 35(1)(a) to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence, and,
• that the information was given on the understanding that it would be treated by the FOI body as confidential, and,
• that 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,
• that it is of importance to the body that such further similar information should continue to be given to the body.

All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act.

The courts have found that it is the circumstances in which the information was imparted and received that is important in determining whether the first two requirements of section 35(1)(a) are met. Accordingly, the information itself does not necessarily have to be private, secret or confidential, or to have a quality of confidence, other than as to the circumstances in which it was imparted and received.

The LDA contended that the parties' expectation that the information in the records concerned would remain confidential is demonstrated by the fact that an NDA was entered into. It stated that it was -�entirely reasonable-� that an external third party receiving an assurance of confidentiality from a public body would rely on that assurance.

The applicant argued that the disclosure of the records in this case would be unlikely to prejudice the giving to the body of further similar information from the same person or other persons. She contended that it was not reasonable to believe that company (who she described -�one of Europe-�s largest landlords-�) would not continue to engage with the LDA, which -�holds significant power and say over how state lands should be developed-�. She was of the view that it was in the interests of the company and similar companies to continue to give similar information as they stood -�to benefit from engaging-� with LDA.

I have accepted the LDA-�s statement above that the company concerned was not engaged in lobbying activity in this case. In circumstances where a third party is not obliged to provide information to a public body and appears to derive no benefit from its engagement, it is difficult to identify why it would continue to do so if information affecting its interests, which was provided in confidence on an understanding it would be treated as confidential, was likely to be released under FOI.

However, in the circumstances of this case, the only information which remains to be considered under section 35(1)(a) is information of a routine or administrative nature. I do not accept that an email stating that a person is available to talk on a particular date or acknowledging the details of a upcoming Zoom call could be said to have been given to the LDA in confidence on the understanding that it would be treated as confidential.

Furthermore, I do not accept that the disclosure of the remaining information which I have not already found to be exempt above would be likely to prejudice the giving to the LDA of further similar information from the company or other persons. Accordingly, I find that the LDA has not justified its reliance on section 35(1)(a) to refuse access to the remaining information in the records at issue.

Section 37

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. Under section 37(1), such personal information cannot be released unless one or more of the other relevant provisions of section 37 apply.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at paragraph (iii) information relating to an individual-�s employment or employment history.

I note that the LDA withheld details of the name of a person working for the company from the record which it released in part, and that the applicant indicated that she had no objection to this. I am satisfied that the names and contact details of persons working for the company in this case, which is an external third party, not acting as a service provider to an FOI body comes within the definition of personal information set out in section 2. I am also satisfied that references to another identifiable individual and his external company contained in records 15 and 18 comes within the definition of personal information. Accordingly, I find that section 37(1) applies to this information.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also important to note that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.

Bearing in mind the foregoing, I can identify no specific public interest in favour of releasing the information to which I have found section 37(1) to apply that would, on balance, outweigh the right to privacy of the individuals identified in the records. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the LDA was justified in refusing access to the names and details of non LDA staff contained in the records at issue.

Records to be released

In the interest of clarity, I am directing the release of the following records:

• Records 11, 12, 13, 14, 19, 20 and 22, subject to the redaction of names/contact details of non LDA staff
• Record 7, release email in full, the attachment is outside scope
• Records 15 and 18, release subject to the redaction of names/contact details of non LDA staff/additional third party company

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the LDA-�s decision to refuse access to the records concerned. I affirm the LDA-�s decision to refuse to grant access to certain information contained in the records at issue on the basis of section 35(1)(b). I also affirm its decision to refuse access to some of the information sought on the basis of section 37 as, on balance, I find that the public interest does not favour its release. I find that section 35(2) disapplies section 35(1) in respect of the remaining information contained in the records concerned and I direct its release to the applicant.

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