Whether the IDA was justified in refusing access, under various sections of the FOI Act, to parts of certain records relating to the decision to choose Google for the IDA Ireland Special Recognition Award 2021

31 January 2022

Background

On 4 August 2021, the applicant sought access to copies of all records held referring or relating to the decision to choose Google for the IDA Ireland Special Recognition Award 2021. In a decision dated 1 September 2021, the IDA part-granted the FOI request. It granted partial access to 11 records it identified as coming within the scope of the request, with redactions under sections 30, 35, 36, 37 and 40 of the FOI Act. The applicant sought an internal review of the IDA’s decision on 3 September 2021 following which the IDA affirmed its decision. On 5 October 2021, the applicant sought a review by this Office of the IDA’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 IDA and the applicant’s comments in his application for review. 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. In referring to the records at issue, I have adopted the numbering system used by the IDA in the schedule of records it prepared when processing the request.

Scope of the Review

As the IDA decided to release record 11 in full during the review, I do not need to consider it further, nor do I need to consider record 6 as it is contained entirely within record 2. Moreover, as the applicant indicated that he did not wish to pursue the redactions made under section 37 of the Act, I have also excluded records 1, 7, 8 and 10 from the scope of the review.

For the remainder of the records, the IDA argued that the withheld information was exempt from release under sections 30, 35, 36 and 40 of the FOI Act. During the review, the Investigating Officer considered that section 29 was also of relevance having regard to the nature of the information redacted and to the arguments presented by the IDA in support of its refusal to release that information. She notified the applicant of her view that section 29 was relevant to the review and she invited him to make a submission in respect of its relevance and applicability. The applicant indicated that he did not want to make a submission on that aspect, other than to note that release would have to be contrary to the public interest for the exemption to apply.

This review is concerned solely with whether the IDA was justified in refusing access, under various provisions of the FOI Act as outlined above, to certain information redacted from records 2 to 5, 9, and 10a.

Preliminary Matter

Before I address the substantive issues arising, I would like to address a comment the applicant made in his communications with this Office. He commented upon what he described as “the IDA practice of invoking multiple irrelevant sections of the legislation in an attempt to tie both the requester and the Information Commissioner up in paperwork.” He suggested that this was especially problematic for requesters unfamiliar with FOI who would be disinclined in seeking an internal review or a review by the Information Commissioner when their request was refused under multiple sections of the Act. He also suggested that this Office should consider whether the IDA should be subject to a compliance report.

It is important to note that this review has been conducted under section 22(2) of the Act and therefore cannot be extended into a wider investigation into how previous FOI requests were handled by the IDA. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44 of the FOI Act. Section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act.

A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon. Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service.

In the circumstances, I do not propose to initiate an investigation of the IDA’s processing of requests at this time. Nevertheless, the applicant’s concerns have been noted and will be considered in the context of our future engagements with the IDA.

Analysis and Findings

The IDA made comprehensive submissions to this Office as to why it believed that the relevant parts of the records at issue were exempt from release under, variously, sections 30, 35, 36 and 40 of the FOI Act. Some of the essential points upon which those arguments were grounded include the following:

• the client companies were not aware of their nomination,
• the disclosure of details of what companies were nominated and were not chosen for the award and/or what companies were not nominated would, of itself, give rise to certain harms, and
• the proper functioning of the Special Recognition Awards involves as a matter of necessity the exchange of opinions and views about client companies.

While I agree with the Investigating Officer that section 29 would appear to be of relevance in this case, it seems to me, on balance, that section 30(1)(b) is of most relevance, having regard to the IDA’s submission and to the contents of the relevant records. As such, I will consider the applicability of that section in the first instance.

Section 30(1)(b)

The IDA refused access to all of the information at issue under section 30(1)(b). That section provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.

The records at issue in this case consist of internal emails between IDA staff members concerning nominations for the 2021 Special Recognition Award. The information withheld from the records relates to nominated companies other than the company that was ultimately given the Award.

The IDA first introduced the Special Recognition Award in 2020. When presenting the inaugural Award, the IDA said that it was introducing the annual Special Recognition Award as it believes it is important that it celebrates the huge contribution its 1500 plus Foreign Direct Investment (FDI) companies have made to Ireland. It said FDI continues to be a substantive driver of the economy and that its client companies in Ireland have delivered enormous benefits to the national and regional economies. It said that in introducing the Award, it was also recognising the achievement that is Ireland’s proven ability to be an enduring partner for businesses with international ambitions. It said it was also an opportunity to showcase internationally the level and sophistication of FDI in Ireland.

In its submissions to this Office, the IDA explained that the Special Recognition Award is an annual award given by the IDA to a company that has made an outstanding contribution to FDI in Ireland over many years and, by extension, has made a substantial business (exchequer returns) and social (employment) contribution to Ireland. It said that with a track record of over 70 years of supporting FDI, it has a large number of clients that could merit the Award. It explained that within the IDA, client companies are divided into various portfolios that are then divided into geographical divisions, with IDA staff in each division building up strong and close working relationships with client companies. It said these relationships are central to the IDA's success in attracting FDI into Ireland, particularly as 70% of its investments projects come from the existing client base.

The IDA added that given their in-depth knowledge of, and close working relationship with, the individual client companies, IDA staff were asked to nominate client companies for the Special Recognition Award. It said the client companies were not aware of their nomination and that while there are guidelines for nominating a client, there is an element of subjectivity in the nomination and selection of the awardee by IDA staff.

On the applicability of section 30(1)(b), the IDA noted that this Office has held that "management" is "a word of wide import and that it is apt to cover a variety of activities of an FOI body apart from management of staff and industrial relations" including strategic planning, the management of financial resources and the management of operational matters, management of operations, and including reviewing how those operations are carried out. It argued that the release of the information sought would have a significant, adverse effect on its management of staff and strategic planning.

The IDA said that the release of the information at issue would disclose the fact that certain companies were not nominated and that certain companies that were nominated were not successful. It argued that failure to be nominated for, or to even win, the Award would be seen by the companies as an affront, thereby damaging the team member’s long-standing relationships with those companies. It argued that continuous engagement with client companies is central to the IDA building and maintaining strong relationships based on mutual trust especially given that the IDA are strongly focused, in addition to winning new investment, on supporting their existing base of companies to evolve and grow their operations, thereby creating additional jobs. It said it endeavours to manage all aspects of its relationship with its client companies with extreme care and attention to detail. It argued that key to this is mutual trust and confidence as well as ensuring there are no unwelcome surprises for client companies (or their foreign parent companies) from unanticipated media coverage emanating from the IDA.

The IDA also said that competition for FDI is intense and extremely competitive, not just at a state level but also within the client companies themselves and that the Irish operation of each client company competes with its sister foreign companies to secure investment. It argued that there is a substantial risk that valuable investment targeted for Ireland would be diverted to other countries (resulting in a loss of exchequer returns and jobs for Ireland which are crucial during these challenging times) should the information be released.

The IDA added that some of the information at issue contains details relating to certain nominated companies that it received from those companies through voluntary surveys that it regularly carries out and it argued that client companies are likely to refuse to co-operate with IDA staff if such information was released, particularly when being asked to participate in further such surveys which, it said, provide essential and invaluable information for the IDA which informs its policy and investment decisions.

The IDA further argued that for the proper functioning of the Special Recognition Awards, it was necessary to have an exchange of opinions and views amongst its staff about client companies in confidence and that such exchanges would be severely impeded if the opinions and views of IDA staff were dissected and criticised in the public sphere.

Having carefully considered the IDA’s arguments, I accept that the disclosure of the information at issue could reasonably be expected to have a significant, adverse effect on the performance by the IDA of its management of operations. I accept that the development and maintenance of strong and close working relationships with client companies is a crucial component in the IDA’s work in supporting and promoting FDI in Ireland and that it is reasonable for the IDA to expect that those relationships would suffer as a result of the release of the information at issue. Clearly, the IDA considers the Special Recognition Award to be an important process, in terms of its ongoing aim of attracting and retaining FDI. Indeed, it described the Award as an opportunity to showcase internationally the level and sophistication of FDI in Ireland. It is also clear that the companies that received the Award in 2020 and 2021 hold it in high regard. In the circumstances, I accept the IDA’s argument that release to the world at large of the fact that certain companies were not nominated for the Award, or were nominated and did not win, could attract unwelcome publicity and media comment and could be seen by the companies as an affront, thereby damaging the long-standing relationships the IDA’s staff has built up with those companies. I find, therefore, that section 30(1)(b) applies.

Section 30(2)

However, that is not the end of the matter as section 30(2) provides that subsection (1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request. In relation to the public interest test, 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 a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), 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”. It also indicated that the public interest recognised by the exemption “may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

It seems to me that the IDA has sought to embrace the principles described in section 11(3) by granting access to those parts of the 11 records that relate to the company that received the Special Recognition Award. The information released included details of the criteria upon which nominations were to be based, details of the reasons given for the nomination of the successful company, and details of the sectors in which the nominated companies operated. In doing so it attempted to strike a balance between enhancing openness and accountability whilst seeking to ensure that the harms set out in section 30(1(b) did not arise. I am aware of no positive public interest in the release of the remaining information, relating to the unsuccessful companies that would, on balance, outweigh the public interest in refusing access to the information. I have not been able to identify any “sufficiently specific, cogent and fact-based reason” that might “tip the balance in favour of disclosure”.  In the circumstances, I find that section 30(2) does not serve to disapply section 30(1)(b) in this case.

Conclusion

In conclusion, therefore, I find that the IDA was justified in refusing access, under section 30(1)(b), to the information redacted from records 2 to 5, 9, and 10a. Having so found, I do not need to consider the applicability of any other exemption to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the IDA to refuse access, under section 30(1)(b) of the FOI Act, to the records at issue.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator