Whether UCC justified in refusing access, under sections 29(1), 36(1)(b) and 37(1) of the FOI Act, to records relating to a loan to UCC from the European Investment Bank (the EIB)

30 May 2023

Background

On 6 January 2017 a request was submitted to UCC for the following records:

1. The -�Finance Contract-� between UCC and the EIB dated 11 July 2016 (apart from the details of EIB staff and references to third party companies (other than UCC or EIB) and individuals)
2. A report to the Finance Committee in October 2015 concerning the EIB, including tables of financial details and a presentation
3. A February 2016 spreadsheet setting out UCC-�s income and expenditure, balance sheet and cashflow
4. A report to the Finance Committee in May 2016 regarding the loan agreement

The request was submitted by an individual who worked in the same organisation as the applicant in the current case and who subsequently gave written permission for the applicant to take over his request. Therefore, all subsequent references to the applicant in this decision should be taken as a reference to the original requester or the applicant as appropriate.

UCC refused the request under section 36(1)(b) of the FOI Act and the refusal was affirmed following internal review. The applicant sought a review by this Office of UCC-�s decision. On 13 December 2017, we issued our decision (case 170282) wherein we found that UCC was not justified in its decision to refuse access to the records sought under section 36(1)(b) and directed the release of the four records, apart from certain information which we found to be exempt under section 37(1) of the Act. For the sake of clarity, I should add that a fifth record identified by UCC was found to fall outside the scope of the request. That record was not considered in the ensuing court proceedings and does not form part of this review.

UCC appealed our decision to the High Court. The High Court allowed the appeal in its judgment of 3 April 2019 and remitted the case back to this Office. The then Commissioner appealed that High Court decision to the Supreme Court. In its judgment of 25 September 2020, the Supreme Court found that we had misapplied the threshold for competitive prejudice in section 36(1)(b) and that we had not sufficiently engaged with the contents of the records at issue. It remitted the matter to the Commissioner for further decision in light of its judgment. The remitted case was assigned by the current Commissioner to staff members who had no involvement in the original review.

I have now concluded my review in this case. In conducting the review, I have had regard to the correspondence between this Office and the applicant, UCC, and the EIB as an affected third party, on the matter. I have also had regard to the judgments of the Courts in relation to this matter as outlined above and to the contents of the records at issue.

Scope of the Review

During the course of the review, the EIB provided a revised redacted version of Record 1 to this Office which, it indicated, followed a new examination of the matter following the lapse of time. It said this new examination had resulted in it seeking to propose a number of additional redactions beyond those provided in November 2017 during the course of our review in Case 170282. UCC confirmed that it supported the release of Record 1 with the revised redactions as submitted by the EIB. Subsequently UCC released Record 1 to the applicant in this redacted format.

Separately, in correspondence with this Office, UCC indicated that it was no longer seeking to refuse access to the entirety of Records 2 to 4. Instead, it was consenting to the release of the records in a redacted format which had been supplied at Tab 20 (on occasion erroneously referred to as Tab 21) in the Affidavit of the Bursar of the College in the High Court proceedings. UCC also released these three records to the applicant in the redacted format. In addition, UCC released Annex I of Record 1 in full to the applicant as well as a powerpoint presentation that had been appended to Record 2.  

With regard to the outstanding information remaining at issue in this case, I consider it appropriate to make a number of clarifying points. With regard to Record 1, UCC confirmed that Annex IV is intentionally blank. In addition, Annex III of Record 1 and Record 3 are the same record. I will therefore consider Annex III of Record 1 when examining Record 3.  

With regard to Annex II - Form of Certificate of Borrowing Papers, there is a discrepancy between the version of Record 1 supplied to this Office as part of its initial examination of the matter, and the version of the record subsequently provided by the EIB and released in a redacted format to the applicant. Specifically, the signatories on behalf of UCC are not contained in the version of the contract released to the applicant nor in the unredacted version of the contract supplied to this Office. In the course of his submissions to this Office, the applicant also highlighted the fact that the version of the contract as released appears not to be the signed version. When further details were sought in relation to this discrepancy, UCC indicated that it had redacted the names of UCC staff and Governing Board members who signed the contract along with their original signatures. UCC further argued that as signatures can be easily electronically duplicated it had security concerns around the release of the original signatures. Section 37(1) of the Act provides for the refusal of request where access to the record sought would involve the disclosure of third party personal information. I will consider the applicability of section 37 in this case.

In addition, in its submissions to this Office, UCC argued that certain redactions from Records 1, 2, and 3 were made on the basis that the information falls outside the scope of the applicant-�s request. It essentially argued that the redacted text does not relate to the loan in question and/or does not concern the terms, purpose, governance or arrangements that exist for monies drawn down as part of the loan in question, as sought by the requester. Even if this is the case, the text forms part of the specific records sought and which UCC accepts to come within the scope of the request. It is not information that is wholly unrelated to the subject matter of the records sought. I find, therefore, that the redacted text does, indeed, come within the scope of the request.

UCC also indicated for the first time during the review that it was seeking to rely on section 29 to refuse access to part of Record 2, namely paragraph 4 on the second page of the record. I will consider that argument below.

Finally, with regard to Record 1, for the purposes of this decision I will endeavour to refer to section, sub-section and article numbers as opposed to page numbers to avoid any confusion. In cases where it is necessary to refer to a page number I will adopt the page numbering as reflected in the version of the Finance Contract supplied to this Office by EIB with the redactions marked in colour. It is noted that due to the manner in which the redactions were made in the version of the contract released to the applicant, these page numbers will not necessarily correspond with the redacted version of the contract that was released.

Following on from the above, the scope of this review is concerned solely with whether UCC was justified in refusing access to the various parts of the four records as detailed above under sections 29, 36, and 37 of the FOI Act.

Preliminary Matters

It is important to note at the outset that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement at section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the description I can provide of the relevant records and of my reasoning in this case is somewhat limited.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on UCC, and not a third party such as the EIB, to satisfy this Office that its decision to refuse access to parts of the records sought was justified.

In addition, it is also important to note that as a review by this Office is considered to be -�de novo-�, it is based on the circumstances and the law as they pertain at the time of the decision and this Office is not confined to the basis upon which the FOI body reached its conclusion. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to examine the applicability of the additional exemptions cited by UCC in its submissions to this Office, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in its decisions on the request nor when the matter was before the Courts.

Analysis and Findings

Section 36(1)(b)

Section 36(1)(b) provides for the mandatory refusal of a request if the record sought 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 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 financial loss or gain".  We take 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 lower than the "could reasonably be expected" test in the first part of the exemption. However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case ofWestwood Club v The Information Commissioner[2014] IEHC 375 (the Westwood case), Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.

Applicant-�s Submissions

In his submission to this Office, the applicant argued that loans entered into by a body subject to FOI should be considered in the same manner as any other commercial transaction entered into by a public body and should be treated in the same manner for the purposes of the FOI Act. While the applicant accepted that as a general principle the interest rates charged on loans is commercial information, he also argued that matters such as the passage of time since the loan was drawn down and the interest rate environment are relevant in considering the impact of the release of such information on any current or future negotiations.  

The applicant drew parallels with a tender competition and argued that in the current case, the EIB is analogous to a successful contractor and that -�the terms of that win-� such as the loan terms and interest, should be disclosed.

In the course of submissions,  the applicant also referred to a previous decision of this Office (Case No.110092- Gavin Sheridan and the IDA) wherein the then Commissioner found that -�"the expectation of a diminution of privacy rights, at least in relation to the disclosure of details of commercial transactions with public bodies" was a necessary consequence of doing business with public bodies.

UCC-�s Submissions

In its submissions to this Office, UCC made specific arguments with regard a number of redactions made to the various records and I will outline these further below. However, with regard to the majority of the redactions made to the Finance Contract in particular, UCC has not provided any specific justification to this Office as to why it considers section 36(1)(b) to apply to the information at issue. Rather, as outlined above, UCC appears to have adopted the redacted version of the contract as prepared by the EIB and has not provided supporting arguments to justify its position with regard to much of the information to which access has been refused. Indeed, when contacted by the Investigator on this case who sought specific submissions from UCC with regard to why it considered the relevant parts of the Finance Contract to comprise commercially sensitive information, UCC merely referred to its previous submissions, which it had provided to this Office prior to the partial release of Record 1. Accordingly, UCC has provided this Office with very limited information by which it can review the decisions taken by UCC in this matter.

It seems to me that the essence of UCC-�s argument is that the release of the commercial terms on which it engaged with the EIB and of its other borrowings (not connected to the scope of the request), together with its liabilities for the coming 25 years, will harm its ability to compete for more beneficial loan terms with other financial institutions. It said this is particularly relevant in circumstances where UCC is required to match the funding it has obtained from the EIB to the same value for its capital programme. It said it needs to be strongly positioned to negotiate favourable commercial terms with financial institutions and developers tendering to complete the projects.

While I will outline UCC-�s specific submissions in respect of each record below, I consider it appropriate at this point to mention UCC-�s response to certain arguments made by the applicant in his submission to this Office.   

With regard to the applicant-�s arguments that the terms of a finance contract are analogous to the terms of agreement with a successful tenderer following a tender competition, UCC said that even in such circumstances it would refuse to release any specific commercial terms included in such an agreement as to disclose such information would damage the competitive position of the supplier. UCC also argued that in such a comparative scenario, the release of such information would also damage its competitive position in future tenders as it would disclose the amount it was willing to pay for such services.   

In addition, UCC argued that, contrary to the applicant-�s arguments that the EIB is not a normal lender, it has entered into a commercial agreement with a bank, the terms of which mirror finance arrangements which it has in place with all other financial institutions. In particular, UCC argued that it was required to provide sensitive financial information to the EIB in support of its loan application and that it is required to meet the contractual terms of the Contract with attendant consequences for defaulting on its obligations.   

EIB-�s Submissions

In its submissions, the EIB referred to the EIB Transparency Policy which it indicated would have applied had the Bank received a request for release of the information in the Finance Contract directly. It informed this Office that it assessed the contract on the basis of this policy and in particular Article 5.1 of the policy which states that all information and documents held by the Bank are subject to disclosure, unless there is a compelling reason for non-disclosure. Article 5.5 states that access to information shall be refused where disclosure would undermine the protection of, amongst other situations, the commercial interests of a natural or legal person. In the current matter, the EIB argued that disclosure of the information which it has redacted from the contract would undermine the legitimate commercial interests of the Bank, and more particularly:

1. Treasury sensitive information, which, if disclosed, would prejudice the capacity of the Bank to raise funds in the capital markets;
2. Financially sensitive information, the disclosure of which could prejudice the position of the EIB in the continuity and conduct of its lending activities. This includes, in particular, any condition which relates to EIB financing offering (i.e.: terms, pricing, rates specification, security conditions, payment conditions, etc);
3. Project-specific credit-related clauses (in particular conditions related to securities, prepayments, defaults, standstills, remedies etc), wordings, definitions or carve-outs, the disclosure of which could prejudice the conduct or outcome of ongoing or future contractual or other negotiations of the EIB as a lender in the concerned market.

In addition, the EIB indicated that it sought to redact certain information relating to the names of individuals.  I understand this to relate to the names of EIB staff on pages 1 and 38 of the Financial Contract. It argued that this is based on Article 5.4.b of the EIB Transparency Policy which allows for the refusal of access to information where disclosure would undermine the protection of privacy and the integrity of the individual, in particular in accordance with EU legislation regarding the protection of personal data.

Analysis of Section 36(1)(b)

Record 1

Record 1 comprises a 2016 Finance Contract between the EIB and UCC. This contract has been released to the applicant with a significant number of redactions made on the basis of section 36(1)(b). However, apart from its general arguments, UCC has provided this Office with detailed reasoning only in respect of eleven instances where information has been redacted. In one of those instances, namely Annex III of the Contract relating to Financial Projection, I have already explained that this is Record 3 and I will therefore consider this part of the Finance Contract when examining Record. This leaves for consideration 10 instances where specific reasons have been given for the redactions made.

Before turning to the specific information, I wish to note that the general argument made by UCC concerning the potential harm to its ability to compete for more beneficial loan terms with other financial institutions is relevant to a number of the specific redactions. As a general point, UCC also argued that despite the passage of time the information redacted from the record remains commercially sensitive. In particular, it emphasised that the record is -�live-� as the current Finance Contract extends for a 23-year term to 2040. It further indicated that UCC has not expended the entirety of the facilities available under the contract and it will do so, as required, under the duration of the contract. 

With regard to the 10 instances where UCC gave specific reasons for the redactions to the Finance Contract, the first two relate to the preamble to the contract outlining various definitions of terms used in the contract.

In relation to the definition of -�credit facility-� on page 3, UCC argued that the release of information outlining third party existing loan details could prejudice UCC in its ability to drawdown competitive loans from other third party financial institutions. I am not satisfied that the release of the remaining information in the definition of -�credit facility-� could reasonably be expected to result in a material financial loss to UCC or could prejudice its competitive position.  UCC has not explained who it considers to be its competitors and how precisely the release of the information at issue could negatively affect its position vis-à-vis such entities, nor is it apparent to me. I therefore consider that section 36(1)(b) does not apply to the information to which access has been refused in the definition of -�credit facility-�. 

With regard to the reference on page 4 to the -�final availability date-�, UCC said that this sets out the maximum final drawdown date of funding and it argued that EIB could be commercially prejudiced, if negotiating differing terms with other borrowers. As a general principle, I accept that the disclosure of detailed, contract-specific, information could reasonably be expected to prejudice the ability of EIB to negotiate more favourable terms in future negotiations by disclosing the terms agreed in this case. I accept that disclosing such information could reasonably be expected to result in a material financial loss to the EIB and/or could prejudice its competitive position. I find that section 36(1)(b) applies to this information.

With regard to the details of the appraisal fee which has been redacted in Article 1.08, UCC argued that release of this information could competitively compromise the EIB if it were to negotiate differing terms with other borrowers and could also disadvantage UCC in competitive loan applications if third-party institutions were to be made aware of the amount it was willing to pay for such facilities. It made similar arguments with regard to the non-utilisation fee (at Article 1.09) and the information contained in Article 10.01A(d) relating to the circumstances in which a trigger event would result in a default situation on the EIB loan.  In addition, with regard to the information in Article 3.01 relating to the interest rates charged on the loans at any point over the lifetime of the contract, UCC argued that release of this information would harm the interests of EIB through reducing its ability to negotiate more stringent margins with other borrowers.  It further argued that this would reduce UCC-�s ability to negotiate competitive interest rates with other financial institutions, something which is required to obtain the matching funding needed for the EIB capital programme, and thereby negatively harm UCC-�s commercial position.

Having examined the information refused in Articles 1.08. 1.09, 3.01 and 10.01A(d), I am satisfied that section 36(1)(b) applies in all cases. As I have indicated above, I am satisfied that disclosing this detailed, contract-specific, information could reasonably be expected to result in a material financial loss to the EIB and/or could prejudice its competitive position.

Article 6.07 concerns conditions relating to the disposal by UCC of assets. UCC argued that the disclosure of this information could reasonably be expected to harm UCC in negotiations with other loan providers, as it reveals its willingness to accept certain commercial terms in the context of the EIB contract whereas in other circumstances it may seek to negotiate different limits. I accept that the release of this information could reasonably be expected to result in a material financial loss to UCC, on the basis that the disclosure of the information could prejudice their ability to negotiate more favourable terms in future negotiations by disclosing the terms agreed in this case. I am therefore satisfied that section 36(1)(b) applies to this information. 

Article 6.11 contains details of financial covenants agreed between the parties. It contains details of specific requirements regarding UCC-�s financial performance, the method of calculation of those requirements, and definitions of the relevant terminology used in those requirements. Those same requirements are redacted from Schedule C, Part 3.C and Schedule C Part B. UCC argued that the release of this information could reasonably be expected to increase UCC-�s overall borrowing costs as third party financial institutions would have sight of the specific terms to which UCC is prepared to agree to achieve funding. In addition, it argued that any increase in borrowing costs by the University would have a significant detrimental effect on its ability to achieve it strategic goals.  It also contended that release of this information would be expected to damage UCC-�s commercial relationship with existing financial providers where differing terms may have been agreed to from those agreed with the EIB.

Having examined the various redactions, I am satisfied that section 36(1)(b) applies to the introductory part of Article 6.11 as well as part 6.11B.  I am also satisfied that section 36(1)(b) applies to the information which has been redacted from Schedule C, Part 3.C and Schedule C Part B.   I accept that the release of this information could reasonably be expected to result in a material financial loss to UCC, on the basis that the disclosure of the information could prejudice their ability to negotiate more favourable terms in future negotiations by disclosing the terms agreed in this case.  However, I am not satisfied that section 36(1)(b) applies to the definitions set out in Article 6.11C.  I consider this information to comprise standard contractual definitions and I am not satisfied that release of such information could result in a material financial loss to UCC or to the EIB. 

With regard to the remaining redactions made to the Finance Contract, I have examined them in turn.  Bearing in mind the provisions of section 22(12)(b) as outlined above and the absence of specific information supporting UCC-�s refusal to release, I am not satisfied that UCC has justified its redaction of the information under section 36(1)(b). As I have outlined above, Cross J., in the Westwood case held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive.

I am not satisfied that the disclosure of the remaining redactions might give rise to the harms identified in section 36(1)(b), nor has UCC made any specific arguments to this effect.  I would expect a public body opposing the release of information to be in a position to put forward clear arguments to support its position.  Despite having been given a number of opportunities to do so, UCC has failed to provide such arguments for the majority of the redacted information. While it made general arguments that the release of the specific terms of this contract could hinder it in the negotiation of future loans with other financial providers as they could be made aware of the terms which UCC was prepared to accept in the current contract, it seems to me that none of the remaining redactions could give rise to those harms, nor has UCC explained how they might. I find, therefore, that section 36(1)(b) does not apply to the remaining information in Record 1.

In sum, I am satisfied that section 36(1)(b) applies to the following parts of Record 1: 

• The definition of Final Availability Date
• Article 1.08 relating to the appraisal fee
• Article 1.09 relating to the non-utilisation fee
• Article 3.01 relating to the rate of interest
• Article 6.07 relating to the disposal of assets
• Article 6.11 relating to financial covenants, with the exception of Article 6.11C           
• Article 10.01A(d) relating to possible default
• parts of Schedule C.3 Part A - Form of Compliance Certificate from External Auditors
• parts of Schedule C.3 Part B - Form of Compliance Certificate from Borrower

Record 2

Record 2 is a document prepared by UCC-�s Chief Financial Officer for UCC-�s Finance Committee.  It comprises a three-page narrative report as well as two schedules containing detailed financial information. UCC released the record to the applicant with redactions as set out in the Affidavit of the Bursar of the College. Record 2 also contains a powerpoint presentation providing an overview of the EIB and its lending policies. However, as UCC has released this part of the record to the applicant I do not need to consider it further. 

UCC argued that the information redacted from record 2 relates to ongoing deliberations within UCC in relation to the specific areas within its capital programme that would receive EIB investment support. It argued that the information is commercially sensitive as it relates to ongoing strategic development considerations of UCC and that release of the information would prejudice its ability to seek commercially competitive borrowings to fund this strategic development.

UCC said the first schedule appended to the record (page 4) contains an overview of all capital programmes, irrespective of banking provider, setting out details of costs, funding sources, risk assessments, finances secured, contingency amounts, commercial bank matching needs and leveraged funding requirements. It argued that release of this information could reasonably be expected to result in material financial harm and/or could prejudice the University-�s competitive position for various reasons, namely;

• Release of the information would damage UCC-�s ability to secure non-commercial bank funding to match the EIB commitments for the same reasons as those set out in respect of Record 1
• The information discloses sensitive internal management details of UCC-�s future plans to repay EIB and non-EIB borrowings and the release of such strategic commercially sensitive information could reasonably be expected to harm UCC-�s financial ability to negotiate with its existing loan holders, as well as in respect of potential future borrowings (whether or not such borrowings are connected to EIB).
• The disclosure of the information prejudices UCC-�s ability to negotiate its incremental income stream -� e.g. Student Repeat Fees, the negotiation for which is with a third party.
• Disclosure of any contingency amount allocated in accounts could reasonably be expected to cause material financial harm to UCC, and could prejudice its competitive position when going to tender for these developments as applicants responding to a request for tender would know how much UCC is setting aside for potential claims for additional payments with building contracts for example, resulting in higher costs to UCC.

UCC said the second schedule (page 5) sets out a schedule of existing borrowings and new borrowings detailing existing balances, repayment dates and new borrowings drawdown. It said it also includes the incremental cash expected to be generated from investing in the EIB funded capital programme. It said the record was prepared to support internal management deliberations on its strategic and commercially sensitive plans around investment planning, debt management and cash flow management. It argued that disclosure of this information would cause material financial harm to it, as follows:

• It includes details of every single borrowing held by UCC at the date of preparation, none of which were the subject of the request, but nonetheless, if disclosed, could reasonably be expected to cause material financial loss to UCC in terms of its ability to negotiate future borrowings with those existing or other financial institutions.
• Furthermore, UCC-�s ability to negotiate more favourable or commercially beneficial funding arrangements, both to meet the matching funding requirements of the Finance Contract, and order to negotiate on any other future borrowings is reduced.
• The information includes the extent of borrowings held by UCC. Furthermore, it is possible to calculate commercially sensitive information, such as the interest-rate on which such borrowings are held from the information included, reducing UCC-�s ability to negotiate more beneficial interest rates in future borrowings.
• The information discloses confidential and commercially sensitive information on UCC-�s assessment of its cash cover and its ability to repay borrowings. If released, such information would damage UCC-�s reputation and ability to secure the most competitive financing arrangements it can get.

In the course of the review by this Office, the Investigator in the case wrote to UCC and indicated that with regard to the arguments advanced in relation to record 2, it was unclear as to how the release of the specific information at issue might give rise to the harms identified in section 36(1)(b). The Investigator said that with regard to schedules on pages 4 and 5 of the record, it was not apparent how release of the specific information might hinder UCC in securing future loans, including matching finance for the EIB loan, bearing in mind that normal lending practice would likely require UCC to disclose to potential future lenders the full details of its existing and proposed loan commitments. The Investigator further indicated that it was unclear how release of the information relating to projections for student fees might prejudice the competitive position of the University, in circumstances where levels of third-level student fees are primarily set at government level and the high-level projections had been prepared in 2015.   

Further, with regard to the contingency figures set out on page 4, given that it is a high-level composite figure, the Investigator queried how release of this information would provide would-be tenderers for a specific project with any usable information regarding UCC-�s contingency projections for that particular project.  In addition, with regard to UCC-�s argument that the information on page 5 would allow for calculations on interest rates on other borrowings to be made, the Investigator sought further information on this point, bearing in mind that the Consolidated Financial Statements for the University which are published on its website contain significant information in relation to borrowings including terms of loans and annual balances including interest accrued. 

In response, UCC made a number of additional comments with regard to the outstanding information in Record 2. In relation to paragraph 2 on page 2 of the record, UCC referred to a recent decision of this Office in case OIC-127873 (Ms M and Health Products Regulatory Authority, available at the followinglink) wherein we said that the test for the first element of section 36(1)(b) should not be concerned with the question of probabilities or possibilities of material financial loss rather, whether the expectation is that the release will result in a material financial loss is reasonable. It also referred to our further comments in that decision to the effect that the test of whether disclosure -�could prejudice the competitive position-� of a public body in the conduct of its business is -�considerably lower-� than the -�could reasonably be expected-� requirement for the first limb.

UCC argued that the information in paragraph 2 references limitations to any potential EIB funding, and the release of the specific information will damage UCC-�s ability to negotiate and secure the additional funding from third party financial institutions which is required in respect of the specific acquisition referred to as well as revealing the other types of projects within UCC-�s current or any future capital programme in respect of which EIB funding may not be available. UCC therefore argued that paragraph 2 contains commercial information, which is not historic in nature, the disclosure of which must be regarded as reasonably giving rise to a material financial loss to UCC and could prejudice its competitive ability to negotiate and secure funding, at commercially competitive rates, in respect of the specific acquisition and other projects in respect of which EIB funding may not be available.

With regard to paragraphs 4 and 6 on the second page of Record 2, UCC said these paragraphs relates to limitations to any potential EIB funding and the methodology used by UCC to identify the projects selected for inclusion for potential EIB funding and for the purpose of meeting EIB-�s minimum funding requirements.  It said that release of the specific information will damage UCC-�s ability to negotiate and secure from third party financial institutions, the additional funding, at commercially competitive rates, required in respect of any other projects for which EIB funding may not be available.

With regard to the information contained on page 4 of the record, UCC provided the following background information with regard to its funding structure. It said the majority of university income comes from non-public sources and UCC operates in a highly competitive commercial environment with other universities to secure research funding and in recruiting new students.  It said only 31% of academic fees are provided by the Exchequer and the University must recruit competitively for the remaining academic fees; such as international students, post graduate students as well as CPD, adult education, summer schools, language schools, online programmes, executive education etc. -� all of which is competitively won. It said that page 4 of record 2 shows UCC-�s in-built contingency for capital planning purposes, and argued that the release of this information would allow developers tailor their tenders in a manner which is less competitive for UCC. It argued that release of this information would give rise to a material financial loss to UCC and could prejudice its competitive ability to secure the most competitive price from would be developers for these projects.

With regard to the schedule on page 5 of the record, UCC said this schedule refers to projects and, in respect of each, the loans already in place with third party funders other than EIB. It argued that as the overall amount of the loan provided by the EIB to UCC is a matter of public record, the release of this schedule will allow for the amount of interest payable to be calculated. It argued that this is commercially sensitive information the disclosure of which will damage UCC-�s ability to negotiate and secure funding, at commercially competitive rates, which funding is necessary for any EIB funded projects to commence. It further argued that the information in question is not historic in nature and must reasonably be regarded as giving rise to material financial loss to the University and to prejudicing its competitive position. Finally, UCC argued that it is not required to publish the interest amount payable on its loans due to the potential damage disclosure could cause to future financing arrangements. Instead, it indicated that what is referred to as the Consolidated Weighted Average Cost of Capital (WACC) is published by UCC as part of its Financial Statements. 

I have examined the outstanding information in Record 2 and I have considered the arguments put forward by UCC, including the additional arguments advanced.  Having carefully considered the matter, I am not satisfied that release of the outstanding information on page 2 of the record (paragraphs 2, 4 and 6) could reasonably be expected to give rise to the harms identified in section 36(1)(b).  In particular, I see nothing in the information at issue which could reasonably be expected to hinder its ability to secure future funding from other financial institutions. 

I accept that the disclosure of paragraph 2 would, as UCC argued, identify limitations to potential EIB funding. However, I fail to see how the disclosure of this information might, of itself, damage UCC-�s ability to negotiate and secure the additional funding from third party financial institutions. I note, for example, that those parts of the record already released identify criteria projects must meet to secure EIB funding. With regard to paragraphs 4 and 6, I fail to see how the release of the specific information might damage UCC-�s ability to negotiate and secure from third party financial institutions, the additional funding, at commercially competitive rates, required in respect of any other projects for which EIB funding may not be available, nor has UCC explained how such harm might arise.

I find therefore that section 36(1)(b) does not apply to the outstanding information on page 2 of the record. 

However, with regard to schedules on pages 4 and 5 of the record, I am satisfied that section 36(1)(b) applies to this information.  Having carefully considered the matter, I am satisfied in particular that release of the information could hinder UCC in securing future loans, including matching finance for the EIB loan, and thereby prejudice the competitive position of the University. I also accept UCC-�s arguments that release of the information relating to projections for student fees could reasonably be expected to result in commercial harm.  I further accept UCC-�s argument that the release of certain information on page 5 could allow for the calculation of the interest rate payable on the EIB loan.  I also accept UCC-�s argument that the release of what are termed -�existing serviced borrowings in base position-� can reveal the interest rates on such borrowings. 

I am therefore satisfied that section 36(1)(b) applies to the outstanding information on pages 4 and 5 of Record 2. 

Record 3

Record 3 is a one-page internal financial plan associated with UCC-�s strategic plan running to 2037/38.  In the Affidavit of the Bursar of the College UCC indicated that it was relying on section 36 to refuse access to the entirety of the record.  However, in the records most recently released to the applicant some parts of Record 3 were released with the remainder refused on the basis of section 36.

With regard to Record 3 the applicant argued that the borrowing framework of the university is a vital part of UCC-�s functions and it is in the public interest to ensure that borrowing decisions do not have a negative impact on a university-�s ability to discharge its core functions. 

UCC said the record contains forecast income and expenditure, balance sheet and cash flow and that release of this information would adversely compromise UCC-�s financial position for the next 25 years. It said;

• Disclosure notifies UCC-�s competitors (other Higher Education entities) about fee increases, and will impact student recruitment as a direct result of such disclosure, as UCC-�s competitors will be able to refer to proposed increases in fees in UCC as a basis for recruiting a prospective student to a competitor.
• UCC-�s ability to negotiate with staff unions will be damaged (given the extent of disclosure of information around investment in staffing).
• UCC-�s ability to secure competitive interest rates will be reduced.
• Disclosure enables developers tendering for projects under its capital expenditure programme to tender at the planned rate, hampering UCC-�s ability to achieve value for money.

In a similar manner to record 2 as referred to above, the Investigator in the case sought further details from UCC as to how the release of the specific information in record 3 could reasonably be expected to give rise to the harms identified in section 36(1)(b). In particular, the Investigator queried how the release of high-level projections with regard to student fees might result in commercial damage to the interests of UCC.  The Investigator also queried how release of the information could affect UCC-�s ability to secure competitive interest rates in circumstances where presumably it remains open to the University to negotiate afresh with any new potential lender.  The Investigator also queried how the release of information relating to high-level projections for staff costs could reasonably be expected to impact on negotiations with staff unions. In addition, with regard to the contingency figures, the Investigator queried how, given that it is a high-level composite figure, release of information relating to proposed capital expenditure could enable tenderers for specific projects to tailor their bids for particular projects. Finally, the Investigator noted that when the projections as envisaged in 2015 were compared against the published Financial Statements available on UCC-�s website, it was clear that many of the projections did not ultimately come about. In such circumstances, the Investigator queried how release of the projections as outlined for the forthcoming years could give rise to the harms envisaged in section 36(1)(b).

In response UCC said that the projections contained in the record remain extremely relevant and are not -�out of date-�. It argued that the record is a full financial forecast model for the entire University incorporating recurrent income, recurrent expenditure, debtors, creditors and cash for a period of 25 years. It argued it is a financial model for planning future capital development and remains vital for UCC-�s ongoing financial planning. It said that the introduction of a new reporting standard in 2015 (FRS102) requires different reporting treatment of some financial transactions in the statutory published Financial Statements. It further stated that irrespective of the absolute numbers themselves in the record, it is the annual movement from year to year in fees for example that discloses planned annual fee increases and the release of this information would damage UCC in the student recruitment marketplace. UCC also argued that it is not normal commercial practice for any business to disclose a record of planned future financial performance.

Having examined the parts of Record 3 which have not been released to the applicant, I am satisfied that the release of this information could prejudice the competitive position of the University.  In particular, I accept that the forward-looking projections with regard to matters such as student fee revenue, research grants and capital expenditure, if released to the world at large, would provide a level of insight into the financial planning of the University which could be exploited by its competitors to the detriment of UCC. I therefore find that section 36(1)(b) applies to this information. 

Record 4

Record 4 is an overview of UCC-�s overall capital programme and the various funding arrangements, undertakings and covenants which are applicable to the EIB element of the programme.  UCC released this record to the applicant with redactions as set out in the Affidavit of the Bursar of the College.  UCC argued that the arguments relating to Record 1 are also applicable to the redacted parts of Record 4 and I do not consider it necessary to repeat them here.

With regard to Record 4, UCC refused access to three parts of this record; entitled -�Funding-�, -�Borrower Undertakings-� and -�Financial Covenants-� respectively, on the basis of section 36(1)(b).  Having examined the record, I am satisfied that the release of the information contained in both the -�Funding-� and -�Financial Covenants-� parts of the record could, in the particular circumstances of this case, prejudice the competitive interests of the EIB. I am therefore satisfied that section 36(1)(b) applies to this information. 

However, with regard to that part of the record entitled -�Borrower Undertakings-�, I see nothing in that part of the record which can be described as commercially sensitive information, nor is it apparent to me how release of this information could result in commercial damage to the interests of UCC or the EIB.  I am satisfied that section 36(1)(b) does not apply to this part of Record 4 and find accordingly.

Section 36(2)

Having found that section 36(1)(b) applies to parts of the records at issue, I must consider whether section 36(2) applies. Having considered the matter, I do not consider any of the exceptions in section 36(2) to apply in the case at hand.

Section 36(3) - The Public Interest

I must also consider the applicability of section 36(3) to those parts of the records to which I have found section 36(1)(b) to apply. Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, better served by granting than by refusing the request.

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26 (the Rotunda judgment). It is noted that a public interest should be distinguished from a private interest. On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 5 (the eNet judgment), which was handed down on the same day as the Supreme Court decision in this matter. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

In his submission to this Office, the applicant emphasised that the EIB as a multilateral development bank is not a normal lender and as part of its appraisal of projects to be funded is required to consider the wider public and societal benefits of projects.  The applicant pointed to the EIB-�s own documentation relating to its appraisal process wherein it outlines the wider considerations which are considered when examining loans to the education and university sector.  Drawing from a document entitled -�The Economic Appraisal of Investment Projects at the EIB-�, (available at the followinglink) the applicant specifically highlighted the following at page 98:

-�The important role of the public sector requires that the economic appraisal not only looks at the individual university undertaking the project, but to some extent the whole university system in question.-�

The applicant also referred to the -�social rate of return-� which the EIB indicates it considers when lending to projects involving universities and has highlighted the following at page 100 of the above document:

-�The benefits from a university project are manifold.  There are benefits at the local level to the university promoting the project.  In some cases, especially when promoted as private business, these can be clearly identified.  However, there are generally wider benefits beyond the project, in particular for individuals attending the university and the impact of education on economic performance of a country.-�

The applicant argued that this impacts on the examination of the public interest in the case.  The applicant contended that the particular appraisals process of the EIB means that the terms and interest rates agreed with entities being funded are a distillation of the assessment by the EIB of the likely wider benefits of a loan to society. The applicant further argued that the societal benefits of EIB funding is also relevant to the university as abiding by the terms ensures that the money it borrows will have the knock-on benefits that are projected and considered by the EIB. In the applicant-�s view, given the above, it is important that there is public scrutiny of and transparency around such lending arrangements as without such scrutiny it would be open to any public institution to veer from its terms or spend the money inappropriately and thereby negatively affect the envisaged societal benefits.

With regard to UCC-�s argument that release of information relating to the interest rate associated with the loan could prevent the EIB charging greater interest rates to other Irish educational institutions, the applicant argued that it would be perverse if the public interest would favour the withholding of information purely so that the EIB could choose to charge differing interest rates to differing institutions. In any event the applicant argued that there is no evidence that this is how the EIB operates and suggested instead that it is clear from the appraisal document referred to above that the EIB engages in a holistic assessment of the wider public good in evaluating proposed projects. 

The applicant further argued that the extent to which public bodies are indebted has a significant bearing on their day-to-day operations and the applicant cited a number of public entities who have experienced challenges in discharging their functions due to unsustainable loans. While noting that there is no suggestion that UCC-�s loans are unsustainable, the applicant nevertheless argued that refusing to release information in relation to such borrowings prohibits the decisions in relation to such loans from being properly examined by taxpayers. The applicant is of the view that the release of information in relation to the financial constraints and the debt position of public bodies is a therefore clearly in the public interest. 

UCC argued that there is no public interest benefit which outweighs the clear interest in protecting commercially sensitive information in the relevant records. It argued that it is formally accountable to the State via the sectoral-agreed oversight and governance model between UCC and the Higher Education Authority and the Department of Education and that accountability is exercised through an agreed Code of Governance.   It further stated that UCC-�s financial accountability is appropriately audited by the Comptroller and Auditor General and its financial statements, including details of borrowings, are laid annually before the Oireachtas.  As such UCC argued that the public interest is already served by existing mechanisms to scrutinise UCC-�s borrowings and compliance. 

UCC also rejected the argument that the economic and social considerations taken into account by the EIB, by virtue of its unique status as a multilateral development bank, are relevant to the consideration of the public interest. It also argued that such wider considerations do not create a requirement for public scrutiny to ensure that the University abides by the terms of the loan. 

UCC further argued that it is material to the current case that the capital programme is supported entirely by the University-�s own resources with no use of public funds. It argued that it is relevant to the consideration of the public interest that it will be income generated by the University itself, as opposed to Exchequer funds, which will service the repayments on the EIB loan. In addition, UCC argued that borrowings undertaken by UCC are not reflected on the government balance sheet and in the University-�s submission this emphasises the position that there is no liability to the Exchequer with regards to its borrowings. 

In the eNet judgment mentioned above, the Supreme Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that -�-� the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.-�

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, this Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, that it was not designed as a means by which the operations of non-FOI bodies were to be opened up to scrutiny.

There is a strong public interest in ensuring that the release of records does not negatively affect the commercial interests of bodies that are not subject to the FOI Act. It is also relevant, in my view, that borrowings undertaken by UCC are not on the Government balance sheet and that there is no liability to the Exchequer with regard to UCC-�s borrowings. Following release of much of record 1 to the applicant and the proposed release of parts of record 2 and 4, I consider that a considerable amount of information in relation to the EIB loan to UCC is in the public domain and that UCC has sought to strike an appropriate balance in releasing such information while at the same time seeking to protect its commercial interests and those of third parties.

Furthermore, I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the remaining information to which I have found section 36(1)(b) to apply. In my view, the disclosure of the information contained in the records would not serve to allow for such a further level of oversight of public expenditure that the public interest would be better served by release, to the detriment of the competitive position of third parties. Accordingly, I consider that the public interest would not be better served by its release.

I find, therefore, that UCC was justified in refusing access to those parts of the relevant records under section 36(1)(b) as outlined above.

Section 37(1)

As set out above, UCC has also argued that the information redacted from Annex II of Record 1 comprises personal information of UCC staff and members of the Governing Board. 

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

Having examined the version of the record as previously supplied to this Office, I am satisfied that, as the EIB is not a body subject to the FOI Act, the names of the staff members on pages 1 and 38 of the Finance Contract comprise personal information and that section 37(1) applies to this information. In addition, I am satisfied that the signatures of the UCC representatives in Annex II comprise their personal information and that section 37(1) applies to this information. However, bearing in mind the exclusion at Paragraph I as outlined above, I am not satisfied that the names and titles of these individuals in Annex II can be said to comprise their personal information. In addition, I am also satisfied that the names of UCC staff, their phone and fax numbers and email addresses in Schedule A Part A.2 of Record 1 does not comprise personal information relating to those individuals. The names are excluded from the definition of personal information pursuant to Paragraph I while the details of their work phone and fax numbers does not meet the definition of personal information.

For the information to which I have found section 37(1) to apply, I am satisfied that none of the other provision of section 37 serve to disapply section 37(1).

Section 29

As set out above, in its submission to this Office, UCC have sought, for the first time, to rely on section 29 to refuse access to the fourth paragraph on page 2 of Record 2. In its submission to this Office, UCC said the relevant paragraph relates to ongoing deliberations within UCC with regard to the specific areas of its capital programme which would secure EIB investment support and as such, it argued that the provisions of section 29 apply to this information.  In addition, UCC argued that release of this information would be contrary to the public interest as release of it would result in the applicant becoming aware of a significant decision that UCC proposes to make. 

Section 29(1) provides for the discretionary refusal of a 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 for the purpose of those processes, and (b) the body considers that the granting of the request would 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. 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. 

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the -�deliberative processes-� of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.

Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

Having examined the paragraph at issue, I am not satisfied that its disclosure would disclose anything about the deliberative processes of UCC. The paragraph simply describes certain steps that were taken in order to secure EIB funding.  Accordingly, I find that section 29(1)(a) does not apply. Moreover, even if it did, UCC has not explained how the release of the specific information would be contrary to the public interest. I find, therefore, that UCC was not justified in refusing access to the fourth paragraph on page 2 of Record 2 on the basis of section 29(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of UCC. I find that it was not justified in refusing access, under sections 29, 36, or 37, to certain parts of the records coming within the scope of the request,apart fromthe following:

Record 1:

• names of EIB staff on pages 1 and 38 of the Contract
• The definition of Final Availability Date
• Article 1.08 relating to the appraisal fee
• Article 1.09 relating to the non-utilisation fee
• Article 3.01 relating to the rate of interest
• Article 6.07 relating to the disposal of assets
• Article 6.11 relating to financial covenants, with the exception of Article
• 6.11C
• Article 10.01A(d) relating to possible default
• parts of Schedule C.3 Part A - Form of Compliance Certificate from External
• Auditors
• parts of Schedule C.3 Part B - Form of Compliance Certificate from Borrower
• the signatures of UCC staff members in Annex II. 

Record 2:

• The remaining information on pages 4 and 5 of the record

Record 4:

• Those parts of the record entitled -�Funding-� and -�Financial Covenants-�

I direct that Records 1, 2 and 4 be released to the applicant, apart from the specific information identified above, which I have found to be exempt under sections 36(1)(b) and 37(1).

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 requester 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.

Stephen Rafferty
Senior Investigator