Whether the Council was justified in refusing access to records relating to reviews of, investigations into and reports on its procurement, payment and corporate governance practices

26 April 2023

Background

In a request dated 20 October 2021, the applicant made an FOI request to the Council for access to:

1. All records relating to an over-payment of €113,000 to a contractor which had not been detected by the internal control systems of Cavan Town Council (as it then was), as referenced in a 2007 Local Government Audit Services (LGAS) audit of the town council, including any confirmation that the overpayment had been refunded, as well as any related correspondence between LGAS and the Council concerning the overpayment

2. A report, and the terms of reference of the report, of an investigation carried out by a third party on behalf of the Council into the procurement of services, as referenced in 2018 LGAS audit of the Council

3. A review of the Council-�s Corporate Governance by the Institute of Public Administration (IPA), as referenced in a 2019 LGAS audit of the Council.

In a decision dated 16 December 2021, the Council identified seven records that fell within the scope of part 1 of the request, releasing three in full and four in part, with redactions made under section 30(1)(b) of the FOI Act. The Council withheld in full the three records it identified as falling within the scope of the remainder of the applicant-�s request, under sections 29(1)(b), 30(1)(b), 32(1)(a) and 37(1). On 17 December 2021, the applicant sought an internal review of the Council-�s decision. On 19 January 2022, the Council affirmed its original decision. On 20 January 2022, the applicant applied to this Office for a review of that decision. Subsequently, the Council provided this Office with 11 additional records that it had located (which it numbered record 8-18), related to part 1 of the request. It initially stated all 11 were outside the scope of the applicant-�s request before, following a query from this Office, indicating that it considered certain of the additional records were within scope. It part-released two of these (records 13 and 15), with redactions made under section 37(1). The Council also withheld record 16 under sections 42(m) and 30(1)(b), and record 14 under section 36(1)(b).  It maintained that the remainder -� records 8-12, 17 and 18 -� were outside the scope of the request, a contention that I examine below.

The Council subsequently withdrew its reliance on section 32(1)(a) in respect of the records that came within part 2 of the request, and sought instead to rely on section 36(1) in relation to those records. The Council also stated that it now also sought to rely on section 35(1)(a) to withhold the records that came within part 3. Moreover, the Council provided a number of additional records, indicating that it had supplied these for reasons of transparency in the context of part 2 and that they were outside the scope of the request. I have reviewed these records and concur that they fall outside the scope of the request.

As the applicant had not had an opportunity to consider the Council-�s reliance on the above-mentioned additional provisions of the FOI Act, nor to consider the additional records that the Council indicated were outside scope, we wrote to him to bring these matters to his attention and invite him to make any further submissions that he wished. In addition, we considered that the interests of two third parties were potentially affected by the release of certain of the records at issue. We therefore contacted the third parties to bring the matter to their attention and to invite them to make any submissions that they wished. No submissions from the applicant or the third parties on this point were received.

In addition, in the course of the review, the potential application of section 42(ja) of the FOI Act to records 19 and 20 became relevant. The applicant was notified by this Office of that fact and was invited to make submissions. The applicant subsequently made submissions in relation to section 42(ja) and I have considered these in full.

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 comments made by the applicant in his application to the Council for an internal review, and in his application to this Office. I have also had regard to the Council-�s arguments in support of its decision, and to the contents of the records.  I have decided to conclude this review by way of a formal, binding decision.

For the purposes of this review, I have numbered the records at issue as follows:

• the records initially identified by the Council as coming within part 1 of the applicant-�s request have been numbered records 1-7 (noting that records 5-7 have been released to the applicant)
• the additional records identified by the Council, which also relate to part 1, have been numbered records 8-18 (noting that records 13 and 15 have been part-released to the applicant)
• the records that come within part 2 of the applicant-�s request have been numbered records 19 and 20
• the record that falls within part 3 of the applicant-�s request has been numbered record 21.

Preliminary Matters

There are some preliminary points I wish to make. Firstly, section 13(4) requires that, subject to the FOI Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered, except insofar as it might be relevant to the consideration of public interest provisions. Moreover, any review by this Office under section 22 of the FOI Act is considered to be de novo, meaning that it is based on the circumstances and the law that apply on the date of the decision.

Scope of Review

The applicant agreed to exclude the names and contact details of contractors-� employees from the scope of the review. Accordingly, this review is solely concerned with: a) whether the Council was justified under sections 29(1)(b), 30(1)(b), 35(1)(a), 37(1), 36(1), 42(m) and 42(ja) of the FOI Act in withholding, wholly or in part, the records sought; and b) whether the Council was justified in finding that certain additional records are outside the scope of part 1 of the applicant-�s request.

Analysis and Findings

Records 19 and 20

Although I am obliged to give reasons for my decision, 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 records at issue is limited. Nevertheless, I do not consider myself to be in breach of section 25(3) by describing record 19 as a 2018 report of an independent investigation relating to potential breaches of financial procedures in a named municipal district. I also consider it necessary to note that record 19 explains that a named individual was appointed to investigate certain matters in February 2017 in accordance with the agreed terms of reference. It further explains that, following receipt by the Council of notification of a protected disclosure, the terms of reference of the investigation were extended to include the subject of the protected disclosure. Record 20 is a document outlining these terms of reference. 

A protected disclosure is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and the worker reasonably believes that the relevant information tends to show relevant wrongdoing. The Protected Disclosures Act 2014 provides certain protections to those who make protected disclosures. The Act has recently been supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Amendment Act), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new sub-section, namely section 42(ja). Given the de novo nature of the review, and given that the effect of section 42 of the FOI Act is to exclude certain records from the scope of the Act, I deem it appropriate to consider the application of section 42(ja) to the records at issue at the outset.

Section 42(ja) -� restriction of Act

Section 42(ja) provides that the FOI Act does not apply to -�a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022-�. Section 4 of the 2022 Amendment Act defines -�report-� or -�to report-� as -�the oral or written communication of information on relevant wrongdoings-�.

In submissions made by the applicant, he argued that section 42(ja) should not apply to records 19 and 20. He argued that neither of the records at issue was a -�report-� for the purposes of the Protected Disclosures Act 2014. He stated that the term -�report-� in that Act 2014 should be correctly understood as relating to the actual protected disclosure itself. As neither record 19 nor record 20 fit this description, he argued that they should be precluded from being considered a -�report-� for the purposes of the Protected Disclosures Act 2014. To further support this argument, he stated that neither record could be said to have been -�made under-� the Protected Disclosures Act 2014. This was so, according to the applicant, in circumstances where the issues that underpinned the report comprising record 19, and the issues that prompted the protected disclosure, were the same, but only by coincidence. The applicant stated that the Council was aware of these issues prior to its receipt of the protected disclosure, and its investigation would have taken place irrespective of whether or not a protected disclosure had been received. 

The applicant further argued that neither record 19 nor record 20 should be classed as a -�record relating to a report-� for the purposes of the 2022 Amendment Act. He based this argument on his view that the Council was already aware of the issues that formed the subject matter of the protected disclosure, and that the investigation would have taken place in any event. The applicant argued that the investigation report comprising record 19 was not initiated on foot of the protected disclosure, and nor was the protected disclosure the sole basis for the report.

I have carefully considered the applicant-�s arguments above and, on balance, cannot accept them. While I accept that neither record 19 or 20 by themselves comprise a -�report-� for the purposes of the Protected Disclosures Act 2014, I take the view that both are clearly records -�relating to-� a report for the purposes of the 2022 Amendment Act. In making this finding, I have adopted the reasoning in the case of EH v The Information Commissioner [2001] IEHC 182. In that case, the High Court considered the question of whether records -�related to-� the requester-�s personal information. The Court found that the test to be applied to determine whether a record -�relates to-� the personal information was -�whether there is a sufficiently substantial link-� between the requester-�s personal information and the record in question. Applying this reasoning to the case at hand, I find there is a sufficiently substantial link between the protected disclosure and records 19 and 20 that were subsequently generated. It seems to be the case that, as the applicant argues, the Council was aware of the relevant issues before it received the protected disclosure. However, once the protected disclosure was made, the terms of reference of the investigation were widened to include that disclosure, and the resulting report clearly reflects that widened scope. The investigation report that comprises record 19 clearly has as its focus the matters that underpinned the protected disclosure, and explicitly discusses the protected disclosure. Therefore, I can only conclude that records 19 and 20 are indeed -�records relating to a report-� (that -�report-� being the protected disclosure) for the purposes of the Protected Disclosures Act 2014. It follows that section 42(ja) of the FOI Act 2014, as inserted in the FOI Act by the 2022 Amendment Act, operates to restrict the FOI Act from applying to records 19 and 20. Accordingly, these two records must be considered outside the scope of this review.

Section 37(1)

The Council partly withheld records 13 and 15 under section 37(1) of the FOI Act. I also consider it appropriate to examine the applicability of section 37(1) to record 16. The relevant records are as follows:

• record 13 is a letter dated 11 September 2008 from a contractor to the Council
• record 15 is a letter dated 10 September 2009 from the Council to the Principal Local Government Auditor
• record 16 is a letter dated 5 October 2018 from the Chief Executive of the Council to the Department of Housing, Planning and Local Government (the Department).

Section 37(1) 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. Accordingly, such access shall generally be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

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. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition. In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, 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 the functions aforesaid ...".

As outlined above, the applicant agreed to exclude the details of employees of contractors. It is therefore in order for the Council to withhold this information from the following records:

• the name of an employee of a contractor who wrote the letter comprising record 13 and the names of three further employees of the contractor which appear in the footer/bottom margin of the letter
• the name of an employee of a second contractor that appears at the last line of record 13 (being cc-�d with the letter).

The Council indicated that the redactions made to records 13 and 15 related to personal information such as names and addresses of individuals, including its employees. Regarding the material related to Council employees redacted from record 13, I consider that this information appears in the context of the employees carrying out their official functions (in this case, corresponding with a contractor). It is therefore excluded from the definition of personal information. I make the same finding in relation to the name of an LGAS auditor that appears in record 15, as the LGAS falls under the aegis of the Department and is itself a public body, and the auditor-�s name appears in connection with their official role.

Regarding record 16, it seems clear to me that the name of an individual at paragraphs 2 and 3 is personal information. The same applies to the whole of point 7, which contains the name of the same individual, as well as material relating to their employment history.

In respect of the information I have identified above as personal, the matter does not end there, as section 37(1) of the FOI Act is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

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. 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.

The information that I have identified as falling within the scope of section 37(1) is of an inherently private nature. Having regard to the nature of this information and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information does not, on balance, outweigh the right to privacy of the relevant individuals. Therefore, section 37(5)(a) does not apply.

Accordingly, I find that the Council was justified under section 37(1) in withholding the personal information set out above in record 16. However, it was not entitled under section 37(1) to withhold the remaining information in that record, or the information it withheld from records 13 and 15, relating to staff of FOI bodies carrying out their official functions.

It should be noted that records 13 and 16 also contain material that I consider may be commercially sensitive. I examine below the extent to which section 36(1) might apply to this information.

Section 29(1)

The Council withheld record 21 (an IPA review of the Council-�s corporate governance) under section 29(1) of the FOI Act. Section 29(1) allows for the discretionary refusal of access to a record if (a) the record contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest.  Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Therefore, it is important for FOI bodies to show that both requirements are met.

The Council argued that section 29(1)(a) applied to record 21 as it contained advice, recommendations and the results of consultations carried out for the purposes of deliberative processes regarding the review of its corporate governance. The Council also provided this Office with an email from the IPA regarding the potential release of record 21, wherein the IPA stated that the governance review involved "an ongoing deliberative implementation process", with which it continued to assist the Council. In addition, the Council argued that the release of the record could harm its ability to liaise with, and obtain advice from, third party service providers, who may be reluctant to provide such advice regarding its governance for fear that it might be disclosed.

A deliberative process may be described as a thinking process which informs decision making. 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.

I do not accept that record 21 contains matter relating to the Council-�s deliberative processes. It contains findings, advice and recommendations from the IPA in respect of the Council-�s corporate governance, but reveals nothing about the Council-�s thinking process regarding the manner in which such findings might be implemented. However, the matter does not end there as section 29(1) refers to the deliberative processes of -�an FOI body-�; in other words, the record need not contain matter relating to the deliberative processes of the specific body to which the FOI request is made, but to any FOI body. The IPA is itself an FOI body and, in my view, record 21 clearly contains its advice and recommendations regarding the Council-�s corporate governance, and outlines the methods used, and findings relied upon, in order to come to those recommendations. The record therefore contains matter relating to the IPA-�s deliberative processes.

In relation to section 29(1)(b), it should be noted that the public interest test contained therein is a strong one, and 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. It is important that the FOI body shows to the satisfaction of this Office 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. The Council stated that it had considered the public interest factors both for and against the release of record 21. In favour of release, it identified a number of factors related to increasing openness and transparency in FOI bodies. Against this, the Council argued that, as the applicant was a journalist, it was reasonable to assume that he intended to publish and/or report on the record-�s contents. The Council stated that this could be damaging, unwarranted and difficult to remedy for its members as well as the IPA. It stated that, in assessing the potential harmful consequences that flow from the record-�s release, it was required to consider the facts before it, and that an applicant-�s motivation for a making request was relevant when examining the public interest. The Council also argued that the fact that there may be public interest in the subject matter of the record not mean that the public interest test was satisfied. It stated moreover that the record-�s release may discourage consultancy service providers from engaging with it, and that this would not serve the public interest well.

While the motives of an applicant in seeking access to information may be relevant to considering the public interest, I do not agree that the fact that the applicant is a journalist, and may intend to publish a story on the IPA report, constitutes a strong public interest argument against its release. Public scrutiny of FOI bodies by way of investigative journalism serves an important public interest in terms of transparency and accountability, especially where -� as is the case here -� there exist allegations of mismanagement of public funds. I also do not accept the Council-�s argument that the release of record 21 may be damaging to it and/or the IPA. Record 21 contains a number of findings, both positive and negative, regarding the Council-�s corporate governance, as well as recommendations as to how same might be strengthened. However, the criticisms, findings and recommendations contained in the report seem to me to be firmly within the realm of the moderate, and in my view there is nothing in the report that is particularly damaging to either body.  I am similarly unconvinced by the Council-�s argument that the release of record 21 might discourage other consultancy service provides from engaging with it. It is well known that councils are public bodies subject to the FOI legislative regime. It seems highly unlikely that any consultancy organisation that provides services to a body such as the Council would be unaware of the possibility that resulting records might be the subject of, and be released in response to, an FOI request. I also note that in the email exchange between the Council and the IPA, the latter -� while objecting to the release of the report on various grounds -� does not suggest that it would be reluctant to provide the Council with future consultancy services.

I also consider that to accept that relevant deliberations are ongoing, some two years after the publication of the IPA report, would be to stretch that claim beyond credulity. This is especially so where the report contains no specific timelines for the implementation of its recommendations. I consider that the recommendations in the report show the relevant deliberative processes to be complete, based as they are on the outcome of such processes.

Accordingly, I do not accept that the release of record 21 would be contrary to the public interest. It is therefore not exempt from release section 29(1). The Council also cited section 35(1)(a) as a basis for refusing access to record 21, and I consider that provision below.

Section 30(1)(b)

The Council cited section 30(1)(b) of the FOI Act as a basis for withholding access in part to record 16, which I have described above. It also cited section 30(1)(b) as a basis to partly withhold records 1 to 4, which are as follows:

• record 1 is a letter dated 20 July 2009 regarding an audit of what was then Cavan Town Council, for the year ending 31 December 2007
• record 2 is a letter dated 12 September 2008 regarding the above audit
• record 3 is a draft internal audit report dated 22 October 2008
• record 4 is a review of the above internal audit report dated 9 March 2009.

 Section 30(1)(b) allows for the discretionary refusal of a request if 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). Section 30(1)(b) is a -�harm based-� exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record(s). The body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure, and consider the reasonableness of any expectation that the harm will occur. Furthermore, it should explain how and why the release of the record(s) could reasonably be expected to give rise to the harm envisaged, in light of the contents of each particular record concerned and the facts of the case. Moreover, establishing "significant, adverse effect" requires strong evidence of damage. Not only must the harm be reasonably expected, but it must also be expected to be of a significant nature.

The wording of section 30(1)(b) makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". This Office views -�management-� as a word of wide import that is apt to cover a variety of activities of an FOI body. I accept that that the material in records 1-4 in respect of which the Council sought to assert section 30(1)(b) -� which it described as information relating to financial management planning, salaries and wages, and accounting systems -� falls within the scope of the term -�functions relating to management-�. I also accept that record 16 contains information that falls within the scope of that term, specifically information regarding the Council-�s disciplinary process.

Regarding the harm that the Council expected would be caused to such functions by the release of records 1 to 4, it cited potential harm to its internal audit functions, arguing that media reports and speculation could be damaging, unwarranted and difficult to remedy for its members with responsibility for preparing internal audit reports. It stated that the release of the records would render it unable to conduct internal reviews of its functions without attention from the media and third parties. The Council argued that its expectations of harm were reasonable given that the applicant-�s occupation and likely motivations. In relation to record 16, the Council argued that its disciplinary process  would be harmed by media reporting resulting from the record-�s release.

I accept that these results outlined by the Council, should they occur, could potentially constitute a -�significant, adverse effect-� on its management functions. However, I do not consider that the Council has elucidated the grounds on which it reasonably expects such effects to occur, based on the content of the records. Indeed, the material redacted under section 30(1)(b) seems, to me, to be relatively straightforward and uncontroversial, and I cannot envisage how its disclosure could result in those harms. I must also discount the Council-�s arguments regarding the occupation and intent of the applicant because, as outlined above, this Office is precluded by section 13(4) from taking account of a requester-�s motives. Accordingly, I find that the parts of records 1-4, and record 16 in full, that the Council sought to withhold under section 30(1)(b) are not exempt under that section of the FOI Act. The Council also cited section 42(m) of the FOI Act in relation to record 16, and I examine that provision below.

Section 35(1)(a)

As outlined above, the Council cited withheld record 21 under section 35(1)(a) of the FOI Act. Section 35(1)(a) exempts from release information provided to an FOI body in confidence. However, I consider it appropriate to first consider whether section 35(2) might apply. Section 35(2) provides that:

subsection (1) shall not apply to a record which is prepared by a staff member of an FOI body in the course of the performance of his or her functions unless disclosure of the information concerned 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 an FOI body or its staff.

Record 21 was created by staff of the IPA, which is an FOI body, in the course of the performance of their functions. Thus section 35(2) will operate to disapply section 35(1)(a), unless the release of the record would constitute a breach of a duty of confidence that is owed to a person other than an FOI body or its staff. The Council argued that it owed a duty of confidence to the IPA. However, as the IPA is an FOI body, any such duty of confidence is not owed to a person other than an FOI body or its staff. Therefore, I find that section 35(2) of the FOI Act applies and records 21 is not exempt under section 35(1)(a).

Sections 36(1)(b)

The Council cited section 36(1)(b) as a basis to withhold access to record 14, which is a remittance advice slip dated 27 February 2009 and includes a photocopy of a cheque. As outlined above, I also consider that section 36(1)(b) is relevant to parts of records 13 and 16.

Section 36(1)(b) provides a mandatory exemption to the release of a record where it 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 subsection (1)(b) is whether disclosure of the information -�could reasonably be expected to result in material financial loss or gain-�. This test is not a question of probabilities or possibilities, but whether the FOI body-�s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate the nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information. The harm test in the second part of subsection (1)(b) is whether disclosure of the information -�could prejudice the competitive position-� of the person in the conduct of his or her profession or business or otherwise in his or her occupation. This is a considerably lower standard of proof than in the first part of section 36(1)(b), although the damage which could follow from disclosure of the information must be specified with a reasonable degree of clarity.

The Council argued that section 36(1)(b) applied to record 14 because the record contained a copy of a cheque which it had issued to a contractor. It stated that releasing the record would present it with a financial risk as the cheque could be copied and utilised fraudulently. I accept that this expectation of harm on the Council-�s part is reasonable. Accordingly, the harm test in the first part of section 36(1)(b) is satisfied.

The Council made certain arguments under section 36(1)(b) in the context of records 19 and 20 (which, as outlined above, are outside the scope of this review). I consider that these arguments are also of relevance to records 13 and 16. The specific arguments made by the Council were to the effect that the harm test in the first part of section 36(1)(b) was met because the disclosure of information about named contractors could reasonably be expected to result in material financial loss to those contractors as a result of reputational damage. This was so, argued the Council, where no finding of wrongdoing had been made against any contractors, but where their activities had been extensively parsed. In relation to the second harm test in section 36(1)(b), the Council stated that the records contained information related to pricing, invoices and monies paid to contractors. It argued that the release of this information into the hands of competitors of the contractors could cause them financial loss and damage and negatively affect their competitive position. The Council also argued that its own commercial interests could be adversely affected by the release of the records, as the records revealed the pricing and terms on which it was prepared to contract for road and maintenance works being carried out on its behalf.

I accept the Council-�s arguments regarding the first harm test in section 36(1)(b) in relation to contractors identified in records 13 and 16. In particular, I find that section 36(1)(b) applies to the following parts of the records:

• The name and contact details of a contractor that appears in the letter comprising record 13 in the letterhead, twice in the body of the letter, under the signature of the letter and in the footer/bottom margin of the letter, and the name of a second contractor that is cc-�d with the letter
• The third sentence of the first paragraph under point 6 of record 16
• The second, third and and fourth sentences of the second paragraph under point 6 of record 16.

For the sake of completeness, I should also note that the Council also cited section 36(1)(c) of the FOI Act as an additional ground on which to withhold records 19 and 20. However, in circumstances where I have determined those records fall outside the scope of the review, and where I have determined that the information in records 13 and 16 that relates to contractors is exempt from release under section 36(1)(b), it is not necessary for me to examine section 36(1)(c).                                                                               Section 36(3)

Section 36(3) of the FOI Act provides that subsection (1) does not apply where, in the opinion of the FOI body, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. It should be noted that the FOI Act recognises, both in its long title and in its individual provisions, that there is a significant public interest in government being open and accountable. Section 11(3) of the Act provides that FOI bodies shall, in performing any function under the Act, have regard to a number of matters including 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. In attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, this Office will consider the positive public interest which is served by disclosure, on one hand, and the harm that might be caused by disclosure on the other. This Office considers that, where records relate to the expenditure of public money, there is a strong public interest in openness and accountability in the use of public funds.

I cannot identify a significant public interest that would be served by releasing the information I have found to fall within the scope of section 36(1)(b) in records 14 and 16. Against this, there is a detriment to the public interest that would follow should the harms identified by the Council transpire. Therefore, I find that section 36(3) does not apply to this material and that record 14 in its entirety, and the information relating to contractors in record 16 that I have identified above, is exempt from release under section 36(1)(b).

 Section 42(m)

As outlined above, the Council argued that section 42(m) applied to record 16. Section 42(m) states that the FOI Act shall not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of -�

i. the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession, or

ii. any other source of such information provided in confidence to an FOI body, or where such information is otherwise in its possession.

The Council stated that section 42(m) applied on the basis that record 16 had been issued in response to a query from the Department regarding a protected disclosure. However, this by itself is insufficient to bring a record within the scope of section 42(m). I cannot see that record 16 contains any information which could reasonably be expected to be reveal, or lead to the revelation of, the identity of the individual who made a protected disclosure to the Department, or of any other source of information regarding the subject matter of the protected disclosure. Accordingly, I find that section 42(m) does not apply to record 16.

 Part 1 records deemed to be out of scope by the Council

As outlined above, the Council argued that certain additional records it identified were outside the scope of part 1 of the applicant-�s request. These are as follows:

• records 8-12 are bank statements, which the Council deemed irrelevant because they were not directly associated with the relevant over-payment
• record 15 is a letter dated 10 September 2009 from the principal local government auditor which refers to an overpayment and the recovery of same. As noted above, the Council part-released this record, and redacted information which it stated was irrelevant to the request and related to separate Council business (as well as making other redactions which I have found were not justified under section 37(1) of the FOI Act)
• records 17 and 18 are documents containing details of internal calculations, and were withheld by the Council on the basis that they were not signed or dated and therefore were of no evidential value.

 In relation to record 15, and subject to my findings under section 37(1), I accept that the material said by the Council to relate to separate business is outside the scope of the request, and it was justified in withholding this material. I also accept that this is the case with the bank statements in records 9-12. However, I do not accept that this is the case for the entirety of the bank statement at record 8. Part 1 of the applicant-�s request was quite clear in seeking access to information regarding the over-payment of a specified sum to a contractor. The final payment entry at record 8, it seems to me, outlines information regarding payment to the contractor at issue, and for the relevant sum of the overpayment, such as to bring it within the scope of the request. I regard the remainder of record 8 as outside the scope of the request. In respect of records 17 and 18, I do not accept that the evidential value (or lack thereof) of a record is a relevant factor in determining whether a record falls within the scope of an FOI request. Records 17 and 18 refer to the relevant contractor and the overpayment at issue, and accordingly fall within the scope of the applicant-�s request.

I have considered whether any of the exemptions cited by the Council in respect of the other records in this case might apply to records 8, 17 and 18. I find that, based on my analysis above regarding section 36(1)(b), the name of the relevant contractor in records 8, 17 and 18 is exempt from release under that provision of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision. I find that records 19 and 20 are outside the scope of the review by virtue of section 42(ja) of the FOI Act. I find that the Council was entitled to withhold access to certain sections of record 16 under section 37(1) of the FOI Act. I further find that the Council was entitled under section 36(1)(b) of the FOI Act to withhold record 14 in its entirety, as well as certain parts of records 8, 16, 17 and 18. Furthermore, I find that the Council was justified in deeming additional records outside the scope of the request, in whole or part. For the ease of reference of all parties, I have set out the exempt records (or sections of records), and the basis on which they are exempt from release, in an appendix attached to this decision. I find that the Council was not justified in withholding the remaining records and I direct their release.

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.

____________________

Neill Dougan

Investigator

Appendix to Decision of 26 April 2023 in Case OIC-118361

The following table sets out the details of the records in this case that are exempt from release.