Whether the Council was justified in refusing access to certain records concerning the proposed disposal of two sites at the former St Teresa-�s Gardens

21 August 2023

Background

The following two paragraphs, which are based on material on the Council-�s website, give some context to the applicant-�s FOI request and this review. References to Hines throughout this decision include references to a joint venture between Hines and another entity, where relevant.

In 2017, the Council approved a Framework Plan (the Plan) for its lands at the St Teresa-�s Gardens site and the adjacent Bailey Gibson and Player Wills lands. The Plan included a number of site requirements, including playing facilities, public parks and dressing rooms. Hines, the international real estate firm, acquired the Bailey Gibson and Player Wills lands in December 2018. Hines subsequently collaborated with the Council to refine the Plan and develop a Joint Master Plan for the Council, Bailey Gibson, and Player Wills lands.

In the context of the Plan, the Council gave a strong commitment to ring-fence part of the Council-�s lands to cater for the development of a municipal multi-purpose playing facility and a new facility to cater for the Boxing Club, which had been located in a block due for demolition. Due to lack of funding to carry out such work, the Council began discussions with Hines regarding the potential delivery of this community infrastructure. In 2020, the Council proposed to dispose of two sites (c3.89% of the Dublin City Council lands) to Hines subject to various terms and conditions.

The applicant-�s FOI request of 27 August 2022 sought access to:

1. Council Report No 2672020;

2. A copy of the Council/Hines Development Agreement (the Agreement);

3. All records in relation to:

(a). metings between Hines and the Council regarding the refinement of the Plan and the development of the Joint Master Plan

(b). meeetings between Hines and the Council and the Archdiocese to locate changing rooms & a boxing club facility on Church lands

4. All records regarding certain Pre Application Consultations (PACs), including those in relation to -�Player Wills 2 including church lands-�.

The Council-�s decision issued in two parts i.e. in a letter dated 23 September 2022 from the Housing & Community Services Department (Housing) and in an undated letter from the Planning and Property Development Department (Planning).

Housing-�s letter said that it was part-granting the request. It said in relation to part 3(a) that no minutes were kept of the meetings, and that the outcome of the discussions culminated in the enclosed Council Report No 2672020. The letter did not address any other part of the request, or cite any FOI exemption provisions being claimed or explain why they applied. However, what I understand was the attached schedule indicated that part 1 was being granted, that part 2 was being refused under -�[s]ection 36 - commercially sensitive-� and that parts 3(a) and 3(b) were being refused under -�[s]ection 15(1)(a) - record concerned does not exist-�.

Planning-�s letter said only that some records were being granted in full or in part, and that certain information was considered confidential and was being refused under section 35(1)(a) (information given in confidence).

On 5 October 2022, the applicant sought an internal review of the Council-�s decision.

Again, the Council-�s internal review decision issued in two parts. Planning-�s letter of 9 November 2022 said that two PAC minutes were being withheld under section 35(1)(b) (duty of confidence). Housing-�s letter of 11 November 2022 affirmed the refusal of parts 2 and 3 of the request under sections 36 and 15(1)(a) of the FOI Act respectively. The letter did not identify the provision of section 36 being relied on, although it did address the public interest.

On 27 December 2022, the applicant applied to this Office for a review of the Council-�s decision.

On 3 February 2023, Planning told this Office that it was releasing the two PAC minutes referred to in its letter of 9 November 2022, which it said it had withheld in error. It said that the letter concerned also had erroneously not dealt with the Player Wills/Church lands PAC notes, which it confirmed it was withholding under section 35(1)(a). Its schedule of records indicated that it had released all other records relating to PACs.

On 17 February 2023, this Office issued a notice to the Council under section 23 of the FOI Act, requiring the Council to give adequate reasons for its refusal of part 2 of the request. On 9 March 2023, the Council confirmed that it was refusing a draft Agreement under sections 29(1) (deliberative process), 30(1)(c) (negotiation positions/plans) and 36(1)(c) (conduct or outcome of negotiations) of the FOI Act.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to contacts between this Office, the Council and the applicant. I have also taken account of the content of the records at issue and the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Council-�s refusal of parts 2 and 3 in full, and of the remaining records covered by part 4 (i.e. the Player Wills/Church lands PAC notes) was in accordance with the provisions of the FOI Act.

Preliminary Matters

As mentioned above, it was necessary to issue a notice to the Council under section 23 of the FOI Act. Sections 13(2)(d) and 21(5)(c) of the FOI Act specify the details that must be contained in original and internal review decisions which are refusing records, such as the FOI provisions being relied on, findings on relevant material issues, and particulars of any matter relating to the public interest taken into account. Where the Commissioner considers that an FOI body-�s decisions are inadequate, section 23 of the FOI Act requires him to direct the body to provide adequate reasons etc. to the requester and the OIC.

The Council-�s communications to the applicant are confusing, and its decisions do not comply with the requirements of sections 13(2)(d) and 21(5)(c) of the Act. While I cannot take these matters into account in making my decision in this case, I expect that they will not arise in future reviews.

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making her FOI request. Therefore, I can only take into account any purpose for which she seeks the records to the extent that it comprises a public interest. 

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

Finally, I have had regard to the comments of the Supreme Court-�s judgment inThe Ministerfor Communications, Energy and Natural Resources and the Information Commissioner & Ors,[2020] IESC 57 [59] (the eNet judgment). The Supreme Court said -�it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.-�

I also note that, in the Supreme Court case ofSheedy v the Information Commissioner[2005] IESC 35, Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that -�[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard-�.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Part 2 - the Agreement

The Council speculates that, rather than the draft version which it considered in its decisions, the requester may have intended to obtain the finalised Agreement. As set out below, it says that such a document does not exist. However, I am satisfied that the draft Agreement is covered by the request.

Bearing in mind the requirements of section 25(3), I can go no further than to say that the relevant record concerns the Council-�s proposed disposal of its sites to Hines and the developments to be undertaken by Hines. It details various proposed conditions, rights, obligations, financial and other matters applicable to both parties. Of the various provisions of the FOI Act relied on by the Council in relation to the record, section 36(1)(c) is in my view the most appropriate to consider first.

Section 36(1)(c)

Section 36(1)(c) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. Section 36(1) is subject to sections 36(2) (exceptions) and (3) (the public interest test).

The standard of proof required to meet section 36(1)(c) is relatively low, in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. The Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train, or were reasonably foreseen, which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

The applicant says, particularly in relation to the Agreement, that there cannot be anything sensitive between a third party and a publicly funded local authority. She says that Article 28A of the Constitution gives local government a role in providing a forum for the democratic representation of communities, and that this cannot be complied with unless communities know and are aware of all proposals affecting them. She says that the development to which her request relates directly affects herself and others in the surrounding area. She says that the Agreement should be available so that communities, or individuals therein, can be sure that they are being democratically represented. She notes that the current proposed development with Hines has yet to proceed due to legal challenges. She says that further planning applications may also have to be submitted, and the Agreement amended further, such that there is no need to treat the record as confidential.

The Council says that it and Hines have various commercially opposed views. It says that while it has negotiated with Hines on various commercial and legal aspects of the project, further substantial discussions and changes are required before the Agreement can be finalised. It says also that changes may arise from potential discussions with other public agencies, such as the Land Development Agency. It says that a legal challenge is being taken in relation to issues concerning the St Teresa-�s Gardens site and that negotiations on the Agreement have paused.

The Council says that disclosure of the record in these circumstances could harm its relationship with the developer. It says that when negotiations resume, such a deteriorated relationship may result in the Council achieving worse outcomes that it otherwise might have obtained. In essence, the Council argues that disclosure of the Agreement at this point in time could prejudice the conduct or outcome of its contractual negotiations, and harm its ultimate commercial position in the matter.

Analysis

I have already described the Agreement-�s contents. I have no reason not to accept the Council-�s position regarding the pausing of negotiations, or that the record is subject to further discussion, negotiation and agreement between various parties.

While I note the applicant-�s views, in my view it is reasonable to accept that parties to a negotiation would expect that their respective positions are not made public at least until negotiations have concluded. Therefore, it seems to me that one party-�s disclosure of such details, before negotiations have concluded, could impact on its relationship with the other party. In turn, the other party could then take harder positions reflecting their own interests than might otherwise have been the case. Such an outcome could hinder the disclosing party-�s ability to obtain optimal outcomes. 

In the circumstances, I accept that disclosure of the Agreement to the world at large at this point in time could impact on the Council-�s ability to further effectively negotiate with Hines, and thus that such disclosure could prejudice the conduct or outcome of the Council-�s negotiations. I find that section 36(1)(c) applies to record 2. I will now consider the application of sections 36(2) and (3) of the FOI Act.

Section 36(2) - exceptions to section 36(1)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Section 36(3) - the public interest

Section 36(3) provides that access to a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.

When considering the public interest, it is important to have 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] IESC 26. It is noted that a true 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 in the eNet judgment. 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.

The comments of the Supreme Court in both judgments cited above are relevant to the consideration of public interest tests generally.

The applicant says that it is in the public interest (and particularly in the interest of those directly affected) to know the basis of the draft agreement, in order to be satisfied that the Council is optimising value for public resources/monies, and also that it is acting in the public-�s various interests. She says that this is particularly the case where the record at issue may undergo significant changes by the time it is eventually finalised. 

I accept that the record-�s disclosure will give an insight into the negotiating positions adopted by the two parties to date regarding the proposed development. As set out earlier, private interests should be distinguished from public interests. However, I accept that disclosure will enable some analysis of the Council-�s performance of its functions to date in relation to the matter.

On the other hand, I accept that disclosure could affect the Council-�s ability to optimise value for public resources when negotiations resume. In my view, there is significant weight to the public interest in protecting against such an outcome.

Having considered the matter carefully, I am aware of no public interest factors further to which I can conclude that the public interest would, on balance, be better served by granting than refusing to grant the request for the Agreement. I find, therefore, that section 36(3) does not apply. In the circumstances, there is no need for me to consider the other provisions claimed by the Council in relation to the record.

Part 3 - minutes of meetings

The Council refused the records sought at parts 3(a) and (b) under section 15(1)(a), on the basis that they do not exist.

Section 15(1)(a) (adequacy of search/records do not exist)

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records.

The Council-�s contacts with this Office on part 3 do not satisfy me that it is justified in claiming that has taken reasonable steps to search for such records and/or that they do not exist. In particular, the Council says that Planning determines Frameworks for Strategic Development Regeneration Areas (SDRAs), and manages discussions with respect to planning applications, including any possible amendments to Frameworks/Masterplans. The Council confirms that, because of the cross-departmental engagement involved, Planning should also have searched for records relevant to part 3(a) and collaborated with Housing-�s decision on the matter.

It is difficult to understand why the Council, which has been subject to FOI since 1998, did not initially identify all section(s) responsible for the specific matters referred to in the request. In any event, this is sufficient for me to find that the Council has not justified its reliance on section 15(1)(a) in relation to part 3(a).

While the Council-�s submission does not address part 3(b), it has subsequently confirmed that no meetings were held between Housing, Hines and the Archdiocese. However, given the above, it may be that other sections should also have collaborated with Housing-�s decision on this part of the request. In the circumstances, I do not accept that the Council has justified its reliance on section 15(1)(a) in relation to part 3(b).

In the above circumstances, it seems to me that the most appropriate step for me to take is to annul the Council-�s refusal of part 3 of the request. I note that the applicant is in agreement with this approach. Accordingly, I direct the Council to make a fresh decision on parts 3(a) and (b) in accordance with the provisions of the FOI Act. The applicant has a right to seek an internal review, and a subsequent review by this Office, of the Council-�s new decision.

In the circumstances, it is not necessary for me to comment on other aspects of the Council-�s submission on its searches. However, it should ensure that its fresh searches incorporate criteria and systems that were relevant/in use when the records concerned would have been created, as well as those that are currently relevant/in use. If applicable, it should also explain why it would not have been necessary to hold the meetings described in part 3(b), and provide any other related context.

Part 4 - PAC minutes re Player Wills 2/Church lands

It is unclear whether the Council currently relies on section 35(1)(a) or (b) in relation to these records. However, I note that Planning-�s letter to the applicant of 9 November says that section 35(1)(b) applies due to the requirements of section 247 of the Planning & Development Act 2000 (the 2000 Act). Generally speaking, section 35(1)(b) requires the refusal of a record that is subject to a duty of confidence. The Council is effectively claiming that disclosure of the remaining PAC minutes would breach a duty of confidence provided for by section 247 of the 2000 Act.

Section 247 of the 2000 Act provides for consultations in relation to proposed developments i.e. PACs. Section 247(5) requires the creation and retention of records relating to such matters. Furthermore, the Planning and Development (Large Scale Residential Developments) Act 2021 inserted section 247(5A) into the 2000 Act, which provides that a record kept by a planning authority in relation to a PAC -�shall only be made public when a planning application in respect of the proposed development is made -�-�.

It is disappointing that the Council-�s submission makes no arguments about the PAC minutes, other than to confirm that no planning application has yet been made in relation to the relevant development. However, the eNet judgement makes it clear that this does not determine the matter.

Notwithstanding the Council-�s reliance on section 35, the applicant is aware of my view that section 41(1)(a) of the FOI Act is the most relevant provision to consider in the circumstances. Section 41(1)(a) requires the refusal of an FOI request if the disclosure of the requested record is prohibited by law of the European Union or any enactment (other than a provision specified in the Third Schedule to the FOI Act). The effect of section 41(1)(a) is that a non-disclosure provision in any EU law or other enactment overrides any right of access under FOI, unless the particular provision is set out in the FOI Act-�s Third Schedule.  I note that section 247(5A) of the 2000 Act is not listed in column (3) in Part 1 or 2 of Schedule 3 to the FOI Act.

I have already outlined the applicant-�s arguments about the funding of local government, its role in providing a forum for the democratic representation of communities, and the direct effect of the development the subject of her request on herself and others in the area. She says also that the request for planning permission may never be lodged, and that if it is, any ensuing further consultations would render the current notes out of date. She says that the records cannot be considered confidential because they are required to be made public at some stage, and that the legislation does not render them confidential in the interim.

The applicant also says that section 247(5A) does not prohibit the disclosure of the minutes. She says that a prohibition on disclosure is not the same as a prohibition on making a record public. She says that section 247(5A) provides that the records should not be made public, presumably via the planning register, until after an application is made, and is therefore concerned only with the timing of the Council-�s obligation to make the relevant information available to the public. She says that section 247(5A) does not generally prohibit disclosure of the records concerned and that section 41(1)(a) cannot apply.

I accept that section 247(5A) does not create an indefinite or general prohibition on disclosure of PAC minutes. However, it nonetheless requires that such records -�shall only be made public-� where a particular condition is met i.e. when the related planning application is made. Furthermore, as outlined earlier, the release of records under FOI effectively amounts to their publication or disclosure to the world at large.

It is not disputed that a planning application has yet to be submitted for the development to which the records at issue relate. Therefore, I am satisfied that, at this point in time, the Council is prohibited from making the records public, further to the requirements of section 247(5A) of the 2000 Act. I find that section 41(1)(a) of the FOI Act applies. I should also say that the applicant-�s general arguments give me no basis to disregard the requirements of section 247(5A) of the 2000 Act or to find that section 41(1)(a) does not apply. Furthermore, section 41(1)(a) does not require consideration of the public interest.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision. I affirm its refusal of the draft Agreement (part 2) and the remaining PAC minutes (part 4) on the basis that sections 36(1)(c) and 41(1)(a) of the FOI Act apply. I annul its refusal of parts 3(a) and (b) under section 15(1)(a) and I direct it to carry out a fresh decision making process on these elements of the request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Anne Lyons
Investigator