Decision
Mr X and Trinity College Dublin
From Office of the Information Commissioner (OIC)
Case number: OIC-139424-G5Q2J1
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URL: http://www.bailii.org/ie/cases/IEIC/2024/139424.html
Cite as: [2024] IEIC 139424
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Whether TCD was justified in refusing access to records relating to the Immigrant Investor Programme under section 36 of the FOI Act
04 October 2024
This review concerns records which relate to the Immigrant Investor Programme (IIP). The purpose of the IIP is described as follows on the Department of Justice website:
"The Immigrant Investor Programme (IIP) is a pathway for non-EEA nationals to secure immigration permission to Ireland on the basis of long-term investment of a sum of money in a project that has been approved for that purpose by the Department of Justice and other Government stakeholders.
The IIP was introduced by the Irish Government in 2012 to encourage inward investment for the creation of business and employment opportunities in the State. The programme is designed to encourage investors and business professionals from outside the European Economic Area to avail of opportunities of investing and locating their business interests in Ireland and acquire a secure residency status in Ireland." https://www.irishimmigration.ie/coming-to-live-in-ireland/i-want-to-invest-in-ireland/#what
The IIP offered four investment options for potential investors. One option was endowment, this is where a minimum €500,000 (or €400,000 where 5 or more applications are received) philanthropic donation is made to a project which is of public benefit to arts, sports, health, culture or education in Ireland. The IIP was closed in February 2023 and arrangements were put in place for the orderly winding down of the programme. The applicant's FOI request in this case concerns philanthropic donations made to TCD under the IIP. On 9 February 2023, the applicant submitted the following FOI request to TCD:
"In relation to investments made to TCD under the Immigrant Investor Visa, I am seeking various details, including a breakdown of associated costs incurred by TCD under this scheme, from when the scheme was initiated, to the present. For each year since the scheme's inception, please indicate:
1. The nationalities of the investors, per investment, each year, and the amounts they each invested. I do not seek the identities or addresses of each party, simply their nationalities and the amounts they each invested.
2. The yearly amounts paid in commission to any brokers who facilitated Investments to TCD. To be clear, I am seeking the names of the brokers in question and the amounts they received.
3. For each broker, referred to above, the yearly amount of investment under this scheme, for which their services related to.
4. The amounts paid in any legal fees by TCD relating to this scheme. I am seeking the names of the relevant legal firms, per year.
In its decision dated 9 March 2023, TCD said the vast majority of the records sought under categories 1-3 are held by Trinity Brand Commercial Services Limited (TBCSL) which it said is not a public body and is not subject to the FOI Act. TCD said it was refusing access to the records it holds which fall within the scope of parts 1-3 of the request under sections 29(1), 36(1)(b)/(c) and 37(1) of the FOI Act. In relation to category 4 of the request, TCD provided the amounts paid in legal fees relating to this scheme for the years 2020, 2021 and 2022 and the name of the legal firm. On 9 March 2023, the applicant requested an internal review of TCD's decision. He contended that TCD is the controlling party of TBCSL and it follows that TCD has control over records held by this entity. On 31 March 2023, TCD wrote to the applicant and said that it was fully reconsidering the request and as part of this process, the internal reviewer is carrying out fresh searches for records that may be relevant to the request as well as considering the application of exemptions set out in the original decision.
On 21 April 2023, TCD issued its internal review decision. In relation to category 1 of the request, TCD said it does not hold records that list both investment amounts per investor and the nationalities of those investors and it said it was refusing this part of the request under section 15(1)(a) of the FOI Act. TCD said that to the extent that it holds the other information listed in category 1 of the request, it was affirming the application of section 37(1) of the FOI Act for the reasons set out in the original decision. TCD said on further consideration of the request, it had decided to part grant category 2 of the request and it provided the names of the two brokers who facilitated investments under the IIP. TCD affirmed the application of sections 36(1)(b)/(c) of the FOI Act to the yearly amounts paid to those brokers, both in total and on a per broker basis which is relevant to part of parts 2 and 3 of the request. TCD said however it could provide a total figure for the amount of investment made through the IIP as of May 2022. Finally, TCD said the information requested in category 4 of the request was granted in its original decision. On 13 June 2023, the applicant applied to this Office for a review of TCD's decision.
During the course of the review, this Office provided the parties with an opportunity to make submissions. TCD made submissions through its solicitors. TCD said following the original decision on 9 March 2023, a careful review of the request took place. It said the statement contained in its original decision that the only category of records held by it within the scope of 1-3 of the request is email correspondence with a third party company Trinity Brand Commercial Services Limited (TBCSL) was not accurate. TCD said the records it identified as containing information within the scope of the request are records 1, 2 and 3 as listed in the schedule provided to OIC on 4 July 2023. It said the records contain a certain amount of information which falls outside the scope of the request, including donor's names information and project information. TCD also said it does not hold records that show the nationality of donors because this is not required by TCD for the purpose of the IIP.
As TCD's submissions contained new material information, this Office notified the applicant of this information and that TCD had located three records. It notified the applicant of the categories of information in these records and that TCD said donor identity information and project information fall outside the scope of his request and it was refusing access to information in relation to amounts of donation and commission paid to the named brokers under sections 36(1)(b)/(c) of the Act. Following communications with this Office, the applicant confirmed that he was agreeable to confining the scope of this review to the question of whether TCD was justified in refusing access to information contained in records 1-3 in relation to the amount of each donation, the agent name, commission as a % and as an amount paid in euros under sections 36(1)(b)/(c) of the FOI Act. This Office also notified the two brokers of the review and provided them with an opportunity to make submissions in relation to the records at issue which may affect their interests. One of the brokers made submissions which are considered below.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act 2014. I have decided to conclude this review by way of a formal, binding decision.
TCD said it located three excel spreadsheets that contain information within the scope of the request. These records include donor identity information, project information, amount of donation, broker name and amounts paid to brokers. Donor identity information and project information fall outside the scope of the request and this review. This review is solely concerned with whether TCD was justified in refusing access to information contained in records 1-3 in relation to the amount of each donation, the agent name, commission as a % and as an amount paid in euros on the basis of sections 36(1)(b)/(c) of the FOI Act.
TCD refused access to records 1, 2 and 3 under section 36(1)(b)/(c) of the FOI Act. Section 36(1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:
(b) 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
There are certain situations where, although section 36(1) applies, the request shall still be granted. These situations are specified in section 36(2). Section 36(3) provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request.
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information "could reasonably be expected to result in material financial loss or gain." The test to be applied in this regard is whether the decision maker's expectation is reasonable. 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 concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Under section 36(1)(c), access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, 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.
TCD says the IIP closed to new applicants on 15 February 2023, however it remains ongoing for donors whose applications had already been submitted but have not yet been completed. TCD says it is permitted to seek new donors for the current pipeline of projects so that these existing "live" projects in this programme can be completed. It says this means new donors are still being sought and its brokers are still competing in this market to secure these donors. It argues that public disclosure of the information at issue could jeopardise the approval of a project and/or donor causing TCD to suffer financial loss as a result. TCD also argues that the generation of donation based revenue streams is a competitive market for universities not just in Ireland but around the world and release of the information at issue could prejudice its competitive position in this market. TCD also argues that amounts paid in commission to brokers engaged to act on TCD's behalf is commercially sensitive. It states that the brokers are appointed specifically for the IIP and are paid at rates of commission based on their negotiations with TCD. It states that while the engagements with the brokers are ongoing, the disclosure of the information about their commission rates could prejudice the conduct or outcome of contractual negotiations.
As outlined above, one of the brokers provided submissions to this Office. That broker says it objects to the release of the records at issue on the basis that they contain confidential and commercially sensitive information and they are exempt under sections 35 and 36 of the FOI Act. It says it has not been provided with the excel sheets at issue and it can only assume that the information disclosed to TCD was from TBCSL as TBCSL is the only party with whom it has entered into a contract. It says that if this is the case, then it considers such actions to be a breach of the confidentiality clause contained in the contract with TBSCL. The broker states that it has many competitors in the Irish market and it provided this Office with a list of eleven other brokers which it says it competes with in Ireland. The broker states that the market is competitive and knowledge of the financial terms of competitors' contracts offers great inside knowledge that can be capitalised in Ireland over the forthcoming years with other institutions involved in IIP projects.
The broker states that the process of winding down the IIP is lengthy. It states that while no new project may be submitted, all existing projects may continue to receive donors for years to come. It states that it will take many years, it estimates until at least 2029, to fill existing projects and further process the long backlog of extant applications and projects. It states that to this extent, the contract between the broker and TBCSL is not fixed in stone but may be renegotiated or future contracts entered into for different projects. It states that if the information requested is disclosed, it will be used against it by other brokers (both domestic and international) who may seek to entice institutions or charitable institutions, including TCD, to their firm rather than the broker by offering a more attractive or heavily discounted brokerage rates. The broker states that it is currently renegotiating or renewing its contract with over 40 institutions and it is expected that such contracts will be renewed again during the next two years. It states that if the information is released, these institutions will ask many questions of the broker as to how this rate was arrived at, did the broker charge more or less than this rate? If the rate is lower than the rate they are charged, there are likely this ask why this is the case and perhaps seek to re-negotiate or switch brokers.
The Department of Justice website states that the closure of the IIP does not affect existing projects or individuals already approved under the programme. It states that projects may proceed based on the Business Plan and funding amount as previously approved by the Minister. The Department's website states that given the volume of project applications on hand, it is expected to take a number of years to process all remaining categories of application to final decision. I accept therefore that there is still a competitive market in relation to the IIP and new donors are still being sought and brokers are still competing in this market to secure these donors. In my view, if the information at issue is released into the public domain, this could allow third party competitors to undercut the brokers and could reasonably be expected to result in material financial loss to the brokers or prejudice to their competitive position. I also accept that if the rate of commission charged by the brokers is released into the public domain, this information could be used against the brokers in negotiations with other institutions who are availing of the IIP. I find therefore that the information at issue is exempt under sections 36(1)(b) and (c) of the FOI Act.
Section 36(2)
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
Having found that section 36(1)(b) and (c) of the FOI Act applies to the records, I shall now consider section 36(3) of the FOI Act. As outlined above, section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. In doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the eNet case"). In that case, 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".
TCD says that the public interest factors considered in favour of the release of the records were the public right to obtain access to the greatest extent possible to information in the possession of TCD as a public body to facilitate public review of and insight into the decision making process of TCD. On the other hand, TCD says it considered how release of amounts raised through the programme, some of which have not been finalised, may have a negative impact on the TCD's fundraising efforts and facilitating the orderly completion of "live" projects. It said on balance, the public interest is better served by maintaining TCD's competitive position to attract critical funding to invest in its key facilities.
In its submissions to this Office, the broker states that it is public knowledge that the endowment amount for the IIP is a minimum of €500,000 (or €400,000 where 5 or more applications are received). It states that the IIP project must be for the public benefit of the arts, sports, health, culture or education in Ireland. It states that for example, if a third level institution wishes to build a faculty building costing €10 million, this project will require approval for IIP purposes and when approved, the broker would supply all or an agreed quota of IIP Donors to fulfil the funding required. It states that in return the broker would receive an agreed percentage rate which fluctuates based on market conditions. The broker states that whilst it may be interesting to the public that the requester obtains how much was paid to it for it procuring donors to donate to TCD, release of such commercially sensitive information is not in the public interest.
I have carefully considered the submissions received and the content of the records at issue.
The essence of the IIP is that it allowed residency in the state to be acquired by high net worth individuals in return for an investment in enterprise, charities and educational institutions etc. I accept that there is a public interest in the release of records which would allow scrutiny of whether the IIP was being is being effectively administered and appropriately monitored. However, I understand that the process of administering and monitoring the IIP is carried out by the Department of Justice and the Irish Naturalisation and Immigration Service (INIS). The Department's Guidelines for Applicants under the IIP state:
"There are four steps to the IIP process-
1. Make an application-¦on the basis of one of the above investment options.
2. Application approved by the Evaluation Committee.
3. Make the investment in accordance with your approved application.
4. Provide evidence that you have made the investment.
As part of the Irish Naturalisation and Immigration Service's (INIS) on-going commitment to ensure the highest degree of transparency and accountability for the programme, all applications will be subject to enhanced levels of due diligence processes in respect of anti-money laundering, Know Your Client, Politically Exposed Persons and sanction checks. Additionally, we are engaging in data sharing in accordance with the OECD common reporting standards-¦
When all the criteria are met the Minister for Justice and Equality will issue you and your nominated family members with permission to reside in the State"
I must have regard to the information at issue in this case which consists of the amount of each donation, the agent name, commission as a % and as an amount paid in euros. The information in the records does not concern the approval process for applicants, or information in relation to due diligence such as supporting documents or evidence of character provided by applicant's which would allow for scrutiny of whether the IIP is being is being effectively administered and appropriately monitored. In my view, the public interest in openness and transparency has been served to an extent by the release of certain information by TCD. I note that TCD states that in the interest of openness it provided a total figure for the amount of investment made through the Immigrant Investor Programme as of May 2022 and the total figure is €17.65 million, it also provided the names of the two brokers who facilitated investments under the IIP. TCD also states that the amount of each donation, of itself, is public knowledge and is available publicly - and this is a standard amount of €400,000.
Section 36(1) is an express recognition of the fact that there is a public interest in the protection of commercially sensitive information. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. In my view, information in relation to commission rates charged by the brokers in respect of the various donation is commercially sensitive and this information does little to enhance openness and accountability in relation to the how the IIP is being administered or monitored. Having carefully considered the matter, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 36(3) does not apply and that TCD was justified in refusing access to the records at issue under section 36(1)(b)/(c) of the FOI Act.
Finally, while TCD has not refused access to the records at issue under section 35 of the Act, one of the brokers states that the records are exempt on the grounds they contain confidential information. However, as I am satisfied that the records are exempt under section 36 of the Act, it is not necessary to consider the application of section 35.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD's decision. I find that TCD was justified in refusing access to the records concerned under sections 36(1)(b)\(c) of the FOI Act.
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.
Jim Stokes
Investigator