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Whether the IDA was justified in its decision to refuse access to a valuation report on the basis that sections 29, 30(1)(a), 30(1)(b), 30(1)(c), 36(1)(c) and 40(1)(d) of the FOI Act applied

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In its FOI request of 30 July 2015, the applicant sought access to "any survey or report conducted on behalf of IDA Ireland estimating the market value of the proposed site for the data centre", referring to the announcement on 23 February 2015 by the IDA of the development of a data centre with Apple at Athenry, Co. Galway. In its decision of 25 August 2015, the IDA identified one record as relevant to this request, a valuation report on lands at Athenry, and refused the request on the basis that sections 29, 30(1)(a), 30(1)(b), 30(1)(c), 36(1)(c) and 40(1)(d) of the FOI Act applied to the record in full. The applicant submitted an internal review request on 16 September 2015. The IDA's internal review decision of 7 October 2015 affirmed the original decision. The applicant submitted an application for review to this Office on 6 November 2015.

The proposed development of a data centre by Apple on these lands at Athenry, Co. Galway has been the subject of announcements by the IDA and others and has received considerable press coverage. It has also been the subject of a planning application to Galway County Council. The decision of Galway County Council to grant planning permission is currently the subject of an appeal to An Bord Pleanála. While the press coverage from February 2015 refers to the sale of the land, the IDA confirmed in its submission that the transaction has not been concluded. According to the planning application, there is an agreement in place for the purchase of the land subject to the outcome of the planning process.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the IDA, to the content of the record and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the IDA to refuse access to the information sought was justified under the various exemptions claimed.

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22
My jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 29 - Deliberations of FOI bodies
Section 29(1) provides that (a) an FOI body may refuse to grant a request if the record concerned contains matter relating to the deliberative process of an FOI body and (b) the granting of the request would be contrary to the public interest. For section 29(1)(a) to apply, the record must contain matter relating to the deliberative process and the process must be the deliberative process of an FOI body. Secondly, section 29(2) provides that section 29(1) does not apply in certain circumstances. For example, section 29(2)(b) provides that section 29(1) does not apply to a record in so far as it contains factual information. The exemption is subject to a public interest test and the public interest test is stronger than the public interest test in other provisions of the Act - it must be shown that the granting of the request would be contrary to the public interest.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The IDA position is that this exemption should be applied to protect the decision making processes of the IDA's property function and current ongoing negotiations. It states that the project announcement of February 2015 was a high level announcement and that negotiations on the finer details are still ongoing. It claims that premature release of project information could negatively affect these negotiations and the future of the project and the information therefore remains the subject of deliberations. I am not at all sure that these arguments demonstrate that the information in the record at issue relates to a deliberative process. Having examined the record, I am not satisfied that the content of the record itself could be considered to relate to a deliberative process.

In my view, it is to be expected that a valuation report would be carried out on lands in such circumstances and while the outcome of that could feed into deliberations, the actual content is a mixture of factual information and the informed opinion of the valuer as to the value of the land. Some of the information in the report is factual and therefore, would fall to be released in accordance with section 29(2)(b). It is also the case that some of the information included in the report has been published elsewhere. Some other information in the report is now publicly available as it forms part of the planning file.

However, in order for section 29(1) to apply, it must be shown that release of the information would be contrary to the public interest. While the IDA has referred to the public interest in its submission, it has neither claimed nor demonstrated that release of this record would be contrary to the public interest. It has not advanced any contention that the requester would become aware of a significant decision the FOI body proposes to make if the record was released. Therefore, I find that the IDA has not justified its claim for section 29 to apply to any part of the record and that it does not apply.

Section 30 - Functions and negotiations of FOI bodies
Section 30(1)(a) of the FOI Act provides for the refusal of access to the record where its release could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or the methods employed for the conduct thereof. Section 30(1)(b) provides for the refusal of a request if access to the record 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)(c) provides for refusal of access to a record where its release could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(2) provides that this exemption does not apply if the public interest would, on balance, be better served by granting than by refusing the request.

Sections 30(1)(a) and 30(1)(b) are harm based exemptions. When an FOI body seeks to rely on these exemptions, it must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.

As regards section 30(1)(c), it does not contain a harm test and it is sufficient that access to the record concerned could reasonably be expected to disclose negotiation positions, plans etc.

The IDA has set out its high level functions in relation to the attraction and development of foreign direct investment into Ireland and referred to the role of its property function and engagement with the various relevant parties which are a necessary part of such activities. It has identified a number of potential harms that might arise and how they might impact on various functions of the IDA. It has not, however, demonstrated how the release of the information in this record could give rise to the harms envisaged. In relation to section 30(1)(a) it has not shown what tests, examinations etc. could be prejudiced or how they could be prejudiced by the release of this information. In relation to section 30(1)(b), the IDA has stated that there would be a significant adverse affect on the ability of the IDA to carry out its legal remit and function as Ireland's inward investment promotion agency if parties are unable to trust in the confidentiality of the information provided by them to the IDA for decision making purposes. In this case, the report at issue was commissioned by the IDA. It is now publicly known who the parties involved are and much of the information in the report is otherwise available. In relation to section 30(1)(c), the IDA has clearly identified the relevant negotiations and I fully accept its position that the finer details are still under negotiation. However, the requirement for section 30(1)(c) is that release of the record would disclose positions taken or plans, procedures, criteria or instructions used for the purposes of such negotiations. The information in this record does not include any such information on the negotiations and I cannot see how its release could disclose information of the type that the exemption at section 30(1)(c) is designed to protect. Therefore, I find that IDA has not justified its claim for the application of sections 30(1)(a), (b) or (c) and that, therefore, none of these apply to protect the record from release.

Section 36(1)(c) - Commercially sensitive information - negotiations

Section 36(1)(c) protects information whose disclosure 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 in the sense that the test is not whether prejudice or harm is certain to materialise but whether it could do so. Having said that, I would expect 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 to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.

The IDA has identified the relevant negotiations which have not yet been concluded. It stated that the information relates to lands owned by a third party, who is known to be Coillte, and that release of the information could undermine their negotiating position and could reasonably be expected to result in a material loss of income. It also takes the view that prejudice to the negotiations could seriously undermine the decision making process in this instance and that any undue intrusion into the negotiations could result in a detrimental loss to the State. I accept that these are arguments which support the application of section 36(1)(c) in that the negotiations have been identified and the IDA has demonstrated how those negotiations could be affected.

However, having examined the record, I cannot accept that these arguments apply to the record in its entirety. As set out above, some of the content of the record is otherwise publicly available and so no harm can now arise from the release of the same information under FOI at this time. The record includes information on other commercial property transactions at page 19 and the actual valuation of the site at page 21. I am satisfied that harms identified by the IDA could arise from the release of this information on pages 19 and 21, in that the release of this information could prejudice the conduct or outcome of negotiations of the person to whom the information relates. In this case, my understanding is that the negotiations on the sale of this site have not yet been concluded. I find, therefore, that section 36(1)(c) applies to all of the information on page 19 and to the monetary amounts on page 21 only, and does not apply to the remainder of the record.

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

Having found that section 36(1)(c) applies to the information on pages 19 and 21, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. The IDA position is that it has a policy of being open and transparent with regard to the use of public funds and frequently releases information on projects once the investment negotiations have been concluded and the project is secured. It has also identified concerns about the potential impact of the premature release of information relevant to negotiations which have not yet concluded. I accept that there is a legitimate public interest in FOI bodies, such as the IDA, obtaining information required to support it in carrying out its remit, without it or other relevant parties suffering commercially as a result. Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how the IDA carries out its functions is served to some extent by the information already in the public domain and the release of a redacted version of the record. In the circumstances of this case, I conclude that, on balance, the public interest would not be better served by the release of the information to which I have found section 36(1)(c) applies to the extent that overriding the commercial sensitivity of that information would be justified and I find accordingly.

As I have found that the harm envisaged by section 36(1)(c) would not arise from the release of a redacted version of the report as above, given the information that is already in the public domain as well as the publicly known identity of the parties to the transaction, I did not consider it appropriate or necessary to consult with these parties.

Section 40(1)(d) - Financial and economic interests of the State
Section 40(1)(d), which exemption was claimed by the IDA, provides that access to a record may be refused if it could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. Section 40(2) sets out a list of the types of records to which this section may apply. An FOI body may invoke section 40(2) only in conjunction with one of the subsections of section 40(1), in this case 40(1)(d). Section 40(3) provides that subsection (1) does not apply, moreover, if the public interest would, on balance, be better served by granting rather than by refusing the request.

The IDA has identified sections 40(2)(i), (j) and (k) as relevant, which are:

"(i) property or other assets held by or on behalf of the State or a public body and transactions or proposed or contemplated transactions involving such property, or other assets,

(j) foreign investment in enterprises in the State,

(k) industrial development in the State"

It has not set out the basis on which it considers the record to fall into these categories. However, I am prepared to accept that the record would fall into at least one of these categories. However, that is not sufficient for the exemption to apply. The IDA has not identified any unwarranted benefit or loss that would arise from the release of the information in this record, as required by section 40(1)(d). The record does not contain any information on the proposed arrangements between the parties. As set out above, much of the information is already in the public domain. I am satisfied that the IDA has not justified its position and I find, therefore, that section 40(1)(d) does not apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the IDA and find that sections 29(1), 30(1)(a), 30(1)(b), 30(1)(c) and 40(1)(d) have not been justified by the IDA and do not apply. I find that section 36(1)(c) applies to the information on page 19 and the monetary amounts on page 21 of the report only. I direct the release of the report, apart from the exempt information on pages 19 and 21.

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 applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator