Whether UCC was justified in refusing to release records to the applicant relating to a loan to UCC from the European Investment Bank (the EIB) on the basis that they contained commercially sensitive information

170282

-‹High Court Appeal in this case between:

-‹Appellant: University College Cork

Respondent: The Information Commissioner

Notice Party: Raidió Teilifis Éireann

-‹Record No. 2018/12 MCA

Background

All references to the applicant in this decision should be taken as a reference to the original requester or the applicant as appropriate. The requester works in the same organisation as the applicant, and made the original FOI and internal review requests. He subsequently gave written permission for the applicant to take over his request.

On 6 January 2017, the applicant sought access to various records relating to a loan provided to UCC by the EIB. UCC identified five records relating to the applicant's request, to which it refused access on the basis that they contained commercially sensitive information (section 36(1)(b) of the FOI Act refers). These records comprised the finance contract between the parties and four records considered at internal UCC Finance Committee meetings. Its also provided information in relation to withdrawals in 2016 from the loan account and stated that no records existed in relation to one part of his request (concerning non-capital funding). The applicant has not made any indication that he has grounds to believe that further records should exist in this case.

The applicant sought an internal review on 18 April 2017 and UCC affirmed its original decision on the same grounds. On 5 June 2017, the applicant applied to this Office for a review of UCC's decision.

During the course of this review, Ms Sandra Murdiff of this Office contacted the EIB and informed it of this review and invited it to comment. The EIB subsequently provided a redacted copy of the loan contract between it and UCC and stated that it had no objection to its release. It stated that the information withheld from this version of the contract related to personal information and commercially sensitive information. It did not comment on any of the other records at issue.

I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review I have had regard to UCC's decisions on the matter and its communications with this Office; the applicant's communications with this Office and UCC; and the contents of the records concerned. I have also had regard to correspondence between this Office and the EIB.

Scope of Review

Section 15(1)(a)
In its submission to this Office, UCC contended that no records exist relating to the first part of the applicant's request - "the terms of the loan contract that exists between UCC and the EIB following the agreement in 2016". It went on to say that there while was a finance agreement in place between the parties which provided a facility to draw down funds for a range of capital projects, the key financial terms would only be determined at the drawdown date in each case. It therefore stated that that no record existed relating to this part of the applicant's request. It had initially identified Record 1 as being relevant to the first part of his request. Having examined the record identified by UCC as Record 1, described as the "Finance Contract" in the Document Schedule provided to the applicant and to this Office, I am satisfied that this record falls within the scope of the first part of the applicant's request. 
Record 5
Having carefully examined the records concerned, I am of the view that Record 5 does not fall within the scope of the applicant's request which sought records relating to a loan provided to UCC by the EIB. Record 5 relates to banking loans which do not involve the EIB. Accordingly, it will not be considered as part of this review. I note that Ms Murdiff informed the applicant of this.

Accordingly, this review is solely concerned with whether UCC was justified in refusing to grant access to Records 1-4 on the basis of section 36 of the Act.

Preliminary Matters

I wish to draw attention at the outset to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body concerned shows to the satisfaction of the Commissioner that its decision was justified. This means that the onus is on UCC to satisfy this Office that its decision to refuse access to the information sought was justified.

In relation to UCC's submissions, I note that it expressed the view that FOI should not be used "as a means to support the commercial interests of privately owned media companies". I wish to make it clear that this type of argument goes to the motive and identity of the requester and I cannot cannot give it any weight in this case. As UCC ought to be aware, section 13(4) of the FOI Act provides that subject to the Act, decision makers must disregard any reason given for the request or their opinion as to the requester's reasons. 

Analysis and Findings

The records at issue in this case are as follows: 

1. A Finance Contract between UCC and the EIB
2. A report to the Finance Committee in October 2015 concerning the EIB, including tables of financial details and a presentation
3. A February 2016 spreadsheet setting out UCC's income and expenditure, balance sheet and cashflow
4. A report to the Finance committee in May 2016 regarding the loan agreement 

Section 36
UCC refused to grant access to the records concerned under section 36(1)(b) of the FOI Act. Section 36(1)(b) provides: 

"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -“

... (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".

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 that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that 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). 

It its original and internal review decisions, UCC contended that disclosure of the records concerned would prejudice the competitive position of private third parties in the conduct of their business, and would result in a material financial loss to these organisations. It also stated that release would decrease the likelihood of meaningful engagement by private firms willing to partner with UCC in the future, which would have a detrimental effect on the University's ability to fulfil its objectives.

In the course of this review, Ms Murdiff wrote to UCC seeking a submission in this case. She noted that it appeared that UCC was of the view that the EIB's interests would be adversely affected by the release of the information concerned. She also noted that the EIB is a non-profit public institution, not in competition with retail banks or lending institutions. Having regard to this, she asked UCC to identify the material financial loss or gain which is expected to result to the EIB; to show how disclosure of the relevant information in the record could reasonably be expected to cause that result; and/or how the competitive position of the EIB could be prejudiced by the disclosure of the relevant information. 

The applicant argued that EIB loans were not commercial loans in the strictest sense and that it was not in competition with retail banks. He also referred to a previous decision of this Office,  Case No. 110092 (Gavin Sheridan and the IDA) wherein the then Commissioner found that "the expectation of a diminution of privacy rights, at least in relation to the disclosure of details of commercial transactions with public bodies" was a necessary consequence of doing business with public bodies. I note that the facts of that case differ from those in this one in that it related to the leasing of properties by individuals to the IDA. However, I accept his argument that bodies doing business with public bodies should expect a high degree of openness and transparency. He was also of the view that while Record 1 concerned the EIB as well as UCC, the remainder of the records were internal UCC documents. In essence, he argued that even if Record 1 was found to be exempt, the same arguments could not apply to Records 2-4. 

UCC stated that the EIB is not a public organisation, but a supranational bank which operates in a commercial environment. It stated that it regularly competes with other finance providers, including commercial banks and that it charges commercial competitive rates. It also said that it had contacted the EIB about this case and it had stated that the financial contract (Record 1) was "commercially sensitive information" and that it would prefer not to consent to release. UCC stated that release of such commercially sensitive information would considerably compromise the EIB in its negotiations with other Universities in Ireland and across Europe. It was also of the view that this would negatively impact "UCC and Ireland" in any future negotiations for financial support from the EIB. It further stated that disclosure of the EIB's margin on the loan would compromise the "EIB's competitive position when competing for future loans with other potential customers". 

I note that on its own website, the EIB describes itself as "a non-profit, policy driven public bank....[which] is financially autonomous". I also note that it raises its resources on the financial and capital markets, mainly through bond issues. In my view, the EIB is very different from a commercial bank. Furthermore, as stated on the EIB website, it "can only make a specific quote for lending following a thorough appraisal of the project. Loan rates will also vary according to specific aspects such as currencies borrowed, amount, duration and timing of disbursement". Clearly, each project is assessed on its merits in terms of risk, collateral and term of loan, etc. The website also states that the EIB offers fixed interest rates as well as revisable and convertible rates, which "allow for a change of interest rate formula during the life of the loan at predetermined dates or during predefined periods". It does not appear to me that the EIB is purporting to offer a standard interest rate to all customers, meaning that it could lose business to another bank if a customer discovered it was on less advantageous terms than UCC. More importantly, the EIB itself has not argued that this is the case.

As noted above, when asked to comment on the possible release of the contract, the EIB provided a copy of the record with various references to interest rates and terms and conditions removed, and said it had no objection to its release. In this regard, it referred to Article 5.5 of its own Transparency Policy which states that "[A]ccess to information/documents shall also be refused where disclosure would undermine the protection of... commercial interests of a natural or legal person". I note that Ms Murdiff had informed the EIB of her view that UCC had "only made general submissions in support of its decision" and that it seemed to her that it had not justified its claim that section 36(1(b) applied to the records cat issue. While the information withheld from the copy of the record provided by the EIB indicated which information it considered to be commercially sensitive, it did not state why it believed this to be the case. Neither has it indicated whether it was its own or UCC's interests which it expected to be harmed by release, or what harm it envisaged.
 
UCC stated in its submission that the specific interest rates to be applied to each drawdown of funds and whether the rates were to be fixed or floating were not set until the relevant drawdown dates. Therefore, I am not satisfied that release of the overall terms of the contract would reveal the specific terms applied to each tranche of funds drawn down by UCC. Furthermore, while the EIB was given the opportunity to support UCC's case by explaining why the information concerned should be exempt and identifying the harm which could be occasioned by its release, it has not done so. In my view, there is nothing before me to demonstrate how the EIB's competitive position would be prejudiced or how it could incur a material loss by release of the information concerned. However, I note that Record 1 also contains references to third party companies (not UCC or EIB). As I understand it, these companies do not have any role in the loan between UCC and EIB. I accept that release of the information relating to these companies could reasonably be expected to result in a material financial loss 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. Accordingly, while I find that UCC has not met the burden of proof to show that it was justified in refusing access to the majority of Record 1 under section 36(1)(b), I find that section 36(1)(b) applies to the information relating to these companies.

Much of the information in Records 2-4 does not relate to the EIB in anything but the broadest terms. Records 2 and 3 contain details of UCC's holdings, loans, projected income and expenditure and cashflow and Record 4 is a summary of the loan agreement. I note that much of Record 4's content appears to have been put in the public domain by UCC when its plans were announced.

This Office has accepted previously that the FOI Act does not prohibit a public body from relying upon the provisions of section 36(1)(b) in circumstances where it is claiming that the disclosure of the records at issue could reasonably be expected to result in it incurring a material financial loss. However, it is noteworthy that UCC has not pointed to any specific information contained in the records at issue that, if disclosed, could reasonably be expected to give rise to such harm.  Rather, it made a general assertion that the disclosure of UCC's cost of capital would compromise it if it were to enter into lease agreements of its assets, Public Private Partnerships or when setting fees. In previous decisions, this Office has explained its approach to interpreting the words "could...reasonably be expected to...." in the context of section 36 of the FOI Act.  In determining whether access "could reasonably be expected to affect adversely" one of the interests outlined in section 36(1), this Office takes the view that there must be adequate grounds for any such expectation at the time the decision to refuse access is made.  The mere possibility of some adverse effect is not sufficient.   

In this case, while I accept that UCC has outlined a potential harm arising from the release generally of records of the type at issue here, it has not explained how such harm might arise having regard to the contents of the specific records at issue.  As such, it seems to me that UCC has not shown that section 36(1)(b) applies to Records 2-4. 

I have found section 36 to apply to information in Record 1 relating to third party companies. Section 36(2) disapplies section 36(1), however I am satisfied that it does not apply in this case. 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. 

Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in public administration being open and accountable. 

However, in the circumstances of this case, when the role of the companies concerned does not appear to be central to UCC's actions in the matters at hand I do not consider that, on balance, the public interest would be better served by the release of this information.

Accordingly, I find that UCC was not justified in its decision to refuse to grant access to Records 1-4 on the basis of section 36(1)(b) of the Act and I direct their release to the applicant, apart from the information relating to third party companies contained in  Record 1.

Section 37
In its response to this Office, the EIB stated that it had redacted some information from the contract as it was of the view that it comprised the personal information of third parties. This included the names, titles and contact information of EIB and UCC staff. Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record. I note that UCC did not rely on this exemption in its decisions or submission to this Office.

Section 2 of the FOI Act defines the term "personal information". It also sets out a non-exhaustive list of 14 examples of "personal information", and three quite narrow exclusions to what shall be considered to be personal information where public servants are concerned. One of the exclusions provides that the name of a person in their capacity as a public servant, is not considered to be their personal information. In the circumstances of this case, I am satisfied that the exclusion applies to the names and titles of UCC staff who signed the contract (Record 1). The applicant has confirmed that he is not seeking the details of EIB staff. 

Record 1 also contains details relating to property transactions, which set out details of properties used by UCC for student accommodation purposes. The history of the ownership of each property is given under the heading "Description". This includes the names of individuals who owned or sold the relevant properties to UCC, and various Land Registry and Property Registration Authority reference numbers. Section 2 of the Act provides that the definition of personal information includes "information relating to the financial affairs of the individual" and "information relating to property of the individual (including the nature of the individual's title to any property)". I am satisfied that the information relating to named individuals contained in Record 1 is exempt under section 37(1) of the FOI Act. 

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 

Section 37(5) of the FOI Act 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 information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. 

Section 37(5) - The Public Interest
There is a public interest in openness and accountability relating to how public bodies carry out their functions. However, there is a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution), which is recognised by the language of section 37 and also by the Long Title to the FOI Act. 

When considering section 37(5)(a), privacy rights will 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. I do not see any public interest in favour of release of the personal information of third parties in circumstances where the applicant is seeking information relating to a loan between the EIB and UCC. I am of the view that the public interest in UCC's openness and accountability will be met by the information which I am directing UCC to release. Furthermore, I am of the view that the release of the third party personal information in Record 1 would result in a significant breach of the rights to privacy of the parties whose personal information would be released. 

On balance, I find that the weight of the public interest in granting access to the material in Record 1 is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.
 
In the interests of clarity, I direct the release of Record 1 subject to the redaction of the EIB staff names and signatures and references to third party companies (not UCC or EIB) and individuals. I also direct the release of Records 2-4 in full. 

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary UCC's decision. I find that it was not justified in its decision to refuse access to the records sought under section 36(1)(b). I find that it was justified in withholding some of the information in the records at issue on the basis of section 37(1) of the Act. I direct the release of Records 1-4 as outlined above.

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 four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator