Whether the Department was justified in refusing access, under sections 30(1)(c), 31(1)(a), 35(1)(a) and (b), and 42(f) of the FOI Act, to copies of agreements made between the Government, the FAI and the IRFU regarding the State’s part funding of the Aviva stadium

16 February 2021

Background

In a request dated 26 January 2020, the applicant sought access to the agreements made between the Government, the Football Association of Ireland (the FAI) and the Irish Rugby Football Union (the IRFU) regarding the State’s part funding of the building of the stadium that would become known as the Aviva Stadium. In a decision dated 31 January 2020, the Department identified two records as relevant to the request, a 2004 Grant Agreement and a 2007 Grant Agreement Amendment between the Minister for Arts, Sports and Tourism, the FAI, the IRFU, and the Lansdowne Road Stadium Development Company (a joint venture company established for the purpose of the redevelopment). It refused access to both records under sections 30(1)(c), 31(1)(a), 35(1)(a) and (b), 36(1)(b) and (c), and 42(f) of the FOI Act. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request under sections 30(1)(c), 31(1)(a), 35(1)(a) and (b), and 42(f).  On 28 February 2020, the applicant sought a review by this Office of the Department’s decision.

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 applicant’s submission and to the submissions made by the Department in support of its decision.  During the course of the review, the three other parties to the agreement were notified of the review and given an opportunity to make submissions.  Only one responded and indicated that it had no particular submission to make.  I have also had regard to the contents of the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Department was justified, under sections 30(1)(c), 31(1)(a), 35(1)(a) and (b), and 42(f) of the FOI Act, in refusing access to the 2004 Grant Agreement and the 2007 Grant Agreement Amendment.

Analysis and Findings

Section 42(f)

As section 42 serves to remove certain records from the scope of the FOI Act, I have considered the applicability of this provision to the records at issue first. Section 42(f) of the FOI Act provides that the Act does not apply to records held or created by the Office of the Attorney General (the AGO), other than records relating to general administration.  The Chief State Solicitor’s Office (CSSO) is a constituent part of the AGO.

In its submission to this Office, the Department said that the Grant Agreements were drafted by the Department with legal advice and input from the AGO and a firm of solicitors. The fact that the AGO may have assisted the Department and offered advice in drafting the records does not, in my view, mean that they can be said to have been created by the AGO. I find that they were created by the Department.

The Department also argued that as the AGO helped to draft the records, it is axiomatic that the AGO holds copies of the records. It argued that it would seem inconsistent for the same document to be released when held by a Government Department and be exempt when held by the AGO. I do not accept that argument. The Agreements are records that are held by the Department. The fact that the AGO may hold copies of the records does not mean that the records held by the Department are captured by section 42(f).

In The Minister for Justice, Equality and Law Reform v The Information Commissioner [2001] IEHC 35, Finnegan J addressed the issue of records held by the DPP and section 46(1)(b) of the 1997 Act (now section 42(f) of the 2014 Act) stating:

“Insofar as the Director of Public Prosecutions or his office has control of the original statements and other documents which were the source of documents compiled in the book of evidence then clearly these are documents held by the Director of Public Prosecutions having regard to the definition of ”hold” in section 2(5) of the Act of 1997 and are likewise affected by the provisions of s.46(1)(b). Such documents if also held by another public body subject to other provisions of the Act of 1997, may be accessible on application to that body.” (my emphasis)

I find that section 42(f) does not apply to the records at issue.

Section 30(1)(c)

Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought 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. Where the body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers).  

This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by Government or the FOI body of its negotiations. However, such issues may be relevant to the public interest test in section 30(2).

The Department said that the Agreements represent the conclusion of negotiations and as such, set out the position taken at the conclusion of negotiations. It argued that in terms of the funding of future sports capital projects, it would be detrimental to the Department if the positions agreed in relation to the Aviva Stadium were disclosed. It argued that the 2004 Grant Agreement sets out all of the aspects of the Government negotiation position: the schedule for paying the grant, the amount of funding being contributed by the FAI and the IRFU, the retention rates being applied, the apportionment of costs and the length of time the State requires a charge to be placed on the stadium. It argued that future negotiations with respect to any other large capital project would be severely hampered and compromised if this information was disclosed. It drew attention to a particular clause in the Amendment Agreement as an example of how the release of the records might compromise the Government’s negotiating position if it was negotiating another similar project in the future.

In case 000528 (available on this Office website at www.oic.ie), the then Commissioner considered whether the equivalent provision of the FOI Acts 1997 & 2003 (section 21(1)(c)) applied to an out-of-court settlement agreement between the North Eastern Health Board and a senior hospital consultant who had taken legal proceedings following his having been placed on administrative leave by the Board, his employer. The Commissioner stated the following:

In my view, the purpose of section 21(1)(c) is to protect the strategies or positions considered or adopted by a public body with a view to reaching an agreement. It is the undisclosed strategies, positions or alternatives that the provision seeks to protect. It is designed to protect negotiation positions or plans from being disclosed directly or indirectly to other parties in the current or other negotiations. Once agreement is reached, the terms of the agreement or the final outcome of the negotiations are known to the other parties to the negotiations. I do not accept that disclosure of the final terms of settlement agreed, as opposed to details of any negotiations that may or may not have occurred leading to settlement, is exempt pursuant to section 21(1)(c). I consider that the records in this case do not disclose positions, plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations within the meaning of section 21(1)(c).

It seems to me that similar considerations arise in this case. While the Agreements at issue contain details of the terms of the agreement reached, they do not disclose positions, plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of the negotiation of the terms of those agreements within the meaning of section 30(1)(c). I find that section 30(1)(c) does not apply to the records.

I should add that even if I had accepted section 30(1)(c) to apply, I fail to see how the release of the records would severely hamper and compromise future negotiations with respect to any other large capital project as argued by the Department. It is noteworthy that the terms of the Agreement were settled between 13 and 16 years ago. I find it very difficult to accept that the terms upon which agreement was reached such a long time ago could reasonably be expected to hamper the Government’s ability to negotiate different terms in similar current or future similar negotiations. It is also relevant to note that a certain amount of the information in the Agreement has since been made public.

Section 31(1)(a)

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The concept of “once privileged always privileged” applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Section 31 (1)(a) does not require consideration of the public interest.

The Department said that its solicitors advised on how the 2004 Grant Agreement should be worded and as such, it attracts legal advice privilege. It provided copies of correspondence with its solicitors in support of that claim. That supporting documentation shows that the Department sought legal advice on a specific matter related to the draft agreement. In providing that advice, the solicitors prepared a revised version of the draft agreement for consideration.

I do not accept that the records at issue attract advice privilege. They are simply not confidential communications made between the Department and its professional legal adviser for the purpose of obtaining and/or giving legal advice. Their disclosure would give no indication of the nature or content of the advice sought or received. While I accept that the Department sought and obtained legal advice in the drafting of the agreements, the final signed agreements themselves are not legal advice but rather the culmination of a process in which legal advice was obtained.  I find that section 31(1)(a) does not apply to the records. 

Section 35(1)(a) and (b)

The Department claimed that sections 35(1)(a) and (b) applied to the two records.  

Section 35(1)(a) provides for the protection of information given to a public body in confidence.  For the exemption to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence, 
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(1)(b) provides for the refusal of a request where the disclosure of the information concerned would constitute breach of a duty of confidence provided for by an agreement or enactment or otherwise by law.

However, section 35(2) provides that section 35(1) does not apply to a record prepared by a staff member of an FOI body or a service provider 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 head or a director, or member of the staff of, an FOI body or of such a service provider".

As section 35(2) serves to disapply section 35(1), I have considered its applicability first. As I have outlined above, I am satisfied that the records at issue were prepared by the Department. As such, I must consider whether disclosure of the records would constitute a breach of a duty of confidence provided for by an agreement or statute or otherwise by law and owed to a person other than the Department or its staff.

I note that when requesting submissions from the Department, the Investigating Officer specifically asked the Department to address relevant questions concerning the applicability of section 35(2) as set out in the Sample Questions for Public Bodies that is publicly available on our website. It did not do so.

Instead, it simply argued that the Grant Agreements include information provided by the FAI and IRFU on a confidential basis. It argued that all of the organisations signed documents that were marked as confidential at the time on the understanding that the Department would respect such confidentiality. It said it is unreasonable for the Department to require third parties to sign documents on the understanding of confidentiality and then decide unilaterally to waive that confidentiality.

In essence, its argument is that it owes a duty of confidence to the other parties to the Agreements. However, it did not point to any particular agreement or statute that provided for such a duty of confidence.  I note that the Agreement itself contains a clause relating to confidentiality. That clause requires each party to treat as confidential details relating to policy decisions under deliberation and commercially sensitive information obtained as a result of entering into or performing the terms of the agreement. It does not, in my view, serve to require the parties to keep the terms of the agreement itself confidential. Furthermore, while the labelling of a record as confidential may be a relevant factor in determining confidentiality, it is not of itself sufficient, in the absence of other evidence establishing the necessary quality of confidence, to impose an obligation of confidence with respect to the record concerned. I am not satisfied that disclosure of the records at issue would constitute a breach of a duty of confidence provided for by an agreement or statute.

I have also considered whether disclosure would constitute a breach of a duty of confidence provided otherwise by law. A duty of confidence provided for otherwise by law is generally accepted to include a duty of confidence arising in equity.

The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611).  The tests require that:  (1) the information has the necessary quality of confidence about it; (2) the information was imparted in circumstances imposing an obligation of confidence; (3) there is an unauthorised use of that information to the detriment of the party communicating it.

It is not clear to me that the information at issue in this case has the necessary quality of confidence about it. As outlined above, much of the information in the Agreements is already in the public domain, having been put there by some of the parties to the agreement. Furthermore, it seems to me that even if the information in the Agreements had the necessary quality of confidence about it at the time the Agreements were signed, it has since lost that quality of confidence with the passage of time. Indeed, it is of some relevance that despite having been given an opportunity to do so, none of the parties to whom the Department considers a duty of confidence is owed chose to make submissions in support of withholding the records. As such, I am not satisfied that the information contained in the records at issue has the necessary quality of confidence about it or that the release of the records at this stage would comprise an unauthorised use of that information to the detriment of the other parties to the Agreements. I find that disclosure of the records would not constitute a breach of a duty of confidence provided otherwise by law.

In conclusion, therefore, I find that section 35(1) does not apply to the records at issue by virtue of section 35(2).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Department to refuse access, under various provisions of the Act, to the 2004 Grant Agreement and the 2007 Grant Agreement Amendment.  I direct the release of both records in full.

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. 

 

Stephen Rafferty

Senior Investigator