Decision
Mr. Ken Foxe, Right to Know CLG and An Bord Pleanála
From Office of the Information Commissioner (OIC)
Case number: OIC-146859-P4T5T9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146859-P4T5T9
Published on
Whether ABP was justified in refusing access to records relating to correspondence between it and the Department of Housing, Local Government & Heritage relating to its budgetary allocation in Budget 2024 on the basis of section 40 of the FOI Act
19 November 2024
In a request dated 2 January 2024, the applicant sought access to correspondence between ABP and its parent Department; the Department of Housing, Local Government & Heritage, relating to the former’s budgetary allocation in Budget 2024. The applicant also sought access to any pre-budget submission prepared by ABP for use or submission ahead of the budgetary process for Budget 2024.
In a decision dated 30 January 2024, ABP identified eight records as falling within the scope of the applicant’s request. It refused access to all records on the basis of section 40(1)(b) of the FOI Act, making specific reference to sub-sections 40(2)(g) and 40(2)(o). The applicant sought an internal review of this decision and on 21 February 2024 the internal reviewer affirmed the original decision.
On 29 February 2024, the applicant applied to this Office for a review of ABP’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 comments in his application for review and to the submissions made by ABP in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review by this Office, and bearing in mind that the applicant’s request made specific reference to Budget 2024, I queried why it would appear that information in relation to budgetary allocations for 2025 and 2026 appeared to have been considered to fall within the scope of the applicant’s request. In response, ABP accepted that certain information in records 2, 3 and 4 fell outside the scope of the applicant’s request. It therefore provided this Office with amended versions of these records. However, ABP maintained its position that section 40(1)(b) applied to the remaining information in these records.
This review is therefore concerned solely with whether ABP was justified in refusing access to records 1-8, including records 2, 3 and 4 as amended, on the basis of section 40(1)(b) of the FOI Act.
ABP says that the information contained in the relevant records is of a type covered by sections 40(2)(g) and (o) of the FOI Act, and the records are exempt under section 40(1)(b).
Section 40(1)(b) provides that a head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature.
Section 40(1)(b) is what is known as a harm-based provision. Where an FOI body relies on section 40(1), it should identify the potential harm specified in the relevant paragraph of subsection (1) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should do this by reference to the specific records being considered for release; i.e. what is it about the particular records or the particular information in the records which, if released, could reasonably be expected to cause the harm envisaged? An FOI body’s submissions to this Office should be sufficiently detailed to demonstrate that link.
Section 40(2) sets out specific examples of the type of record that may be covered by section 40(1). The categories of records listed at 40(2) may qualify for exemption under section 40(1), provided that the relevant test in subsection (1) is met. Thus, an FOI body may invoke section 40(2) only in conjunction with one of the paragraphs of section 40(1) and it should show that requirements of subsection (1) are met.
ABP has relied on sections 40(2)(g) and 40(2)(o) in this regard. Section 40(2)(g) refers to the regulation or control by or on behalf of the State or a public body of wages, salaries or prices; and section 40(2)(o) refers to the economic or financial circumstances of a public body. However, while section 40(1) applies to the various categories of records set out in subsection 2, it is important to note that it does not apply to these categories exclusively.
The records at issue
Records 1, 5, 6, 7 and 8 comprise correspondence between officials of ABP and officials of the Department with regard to the estimates process for Budget 2024. Record 2 comprises a submission prepared by ABP to the Department outlining its estimated income and expenditure for 2024. Record 3 is one-page overview of ABP’s projected outrun for 2023 and its expected budgetary forecasts for 2024. Record 4 is a more detailed breakdown outlining ABP’s income and expenditure for 2023 and expected income and expenditure for 2024 across various sub-headings.
Submissions
In its submission to this Office, ABP said that release of the information at issue would result in undue disturbance to the ordinary course of business at ABP and its parent Department. It said that the relevant records contain sensitive financial forecasts and projections, including draft budgetary submissions for 2024, 2025 and 2026. Whilst accepting that information relating to budgetary allocations for 2025 and 2026 falls outside the scope of the applicant’s request, ABP nonetheless said that as these figures have not been finalised or approved by the board of ABP and premature disclosure of such information would disturb ongoing financial planning and negotiations with the Department. It said that ABP relies on its ability to engage in discussions and projections on financial strategies with the Department in a confidential manner to ensure that such strategies are well-considered before they are finalised or made public. It further said that disclosure of the information contained in the relevant records would risk disrupting the trust and collaboration required between ABP and the Department to ensure it receives adequate and appropriate funding.
ABP further said that the premature release of incomplete or unapproved financial information could mislead the public or other stakeholders as such information is subject to change. It said that such premature disclosure could impede its ongoing negotiations and financial planning. It also said that premature release of unapproved financial projections could also lead to a misrepresentation of its position, thereby impacting its ability to secure funding in an orderly and managed manner. It said that release of incomplete data could lead to significant public and media speculation which would lead to unnecessary pressure on it and its parent Department. It further added that ABP publishes its accounts yearly, which are finalised and approved by the Comptroller & Auditor General and are available on its website.
In the course of the review, I sought further information from ABP with regard to certain information in the records which I considered to already be in the public domain; namely certain financial information which was published in the 2024 Revised Estimates Volumes (REV) on 13 December 2023. In response ABP said that while certain information in the records is contained in the published REV, the records also contain further, more detailed, information which extends beyond the scope of the published material.
In his application to this Office, the applicant said that his request relates to pre-budgetary correspondence between ABP and its parent department and he considers that such information is routinely released as a matter of course by public bodies once the budgetary process has completed. The applicant further said that ANP’s reliance on section 40(1)(b) is based on an erroneous interpretation of that provision. The applicant said that it is very difficult to understand how release of information relating to ABP’s annual budgetary process could lead to the harms identified, nor has ABP explained how and why this would happen. Finally, the applicant said that ABP had not provided sufficient detail as to why it considers sections 40(2)(g) and 40(2)(o) to be of relevance.
My Analysis
It would appear that ABP’s position is that release of the information at issue would result in undue disturbance to the ordinary course of business at ABP and its parent Department as it would reveal details of budgetary discussions and projections which, if released, could disrupt the normal collaborative process between the parties.
I consider this to be a misunderstanding as to the exact nature of section 40(1)(b). Previous decisions of this Office have taken the view that this provision is designed to cover business in the ordinary meaning of the word (i.e. relating to commercial activity, trade or professions), not the provision of services by or on behalf of the State.
As I have described above, the information contained in the records relates to discussions between ABP and the Department in relation to the former’s budgetary allocation for 2024. The nature of the information set out in the records is high-level, comprising projections for both capital and current expenditure across various sub-headings such as staff remuneration, building maintenance and legal fees. The records also contain high-level projections for expected income for ABP for the year in question.
At no point in its submissions to this Office has ABP identified how the conduct of general commercial activity in the State could be disrupted by the release of the records at issue. Having considered the matter, it is also not evident to me how the release of 2024 budgetary projections for ABP could reasonably be expected to result in an undue disturbance to the ordinary course of business in the State.
ABP has also not identified any particular class of business, such as a particular trade or profession, which could be disrupted by the release of the information in the records. Equally, it is not apparent to me how the release of the information at issue could disrupt the course of any individual business activity, especially in circumstances where ABP has not identified any specific business sector. Even if ABP were to argue that release of the information at issue could cause disruption to the planning sector as a specific class of business, it is not apparent to me how the release of the high-level information contained in the records could reasonably be expected to result in such harms. Indeed, the content of the records themselves support the position that the negotiations between ABP and the Department related to high-level budgetary allocations as opposed to detailed information relating to the manner in which ABP conducts its day-to-day activities, including with respect to the Irish planning system. It is also important to recall that, following ABP’s decision to exclude certain information in the records as falling outside of the scope of the applicant’s request, the information remaining in the records relates solely to Budget 2024, for which certain information relating to ABP’s allocation is already in the public domain as part of the general budgetary process.
In the circumstances, I cannot accept ABP’s position that release of the records at issue could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State. Accordingly, I find, that section 40(1)(b) does not apply to records 1-8, including records 2, 3 and 4 as amended before this Office.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul ABP’s decision. I find that it was not justified in refusing access to information in the records, as revised in the course of the review before this Office, and I direct that this information be released to the applicant.
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.
Mary Connery
Investigator