Decision
Ken Foxe, Right to Know and Coimisiún na Meán
From Office of the Information Commissioner (OIC)
Case number: OIC-149635-B4K1S6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149635-B4K1S6
Published on
Whether An Coimisiún was justified in refusing access to parts of its business case seeking ministerial approval for temporary accommodation dated June 2023 under sections 30(1)(c) and/or 36(1)(b) of the FOI Act
03 November 2025
In a request dated 8 April 2024, the applicant sought access to An Coimisiún na Meán’s business case seeking ministerial approval for temporary accommodation dated June 2023. In its decision dated 8 May 2024, An Coimisiún granted partial access to the record, with redactions under sections 30(1)(c), 35(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act. On 10 May 2024, the applicant sought an internal review of An Coimisiún’s decision. On 5 June 2024, An Coimisiún affirmed its decision to refuse access to parts of the record and it relied on sections 30(1)(c), 36(1)(b), 36(1)(c) and 37(1) in support of its decision. On 7 June 2024, the applicant applied to this Office for a review of An Coimisiún’s decision.
During the course of the review, this Office wrote to the applicant and An Coimisiún and provided both parties with an opportunity to make submissions. In its submissions, An Coimisiún relied on 30(1)(c), 36(1)(b) and 37(1) in support of its decision to refuse access to parts of the record. It said release of parts of the record would disclose positions taken for the purpose of negotiations with the landlord of its previous office premises in Warrington Place or would disclose commercially sensitive information in relation to its negotiations with the landlord of its current office premises in Shelbourne Road. It relied on section 37(1) of the Act to refuse access to the names of individuals who work for third party companies as contained in Appendix 5 of the record. Finally, An Coimisiún said that with the passage of time, certain parts of the record are no longer sensitive and it provided the applicant with an updated version of the record with those parts released. This Office updated the applicant and informed him of An Coimisiún’s position in relation to section 37 of the Act. In reply, the applicant confirmed that he was agreeable to omitting the information withheld under section 37 from the scope of this review. This Office also notified both landlords of the review and provided them with an opportunity to make submissions. The landlord of the Shelbourne Road premises provided submissions supporting An Coimisiún’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 submissions made to date. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether An Coimisiún was justified in refusing access to parts of its business case seeking ministerial approval for temporary accommodation dated June 2023 on the basis that the parts concerned are exempt from release under sections 30(1)(c) and/or 36(1)(b) of the FOI Act.
The record at issue is a business case seeking ministerial approval for temporary accommodation for An Coimisiún dated June 2023. In its submissions to this Office, An Coimisiún said at the time the report was written, it occupied premises at Warrington Place. It said the premises had become unsuitable for the significantly expanding organisation. It said it assessed its requirements and proposed remediating and/or alternative options. It said the business case sets out potential courses of action, alternative property search and selection, costings, benefits and risks. It said it subsequently moved premises to Shelbourne Road in January 2024.
An Coimisiún relied on section 30(1)(c) of the FOI Act in refusing access to information contained in the following sections of the report:
• Table of Contents - Headings 3.4, 4.5, 4.6;
• Section 3 The Need to Move – subsection 3.4;
• Section 4 Courses of Action – subsections 4.5, 4.6;
• Section 8 Preferred Option - 200 Shelbourne Road – subsection 8.3;
• Section 9 Costs and Sources of Financing – Tables 3, 4, 5 and subsections 9, 9.1, 9.2, 9.5;
• Section 11 Risks – subsection 11.1;
• Appendix 4 Detailed Cost and proposed financing.
Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. 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 on whether disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, the exemption is also subject to section 30(2), which provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. Therefore, while the exemption does not require release of the records to give rise to any particular harms, such issues may be relevant when considering where the balance of the public interest lies.
In its submissions to this Office, An Coimisiún said it was advised by property experts of an expected or estimated remediation and dilapidation cost when vacating the premises at Warrington Place. It said the figure was subsequently negotiated between An Coimisiún and the Landlord of the Warrington Place premises. It said that at the time of the FOI request, that negotiating process, in particular agreement on the schedule of dilapidations, had not fully concluded. It said that to release details of estimated dilapidation costs, including its strategy and approach to negotiations, could have prejudiced its position and resulted in a higher end-charge. It said the harm therefore would have been a weakened negotiating position which could have resulted in considerably less value for money in the final transaction. An Coimisiún said it would still argue that disclosing its negotiating position here may affect its ability to negotiate again in what is expected to be the relatively near future. It said its current lease is for 5 years. It said the figure estimated for dilapidations was negotiated down quite significantly following and concluding negotiations. It said that release of this withheld information may affect its ability to negotiate down when it goes to the market again which may or may not involve engagement with the same agent.
An Coimisiún also said that at the time of request, there was potential for further negotiation with the new landlord at Shelbourne Road as it was considering the potential to lease additional space. It said this did not progress to a more formal process or outcome but was being discussed informally. Finally, An Coimisiún said section 8.3 of the report contains terms offered as an incentive to sign the commercial lease agreement by the landlord at Shelbourne Road. It said while the fact that a capital contribution was offered and the amount was subsequently made public (in its 2023 Annual Report) the information in 8.3 is more granular and specific on the terms. An Coimisiún said it can reasonably be considered that the commercial position of the landlord may be affected, with other clients having an expectation of similar offers in similar circumstances and negotiations.
I am satisfied that there were negotiations with the landlord of the Warrington Place property in relation to the remediation and dilapidation matters and that parts of the records disclose An Coimisiún’s strategy and approach to these negotiations and information about the provision it made for dilapidations. I am satisfied that release of the information withheld from sections 3, 4, 9, 11 and appendix 4 of the report could disclose positions taken by An Coimisiún for the purpose of negotiations in relation to the costs of remediation and dilapidations. I find that section 30(1)(c) applies to these parts of the report.
Section 8.3 contains information about the furnishing of Shelbourne Road and the landlord’s offer of a contribution towards the fit out of the premises. An Coimisiún’s Annual Report for 2023 states the following:
“On 15 of June 2023, a lease agreement was entered into for new office premises at Shelbourne Road. As part of the lease incentive, the landlord agreed to pay for fit out work up to an aggregate of €250,000. Once installed, any such tenant’s fit-out/furnishing shall belong absolutely to the tenant, subject to the terms of the lease. As of 31 December 2023, the landlord contributed a total of €220,360 worth of fit-out/furnishings towards the building at the leased accommodation. These costs were capitalised and amortised over the life of the 5-year lease.”
As details of the landlord’s offer of a capital contribution were made public by An Coimisiún, I am not satisfied that release of the information contained in section 8.3 would disclose positions for the purposes of negotiations. Nor am I satisfied that the record contains positions or plans adopted by An Coimisiún for the purposes of potential further negotiation in relation to leasing additional space in the Shelbourne Road property. An Coimisiún has not highlighted any parts of the report as containing such positions or plans and it is not clear to me that the report contains information in relation to such positions or plans. Finally, I note that An Coimisiún withheld the headings for a number of sections in the report from the table of contents. While I accept that these headings are relevant to sections of the report which deal with negotiations with the landlord of the Warrington place property, the headings do not themselves disclose any positions or plans for the purposes of negotiations and I am not satisfied that An Coimisiún was justified in refusing access to headings contained in the table of contents on the basis of section 30(1)(c) of the Act. I find therefore that section 30(1)(c) does not apply to section 8.3 of the report or the information withheld from the Table of Contents.
My finding that section 30(1)(c) applies to information withheld from sections 3, 4, 9, 11 and appendix 4 of the report is not the end of the matter as I must also consider whether section 30(2) serves to dis-apply section 30(1)(c) in respect of these parts of the report. As I have outlined above, section 30(2) provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request.
An Coimisiún identified the following public interest factors in favour release of these sections of the record:
• To examine whether a public body is being accountable and objective in its decision-making processes. Where the public interest is concerned this is particularly pertinent with regards value for money considerations for publicly funded entities.
• Ensuring FOI bodies make decisions appropriately and in accordance with policies/procedures and legislation. It is also pertinent to demonstrate efficient, appropriate, and effective management and strategic direction to ensure the public body can sufficiently discharge the duties that have been prescribed to it.
It said the public interest factors against release of these sections of the record are as follows:
• To protect the efficient and effective management of a public body
• Allowing FOI bodies to gather information and to form decisions without undue intrusion.
It is relevant that negotiations in relation to remediation and dilapidation costs have concluded and An Coimisiún has come to an agreement with the landlord of Warrington Place in relation to these matters. I accept that An Coimisiún will be entering lease negotiations again in the relatively near future. However, I am not satisfied that disclosure of An Coimisiún’s approach to negotiating a figure for dilapidations in relation to the Warrington Place property is likely to prejudice its position five years later when negotiating a figure for dilapidations in relation to the Shelbourne Road property. I understand that the Warrington Place property was leased in 2001 and An Coimisiún moved from that property in 2024. It seems to me that the issues in relation to dilapidations and remediations when vacating the Warrington Place property, which I understand An Coimisiún and its predecessor the BAI occupied for over 20 years, are likely to be entirely different to the issues that may be encountered in negotiations when the five-year lease of the Shelbourne Road property expires. I find that the public interest in facilitating scrutiny of how An Coimisiún carried out its functions in these lease negotiations and in promoting openness and accountability in the use of public funds would be served by release of the information withheld from sections 3, 4, 9, 11 and Appendix 4. There is one exception to this finding, the information contained in Appendix 4, Table 11 row 10 and footnote 4 concerns An Coimisiún’s provision for remediation and dilapidations at the Shelbourne Road premises at the end of the lease. I accept that release of this information could disclose its position for the purposes of future negotiations and I find that the public interest would, on balance, be better served by refusing to grant this information.
An Coimisiún relied on section 36(1)(b) of the FOI Act in refusing access to information contained in the following sections of the report:
• Section 7 Selection of Preferred Option- Table 2;
• Section 8 Preferred Option 200 Shelbourne Road – subsections 8.2, 8.3, 8.4;
• Section 9 Costs and Sources of Financing – Tables 3, 4, subsections 9, 9.1;
• Appendix 2 Comparison of Short-Listed Properties;
• Appendix 3 Summary of Short-Listed Properties;
• Appendix 4 Detailed Cost and proposed financing – Table 11
• Appendix 5 Heads of Terms –Tenant Incentives, Signage and Branding.
As I have found that the information withheld from appendix 4 (Table 11 row 10 and footnote 4) is exempt under section 30(1)(c), it is not necessary for me to also consider whether section 36(1)(b) applies to this information.
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.
There are certain situations where, although section 36(1) applies, the request shall still be granted. These situations are specified in section 36(2). Moreover, 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.
In his internal review request, the applicant said he does not believe the exemptions cited apply given the lease is for a five-year term. He said economic and political conditions will be completely different by that stage and future negotiations will take place in the context of a completely changed office market, a different government, and likely a transformed Coimisiún. He said that were the logic of An Coimisiún to be followed, no commercial arrangement could ever be examined properly under FOI as a public body could say renegotiation was schedule to take place in five, ten, or twenty years. The applicant asked where is the cut-off point under which disclosure could take place? is it seven years, or seventy years?
In his application to this Office, the applicant said he does not believe the redactions are justified under either 30 or 36 of the FOI Act as the record relates to fairly commonplace lease arrangements that most public bodies engage in on a regular basis. He said information relating to lease costs is published as a matter of routine by public bodies including by the OPW, who make such agreements on behalf of other organisations. He said publication of any expenditure items of greater than €20,000 is an obligation under the public spending code and much of the detail in these records will have to be published as matter of course by An Coimisiún.
In its submissions to this Office, An Coimisiún said the FOI request was not for lease costs specifically, but rather for access to a business case seeking ministerial approval for temporary accommodation for the organisation. It said that lease costs were released to the applicant in this record (€5.052m over 5 years). It said the Public Sector Reform Plan requires Government Departments and Agencies to publish online reports detailing Purchase Orders relating to payments for goods, services or works procured to a value greater than €20,000. It said these will be published by An Coimisiún in due course. It said it does not consider the information withheld in this record to be directly comparable nor would it have necessarily been disclosed by this requirement. It said the commercially sensitive aspect relates to more granular details (i.e. terms) rather than total amounts paid to vendor/supplier under a purchase order.
An Coimisiún added that the relevant commercially sensitive information in relation to the landlord of Shelbourne Road includes specific terms offered as incentive on the commercial lease agreement. It said that section 36 was also applied to details of other short-listed properties that were assessed as part of this process. It said that details such as names, locations, and per footage charge were withheld. It said the details contain third party commercial information and no contract was entered into with these properties. It said it signed a five-year lease on the Shelbourne Road premises and it will be entering into lease negotiations again in the next number of years. It said that releasing details of properties recently considered will harm its negotiating position. It also said that releasing information into the public domain about its sanctioned budget could hinder its ability to negotiate downwards on costs in the future. It said it could be in a disadvantaged position against a commercial entity who has knowledge of its process, planning, strategic approach and budgetary sanction in future negotiations.
In its submissions to this Office, the landlord of the Shelbourne Road premises said it considers elements of the agreement with An Coimisiún to be commercially sensitive and as such would request these details are kept confidential between the parties. It highlighted two areas specifically related to rent and contributions and it said that any reference to these two areas referred to in the record should be strictly confidential as it deems this information to be commercially sensitive.
As outlined above, the applicant submits that publication of any expenditure items of greater than €20,000 is an obligation under the public spending code and much of the detail in these records will have to be published as matter of course by An Coimisiún. The Office of Government Procurement (OGP) confirms that procurement of a property by lease agreement is exempt from public procurement rules (Article 10 of Dir. 2014/24/EU refers). Furthermore, the FOI Central Policy Unit in DPER confirms that leasing is not subject to the Model Publication Scheme. I therefore accept An Coimisiún’s submission that the information withheld in this record would not necessarily have to be disclosed by the requirement on Government Agencies to publish reports detailing expenditure items of greater than €20,000.
I note that information in relation to the Shelbourne Road property has been redacted from sections 8 and 9 and appendices 4 and 5 of the report. I have examined this information carefully. It seems to me that much of this information concerns either the condition of the property rather than terms offered by the landlord, or is already in the public domain. Information withheld from sections 8.2, 8.5 and appendix 5 (Signage and Branding) concerns the condition of the property rather than terms offered by the landlord. Information withheld from 8.3 concerns the landlord’s contribution towards the provision of office furniture. Details of this contribution were published in An Coimisiún’s Annual Report for 2023. Information withheld from sections 8.4, 9.1, appendix 4 and appendix 5 (tenant incentives) concerns a rent-free period. The fact that a rent-free period was offered to An Coimisiún has already been released to the applicant in section 8.4. I am not satisfied that the information withheld from sections 8 and 9 and appendices 4 and 5 of the record is commercially sensitive for the reasons outlined above and I find that section 36(1)(b) of the Act does not apply to this information.
Information in relation to other short-listed properties that were considered by An Coimisiún has been redacted from sections 7 and appendix 2 and appendix 3 of the report. This information includes the addresses of the various properties that were considered, information about costs per square foot, costs of services, costs of parking, amenities, fit out and availability. It seems to me that this is high level information about short-listed properties that were considered. It is not information that was created following negotiations with the owners of these properties. I understand that An Coimisiún contracted property advisors to conduct a search of suitable properties based on particular criteria and the information at issue concerns the short listed properties that were identified. I accept that this information gives an indication of the requirements of An Coimisiún at the time they were looking for properties. I also accept that An Coimisiún will be seeking a new lease when its current five-year lease expires. However, it seems to me that the market will likely change between the time An Coimisiún last searched for properties and the time it next enters the market seeking a new lease. It also seems to me that An Coimisiún’s requirements will likely change over time as it is in a period of rapid expansion. I do not accept that disclosure of the information concerning short-listed properties that were considered could reasonably be expected to result in a material financial loss or gain or prejudice to the competitive position of An Coimisiún or the owners of the properties. Nor do I accept that release of this information will harm An Coimisiún ability to negotiate when its current lease expires. It seems to me that the fact that An Coimisiún considered certain properties five years ago and the address and price of these properties, is not information that a future landlord could use five years later in the context of a changed market and given the likely changes in An Coimisiún over this time period. I find therefore that the information withheld from section 7 and appendices 2 and 3 of the report is not exempt under section 36(1)(b) of the Act.
In summary, I find that the information withheld from sections 7, 8, 9 and Appendices 2, 3, 4 and 5 is not exempt under section 36(1)(b) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary An Coimisiún’s decision. I find that An Coimisiún was justified in refusing access to the information withheld from Appendix 4 (Table 11 row 10 and footnote 4) under section 30(1)(c) of the FOI Act. I find that An Coimisiún was not justified in refusing access to the remaining information which was withheld from the report under either section 30(1)(c) or 36(1)(b) of the FOI Act and I direct release of the remaining information 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 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.
Jim Stokes
Investigator