Decision
Mr. Ken Foxe ,Right to Know and Rotunda Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-150001-P7W9V3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150001-P7W9V3
Published on
Whether the Hospital was justified in refusing access to a feasibility report on the basis of sections 29(1), 35(1)(a), 36(1)(b) and/or on the grounds that it does not hold the record sought for the purposes of the FOI Act
11 April 2025
In a request dated 30 April 2024, the applicant sought access to a specified feasibility report concerning staff accommodation. In a decision dated 10 June 2024, the Hospital refused the request under section 37(1) of the FOI Act, which is concerned with the protection of third party personal information. The applicant sought an internal review of the Hospital’s decision. On 12 June 2024, the Hospital affirmed its original decision, again relying on section 37(1) of the FOI Act. It also referenced confidentiality, internal deliberations and the funding source for the feasibility study. On 21 June 2024, the applicant applied to this Office for a review of the Hospital’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 by the Hospital and the applicant. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
The record at issue in this case is a feasibility study for staff accommodation that was prepared for the Hospital to explore the feasibility of renovating or replacing the existing Nurse’s Home building within the Hospital grounds and outlines four proposals under consideration.
During the course of the review, the Hospital revised the grounds upon which it considered the record to be exempt from release. Among other things, the Hospital argued that the record falls outside the scope of section 11(1) of the FOI Act, which affords a right of access to records held by FOI bodies, on the grounds that the funds for conducting the study were sourced entirely from private contributions by the board members and not from public funds. It further argued that the record is exempt from release under sections 29(1), 35(1)(a) and 36(1)(b) of the Act. It made no reference to, or submissions in respect of, section 37(1). I am satisfied that it is no longer seeking to rely on that exemption provision.
During the course of the review, and in light of the Hospital’s revised position, the applicant was notified of relevant matters and provided with an opportunity to make further submissions. This will be referenced below as appropriate.
Accordingly, this review is concerned with whether the Hospital was justified in refusing access to the record at issue on the grounds that it falls outside the scope of the Act and if not, on the grounds that it is exempt from release under sections 29(1), 35(1)(a) and/or 36(1)(b).
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Hospital to satisfy this Office that its decision to refuse access to the record sought was justified.
It is also important to note that while I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record at issue is somewhat limited.
In its submissions, the Hospital referenced section 11(1) of the Act which confers a general right of access to records held by an FOI body. It said that the feasibility report does not fall under this purview, as the funds for conducting it were sourced entirely from private contributions by the board members and not from public funds. It said that the FOI Act is intended to ensure transparency in the use of public resources and that it does not extend to records unrelated to public functions or publicly funded activities.
It is not apparent to me why the Hospital considers that the fact that the record was not funded from public funds means that it does not fall within the scope of the Act. Section 11 provides as follows:
Subject to this Act, every person has a right to and shall, on request therefore, be offered access to any record held by an FOI body and the right so conferred is referred to in this Act as the right of access.
Accordingly, all records held by an FOI body fall within the scope of the Act unless they are otherwise excluded by one or more of the other provisions of the Act. For example, certain bodies included in Schedule 1, Part 1 of the Act are regarded as public bodies only in respect of certain functions and/or records. The Hospital is not such a body. The question of whether the record at issue was funded from public funds or not has no bearing whatsoever on whether the record falls within the scope of the Act. The sole issue to be addressed is simply whether or not the record is held by the FOI body for the purposes of the Act.
While the Act does not define ‘held’, this Office accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. The Supreme Court considered the meaning of ‘held’ for the purposes of the FOI Act 1997 inMinister for Health v Information Commissioner [2019] IESC 40 (commonly referred to as the Drogheda Review case). In that case, the Court found that for a record to be held within the meaning of section 6(1) of the Act of 1997 (the equivalent of section 11(1) of the Act of 2014), the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.
The test outlined in the Drogheda Review case for determining whether a record can be deemed to be held by a public body for the purposes of the FOI Act comprises two elements, both of which must be met:
• the body must be in lawful possession of the record in connection with, or for the purposes of, its business or functions, and
• it must be entitled to access the information in the record.
I am satisfied that the Hospital is in lawful possession of the record at issue in connection with, or for the purposes of, its business or functions. The Hospital provides on-site accommodation for staff and the report concerns options for developing its on-site staff accommodation facilities. I am also satisfied that the Hospital is fully entitled to access the information in the record. Accordingly, I am satisfied that the record at issue falls within the scope of the FOI Act. I will proceed to consider the specific exemption provisions cited by the Hospital.
As I have outlined above, the Hospital cited sections 29(1), 35(1)(a) and 36(1)(b) in support of its refusal of the request. Having considered its submissions, it seems to me that the Hospital’s claim under section 29(1) is based on a concern that the record contains “sensitive and confidential information”. As such, I will consider the applicability of sections 35 and 36 in the first instance.
Section 35 of the FOI Act provides as follows:
1. Subject to this section, a head shall refuse to grant an FOI request if –
a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.
2. Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff 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(1) does not apply where the records fall within the terms of section 35(2), I deem it appropriate to consider the applicability of section 35(2) at the outset. As the record itself indicates, the report was prepared by a named architecture firm for the Hospital. The FOI Act defines a service provider as follows:
“service provider” means a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person;
I am satisfied that the report at issue was prepared by a service provider in the course of the performance of its functions. Accordingly, for section 35(1) to apply, release of the record must 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 a member of staff in, an FOI body or of such a service provider.
In its submissions, the Hospital said that the feasibility study is subject to explicit confidentiality agreements with the contributing board members. It argued that releasing the record would violate these legally binding agreements. It said that, furthermore, the funds for conducting the study were sourced entirely from private contributions by the board members and not from public funds.
The term ‘director’ is defined in section 2 of the FOI Act as including, in the case of a public body that is not a company within the meaning of the Companies Acts, a person who is a member of any board or other body that controls, managers or administers the relevant entity. In the circumstances, I am satisfied that members of the Hospital’s Board of Governors constitute directors for the purposes of the FOI Act. Accordingly, the Hospital has not identified any person other than an FOI body or head or a director, or a member of staff in, an FOI body or of such a service provider, to whom a duty of confidence is owed. I find, therefore, the section 35(1) cannot apply in this case.
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 the 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 section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.
In its submissions, the Hospital said that the feasibility study contains confidential financial and strategic details, the disclosure of which could reasonably be expected to result in a material financial loss or prejudice the competitive position of the parties involved. It said that given that the study was funded privately by the board members, its disclosure could unfairly impact these private stakeholders.
The Hospital’s concerns in this case appear to relate solely to the board members who funded the feasibility study. The report contains no details of the funding involved in the commissioning of the study. I simply cannot see how the release of the report could possibly result in a material financial loss or gain to those board members or prejudice the competitive position of those individuals in the conduct of their profession or business or otherwise in their occupation, nor has the Hospital explained how such harms might arise.
Neither is it apparent to me that the release of the report could possibly result in such harms to the architecture firm that prepared the report or the various other third parties referenced in the report such as the referenced quantity surveyors, mechanical and electrical consultants, and fire safety and structural consultants.
I have also considered whether the release of the record might give rise to harm to the Hospital itself. The report comprises an outline of development options under consideration as well as certain cost estimates. It includes, at Appendix B, a costing report undertaken by Quantity Surveyors. Pages 4 to 7 of that Appendix report (pages 81-84 of the overall record) contain order of cost estimates in respect of each of the proposals outlined in the feasibility report. In addition, email correspondence at page 104 of the overall record includes certain costing breakdowns in the first four bullet points. The breakdowns provided, when considered in conjunction with the detail contained in the rest of the report, comprise relatively detailed estimates in respect of proposed works. It seems to me that the release of such estimates at this stage in the process would give an advantage to potential tenderers for any relevant works that the Hospital decides to progress, in so far as they would be aware of the estimated costs the Hospital may be willing to bear for the carrying out of those works. Accordingly, I am satisfied that the release of pages 4 to 7 of Appendix B and the costing information in the bullet points on page 104 could reasonably be expected to result in a material financial loss to the Hospital. The applicant was notified of the above position and provided with an opportunity to make submissions in respect of the application of section 36(1)(b). No substantive submissions were received though he accepted that certain information in the record may be commercially sensitive. Having carefully considered the matter, I find that section 36(1)(b) applies to pages 4-7 of Appendix B and the relevant bullet points on page 104. For the avoidance of doubt, I am not satisfied that it applies to any of the other information in the record and I find that section 36(1)(b) does not apply to any other part of the record.
As I have found that section 36(1)(b) applies to certain information, I must also consider whether sections 36(2) or section 36(3) serve to disapply section 36(1). Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.
Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. In doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the eNet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”.
Neither the Hospital nor the applicant made submissions in respect of the public interest test. I have carefully considered the information to which I have found section 36(1)(b) to apply. I accept that release of the information would enable the public to assess the potential financial implications of the various development options under consideration. On the other hand, having found that the release of the information could reasonably be expected to result in a material financial loss to the Hospital, it seems to me that there is a weightier public interest in ensuring that the Hospital can endeavour to obtain value for money in any future procurement of services to carry out development works. Indeed, section 36(1) itself reflects the public interest in the protection of commercially sensitive information.
In sum, at this stage in the process, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists. I find, therefore, that section 36(3) does not apply and that the Hospital was justified in withholding pages 4 to 7 of Appendix B and the costing information in the bullet points on page 104 under section 36(1)(b).
Section 29 provides for the refusal of a request if (a) the record concerned contains matter relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is met.
In order for section 29(1)(a) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to that process.
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 fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
In its submissions, the Hospital said that releasing the feasibility study at this stage could impede ongoing strategic decision-making processes involving sensitive and confidential information. I am satisfied that the record relates to a deliberative process, namely the consideration of various development options concerning staff accommodation. I find, therefore, that the record meets the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the granting of the request would be contrary to the public interest, pursuant to section 29(1)(b).
The public interest test at section 29(1)(b) is a strong test, requiring the FOI body to show that the granting of the request would be contrary to the public interest, and is stronger than the public interest test in many other sections of the Act, which generally requires that the public interest would, on balance, be better served by granting than by refusing to grant the request. This Office accepts that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
While the Hospital has argued that the release of the record “could impede ongoing strategic decision-making processes involving sensitive and confidential information”, it has not explained how such harm could result from release or how release would be contrary to the public interest.
The record at issue contains an executive summary, an appraisal of the current condition of the existing Nurse’s Home building, development proposals outlining four specified options, and three appendices, namely (a) architectural sketch drawings, (b) a cost plan, and (c) a mechanical and engineering feasibility report. I have found that the substantive estimates information contained in the cost plan at Appendix B and on page 104, is exempt under section 36(1)(b). I will not consider that information further.
I have carefully considered the remaining contents of the record at issue. While release would disclose information about various development options under consideration, including benefits, challenges, and risks, it is not clear to me how release could reasonably be expected to impede any relevant decision-making process. It seems to me that there are many factors which the Hospital will need to consider in concluding the deliberative process at issue but I am not satisfied that release of a relatively high-level feasibility report would result in relevant harms to that decision-making process or be contrary to the public interest. In earlier communications with this Office, the Hospital said that release of the record is not in the public interest as the feasibility study was not publicly funded. I do not accept this argument. While the expenditure of public money is a valid public interest consideration, so too is the use of public property and public assets. In addition, the question of the funding of the feasibility study itself is distinct from the subject matter of the record. Notwithstanding the above, it is important to note that the public interest test in section 29(1) is not a balancing test. The question is not whether release is in the public interest but whether release would be considered contrary to the public interest (my emphasis).
In sum, it is not clear to me that release of the information at issue could impede the decision-making process in question. Nor is it clear that any particular disadvantage or harm could be expected to flow from release. The Hospital has not sufficiently explained why it considers that granting release of the record would be contrary to the public interest, nor is this evident to me from an examination of the records. Accordingly, I find that the Hospital has not justified its decision to refuse access to the remaining information on the basis of section 29(1) of the FOI Act.
While the Hospital does not appear to be relying on section 37 to refuse access to the substantive report, the application of that exemption, which serves to protect third party personal information, is mandatory. I note that the record contains the names and contact details of staff members of third party companies. I am satisfied that such information is personal information for the purposes of the FOI Act, that section 37(1) of the Act applies, and that the public interest does not weigh in favour of release.
I direct the release of the record, subject to the redaction of the order of cost estimate information which I have found to be exempt under section 36(1)(b) and subject to the redaction of personal information relating to the staff members of third party service providers contained in email correspondence at pages 104-111.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital’s decision. I find that it was justified in refusing access to a limited amount of information on the basis of sections 36(1)(b) and 37(1). I find that it was not justified in refusing access to the remaining information in the record on the basis of sections 29(1), 35(1)(a), 36(1)(b) or on the grounds that the Hospital does not hold the record sought for the purposes of the FOI Act. I direct the release of the record, subject to the redaction of the relevant financial information and of limited personal information relating to third party staff members.
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