Decision
Company B and Kerry County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120256
Published on
From Office of the Information Commissioner (OIC)
Case number: 120256
Published on
Whether the decision of the Council to grant a request to which section 29 of the FOI Act applies, concerning records relating to apparent breaches of planning legislation by a quarry owned by the company, was justified
15 May 2014
On 26 July 2012, a request was made to the Council for records created between 20 November 2009 and the date of the request, held on a particular Planning Enforcement File concerning a specified limited company. The Council took the view that the public interest required the release of certain of the records concerned, notwithstanding that they contained commercially sensitive information concerning the company's quarrying activities. As required by section 29 of the FOI Act, the Council consulted with the company (via its solicitor) on 8 August 2012.
The company, via its solicitor's reply of 28 August 2012, argued that the records contained commercially sensitive and confidential information, particularly as enforcement proceedings were then before the Courts. The Council accepted that it should ultimately refuse certain of the records on which it had consulted, but that others were nonetheless required to be released in the public interest (its decision of 17 September 2012 refers). On 26 September 2012, the company, again via its solicitor, applied for a review of the Council's decision to grant access to such records.
In carrying out my review, I have had regard to correspondence between the Council and the applicant as set out above; to the records at issue, copies of which were sent to this Office for the purposes of the Commissioner's review; to details of various contacts between this Office and the Council; and to details of various contacts between this Office and the applicant (also via its solicitor), particularly an email sent by Ms Anne Lyons, Investigator, on 9 April 2014, to which no substantive reply has been received. I have had regard also to the provisions of the FOI Act. All references to the "applicant" in the remainder of this decision may be read as references to the company, or its solicitor, as appropriate.
The scope of this review is concerned with whether the Council's decision, to grant access to a number of the requested records, was justified. Although the Council's correspondence with the applicant did not appear to identify the records concerned, it confirmed to this Office in the course of this review that the records at issue are records 11, 13, 14, 63-68, 78, 93, 118, 133, 134, 152, 198-199 and 204 on the file concerned.
Section 29 requires consultation with an affected third party where a public body is considering the release of records containing confidential information (section 26 of the FOI Act refers), commercially sensitive information (section 27 refers), or personal information (section 28 refers). If the body decides to release any or all of those records following consultation, the party to whom the records relate has a right to seek a review by this Office of the body's decision.
However, no party to a review has a right of veto over release of records. Section 34(12)(a) of the FOI Act provides that the body's decision is presumed to have been justified unless the person to whom the records relate shows to the Commissioner's satisfaction that the decision was not justified. Effectively, this provision places the onus on the applicant for review to show that the records concerned should not be released on the basis that, at the time of this Office's decision, the records are exempt under section 26, or section 27, or section 28, and that the public interest does not weigh in favour of their release.
It should also be noted that any review conducted under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office.
While the FOI Act requires the Commissioner and his Office to provide reasons for decisions, section 43(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Thus, I cannot describe the records at issue in this case in great detail. However, I have had proper regard to the requirements of section 34(12)(a) of the Act, as set out above.
I do not consider myself to be in breach of section 43(3) by saying that the majority of the records at issue comprise of internal Council emails and memorandums (including photographs taken by the Council). Records 198-199 comprise a letter sent to a County Councillor regarding a meeting he and the applicant had sought about the quarry concerned and a particular issue arising. Record 93 is a the Council's reply to a letter received from the company's environmental consultants (record 78), while record 204 is a letter received from the company.
The Council appeared to have provided the applicant with copies of records on the relevant file, further to its initial consultation. Accordingly, this Office's email to the applicant of 9 April 2014 simply listed the records subject to review in this case; although invited to do so, the applicant has not sought further copies of the records concerned. I therefore have no reason to consider that the applicant is not fully aware of the information contained in the records subject to this review.
This Office's email of 9 April 2014 explained the requirements of section 34(12)(a) to the applicant, and invited an explanation, by a particular date, as to why the records at issue should be found to be exempt under section 26, or section 27, or section 28, at this point in time. While the applicant acknowledged receipt of this email, no substantive reply has been received. As the applicant has not met the requirements of section 34(12)(a) of the FOI Act, the Council's decision must be presumed to have been justified. I find accordingly.
To elaborate:
Section 26(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:
Section 26(1)(b) provides for the refusal of a request where 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)of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.
However, section 26(2) of the FOI Act provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" 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 a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "
All of the records, bar 78 and 204, were created by the Council, and concern various steps taken by it on foot of the apparent breaches of planning legislation. Section 26 can only apply to such records if the disclosure of the details therein would result in a breach of a duty of confidence owed by the Council to the applicant. Having regard to the content of the records at issue, it is not clear to me why the Council would owe a duty of confidence to the applicant regarding the details concerned, nor, importantly, has the applicant made any argument as to why this might be the case.
The two letters that were sent by, or on behalf of, the applicant do not in my view contain any confidential or otherwise sensitive information. Accordingly, I do not accept that the Council owes any duty of confidence to the applicant in respect of the details therein. Neither, having regard to the content of these letters, do I consider them to contain information that was given to the Council in confidence, or on the understanding that it would be treated as such, or that release of the details now would be likely to prejudice the giving to the Council of further similar information from the applicant or other parties. The applicant has made no arguments that would enable me to consider otherwise.
As I have no basis to find that section 26 applies to the records at issue, I find accordingly.
Section 27(1) of the FOI Act provides for the mandatory refusal of three different classes of commercially sensitive information. Section 27(1)(a) provides for the refusal of trade secrets of a person other than the requester concerned, and clearly has no relevance to the case at hand.
Section 27(1)(b) provides for the refusal of 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. Section 27(1)(c) provides for the refusal of information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The applicant was told that this Office understood the quarry the subject of the enforcement proceedings to have closed. The applicant has not disputed this, nor has it explained how the release of records concerning that closed quarry could impact on the company's business or any negotiations in which it may currently be involved. Thus, I have no basis to consider section 27(1)(b) or (c) to apply to the records, and I find accordingly.
Finally, it has not been argued by the applicant at any stage that section 28 of the FOI Act, which requires the refusal of records containing personal information, is applicable in this case. This is sufficient for me to find that section 28 does not apply to any of the records at issue.
In any event, the records pertain to apparent breaches of planning legislation by a quarry owned by a commercial entity. They do not contain any private or personal information about the persons who operate the company, or any other individual. Thus, even if it had been argued that section 28 of the FOI Act was applicable, I would not accept that this was the case and I would find accordingly.
Having regard to the foregoing, I need not consider whether or not the public interest in ensuring openness and accountability, relating to the Council's actions on foot of apparent breaches of planning legislation, would outweigh the public interest in withholding any records found to be exempt under sections 26, 27 or 28 in this case.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's decision to release records 11, 13, 14, 63-68, 78, 93, 118, 133, 134, 152, 198-199 and 204.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator