Decision
Mr P and Tailte Éireann
From Office of the Information Commissioner (OIC)
Case number: OIC-155464-C7C9L4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155464-C7C9L4
Published on
Whether Tailte Éireann was justified in refusing access to information relating to the valuation of wind farms on the basis of section 16(1)(b) of the FOI Act
8 April 2025
This case has its background in the revaluation of all commercial and industrial property in the rating authority areas of Dún Laoghaire-Rathdown, Clare, Donegal, Galway, Kerry and Mayo County Councils and Galway City Council undertaken by Tailte Éireann and known as Reval 2023.
In a request dated 21 November 2024, the applicant, on behalf of two wind farms, sought access to the following:
1. The valuation of property number [XXX] entered in the valuation list for the rating authority area of Donegal County Council, which was published in September 2023 as part of Reval 2023;
2. The valuation of property number [YYY] entered in the valuation list for the rating authority area of Donegal County Council, which was published in September 2023 as part of Reval 2023 valuation of wind;
3. Any discussions, proposals or decisions made in relation to the valuation of wind farms as part of Reval 2023;
4. Any and all policy documents or guidelines relating to the valuation of wind farms generally.
In a decision dated 19 December 2024, Tailte Éireann identified 20 records as falling with the scope of the applicant’s request. All records were released to the applicant, with the exception of one record entitled ‘Windfarm 2023 Valuation Scheme Proposal Summary Paper February 2023’. It would appear that access to this record was refused on the basis of section 16(1)(b) of the FOI Act with the decision-maker stating that ‘access to record 20 … is deferred until the conclusion of the Valuation Tribunal case regarding these properties’. In the schedule appended to its decision, Tailte Éireann said that the document forms part of a deliberative process of a live Valuation Tribunal case. It further said that a redacted version of the record, with redactions made on the basis of section 35 relating to confidential information, will be released following the conclusion of the Tribunal case. It said that ‘the public interest decision is based on a safe space argument’, saying that the information contained in the document relates to a live Valuation Tribunal case and as such may form part of Tailte Éireann’s arguments before the Tribunal.
There is no internal review available to a requester in respect of decisions to defer access under section 16(1)(b) of the FOI Act. Therefore, on 16 January 2025 the applicant applied to this Office for a review of Tailte Éireann’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 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 limited to determining whether Tailte Éireann was justified in refusing the applicant’s request on the basis of section 16(1)(b) of the FOI Act.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on Tailte Éireann to satisfy this Office that its decision to refuse access to certain records, either in whole or in part, was justified. I must also have regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
In this case, Tailte Éireann, made no submissions in respect of the exemption cited for the refusal of specific records. Despite a number of attempts to engage with the body, no explanation of any substance as to the basis for its reliance on the exemption was provided. While clarifications may be required, this does not mean that this Office must, or will, continue to ask a body for sufficient details and arguments until the threshold for an exemption is met. Neither do I believe that I am required to construct arguments to support an FOI body’s broad assertions. In the absence of meaningful submissions from Tailte Éireann on these exemption, I have had to base my decision on the contents of the relevant record.
Section 16(1)(b) provides that a public body may defer access to a record containing information falling within the scope of section 29(2)(b), (d) or (e) until after a specified date, if release of the record prior to that date would be contrary to the public interest. This provision allows a public body to defer access to a request where the public body believes that the release of information contained in the record would be contrary to the public interest. However, for the section to apply, the public body must also be of the view that the information concerned falls within paragraph (b), (d) or (e) of section 29(2).
Section 29(1) of the FOI Act provides for the refusal of a request if the record concerned contains matters relating to the deliberative processes of a public body. However, section 29(2) provides that subsection (1) does not apply to a record if and so far as it contains (b) factual information, (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body or (e) a report, study or analysis of a scientific or technical expert relating to his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
The applicant, in his application to this Office, said that it is his understanding that the revaluations undertaken as part of Reval 2023 concluded in September 2023 and as such the matters set out in the record at issue can no longer be said to be under ‘live consideration’ and as such the ‘safe space’ argument set out by Tailte Éireann in its decision cannot be said to be a reasonable argument. The applicant said that he accepts that there are a number of appeals before the Valuation Tribunal with respect to Reval 2023. However, the applicant contends that it is now the obligation of the Tribunal, and not Tailte Éireann, to examine the merits of these appeals and issues decisions and as such it cannot be said that these appeals are under ‘live consideration by Tailte Éireann as it is no longer the decision-maker and is merely a respondent before the Tribunal.
The applicant also recalled that the purpose of the FOI Act, as set out in the Long Title of the Act, is to provide access ‘to the greatest extent possible’ to information held by public bodies. With respect to the public interest in the current case, the applicant said that Tailte Éireann has now taken the relevant decisions which it is obliged to do under Reval 2023 and in such circumstances it is difficult to understand how the public interest would be served by seeking to defer the release of the record at issue. The applicant further said that the public interest would be best served by greater transparency around the manner in which Tailte Éireann values wind farms when carrying out a revaluation under section 19 of the Valuation Acts, 2001. The applicant also quoted O’Donnell J inLyons Pub Ardagh v. Commissioner of Valuation [2024] IEHC 223 wherein he said ‘[v]aluation is a form of taxation, and therefore certainty about the basis upon which a person is to pay a valuation is important’. The applicant said that his clients had not been informed of the existence of the document comprising record 20 until it received the response to its FOI request even though it would now appear that their respective revaluations were made on the basis of it. The applicant said the utility of the record’s release would be greatly reduced if it were to be deferred until after the Tribunal appeals with respect to his clients’ wind farms. The applicant further said the purpose of the FOI Act is to provide a resource to members of the public that is of ‘actual utility’ and is one which enhances transparency and accountability. He said that any release of the record ‘after the event’ would serve no practical purpose and would ‘amount to no more than an intellectual curiosity’.
As set out above, for the release of information to be considered for deferral under section 16(1)(b), such information must first fall within paragraphs (b), (d) or (e) of section 29(2). Tailte Éireann has not, despite repeated requests, provided submissions to this Office in this matter. I also note that in the decision-letter which issued to the applicant on 19 December 2024 no reference was made to which sub-section of section 29(2) Tailte Éireann considered to apply to the information in the record.
I have therefore examined the record as supplied to this Office. The record itself runs to 54 pages and is referred to as a draft document. It comprises detailed information in relation to wind farms in the counties which were examined as part of Reval 2023 and contains information such as age of wind farms, total installed generating capacity (TIGC), maximum export capacity (MEC), number of turbines, scheme under which the wind farm operates and details of rents and royalty payments. The record also contains details of the proposed valuation methodology, based on a number of specific enumerated factors.
Factual information is defined in section 2(1) of the FOI Act as including ‘information of a statistical, financial, econometric or empirical nature, together with any analysis thereof’. This Office takes the approach that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term. This Office regards factual information as including material presented to provide a factual background to the central topic in a record and that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
Bearing in mind the definition of factual information as set out in section 2(1), it seems to me that much of the information contained in the record at issue can be said to comprise factual information. In particular, I am satisfied that much of the detailed empirical information relating to wind farms operating in the rating authority areas under review sits squarely within the definition of factual information set out in the Act. Accordingly, for the purposes of this decision, I am prepared to accept that sub-section (b) of section 29(2) applies to much of the information contained in the record.
I have also considered whether or not sub-sections (d) or (e) might apply to certain information in the record. Nowhere in record 20, as supplied to this Office, is there any indication who authored the document. In particular, I have no information before me to indicate whether the author(s) of the summary paper could be considered to be a ‘scientific or technical expert’. In any event, I do not consider this determinative as even if this paper was prepared by such an expert, I am satisfied that the second part of sub-section (e) cannot be said to be met. It appears clear to me that, in the circumstances of this case, this record was used by Tailte Éireann as part of the revaluation of wind farms in certain rating authority areas as part of Reval 2023, pursuant to its obligations under the Valuation Acts 2001. I am therefore satisfied that section 29(2)(e) cannot apply to information in record 20. Finally, for completeness, it is also not apparent to me how information in the record could be considered to fall within section 29(2)(d).
In sum, I am satisfied that section 29(2)(b) applies to much of the information in the record at issue. However, for the reasons which I will now outline, I do not consider it necessary for the purposes of this decision to delineate which information in the record falls into which category; namely whether it comprises factual information such that section 29(2)(b) would apply to it or whether none of paragraphs (b), (d) or (e) of section 29(2) apply.
As set out above, for section 16(1)(b) to apply, two conditions must be met; namely the information at issue falls within paragraphs (b), (d) or (e) of section 29(2) and release of the information prior to a specified date would the contrary to the public interest. I am therefore satisfied that for any information in the relevant record which is considered to be factual information within the meaning of section 29(2)(b), Taillte Éireann is only justified in relying on section 16(1)(b) to defer access to such information where release of this information would be contrary to the public interest.
Section 16 of the Act clearly envisaged that there will be cases in which disclosure of certain information prior to specified day would be contrary to the public interest and therefore could in certain circumstances be deferred until after the specified date. However, the public interest test contained in section 16 is stronger that that found elsewhere in the Act in so far as it will only justify the withholding of a record where its disclosure on or before a particular date is contrary to the public interest. Any argument for such a deferral 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 Tailte Éireann has not advanced any specific arguments in this regard, I note that in its decision on the applicant’s request that it considers that release of the information in record 20 prior to a determination by the Valuation Tribunal would be contrary to the public interest as the information may form part of Tailte Éireann’s arguments before the Tribunal.
It seems to me that Tailte Éireann has not identified any particular harm to the public interest by the release of record 20. Rather, it appears to be seeking to protect information relating to the revaluation of wind farms as part of Reval 2023 as a class, regardless of the precise nature of the information or what harm, if any, might arise as a result of its disclosure. As set out above, Reval 2023 involved the revaluation of commercial and industrial properties in the rating authority areas of Dún Laoghaire-Rathdown, Clare, Donegal, Galway, Kerry and Mayo County Councils and Galway City Council. Again as set out above, I am satisfied that much of the information contained in the record comprises factual information in relation to wind farms across the various rating authorities under review and not just the applicant’s clients’ wind farms.
It is my understanding that a revaluation appeal to the Valuation Tribunal arises following the fixing of a valuation by Tailte Éireann to a specific commercial property. The limited information available to me with respect to Tailte Éireann’s position makes reference to a singular determination following which it wishes to defer the release of the record at issue.
In the absence of detailed submissions from Tailte Éireann, it is not apparent to me how the release of substantially factual information with respect to wind farms across a number of local authority areas reasonably could be expected to prejudice a Valuation Tribunal determination in relation to a specific wind farm. In addition, with regard to information in the record which may be not be described as factual information, it is not apparent to me how release of this information could be considered to be contrary to the public interest in circumstances where revaluations by Tailte Éireann under Reval 2023 are now complete.
Overall, therefore, I am not satisfied that it has been established that release of record 20 would be contrary to the public interest and I find therefore that section 16(1)(b) does not apply.
I have considered whether I should simply annul Tailte Éireann’s decision on the ground that it has not justified its decision to refuse access to record 20 and direct it to release the record to the applicant. However, I am satisfied that it is not appropriate to do so. Tailte Éireann has indicated that it considers that section 35, relating to information provided in confidence, may be of relevance to some of the information contained in the record and it would not be appropriate to direct the release of such information without Tailte Éireann first having an opportunity to consider the applicability of this provision to the information at issue and potentially notify affected third parties.
In the circumstances, it seems to me that the most appropriate course of action is to annul Tailte Éireann’s decision and to direct it to undertake a fresh decision making process in respect of the record and make a new, first instance, decision on the record in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office, if he is unhappy with Tailte Éireann’s new decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul Tailte Éireann’s decision. I find it was not justified in refusing the applicant’s request on the basis of section 16(1)(b) and direct it to undertake a fresh decision-making process with respect to the applicant’s request.
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