Decision
Mr X and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-114792-S9H9Q7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-114792-S9H9Q7
Published on
Whether the Council was justified in refusing access to certain records relating to an Expression of Interest process for the provision of bike hire and a shuttle bus service on the Limerick Greenway under sections 29(1), 30(1), 31(1), 35(1), 36(1) and 37(1) of the FOI Act
5 August 2022
In March 2021, Limerick City and County Council sought expressions of interest (EOI) from interested operators to lease property from the Council at three key locations along the Limerick Greenway and provide bike hire and shuttle bus services at those locations. This process was called Limerick Greenway Bike Hire and Shuttle Bus Service Expression of Interest Phase 2: Strategic Business Development and Implementation Planning (“EOI Phase 2”). The applicant, who runs a bike hire company, submitted an expression of interest. On 28 April 2021, the applicant was informed by the Council that the evaluation panel had concluded that none of the interested operators had demonstrated an ability to provide the services in the manner outlined in the brief, and therefore none of them would go forward to negotiation stage with the Council.
On 6 May 2021, the Council reopened EOI Phase 2 with revised terms and conditions, and the applicant was invited to make a submission to this process. He did so, but was unsuccessful. In a letter from the Council dated 17 May 2021, the applicant was given his scores in the process and those of the named successful bike hire company (“the successful company”). The Council then moved forward to negotiate the terms of the arrangement with the successful company, which included access to a working capital loan of €300,000 from the Council. The Council published an update on the process on its website on 27 May 2021: https://www.limerick.ie/council/newsroom/news/limerick-greenway-track-opening-july
In an FOI request to the Council dated 11 June 2021, the applicant sought access to twelve specified categories of records relating to EOI Phase 2. On 23 June 2021, the Council wrote to the applicant stating that it was extending the period for issuing a decision on the request by four weeks in accordance with section 14(1)(a) of the Act, due to the high volume of records involved. In a decision dated 5 August 2021, the Council part-granted the applicant’s request. It identified 84 records relevant to the request and released 34 of them. The remaining 50 records were refused, in full or in part, under sections 15(1)(d), 29(1), 30(1), 31(1), 35(1), 36(1) and 37(1) of the FOI Act. Many of the records were refused under more than one exemption.
On 19 August 2021, the applicant sought an internal review of that decision, alleging a “complete lack of documentation” furnished by the Council. On 9 September 2021, the Council issued an internal review decision in which it affirmed the original decision. On 22 October 2021, the applicant applied to this Office for a review of the Council’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 Council, the applicant’s comments in his application for review and in further communications with this Office and a response from an affected third party. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Three records (57, 59, 60) were refused under section 15(1)(d) of the Act, which provides that a request for records can be refused when the information is already in the public domain. The Council provided links to where these records could be found online. The applicant agreed that these records could be excluded from the scope of the review. In the course of the review, the applicant also confirmed that he was not concerned with the information contained in records 63 or 66 and that they could be omitted from the review.
This review is therefore concerned with whether the Council was justified in refusing access under, variously, sections 29(1), 30(1), 31(1), 35(1), 36(1) and 37(1) of the FOI Act, to the following:
There are a number of preliminary matters that I wish to address at the outset. Firstly, the applicant in his communications with this Office expressed dissatisfaction with the EOI process, highlighting a number of concerns about how the Council ran the process and how the final decision was made. This review is limited to the scope outlined above, and it is not within the remit of this Office to investigate complaints or to adjudicate on how FOI bodies perform their functions generally.
Furthermore, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, it is important to note that 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 or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.
Before considering the substantive issues, I wish to comment on the Council’s submissions to this Office. When requesting focused submissions for the purpose of conducting the review, the Investigating Officer directed the Council to the Sample Questions document available on the OIC website for each of the exemptions claimed. She asked that the relevant sample questions be answered in respect of each of the records refused for release.
It appears from the Council’s submission that it did not have regard to these questions. Its submissions under each of the exemptions claimed were very brief and lacked a comprehensive explanation of how they applied to the record(s) at issue. These Sample Questions, as well as a series of Guidance Notes, have been prepared by this Office to assist public bodies in providing focused and structured submissions to this Office in the course of a review and can reduce the need for additional over and back communication between this Office and the public body, which was necessary in this case and prolonged the length of the investigation. The Sample Questions and Guidance Notes can also be a useful resource for public bodies in their processing of FOI requests at the first instance. I urge the Council to take appropriate measures to ensure that it has appropriate regard to these resources in the future.
I will examine the mandatory exemptions first, followed by the discretionary exemptions.
Section 31 – Legal professional privilege
The Council refused to release records 3, 24, 45 – 47, 51-55, 71, and 75 – 80 under section 31(1)(a) of the FOI Act. That section provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
a. confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
b. confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. Moreover, this Office takes the view that privilege also attaches to records that form part of a continuum of correspondence that results from the original request for advice.
In its submissions to this Office, the Council stated that the relevant records were exempt from release under section 31 as they included correspondence/advice between the Council and its legal advisors.
Having carefully examined the records at issue, I am satisfied that records 3, 24, 45 – 47, 51-55, 71, 76-78 and 80 all constitute confidential communications between the Council (the client) and its external solicitor (the professional legal adviser) for the purposes of obtaining or giving legal advice, or form part of a continuum of such correspondence. As such, I am satisfied that these records attract legal advice privilege applies and that section 31(1)(a) applies.
Records 75 and 79, however, are emails between the Council’s solicitor and the solicitor representing the successful operator in the EOI process, that the Council’s solicitor then forwarded to certain staff and management in the Council. These do not constitute confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. Nor do they constitute confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. I find that section 31(1)(a) does not apply to these records.
Section 35 – Information obtained in confidence
The Council refused to release records 19-22, 34, 38, 44, 48-49, 56, 58, 61, 64-65, 69 -70, 73, 81 – 82, in full or in part, under section 35 of the FOI Act. In its submissions, the Council did not indicate whether it was relying on section 35(1)(a) or 35(1)(b), or both. However, as its initial decision letter to the applicant made reference to section 35(1)(a) and as it has made no arguments in relation to a breach of a duty of confidence provided by an agreement etc., I have taken it that the Council is relying on section 35(1)(a). Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. 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.
Section 35(2)
Section 35(2) provides that 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.
Records 19-22, 34, 38, 44, 48, 49, 81 and 82 consist of email correspondence between members of an Evaluation Panel that was appointed to evaluate the expressions of interest, and communication from this Evaluation Panel to management in the Council following their deliberations. Many of these records duplicate content as they comprise email threads. The Council stated that the members of the panel would have entered into the process on the basis that their communications were of a confidential nature. The Council clarified with this Office that there were two separate Evaluation Panels established for EOI Phase 2, the first panel when it was run originally in March 2021 and the second when it was reopened in May 2021. One member of the first panel was paid as an external service provider and one member of the second panel was employed by another local authority. All other panel members were employees of the Council.
I find that these records were prepared by members of the staff of an FOI body or a service provider in the course of the performance of his or her functions. Section 35(2) provides that section 35(1) shall not apply to such records unless their disclosure would constitute a breach of a duty of confidence owed to a person other than a member of the staff of an FOI body or of a service provider. The Council has not identified any other person to whom a duty of confidence would be owed in this case. Accordingly, I find section 35(1) does not apply to these records, pursuant to section 35(2) of the Act.
The Council said that records 56 and 58, an agenda and presentation, were documents prepared for a private meeting with elected members of the Council that was not open to members of the public. I am satisfied that these records were prepared by a member of staff of the Council in the course of the performance of his or her functions and while the meeting may have been held in private there is nothing to suggest that to disclose this information would breach a duty of confidence owed to a third party. I find that section 35(2) applies and section 35(1) does not apply to these records.
Record 61 is an email exchange between an elected member of the Council and the Deputy Chief Executive. The Council redacted the majority of the text of the email from the Councillor, as well as the company number and names of Directors of the successful company. As the redacted information was prepared by the elected Councillor who is not a director, member of staff or service provider to an FOI body, I find that section 35(2) is not relevant to record 61 and that I must go on to consider the applicability of section 35(1) to the record.
Records 64 and 65 were described by the Council as internal communications regarding the successful company. Again these are emails prepared by members of staff of the Council and section 35(2) must be considered. The emails include a request for searches to be carried out for accounts and annual returns for the successful company and other companies owned/operated by it. I cannot see how the disclosure of this information could constitute a breach of duty of confidence to the successful company. I find that 35(2) applies and that section 35(1) does not apply.
The Council said that records 69, 70 and 73 contained correspondence concerning a loan scheme and contained information relevant to the successful candidate and therefore would not be appropriate to share with other candidates. Records 69 and 73 were refused in full, whereas record 70 was released with two sentences redacted. The two sentences redacted contain a reference to a third party who previously accessed a loan from the Council. This is publicly available information. All three of these records were prepared by staff members of the Council and there is nothing to suggest that disclosure of the information concerned would constitute a breach of duty of confidence to a third party. I find that 35(2) applies and that section 35(1) does not apply.
In summary, I find that as section 35(2) applies to all of the records that the Council claimed were exempt under section 35, apart from record 61, I find that section 35(1) does not apply to them. Therefore, it is necessary only to examine record 61 under section 35(1)(a).
Section 35(1)(a)
As stated above, record 61 is an email exchange between an elected Councillor and the Deputy Chief Executive. It was released in part. The reply from the Deputy Chief Executive was released but the majority of the original email from the Councillor was redacted, apart from the first two sentences which were released but with redactions of the successful company’s company number and the names of its company directors.
The Council stated that it did not have the consent of the Councillor in question to release the email and that formal consultation had not been engaged in. It said that while the Council acknowledged that there might be a public interest around the scheme, it believed that due to the content of the email in connection to the successful company, it would be inappropriate to provide such a record to the requestor when he was an unsuccessful candidate in the EOI process.
Notwithstanding that the FOI Act requires the motives or perceived motives of a requester to be disregarded when deciding to grant or refuse an FOI request, the Council has not applied the correct test in reaching a conclusion that the record should be refused under section 35(1)(a). In order for section 35(1)(a) to apply, it is necessary to show the following:
that it is of importance to the body that such further similar information should continue to be given to the body.
All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act. Where section 35(1)(a) is being relied on for the refusal to grant access to a record, the public interest test provided for in subsection (3) must also be considered in relation to the record concerned.
The first two requirements of section 35(1)(a) are that the information in the record must be given to the FOI body in confidence and on the understanding that it would be treated as confidential. Having regard to the content of record 61, the email was sent by the Councillor, in his capacity as an elected member of the Council, to the Deputy Chief Executive of the Council with a number of queries relating to the EOI process and the loan to be given by the Council. It seems to me that there is nothing contained in the record itself to suggest that the Councillor expected that the information would be treated in confidence, or that he wished it to be to be treated as confidential. In its submissions, the Council said that it had not received consent from the Councillor to release the email; however, neither had it actually sought such consent. The Investigating Officer contacted the Councillor to notify him that the record had been refused under section 35(1)(a) and to give him an opportunity to make submissions. He confirmed that he had no objection to the record being released. As the Council has not shown that the first two requirements of the exemption have been met, I find that section 35(1)(a) does not apply to record 61.
In relation to the company number and names of Directors that had been redacted under section 35(1)(a), in the course of the review, the Council said that it had been advised that this information is in fact publicly available and that it believed that the correct exemption to apply should have been section 15(1)(d) – that the information is already in the public domain. Section 15(1)(d) provides that an FOI body may refuse to grant an FOI request on administrative grounds where the information is already available in the public domain. It does not seem to me that the intention of this provision is for bodies to redact publicly available information from records that it is otherwise releasing, but rather to enable it to ease its administrative burden by opting not to release records where the requester can already access the information elsewhere. In any event, it is a discretionary provision and I find that the redaction of the company number and names of the Directors from record 61 under section 15(1)(d) is not sustainable.
Section 36 – Commercially sensitive information
The Council refused to release records 83 and 84 under section 36(1) of the Act.
Records 34, 44, 50, 81 and 82 contain the name and/or scores of a company who made a submission to the EOI process but was not successful. The Council refused to release these records in whole or in part under various exemptions. The Investigating Officer informed the Council that she was of the view that section 36 was the more appropriate exemption to consider in relation to these specific records and invited the Council to comment. It responded that it was of the opinion that the other exemptions claimed in relation to these records were applicable but it had no objection to section 36 being considered.
In the course of the review, the Council also said that it considered records 75 and 79 to be exempt from release under section 36. Given that section 36 is a mandatory exemption and that it affects the interests of a third party, I find that it is appropriate to look at all records to which it might apply, whether or not the Council considered it in the first instance. The applicant was also informed of this and given an opportunity to comment.
Section 36(1) provides that an FOI body shall refuse to grant a request if the record concerned contains:
a. trade secrets of a person other than the requester concerned,
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, or
c. information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
There are certain situations where, although section 36(1) applies, the request shall still be granted. These situations are specified in section 36(2). 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.
While the Council did not specify whether it was relying on section 36(1)(a), (b) or (c), having regard to the content of the records, the original decision on the FOI request and the Council’s submission, I am satisfied that section 36(1)(b) is the relevant exemption provision to consider. 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 standard of proof in relation to the second limb of section 36(1)(b) is low; all that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned.
The Supreme Court in University College Cork v The Information Commissioner [2020] IESC 58 confirmed that the standard of proof in relation to the second limb of section 36(1)(b) is “very low”. Nevertheless, it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position.
In its internal review decision, the Council said that release of the records would reasonably be expected to result in a material financial loss to the company concerned and that the information redacted was not available in the public domain and to release it would affect the competitive position of the company. In its submissions to this Office, the Council said that the records contained commercially sensitive information of a number of applicants to the EOI process that is not available in the public domain and to release it would affect the competitive position of the companies in future EOI processes. It said that the Council does not have the consent of the individual companies to release this information.
Having carefully examined records 75, 79, 83 and 84 I note that they each contain information relating to the successful company. Records 75 and 79 are emails with attachments between the Council’s solicitor and the solicitor representing the successful operator in the EOI process. Record 83 is the application/tender document from the successful bike hire company to the reopened EOI Phase 2 and includes details of the company’s accounts, insurance, financial projections, a marketing plan and a business implementation plan. Record 84 is a letter from the Council to the successful bike hire company telling them they are successful in the EOI process and providing its score.
As stated earlier, records 34, 44, 50, 81 and 82 contain the name and scores of another company who also made a submission to the EOI process but was not successful.
Having regard to the content of the records described above, and the test in the second limb of section 36(1)(b), it seems to me that, apart from record 84, they contain financial and commercial information whose disclosure could prejudice a company’s competitive position in the conduct of its business. The information contained in record 84 has already been released (including, for example, in record 8). I cannot see how release of this record could give rise to any of the harms set out in section 36(1)(b).
I find that section 36(1)(b) applies to records 75, 79 and 83 in full and records 34, 44, 50, 81 and 82 in part (name of company and scores in EOI process only).
Section 36(2): Exceptions to the exemption
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) arise in this case.
Section 36(3): The public interest
Having found that section 36(1)(b) of the FOI Act applies in respect of records 34, 44, 50, 75, 79, 81, 82, and 83, I shall now consider section 36(3) of the FOI Act. The public interest balancing test in section 36(3) expressly acknowledges the potential for harm arising from the release of a record. Therefore, while release of the record might give rise to one or more of the harms identified in section 36(1) of the FOI Act, this alone does not provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must carry out that balancing exercise, by weighing the competing interests at play in the particular circumstances of a request, and then explain the basis on which it has decided where the balance of the public interest lies.
The Council said that it weighed up the public interest factors favouring release including a genuine interest by the community in the project, enhancing the accountability of public bodies, maximum openness, transparency and value for money, and ensuring that state agencies are accountable for their decisions, versus factors favouring the withholding of records which it listed as the company involved not being duly impeded in the effective pursuit of its business and that the Council should be able to make informed decisions in the carrying out of its functions and maintain the confidentiality of deliberative processes in some circumstances, particularly where those deliberative processes relate to ongoing negotiations. It said that it placed greater weight on the public interest favouring the withholding of the records and therefore its decision was not to release them.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. To summarise, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, with particular regard to the activities and decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet 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”. It also found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that “… the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.”
The Supreme Court went on to state that the public interest test involves a “weighing of the respective private and public interests in the analysis of the records at issue”. In this regard, it did not disturb the guidance the Court had previously given in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (the Rotunda case), in which it noted that a true public interest should be distinguished from a private interest.
In the context of determining whether to grant a request in the public interest, the reasons given for the request may be considered only insofar as they reflect a true public interest found in the contents of the documents themselves, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. While the applicant, who was unsuccessful in his own application to the EOI process and expressed his view that the EOI process was not carried out fairly or correctly, may have a private interest in the records being released, I find that his concerns around the fairness of the process could also constitute a broader public interest in disclosure. This was an EOI process rather than a standard tender competition but nonetheless still involved a competitive process whereby the successful applicant would have access to public resources, including a licence to operate a bike hire and shuttle bus service and a working capital loan from the Council. I am of the view that it is relevant and important to consider established public policy in relation to public procurement and tender competitions.
The Office of Government Procurement has produced guidelines to promote best practices and consistency of application of public procurement rules in relation to the purchase of goods and services. These are available at: https://www.gov.ie/en/publication/c23f5-public-procurement-guidelines-for-goods-and-services/ . The Guidelines refer to the FOI Act and provide as follows:
“Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016:
It seems to me that the Scheme reflects a Government policy of transparency in relation to the value of contracts awarded and it is relevant to the EOI process. While no tender related records are subject to release or exemption on a class basis, it is my view that the Scheme highlights a recognised public interest in the disclosure of certain elements of a successful tender, after such time as a contract has been awarded. It does not, however, indicate a public interest in releasing tender documents in their entirety, even those of a successful tenderer. Nor does it suggest a public interest in releasing the names or any other information about unsuccessful tenderers.
In this instance, the EOI process was used to identify a private sector operator of scale that specialised in bike hire with a shuttle service incorporated. The name of the successful operator and the scores it received in the process have already been released. There isn’t a straight forward “value” of the contract to release, given the nature of the arrangement entered into, but I do note that the Council has publicly released information about the working capital loan provided to the company.
It doesn’t seem to me that there is a public interest in releasing the application/tender document or other financial and commercial information provided by the company’s legal representatives in the course of the negotiations, which would disclose details of the operator’s financial projections, insurance, marketing plans as well as other information. Neither can I see any public interest in releasing the name or scores of the other unsuccessful company. I am not satisfied that, on balance, the public interest would be better served by the release of the records to which section 36(1)(b) applies to the extent that overriding the commercial sensitivity of that information would be justified.
Section 37 – Personal Information
The schedule prepared by the Council indicated that, under section 37 of the FOI Act, it had refused records 19-22, 34, 38, 44, 81 and 82 in full and records 12, 13, 15, 16, and 50 in part. This differs somewhat to what was listed by the Council in its submission to this Office, where it omitted record 34 and included records 23 and 24 as being subject to section 37. However, record 23 was released in full by the Council and I have already found that record 24 is exempt under section 31(1)(a). For the sake of completeness, I will consider all of the remaining records listed in the schedule under this section.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). In a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, does not fall within the definition of personal information (Paragraph II refers).
In its submissions, as previously noted, the Council did not answer the relevant Sample Questions under section 37. It simply said that the names of individuals not employed by the Council were redacted from the records as these were considered to be personal information, and that the records withheld under this section contained personal information relating to other individuals. It said that the Council did not have the consent of these parties to release their personal information.
Having regard to the content of the records, I note that records 12, 13, 15 and 16 were released with just the email address of a third party redacted. I am satisfied that this was personal information of a third party and that section 37(1) applies. Record 50 was released with two redactions: the number of applicants who made submissions to the EOI and the name of a company who also made a submission to the EOI process but was not successful. I find neither of these to fall within the definition of personal information. However, I have already found that the name of a company who was unsuccessful in the EOI process is commercially sensitive and exempt from release under section 36(1)(b).
Records 19-22, 34, 38, 44, 81 and 82, which were all refused in full, consist of email correspondence between members of an Evaluation Panel that was appointed to evaluate the Expressions of Interest, and communication from this Evaluation Panel to management in the Council following their deliberations.
Neither the names and contact details of Council staff, nor the emails/attached documents/memos that were written by the Council staff in the course of and for the performance of their functions comprise personal information for the purposes of the Act, having regard to exclusion (I) set out above. One of the members of the Evaluation Panel was from another local authority; the exclusion at (I) includes staff of an FOI body, not just the FOI body to whom the FOI request was made, therefore his name and contact details etc are not personal information either. One member of the first panel was paid as an external service provider. With reference to exclusion (II), his name and anything written by him is not personal information. I find however that his phone number and email address comprise personal information.
I find therefore that section 37(1) applies only to the email addresses of third parties in records 12, 13, 15, 16 and the contact details of the external member of the Evaluation Panel in records 19, 20, 21, 22, 38, 81 and 82.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In my earlier consideration of the public interest in relation to records refused on the grounds of commercial sensitivity, I referred to the comments of the Supreme Court in the Enet case and the Rotunda case. While the comments were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of the public interest generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The applicant’s argument in favour of the release of further records is based on his belief that the EOI process was not carried out fairly or correctly. It does not seem to me that the release of this personal information would serve to enhance transparency or an understanding of the EOI process in any meaningful way. Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld records that, on balance, outweighs the right to privacy of the individuals to whom the information relates.
Section 29 – Deliberations of FOI bodies
The Council refused to release records 19 -22, 34, 38, 44, 64-65, 69, 70, 72, 73, 81 and 82 under section 29 of the FOI Act.
Section 29(1) provides that an FOI body may refuse to grant a request (a) if the record concerned contains matter relating to the deliberative processes of an FOI body, and (b) the body considers that granting the request would be contrary to the public interest. These are two separate requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to demonstrate that both requirements are met.
The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. There is nothing in the exemption itself which requires the deliberative process to be ongoing, although the question of whether the deliberative process is ongoing or at an end may be relevant to the issue of the public interest.
Section 29(1)(a) - Deliberative processes
The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.
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.
Section 29(2) provides that the exemption in section 29(1) does not apply in so far as the record(s) contain any of the information or matter listed in section 29(2).
In its submissions to this Office, the Council said that records 19 -22, 34, 38, 44, 72, 81 and 82 contained deliberations of the Evaluation Panel that it did not believe should be shared with an unsuccessful candidate. It said that records 64-65 contained internal communications regarding the successful candidate and that the applicant had been provided with his own information but not information regarding other candidates. It said that records 69, 70 and 73 were correspondence concerning a loan scheme that was relevant to the successful candidate and therefore would not be appropriate to share with other candidates.
Having reviewed the records, I note that 19-22 and 38 consist of emails between the Evaluation Panel about what feedback to give the applicant on his unsuccessful EOI Phase 1 application. A decision had already been made on Phase 1 at that point and I do not consider this email discussion on feedback to be a deliberative process. Records 34, 44, 81 and 82 are emails, scoring sheets and a memo relating to the decision of the Evaluation Panel on Phase 1 and its recommendation to the Director of Services in the Council not to put forward any applicant for negotiation stage for the Bike Hire and Shuttle Bus Service contract. While I accept that a deliberative process may have led to this recommendation, I find that these records relate to the position taken following its deliberations as opposed to containing material disclosing the internal thinking process within the Council or the weighing up of options. Records 64-65 are a series of emails within the Council requesting additional information relating to the successful applicant of the EOI Phase 2. It does not seem to me that these records contain any weighing up of information, opinions, competing options etc in order to determine a course of action. I do not consider them to contain matters relating to a deliberative process.
Record 72 was part-granted with one line redacted by the Council which it said contained deliberations of the Evaluation Panel. This record contains an email sent by the applicant to the Council further to his unsuccessful application to the EOI Phase 2 that was then forwarded within the Council. I do not accept that the redacted information contains deliberations of the Evaluation Panel or indeed contains any matter relating to a deliberative process.
Similarly record 70 was part-granted with two sentences redacted by the Council which it said concerned correspondence concerning a loan scheme. Having reviewed the record, I note that it concerns the drafting of a loan contract. The redacted information contains a request for a copy of a previous loan contract with a third party that might contain relevant terms. This seems to me to be concerned with making administrative arrangements in relation to a decision that had already been made rather than any discussion, opinions, advice etc on the decision whether to grant a loan or not. I do not consider the redacted information to contain matter relating to a deliberative process.
Records 69 and 73 contain emails within the Council concerning a loan scheme proposed for the successful applicant of EOI Phase 2. These emails contain information and options to be weighed up in making a decision on what type of structure this loan might take. I accept that records 69 and 73 relate to the deliberative processes of the Council.
Having examined all of the records which the Council claimed were exempt under section 29, I find that section 29(1)(a) applies only to records 69 and 73.
Section 29(1)(b) – the public interest
This is not the end of the matter because, as outlined above, I must also consider whether the release of records 69 and 73 would be contrary to the public interest. The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest.
This Office has previously held that the Act clearly envisaged 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, this 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.
In its submissions, the Council indicated that it had considered the public interest factors both for and against release of the records. In favour of release, it stated that it had considered the public interest in the right of the public to have access to information; the fact that the release of the records would reveal the reasons for decisions taken; that release would enhance the accountability scrutiny of decision-making process; the need for the public to be better informed; and that the information would make a valuable contribution to the public debate on the issue. Against release, the Council stated that it had identified the public interest in the need to preserve confidentiality having regard to the evaluation process and the circumstances of the communications; that the release of the records would impair future decisions; that the release would contaminate the decision-making process; and that broader community interest must be considered, as distinct from the applicant and the subject of the record. The Council said that having balanced the factors, its decision was not to release the records.
The public interest test required by section 29 is not a balancing test and while the Council have made some broad arguments around why it believes that the release of the records is not in the public interest, it seems to me that it has not made any specific arguments to substantiate its claim that release of the records at issue would be contrary to the public interest. Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. Having considered the matter, I find that the Council has not satisfactorily shown that the release of the records at issue would be contrary to the public interest. I find, therefore, that the requirement at section 29(1)(b) has not been met and that section 29(1) cannot apply.
I find that section 29(1) does not apply to any of the records at issue, and that they should be released in full, apart from record 73. I find that the second paragraph of the first email contained in record 73 (from “I’ve looked at” to “operational”) should be redacted as I find that it is commercially sensitive and exempt under section 36(1)(b). I find that it contains financial and commercial information whose disclosure could prejudice the competitive position of the company and I am not aware of any public interest that would be better served by the release of the record to the extent that overriding the commercial sensitivity of that information would be justified.
Section 30 – Functions and negotiations of FOI bodies
The Council refused to release record 42 under section 30 of the FOI Act.
Section 30 is a ‘harm based’ exemption i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. Section 30(1)(a) provides that an FOI body may refuse to grant an FOI request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
Section 30(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1)(c) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could 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.Where an FOI body relies on section 30(1), it should identify whether it is relying on sub-section (a), (b) or (c) and identify the potential harm in that might arise from disclosure. Having identified that harm, it should then consider the reasonableness of any expectation that the harm will occur. Section 30(1) is also subject to a public interest test under section 30(2).
In its submissions to this Office, the Council said that record 42 was a draft letter that was never issued to the applicant and that record 39 was issued instead. It said that the content of the letter is the same. It did not specify whether it was relying on section 30(1)(a), 30(1)(b) or 30(1)(c) and it did not identify any potential harms that might arise from disclosure. It is not obvious to me what possible harms could arise from the release of this record. It is simply a draft letter, the final version of which was issued to the applicant and the only difference apparent to me is who signed it. I find that section 30(1) does not apply. As section 30(1) does not apply, there is no need to consider the public interest under section 30(2).
Having carried out a review under section 22(2) of the FOI Act, I vary the Council’s decision as follows. I affirm its decision on certain information under sections 31(1)(a), 36(1)(b) and 37 as outlined above. I annul its decision on the remaining information within the scope of this review and direct its release. For the avoidance of doubt, the records which fall to be withheld are as follows:
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 requester 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