Decision
Ms. X and Dublin Docklands Development Authority
From Office of the Information Commissioner (OIC)
Case number: 150208
Published on
From Office of the Information Commissioner (OIC)
Case number: 150208
Published on
Whether the Authority was justified in its decision to refuse access to records from January 2014 to April 2015 concerning remedial safety works in apartment blocks or residences under sections 29(1), 36(1)(b) and 36(1)(c) of the FOI Act
Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
20 January 2016
In her request of 7 April 2015, the applicant sought "All correspondence and minutes via all medium regarding apartment blocks or residences where remedial safety, including fire safety and other safety works are/were required, from January 2014 up to the current date." On 1 May 2015, the Authority refused the request on the basis that complying with the request would cause a substantial and unreasonable interference with its work (section 15(1)(c) of the Act). The applicant sought an internal review of this decision. On 2 June 2015, the Authority upheld the decision to refuse access; however, it did so on the basis that the records contained matter relating to the deliberative processes of the Authority (section 29) and commercially sensitive information (section 36). On 7 July 2015, the applicant applied to this Office for a review of the Authority's decision.
This Office took the view that the applicant had not been provided with an adequate notification of the reasons for refusal of the request in accordance with the requirements of the Act. On 12 October 2014, I served a notice on the CEO of the Authority under section 23 of the Act. This notice required the Authority to forward a statement of the reasons for the Authority's decision, including consideration of the public interest. A response was received on 3 November 2015 and was provided to the applicant.
Both the applicant and the Authority made submissions in the course of this review. The Authority also included a memorandum setting out background to the records and the issues involved as at September 2015. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this. In conducting this review, I have had regard to correspondence between the applicant and the Authority, to correspondence between the Authority and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
The Authority identified 11 records as being relevant to the applicant's request and it told the applicant that these referred to four separate instances of remedial works. The applicant confirmed in writing to this Office that the scope of her request can be confined to these 11 records. The applicant also confirmed that all references to individual apartment owners can be removed from the scope of her request. The scope of this review is confined to whether the Authority was justified in refusing to release records 1 to 11 on the basis that these records are exempt under various sections of the FOI Act.
Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, 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". Thus, in this case, the onus is on the Authority to justify its decision.
The release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of O'Caoimh J. in Minister for Education and Science v Information Commissioner [2001] IEHC 116. Furthermore section 13(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Finally, 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.
The Authority claims that each of the records are exempt under section 29 of the Act. Section 29 provides:
"29. (1) A head may refuse to grant an FOI request-
(a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,
And, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make."
There are two requirements for section 29 to apply: (i) the record must contain matter relating to the deliberative process and (ii) disclosure must 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 also met. A deliberative process can be described as a thinking process that refers to the way an FOI body makes decisions. It involves the gathering of information from a variety of sources and weighing up 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. Section 29(2) provides that the exemption contained in section 29(1) does not apply insofar as the records contain any of the following, (a) rules, procedures, guidelines etc; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) an investigation or analysis of the performance of an FOI Body and (e) an expert report.
Authority's submissions
The Authority states that the records detail its deliberative processes in relation to dealing with safety issues at the four apartment blocks. The Authority says that it is at different stages of discussions with stakeholders. According to the Authority, the issues differ substantially and the commitments given by the Authority are specific to each apartment block. The Authority submits that release of the records could raise expectations and lead to higher costs for the Authority and for the Exchequer. It argues that the release of the records would be contrary to the public interest. It identifies what it claims are public interest factors against release: (a) information is largely personal to the owners of the apartments; (b) personal implications of releasing information; (c) significant damage to value of apartments if records are released; (d) need to preserve confidentiality having regard to the subject matter; (e) release of the information would impair future decisions, negotiations and resolution options; (f) broader community interests must be considered and (g) disclosure of records may prejudice the integrity of the decision making process. According to the Authority, release of the records would seriously compromise its efforts to achieve a fair and balanced resolution and impair "the integrity and viability" of the decision making process to a significant degree without a countervailing benefit to the public. Once the issues are resolved, all relevant information will be reviewed by the Comptroller and Auditor General (C&AG) and the Public Accounts Committee if required.
Applicant's Submissions
The applicant submits that it is in the public interest that members of the public and apartment owners who use the apartment blocks referred to in the records would have access to information about safety issues concerning these apartment blocks. The applicant submits that there is a public interest in openness in the expenditure of public funds. The applicant states that the Authority has an interest in apartment blocks that required extensive and expensive remedial work and she argues that the tax payer will have a role in paying for these works. Therefore, the applicant argues that it is in the public interest that such information is released. I take it that these submissions apply to both the section 29 and section 36 exemptions claimed.
Records 1-4
Record 1 to 4 are extracts from minutes of Board meetings in which the Board is briefed about safety works required and the cost of such works. I take it that the unredacted parts of the records identified by the Authority concern the subject matter of the request and that the remainder relates to unrelated Board business. These records involve the placing of information and options before the Board so that it can consider this information with a view to making a decision. I accept that these records contain deliberative process material although this is generally in summary form in the case of records 1-4. I am also satisfied that the exceptions contained in section 29(2) are not applicable to records 1-4. In particular, these records do not contain factual information e.g. information of a statistical, financial, econometric or empirical nature. The records contain information in the form of proposal, opinion or recommendation.
Records 5-8
Records 5-8 are briefing papers for the Authority's Board. Record 5 is a detailed background paper on the ownership of apartments, financial information and legal advice. Records 6, 7 and 8 are appendices to record 5. They consist of background information about an apartment block, updates to the Board on certain matters, and requests to the Board to authorise certain expenditure. These records contain information for the Board to reflect upon in deciding what course of action to take. I am satisfied that records 5-8 contain deliberative process material. I am also satisfied that none of the exceptions contained in section 29(2) are applicable to records 5-8.
Records 9-11
Records 9-11 are reports and assessments carried out by a Fire Safety Consultant on behalf of the Authority. Record 9 is a Progress Report, record 10 is an Engineer's Report and record 11 is an Assessment Report. The reports contain information about fire safety issues at a particular apartment block and the remediation measures required to deal with these issues. The information contained in these reports is of a detailed technical nature. The information concerns fire detection measures, alarms, service risers, smoke ventilation and fire doors etc. I am not satisfied that records 9-11 involve a deliberative process. I am satisfied that the reports are so detailed that they relate more to the implementation phase than to consideration of options. Indeed, at least parts of these records could be held to be expert reports excluded from the deliberative process exemption by section 29(2)(e). Even if a deliberative process is involved, the question of the public interest has to be addressed.
Section 29(1)(b) The Public Interest
For section 29 to apply the disclosure of the record must be contrary to the public interest. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.
The Commissioner has found that the FOI 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 was not to say that such disclosure is always, as a matter of principle, against the public interest (see Case 98058 Mr McAleer of the Sunday Times & the Department of Justice, Equality and Law Reform on www.oic.ie). Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. This Office asked the Authority to address this in some detail and to specifically address the issue of the passage of time in relation to these records.
As noted above, my jurisdiction is to make a new decision in light of the circumstances applying at the date of the review. It is possible that release of a particular record at a particular point in time would be contrary to the public interest, but that with the passage of time this would no longer be the case. 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 automatically does not apply.
Much of the information in records 1-11 about one particular development is either similar or identical to information which is already in the public domain. However, there are some exceptions where information in records 1-11 is not in the public domain. These exceptions are addressed below in the sections dealing with commercially sensitive and legally privileged information. I do not see how release of records 1-8 could give rise to the harms anticipated by the Authority having regard to their content and events since their creation. I am not satisfied either, that the Authority has justified its position that release of records 1-8 would be contrary to the public interest.
As outlined above, I am not satisfied that records 9-11 involve a deliberative process. However, even if a deliberative process is involved, there is a public interest in members of the public and owners/occupiers having access to information about safety issues concerning buildings that they use. I note that the block referred to in records 9-11 also contains commercial units which are likely to be frequented by members of the public. I am not satisfied that the Authority has shown that release of records 9-11 would be contrary to the public interest.
In summary, I find that the Authority has not justified its decision to refuse the request under section 29(1) of the Act.
Section 36 - Commercially Sensitive Information
The Authority claims that each of the records is exempt under section 36 of the Act. Section 36 (1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:
Section 36(2) provides for various exceptions to section 36(1). Section 36(3) provides that Section 36(1) is subject to a public interest balancing test.
Sections 36(1)(b)
Sections 36(1)(b) and (c) are cited in this case. Section 36(1)(b) protects information whose disclosure "could reasonably be expected to result in a material financial loss or gain". The Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker's expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the records at issue should be shown by an FOI body or a third party relying on section 36(1)(b).
Factors that have been taken into account by the Commissioner and that may be relevant in considering the application of section 36(1)(b) include, for example, the availability or otherwise of the information and whether it is in the public domain; the passage of time; and the broader context and rate of change in the relevant industry. In case 130092 (X Ltd. c/o Y Solicitor and the Health Products Regulatory Authority) the records related to the company's ASR Hip Replacement Systems and the ASR Resurfacing Systems and the company's voluntary recall of the products. The former Commissioner found that recall of the applicant's ASR products was already in the public domain and any commercial loss that might have arisen would have occurred when this information became public. Accordingly, she did not see how release of the records could cause further damage.
Sections 36(1)(c)
Under section 36(1)(c) access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to:
Authority's Submissions
The Authority claims that records 1-11 are exempt under section 36(1)(b) of the Act. The Authority's financial interests in the four apartment blocks include interests in apartments, retail units, car parking spaces and common areas. According to the Authority, release of the records would cause negative publicity which could reasonably be expected to result in a material financial loss for the Authority, taxpayers and apartment owners through a reduction in property values. The Authority also argues that records 1-11 are exempt under section 36(1)(c) of the Act as ongoing negotiations to resolve building issues could be prejudiced by release of the records.
The Authority submits that section 36(2)(e) of the Act is not applicable in this case as release of the records is not necessary in order to avoid a serious and imminent danger to the life or health of any individual. According to the Authority, issues at two of the apartment blocks are not fire safety related and issues at a third apartment block have been fully resolved. The Authority states that it has spent a considerable amount of money rectifying issues at a fourth apartment block and further works will be carried out once issues surrounding responsibility for remedial works are determined. The Authority also points out that the relevant Fire Safety Authorities are fully aware of the issues and therefore there is no serious and imminent danger to the life or safety of any individual.
Finally, the Authority states that as required by section 36(3) of the Act it took account of the public interest in deciding whether to release the records. It says that it considered factors in favour of release including the public interest in "investigative journalism in a national interest story". It also took account of the public interest in avoiding unnecessary financial loss to the State. The Authority considers that release of the records would increase costs to the Exchequer. It argues that it is accountable to the public in relation to the funds it spends through review by the C&AG and the Public Accounts Committee.
Records 1-4
The Authority argues that release of the information contained in records 1-4 will result in a reduction in the value of property in which it has an interest or/or will damage on-going negotiations in relation to rectifying safety defects. There has been significant and detailed coverage in the media of safety issues in one of the blocks involved. I accept that any harm to property prices or ongoing negotiations attributable to such publicity has long since occurred insofar as one of the properties is concerned. I am not satisfied that (with two exceptions which are addressed below) the Authority has justified a reasonable expectation of the harms as required by sections 36(1)(b) and 36(1)(c) and I find that the exemptions are not applicable to the bulk of the information in records 1-4.
The two exceptions are:
The information contained in these parts of records 1 and 4 is not in the public domain. While I cannot disclose the content of these parts of the records, I can say that they do not disclose matters directly related to public safety; nor do they relate to the expenditure of public monies. These extracts are contained in minutes of meetings in which the Board is being briefed about issues regarding certain apartment complexes. Given the content and context of this information, I am satisfied that its release could reasonably be expected to result in a material financial loss to the Authority and/or to the owners/occupiers of certain properties. I am satisfied that the exceptions in section 36(2) do not apply to this information. In particular, this information does not relate to an apartment block where there are unresolved fire safety issues and I do not consider that its release is necessary to prevent a serious and imminent danger to the life or health of any individual (section 36(2)(e) refers). I will consider the public interest in the release of this information below. I find that Record 1, page 3, line 10 and Record 4, pages 1-2, paragraph 1.4 are exempt from release under section 36(1)(b) of the Act.
Records 5-8
Records 5-8 are Board briefing papers. The Authority argues that records 5-8 are commercially sensitive as their release could reasonably be expected to result in negative publicity damaging its financial interests and also prejudice to ongoing negotiations. There are five parts of records 5-8 which, on the face of it, contain legal advice; these parts of the records are examined separately below and I do not find it necessary to decide as to whether they qualify for the section 36(1) exemption. In relation to the remainder of records 5-8, much of the content is background and historical detail as regards the site at issue. I accept that financial information is included. However, the Authority has not identified how any particular pieces of information would, if released, cause financial loss. Although it says that records 7 and 9 are among the records containing financial, technical and legal advice that could prejudice the outcome of negotiations, it seems to me that the content of these records is particular to one apartment block and that the Authority has not justified its position by, for example, showing a link between the financial and other information and the issues which it says are under negotiation in relation to other blocks. In this regard, detailed queries were put to the Authority by this Office in inviting it to make submissions focussed on the content of the records and the harm tests within the various exemptions. I do not accept that the Authority has justified its position that release could reasonably give rise to the harms anticipated. I am satisfied that section 36(1)(b) and 36(1)(c) do not apply to records 5-8.
Records 9-11
Records 9-11 are fire safety reports. The Authority argues that records 9-11 are commercially sensitive and that there release could lead to damage to property values and prejudice on-going negotiations. As outlined above, the applicant has confirmed in writing that she is willing to omit reference to individual apartments from the scope of her request. I consider that it is possible that the identification of individual apartments by number or otherwise could reasonably be expected to result in a material loss to persons with an interest in the properties. Given that such information is no longer within the scope of the request and this review, I find that the Authority should redact all references identifying individual apartments from records 9-11. I am satisfied that with the redaction of this information, the remainder of records 9-11 is not exempt under sections 36(1)(b) or 36(1)(c). In making this finding, I am conscious that detailed information in relation to safety deficiencies identified in these reports is already in the public domain. As outlined above, the fact that information is already in the public domain is a relevant factor in determining whether section 36(1)(b) applies. I consider that any commercial harm attributable to release of such information into the public domain has already occurred. I am not satisfied either that the Authority has justified its positron in relation to section 36(1)(c) by showing how disclosure could, at this point in time, prejudice the conduct or outcome of negotiations in relation to the apartment block at issue.
Section 36(3) The Public Interest
As outlined above, I am satisfied that parts of records 1 and 4 are commercially sensitive. I must therefore consider whether it is in the public interest to release these parts. Section 36(3) provides:
"(3) Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."
Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect.
The Act also recognises, both in its long title and its individual provisions that there is a significant public interest in government being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things:
There is a public interest in public bodies being in a position to intervene in managing issues which arise in their areas including issues arising in properties in which they have an interest. In addition, the records already released or directed for release in this decision disclose certain information about the Authority's actions without identifying affected properties which are not already in the public domain. This serves the public interest in transparency to some extent in that it is clear that the Authority considered certain issues and actions. I am satisfied that, in relation to record 1, page 3, line 10 and record 4, pages 1-2, paragraph 1.4, the public interest in withholding material that, if released, could reasonably be expected to result in a material financial loss to the Authority and/or other parties outweighs the public interest in openness and transparency in respect of the Authority's decisions and actions. I find that Section 36(1)(a) applies to exempt record 1, page 3, line 10 and record 4, pages 1-2, paragraph 1.4 and that, on balance, the public interest would be better served by refusing the request insofar as it relates to those parts of the records.
Section 31 - Legal Professional Privilege (LPP)
The Authority did not rely on section 31(1)(a) of the Act which exempts information that would qualify for legal professional privilege (LPP). I find this surprising especially insofar as parts of record 5 are concerned. However section 31(1)(a) is a mandatory exemption and access to information which is legally privileged must be refused. Therefore, I have decided to examine the records in the light of the LPP exemption. Section 31(1)(a) provides:
"31. (1) A head shall refuse to grant an FOI request if the record concerned -
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege"
In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the grounds of legal professional privilege (LPP) in court proceedings.
LPP enables the client to maintain the confidentiality of two types of communication:
There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice; and, communications in furtherance of a criminal offence but none of these apply here. Record 5 is headed "Legally Privileged/advices being given in anticipation of litigation". This designation does not, of itself, mean that any record qualifies for LPP . I must examine the content of the records and the context in which they were prepared. I am satisfied that some parts of the record disclose confidential legal advice given by legal advisers to the Authority. There are five parts of records 1-11 which disclose confidential legal advice:
The LPP exemption does not contains a public interest balancing test. The above sections of the records attract LPP in that the advice privilege limb of the test for LPP applies; I find that the five parts listed above are exempt under section 31(1)(a) of the Act.
Turning now to the other parts of the records which do not disclose legal advice - although no case has been made by the Authority that either advice or litigation privilege applies - I considered whether it could be argued that the dominant purpose of the briefing papers for the Board was preparation for contemplated or pending litigation. I have had regard to the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB judgment) . The plaintiff sought discovery of certain documents prepared by the ESB. In granting the discovery sought, Ms Justice Finlay Geoghegan made it clear that:
the onus is on the party asserting privilege to "establish ... as a matter of probability that litigation ... was apprehended or threatened from [a particular date]";
the dominant purpose threshold is not met in a case where there are two equal purposes for a document's creation, even if one of those purposes is preparation for litigation; and
unlike legal advice privilege, litigation privilege does not "automatically continue beyond the final determination of either that litigation or ... closely related litigation."
In the ESB case , Finlay Geoghegan J. noted certain relevant principles applicable to a claim to litigation privilege, including, having regard to Gallagher v Stanley [1998] 2 I.R 267, that: "it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation"; and the dominant purpose of the document is a "matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created". She also noted, having regard to Woori Bank and Downey v Murray [1988] N.I. 600, that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action."
From the context and the content of the records, I consider that, while parts of record 5 in particular might be taken as informing the Board of matters that would have legal repercussions, it does not appear to have been created with the dominant purpose of preparation for contemplated or pending litigation. Even if these records were prepared for such litigation, at least an equal purpose in their creation (with input from the Chief Executive and Financial Adviser as well as from a Legal Adviser), was to set out the background and the position on a range of financial and other aspects of the development. This was done in order to brief the Board on its previous involvement in the matter and to put before it an updated position on proposed safety, financial and other actions. Therefore, the dominant purpose threshold has not been met. Accordingly, I find that the remainder of the records (apart from the parts identified above) are not exempt under section 31(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the decision of the Authority. I annul the decision of the Authority to refuse access to the records under sections 29(1), 36(1)(b) and 36(1)(c) with the exception of the following information which I find is exempt as indicated below:
I direct the release of the remaining records subject to the redaction of those parts identifying individual apartments which information is not required by the applicant.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Elizabeth Dolan
Senior Investigator