Decision
Right to Know CLG and IDA Ireland
From Office of the Information Commissioner (OIC)
Case number: OIC-136347-J9V5B6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-136347-J9V5B6
Published on
Whether the IDA was justified in refusing access to the remainder of its 2019 Client Survey under various exemptions of the FOI Act
10 May 2024
On 5 March 2020, the applicant made an FOI request to the IDA for its 2019 Client Survey report (the report/the record). The survey had been conducted by a market research company on the IDA’s behalf.
The IDA’s decision of 6 April 2020 granted partial access to the record, but relied on various provisions of sections 30 (functions and negotiations), 35 (confidential information), 36 (commercially sensitive information), 37 (personal information) and 40 (State’s financial and economic interests) of the FOI Act regarding the majority thereof. The applicant sought an internal review on 7 April 2020. On 20 May 2020, the IDA affirmed its decision on the request.
On 22 May 2020, the applicant sought a review by this Office of the IDA’s decision (Case No OIC-92084-D2T3P4 refers). On 24 November 2021, the Senior Investigator directed the release of the record, which the IDA appealed to the High Court. Ultimately, it was agreed that the Senior Investigator’s decision would be set aside and the matter remitted back to this Office for a fresh determination.
The present review commenced on 9 March 2023. Further to this Office’s request for submissions, the IDA released some further excerpts of the record. It did not dispute the Investigator’s understanding that it had released those details initially withheld under section 37. However, it maintains that the remaining details are still exempt under the other provisions already claimed, and also section 29 (deliberative processes).
I have now completed this fresh review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to contacts between this Office, the IDA and the applicant, to the contents of the record and to the provisions of the FOI Act. I have not had regard to the submissions made in the previous review.
The scope of this review is confined to whether the IDA’s refusal to fully release the record is in accordance with the provisions of the FOI Act.
Section 25(3) of the FOI Act requires me to take all reasonable precautions in the performance of my functions 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 withheld information and some reasons for my decision are somewhat limited in this case.
The release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.
The IDA says that the partial disclosure of a previous survey in 2008 is irrelevant and that the applicant cannot assert that such disclosure caused no harms. It says that the release did not result in positive publicity for the IDA, or for Ireland as an investment location, and that it is reasonable to expect that such coverage harmed Foreign Direct Investment (FDI) prospects. It distinguishes the content of the two surveys and their results, and notes that section 40(1)(c) has been inserted into the FOI Act in the interim.
The 2008 disclosure does not set a precedent that I must follow in this case. Each review by this Office is conducted on its own merits, having regard to the contents of the particular record at issue and the arguments made. The IDA provides no evidence in support of its assertion that harm was likely to have been caused to FDI interests by release of the earlier survey (such as concerns expressed/comments made to it at the time by existing clients). If it had provided any such evidence, however, this would have been taken into account in the present review.
In The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.” I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) (the Sheedy judgment) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, I must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which could suggest either disclosure or refusal.
I note here the IDA’s view that it is “uniquely positioned to determine whether the harms could reasonably be expected to occur, being responsible for FDI in the State”, particularly regarding its claim under section 40(1)(c). I accept the importance of the FDI sector to Ireland in general, and the role and expertise of the IDA in that regard. I also accept that the IDA is well placed to be aware of potential harm. However, the IDA must clearly outline how such harm could occur. I must be satisfied that there is a basis for any exemptions claimed, from my analysis of the records and the IDA’s arguments and explanations.
It is almost four years since the FOI request was made. It is reasonable to expect that the IDA should be able to concisely explain the relevant issues to this Office. However, in particular, its initial submission contains 22 pages, with considerable overlap between the arguments therein on the many exemptions claimed. For instance, although pages 4-6 and 18-19 respectively purport to concern State interests and commercial sensitivity from the IDA’s perspective, pages 4-6 also contain occasional references to latter issue. Therefore, the IDA’s submission required very careful consideration by this Office. Significant IDA resources must also have been expended. While different OIC reviews take different amounts of time, I nonetheless feel that the IDA would better protect its interests, and scarce State resources, by preparing better focussed submissions.
In spite of the length of the submission, the Investigator still had to ask for clarifications, including on certain details that the submission did not address at all. She gave examples of these details to the IDA, including an excerpt that she understood to have been released (based on her examination of the hardcopy record that the IDA hand-delivered to this Office in April 2023). The IDA’s clarification did not explain why it had previously overlooked the details, or comment on the apparently released excerpt. However, when the Investigator took the precaution of examining what had been published by the applicant (on www.thestory.ie) she noted that the relevant details had been withheld. I am particularly disappointed that the IDA did not ensure that the material provided to this Office accurately reflected what it had provided to the applicant and also that it did not seek to question, or clarify, the Investigator’s understanding of what had been released.
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. If the IDA believes that the record discloses matters that are not apparent from its face, it is for the IDA, as the subject matter expert, to explain to me how the record discloses such matters. Neither do I believe that I am required to construct arguments to support an FOI body’s broad assertions.
The IDA’s Role
The IDA competes for FDI on Ireland’s behalf. It says that Ireland is a major competitor in a complex global FDI landscape that has become more competitive due to the economic uncertainty fuelled by the Covid-19 pandemic, and high inflation and energy costs. It says that while Ireland was in the top 15 recipient countries (and 6th in Europe) for FDI in 2022, global FDI project numbers have decreased and 2023’s outlook is even more uncertain.
The IDA says that numerous countries and their respective investment promotion agencies (IPAs) monitor Ireland’s and the IDA’s policies, practices and outputs in relation to FDI attraction and promotion, to enhance their competitiveness and offerings for potential investors. It says that governments worldwide are engaging in increasingly active industrial policies, especially in key areas such as sustainability, digitalisation and future technologies.
The IDA says that corporate boards generally make investment decisions. It says that C-Suite executives (i.e. CEO, COO, etc.) of FDI client companies carry out investment due diligence before making recommendations to their Boards. It says that the IDA must therefore regularly interact with a wide range of senior corporate contacts and others in order to build and maintain strong relationships with decision makers and influencers. It says that client engagement activity is managed locally by IDA personnel in the countries from which FDI investment is sought. These are supported by a Global Team and Ireland-based Project Managers. It says that sector strategy, knowledge transfer, investment negotiation and product innovation are achieved with the collaboration and support of the entire IDA Global Team.
The IDA says that it supports almost 1,800 multinational companies (MNCs). It says that these make a crucial contribution to employment (high-value employment accounting for approximately 12% of the workforce in Ireland, and indirect employment), economic growth, public finances (two thirds of Ireland’s corporation tax and, given the high value jobs that MNCs create, one third of total income tax, USC and employers’ PRSI paid by companies in the State), regional development, global value chain integration, indigenous enterprise, innovation etc. It also refers to MNCs’ Irish expenditure on capital programmes, materials and services.
The IDA says that remaining attuned to potential opportunities for Ireland will be vital to Ireland’s future in the international FDI landscape. It says that a key focus is partnering with the existing FDI base in Ireland, to ensure that such companies can be resilient in the near-term, and positioned for renewed growth in a low carbon, high tech global economy, all in the interest of Ireland. It says that thus it must continuously engage with client companies (part of which involves asking clients to share information, such as by the client survey) to build and maintain strong relationships based on mutual trust, and ensure that each client is satisfied they are getting the best possible service from the IDA.
The Client Survey
The IDA says that it carries out the client survey every number of years, mostly face to face with the most senior member of a client’s Irish operation. It says that it is the only survey of its kind carried out, that client participation is purely voluntary, that the information is commercially sensitive and that it is given only on the understanding that it is wholly confidential and is not to be shared with third parties.
The IDA says that the survey enables it to obtain feedback, views, facts and information relating to clients’ sectoral and business experiences of operating in Ireland, which it needs to perform its statutory functions i.e. to develop and strengthen strategies to encourage FDI and industrial development in the State. It says that the information enables it to evaluate and enhance its own service, challenges and potential opportunities, to tailor investment proposals to the specific needs of potential FDI investors, and to create solutions to barriers to investment as highlighted by clients and their parent companies.
The Record On Its Face & General Outline of the IDA’s Position
The IDA says that it has released approximately half of the record, mainly summaries of general high-level projections made in 2019 for a now-elapsed time horizon.
The record, which is a PowerPoint presentation, contains 102 pages. It does not name any respondents. The released details show that, in the main, 95 client interviewees responded to 39 questions. The questions appear to me to be largely general. Broadly speaking, the IDA has released a summary of most of the key findings and the overall percentages of particular responses/high-level projections given to largely general questions on the following:
Mindful of section 25(3), most of the withheld details comprise or reflect breakdowns of the released high level percentage figures; actual numbers of respondents; small amounts of further survey questions and responses, and information on the sample profile (e.g. breakdowns in numerical and percentage terms under various categories). The IDA says that the details comprise granular breakdowns of the released information, particularly long term challenges and opportunities highlighted, and remain extremely sensitive. I have categorised its assertions of harm as follows (and will consider the exemptions claimed accordingly):
Analysis and Findings – Impact on Respondents
Central to many exemptions claimed is the IDA’s assertion that disclosure of breakdowns could enable third parties to identify many respondents, particularly those who are notable employers, and in turn enable survey replies to be attributed to their respondents.
Are Respondents Identifiable?
The IDA’s arguments
The IDA’s submission did not explain how respondents could be identifiable. The Investigator asked it to clarify the matter. She said that she could determine certain details about respondents, but that it was not apparent how to categorically identify them (including any notable employers) even from small numbers. She asked for an example(s) of a response(s) in the survey from which a respondent's identity can be arrived at.
The IDA responds that it would be possible to identify certain respondent companies, with a high level of certainty, by combining information on various pages of the record with targeted internet searches. It says that it is reasonable to expect that a journalist would be able to carry out this process.
The IDA says that the details set out the total number of companies, broken down under various categories, with the responses (in percentage terms) broken down similarly. It says that the record allows cross-referencing of responses to identify particular information about each client, and from that potentially their identity.
The IDA outlines two Google searches that it says, in conjunction with the breakdown of one respondent’s reply on key positive factors in the Irish business environment, will return one client company fitting all the criteria (Example A). It refers also to the breakdowns of a particular negative business factor highlighted by one client and to a different negative factor cited by two companies. It refers to an important future trend cited by a respondent, again as categorised under various headings, and suggests where the respondent is likely to be based. Finally, it says that certain answers in various slides concerning e.g. productivity improvements, or desired types of further IDA assistance, can be “checked against news stories and used in conjunction with other data to narrow down potential clients with a high degree of certainty.”
It concludes by saying that “… although client companies cannot be directly identified from the survey data, when the data contained in various withheld pages is analysed and cross-referenced, and used in conjunction with internet searches, client companies who responded to the survey can be identified, and other information determined ….”.
Having considered the above, the Investigator told the IDA that she was still unable to identify any participant in the survey, either categorically or with any certainty, and that the review would proceed on this basis. The IDA repeated the comments quoted in the previous paragraph.
Analysis
Generally speaking, I accept that an unnamed party may still be identifiable to a third party i.e. from a description or other contextual details in a record, and also that it is easier for a third party to identify one or more of a small number of respondents whose responses have been categorised in various ways. However, the IDA has not demonstrated how this is possible in relation to the record at issue.
95 completed interviews represent approximately 5% of the IDA’s total clients. The IDA did not identify any of the respondents to this Office. I note its comment that a journalist would likely be able to determine the identities if given the withheld details. The requester in this case is a journalist. I assume that the IDA is asserting that his searches would be better than those carried out by any other member of the general public. However, the IDA does not describe any such enhanced searches.
As noted above, the Investigator asked for an example(s) of a response(s) in the survey from which a respondent's identity can be arrived at. I will now proceed to consider the IDA’s response. In doing so, it is necessary to reiterate the comments in the eNet and Sheedy judgments about the making of assertions by FOI bodies. Therefore, it is reasonable to expect that the IDA can support its claims by giving clear examples of how respondents can be identified by the disclosure of certain of the withheld information, either alone or in conjunction with other specific, relevant context.
Firstly, however, some of the withheld breakdown details are of a type known only to the IDA. I do not see how the disclosure of these particular details (either of themselves or with other information) could lead to the identification of any client to a third party. Neither has the IDA explained how this is the case.
Having examined the remaining details on their face, I agree with the Investigator that while one can determine certain information about respondents, it is not possible to identify any of them, including those which may be notable employers. In particular, the details that the IDA outlines about the Example A respondent are already evident to me from the record. I have examined the results of the suggested additional searches. Both lists of results refer to numerous firms, none of which are immediately obvious as an IDA client. The lists do not appear to contain any immediately obvious common details. I am unable to identify the respondent concerned.
The IDA’s other examples give me no more information about the relevant respondents than that I can already arrive at from my own examination of the details. In relation to the final example given, the IDA does not refer me to any news stories or other data with which the relevant details could be used “to narrow down potential clients with a high degree of certainty”. While the IDA concludes by asserting that respondents can be identified when various of the withheld data is analysed and cross-referenced, and used in conjunction with internet searches, it gives me no examples of such analysis or any relevant material in the public domain.
In all of the circumstances, I have no basis to accept the IDA’s assertion that disclosure of the withheld details would reveal respondents’ identities to third parties (Finding No. 1).
Section 35 - confidential information
The IDA contends that respondents’ identities and their attributable responses are exempt under sections 35(1)(a) and (b) of the FOI Act. Very generally speaking, these provide respectively for the withholding of confidential information and information subject to a duty of confidence. However, as is the case here, where a record is created by or on behalf of an FOI body, section 35(2) must be considered first.
Section 35(2)
Section 35(2) provides that section 35(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.
A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity (an equitable duty of confidence). I accept that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J. confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J. in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J. summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:
“1. the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”; 2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it; 3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
I have adopted this approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence.
The IDA’s arguments
The IDA says that section 35(2) does not apply. It says that its service provider prepared the record based on information provided by the respondents, and that disclosure would constitute a breach of an equitable duty of confidence owed to the surveyed companies and their senior executives.
The IDA refers to the purpose of the survey and how it uses the information. It says that the withheld information has the necessary quality of confidence, in that it is inherently confidential (i.e. not in the public domain) and not trivial. It says that the executives responded in circumstances imposing an obligation of confidence, and on the understanding that responses would be treated in confidence by the service provider and by the IDA. It says that disclosure of the information, in and of itself, would constitute unauthorised use to the detriment of the respondents. It says that detriment need not be pecuniary in nature.
The IDA outlines how the client companies were approached in relation to the survey and provides a copy of the letter sent to them by the IDA’s CEO, which I note says that “individual comments will not be identified”. It says that the letter confirms that participants’ responses would be treated in confidence and not attributed to them; that this was reiterated by the market research company when they met with the companies; and that the survey document was also marked confidential.
Analysis
I have no reason to dispute the IDA’s reasons for conducting the survey. I accept that client participation is voluntary. I note the assurances given to clients.
However, Finding 1 explains why I do not accept that disclosure of the withheld details would reveal respondents’ identities to third parties. Therefore, I cannot identify any specific parties to whom any duty of confidence may be owed in relation to the details concerned. It follows that I do not accept that disclosure of the details could be to the detriment of the parties communicating them (see third Coco test) or result in any wrongful communication of the information therein. All three tests must be met in order for it to be accepted that disclosure would amount to a breach of a duty of confidence. Therefore, I cannot accept that disclosure would constitute a breach of a duty of confidence. I find that section 35(2) applies (Finding No. 2).
Further to Finding No. 2, sections 35(1)(a) and (b) cannot apply. There is no need for me to describe or analyse the IDA’s arguments on these provisions accordingly.
Section 36(1)(b) – commercially sensitive information
Section 36(1)(b) provides that a head shall refuse to grant an FOI request if the record concerned contains 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. However, a record to which section 36(1)(b) applies may be released further to sections 36(2) (exceptions) or 36(3) (public interest).
The harm test in the first part of section 36(1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. I take 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 body should show 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 at issue.
The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The standard of proof necessary to meet the test of “could prejudice the competitive position"” is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). However, I take the view that, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity. Furthermore, in the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. makes it clear that it is not sufficient for the 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.
The IDA’s arguments
The IDA says that the details comprise financial and commercial information about identifiable respondents (and certain unidentified groupings of companies) and their perceptions of e.g. their financial positions, addressable markets, marketing strategies, issues affecting business and growth plans, etc. It says that knowledge of such details could prejudice the parties’ competitive positions in the conduct of their businesses, by giving an advantage to competitors, including those who did not participate in the survey.
Analysis
I have already described the nature of the details at issue. Finding 1 explains why I do not accept that disclosure would reveal respondents’ identities to third parties. It follows that I have no basis to accept that disclosure “could prejudice the competitive position” of the respondents in the conduct of their business, much less that disclosure “could reasonably be expected to result in material financial loss or gain”. (Finding No. 3).
The IDA also appears to assert that release will prejudice the competitive position etc. of certain groupings of companies. Section 36(1)(b) concerns the impact of release on the particular person or persons to whom the information relates, however. In any event, the IDA does not identify any groupings about which it has concerns, or identify any particular information concerning such groupings (or companies therein), or explain how this information may be of use to specific competitors, or to competitors of a particular type. Again, I have no basis to accept that disclosure of the information “could prejudice the competitive position” of any relevant groupings or companies in the conduct of their business, or that disclosure “could reasonably be expected to result in material financial loss or gain” to such groupings or companies.
I find that section 36(1)(b) does not apply. In the circumstances, there is no need for me to analyse the IDA’s arguments on sections 36(2) or (3) of the FOI Act.
Analysis and Findings – Impact on the IDA and Ireland
Section 30(1)(a) – investigations and investigation procedures
The IDA contends that section 30(1)(a) applies to all of the withheld details. Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, 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)(a) envisages two potential types of "prejudice" or harm. The first is where release could reasonably be expected to prejudice the effectiveness of certain functions conducted by or on behalf of an FOI body. The FOI body should identify the relevant function concerned (i.e. the test, examination etc.) and the prejudice or harm to the effectiveness of that function which is envisaged.
The second potential type of "prejudice" or harm is where release could reasonably be expected to prejudice "the procedures or methods employed” for the conduct of the tests, examinations etc. The FOI body should identify the harm to the relevant procedure or method that might arise from disclosure and, having identified the harm, consider the reasonableness of the expectation that the harm will occur.
Having identified the relevant harm(s), the body should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report. Consideration should be given to what the consequence of granting access to the particular record could reasonably be expected to be i.e. what disclosure of the record would actually reveal.
The IDA’s arguments
The IDA refers to the purpose of the survey, its voluntary nature and the assurances of confidentiality given to participants. It says that seeking companies’ views on various matters important to its own role in FDI comprises an investigation or inquiry into those companies’ views on the matters concerned. The IDA says that the survey’s face-to-face nature, and clients’ trust, allow for frank and open responses. It says that disclosure would damage client trust in relation to both the survey process and more generally. It says that it is therefore reasonable to expect that clients would be less likely to participate and/or would be less forthcoming in future surveys, which would prejudice the effectiveness of such surveys.
The IDA also says that disclosure of certain details would prejudice the effectiveness of the survey company’s methods for carrying out this and other similar surveys, and the effectiveness of the questions asked.
Analysis
Even if I accept that the client survey is an investigation or inquiry for the purposes of section 30(1)(a), this does not determine the matter. I have no reason to dispute the IDA’s reasons for conducting the survey. I accept that client participation is voluntary. I note the assurances given to clients. It is reasonable to accept that identifiable respondents could become reluctant to take part in future surveys, or that they could give less frank responses, if the IDA disclosed their views and/or confidential and/or commercially sensitive information provided in the present survey.
However, as set out regarding Findings 1- 3, I am not satisfied that release of the details would reveal respondents’ identities to third parties or their confidential or commercially sensitive information. It follows that I do not see how disclosure could reasonably be expected to impact on clients’ trust in the IDA’s survey process or in the IDA generally, or how disclosure could reasonably be expected to render the respondents, or other IDA clients, reluctant to take part, and/or to be frank, in future surveys (Finding No. 4).
Accordingly, I do not accept that disclosure of the withheld details could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the IDA, or the procedures or methods employed for the conduct thereof. I find that section 30(1)(a) does not apply (Finding No. 5a).
Market research company
The IDA also says that disclosure of the methodology (page 5), the sample profile, and certain questions asked by the market research company would reveal the company’s methods for carrying out this and other similar surveys. It says that disclosure could thus be reasonably expected to prejudice the effectiveness of those methods, including the effectiveness of the questions asked.
Most of the methodology details have been released except for certain breakdowns relevant to the IDA. The sample profile analyses the interviewed clients similarly. In such circumstances, I do not see how disclosure can be said to reveal the research company’s procedures or methods for carrying out this and similar surveys. Even if this may be the case, the IDA does not explain how disclosure thereof could reasonably be expected to prejudice the effectiveness of those procedures or methods. It is not apparent to me how this could be the case.
The IDA does not identify the questions about which it has concerns. Given that most are evident from the pages released, I can only assume that its concerns are directed at the questions on the withheld pages 45-48 and 51-52, which do not appear elsewhere. Section 25(3) precludes me from describing the questions other than to say that they seek high level factual information about respondents’ plans, and are of a type that one would expect in a survey such as this. The IDA does not explain how disclosure of these (or any other questions over which it may have concerns) could prejudice the effectiveness of those questions and it is not apparent to me how this prejudice could arise.
Further to the above, I have no basis to accept that disclosure of the details could reasonably be expected to prejudice the effectiveness of further surveys that the market research company may carry out, whether on behalf of the IDA or other FOI bodies, or the procedures or methods employed for the conduct thereof. I have no basis to find that section 30(1)(a) applies (Finding No. 5b).
Further to Findings 4 and 5(a) and (b), there is no need for me to analyse the IDA’s public interest arguments in relation to section 30(2).
Section 30(1)(b) – functions relating to management
The IDA contends that section 30(1)(b) applies to all of the withheld details, except for a very small number seeking factual information about respondents.
Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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). FOI bodies relying on section 30(1)(b) should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
The FOI body should identify the relevant function relating to management and identify the significant adverse effect on the performance of that function which is envisaged (which requires stronger evidence than the “prejudice” standard of section 30(1)(a)), and consider the reasonableness of the expectation that the harm will occur. Similar to section 30(1)(a), a claim for exemption under section 30(1)(b) must be made on its merits, and having regard to the contents of the particular record (s), and the relevant facts and circumstances of the case. Again, a class-based claim for exemption pursuant to paragraph (b) is not sustainable.
The IDA’s arguments
The IDA says that disclosure would have significant, adverse effects on its strategic planning, management of financial resources and operational matters, and on how it reviews and devises new methods of conducting operations. It says that these are activities which this Office previously accepted were covered by the term “functions relating to management”. It says that disclosure of granular client feedback on its activities around developing FDI in Ireland would have significant, adverse effects on its performance in winning FDI projects.
The IDA refers again to the purpose and voluntary nature of the survey, and to its view that disclosure could impact on future cooperation with such surveys. It says that it takes survey outputs (including any important issues highlighted) into account in preparing its five-year strategy document, its strategic initiatives and policy, and its annual planning and target setting process. It says that the survey enables it to focus any changes or new approaches to client companies’ needs, and to address/target any highlighted long term concerns or opportunities, when developing strategy or when evaluating and enhancing quality. It says that the absence of such a comprehensive and effective information gathering tool would be to the detriment of its ability to improve its service and assistance to clients and the performance of its statutory functions, and to the detriment of Ireland.
Analysis
I note the range of areas that the IDA says will be affected by disclosure of the withheld views and other details, such that it will not be able to perform its statutory functions. However, as set out in relation to Finding No. 4, I am not satisfied that release of the withheld details could reasonably be expected to impact on clients’ participation/frankness in future surveys. It follows that I see no basis on which to accept that disclosure could result in respondents or clients not alerting the IDA to important issues of relevance to its long term or annual planning and target setting processes etc.
Furthermore, in all of the circumstances, including the apparently general nature of the withheld information and the absence of elaboration from the IDA on the matter, it is not apparent to me how the details could be of such use to other IPAs to the extent that disclosure could have a significant, adverse effect on the IDA’s performance in winning FDI projects, or on its performance of its statutory functions generally.
It follows that I have no basis on which to accept that disclosure could reasonably be expected to have a significant adverse effect on the assorted functions identified by the IDA and/or its general ability to perform its statutory functions or on its performance of any other of its functions relating to management (including industrial relations and management of its staff). I find that section 30(1)(b) does not apply (Finding No. 6).
Certain other details
The IDA argues that section 36(1)(b) applies to certain other details that I cannot describe due to section 25(3). I will also consider its arguments under section 30(1)(b), although I have reservations over whether the matter to which the details relate truly falls under “functions relating to management”. That said, I accept that the details are relevant to the IDA’s strategic planning, management of resources and operational matters.
The Investigator asked the IDA to explain the significance of the details. I am limited in how I can describe the IDA’s response due to the requirements of section 25(3), but essentially the details concern internal information, which the IDA says enables it to focus resources more efficiently in order to support clients and to win investment. In essence, the IDA contends that disclosure will either impact on clients’ willingness to engage in further surveys, and/or impact on client relationships to such an extent that other IPAs will be able to capitalise.
Analysis
In my view, MNCs are unlikely to be surprised that the IDA seeks to focus its resources efficiently. It is also likely that other IPAs do similar.
Furthermore, it seems to me that the majority of respondents would be unable to identify themselves from the other amalgamated details in the record. They would, therefore, be unable to examine how the certain other information relates to them. While a small number of respondents may think that they have potentially identified themselves from other parts of the record, I do not accept that they can have certainty on the issue.
However, even if I accept that a limited number of respondents may think that they can potentially identify themselves, and in turn take issue with how they believe the certain other information relates to them, it seems to me that the impact thereof would be minimal and would be outweighed by the many other aspects of the beneficial relationships that the IDA has with such clients. Thus, I would consider such impacts to fall well fall short of the significant, adverse effect required by section 30(1)(b).
In all of the circumstances, I do not see how disclosure of the relevant details could reasonably be expected to impact on clients’ participation/frankness in future surveys, and/or to impact on client relationships to such an extent that other IPAs will be able to take advantage. It follows that I do not accept that disclosure could reasonably be expected to have a significant, adverse effect on the IDA’s performance in relation to its strategic planning, management of resources, operational matters or of any other functions relating to management (including industrial relations and management of its staff). I find that section 30(1)(b) does not apply to the certain other details (Finding No. 7).
Section 30(1)(c) - negotiation positions and plans
The IDA contends that section 30(1)(c) applies to all of the withheld details, except for the breakdown of certain responses that are factual in nature.
Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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.
This provision is intended to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. While there is no requirement to take a view on the consequences of the disclosure of those positions, or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations, such matters may be relevant to the public interest test in section 30(2).
An FOI body must show that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any negotiations.
A distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc. used for the purpose of a negotiation. While a record might reveal the outcome of negotiations, it may not necessarily be reasonably expected to disclose the positions taken or reveal plans or procedures etc. used for the purpose of a negotiation. I have also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.
The IDA’s arguments
The IDA says that it negotiates on a continuous basis with potential investing companies. It says that it develops plans, procedures, or criteria for use in such negotiations based on survey outputs and therefore that disclosure could reasonably be expected to disclose such negotiation plans, etc. It says that while it is sufficient for the record to reveal positions, etc., disclosure will in fact cause harm to the IDA and Ireland.
I will also consider here the IDA’s slightly different arguments regarding section 36(1)(c) i.e. that it conducts discussions/negotiates on a continuous basis with companies considering investing in Ireland and with existing IDA clients. It says that disclosure could reveal areas for improvement in the Irish business environment or the IDA’s provision of its services. It says that it is likely this would prejudice the conduct and outcome of its negotiations with existing and potential clients when seeking new investment or the expansion of existing facilities, to the detriment of the IDA’s position and that of Ireland.
Analysis
As outlined already, what is at issue here is an analysis of responses to what are apparently quite general questions. Most of the questions and overviews of their responses have been released.
I accept that the IDA negotiates on an ongoing basis with new and current clients and that the details at issue ultimately inform or feed into its plans etc. for such negotiations. However, it is not apparent to me how disclosing inputs could, of itself, reveal the ensuing adopted negotiating plans etc. and the IDA does not explain how this could happen. In addition, finalised plans, etc. are likely to take account of numerous other matters, including the particular circumstances and context to each negotiation with an individual company.
Neither does the IDA explain how disclosure of details of areas for improvement in the Irish business environment or in its own provision of services could, in essence, disclose any plans etc. it may have developed to deal with such issues if they arise in negotiations with existing/potential clients. It is not apparent to me from my examination of the record how such outcomes could occur. Again, such plans, etc. are likely to be based on many other inputs and factors.
In the circumstances, it is not apparent to me how disclosure could reasonably be expected to disclose the IDA’s plans, etc. for its negotiations with current or potential clients. I find that section 30(1)(c) does not apply (Finding No. 8).
Given my findings on sections 30(1)(a) to (c), there is no need for me to analyse the IDA’s public interest arguments (section 30(2)).
Section 36(1)(b) – commercially sensitive information
The IDA says that the details also comprise its own financial and commercially sensitive information. I have already outlined the wording of section 36(1)(b) and my general approach to it.
The IDA’s arguments
As noted earlier on page 3 of this decision, the IDA’s submission on section 40 refers occasionally to the commercial sensitivity of the information from the IDA’s perspective. A “particularly relevant” argument is its position that disclosure of certain other details (considered already under Finding 7) will impact on client relationships, which in turn could reasonably be expected to prejudice the IDA’s competitive position viz. other IPAs. It also says that the views given, and the survey questions/methodology/representative sample details are its commercial information in the context of performing its functions on behalf of Ireland, on the basis that they indicate how the IDA targets and sustains FDI in Ireland, provide a blue print for its plans, procedures and marketing methods, and give insights into how it deals/has discussions with clients.
In arguments specific to section 36(1)(b), the IDA says that the details are vital to allow it to compete for FDI with other IPAs and also allow the IDA to assess its performance. It says that the details inform the commercial positions it takes when entering into agreements with investor companies, and shape its strategies for financial and commercial decisions. It says that disclosure of granular details of the opportunities, attitudes and concerns identified by the IDA’s client base, and how they perceive the value of the many IDA supports available to them, would be very valuable to other IPAs and enable them to tailor their products offerings to win FDI investment that would otherwise have been won by IDA and therefore by Ireland.
Analysis
I have outlined already that the withheld information is largely an analysis of responses to what are apparently quite general questions. Most of the questions and overviews of responses have been released. I accept that disclosure of the details may provide other IPAs with insights into the already released material, and with additional information on the survey questions/methodology/representative sample.
The IDA makes many assertions of harm arising from disclosure of the details. However, it does not illustrate any of these assertions by reference to specific details.
Neither do I see how the record discloses any commercial or strategic plans or other approaches that the IDA adopted (or might adopt) further to consideration of the results. Nor do I see how the record discloses any specific or general positions that the IDA might take when making agreements with investor companies or other parties.
Insofar as the “certain other details” are concerned, in Finding 7 I observed that, even if I accept that a limited number of respondents may think that they can potentially identify themselves and in turn take issue with how they believe the certain other information relates to them, in my view the impact thereof would be minimal and would be outweighed by the many other aspects of the beneficial relationships that the IDA has with such clients.
Having given the matter very careful consideration in the specific context of the requirements of section 36(1)(b), I do not accept that the impact of disclosure of the “certain other details” is such that either test in section 36(1)(b) is met. Therefore, I do not accept that disclosure of these details could reasonably be expected to harm client relationships to the extent that this could prejudice IDA’s commercial position viz. other IPAs, or result in a material financial loss to the IDA.
In summary, therefore, I have no basis on which to find that disclosure could prejudice the IDA’s competitive position in the conduct of its business, or that disclosure could reasonably be expected to result in material financial loss to the IDA (or in commensurate gain to foreign IPAs). I find that section 36(1)(b) does not apply (Finding No. 9(a)).
Market research company
Finding 5(b) concerned the IDA’s claim that section 30(1)(a) applies to the methodology details on page 5, the sample profile, and certain questions. The IDA did not claim that section 36(1)(b) applied to such information. For the sake of completeness, however, I do not consider the provision to apply from the market research company’s perspective.
As set out in relation to Finding 5(b), the withheld details concern either the IDA or respondents’ plans and appear general; and it is not apparent to me how they can be said to reveal the research company’s methods for carrying out this and similar surveys, or how their disclosure could reasonably be expected to prejudice the effectiveness of the company’s further surveys or the procedures or methods it uses for these. In turn, I have no basis to accept that disclosure could reasonably be expected to result in a material financial loss or gain to the company concerned, or that disclosure could prejudice its competitive position in the conduct of its business. I find that section 36(1)(b) does not apply (Finding No. 9(b)).
Section 36(1)(c) – information prejudicial to negotiations
Section 36(1)(c) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned contains information whose disclosure 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 in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, I expect that a party seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. The conduct and the outcome of negotiations are separate matters.
The IDA’s arguments
The IDA says that it carries out various discussions and negotiations on an ongoing basis, both with companies considering investing in Ireland and with existing IDA clients. It says that the record could reveal areas in which the Irish business environment, or the IDA’s provision of its services, could be improved. It says that disclosure of such details is likely to prejudice the conduct and outcome of its negotiations with existing and potential new clients when seeking new investment or the expansion of existing facilities, to the detriment of the IDA’s, and in turn Ireland’s, position.
As noted above in relation to section 30(1)(c), the IDA also contends that the withheld details can be reasonably expected to disclose plans, procedures or criteria used in carrying out its negotiations. It says that it uses the feedback in the survey from existing client companies in order to develop these plans, procedures and criteria, such that the survey plays an important role in developing the IDA's approach to negotiations with companies wishing to invest in Ireland.
Analysis and findings
In Finding No. 8, I accepted that the IDA negotiates on an ongoing basis with companies and that the results of this and similar surveys ultimately inform or feed into its negotiating positions and plans. I went on to explain why I cannot accept that disclosing such inputs can itself reveal the IDA’s ensuing positions, plans, or procedures, etc. for such negotiations.
Again, I note the nature of the details at issue here - an analysis of responses to largely general questions, where most of the questions and an overview of their responses have been released. I accept that the details at issue are more informative than the released material. Nonetheless, it is not apparent to me from the face of the record how the release of the remaining excerpts could result in such further insight as to give existing or potential clients an otherwise unavailable advantage in their negotiations with the IDA, and the IDA has not explained this.
I am therefore not satisfied that disclosure of the details could reasonably be expected to prejudice the conduct and outcome of its negotiations with existing and potential new clients. I find that section 36(1)(c) does not apply (Finding No. 10).
Given my overall findings on sections 36(1)(b) and (c), there is no need for me to analyse the IDA’s arguments on sections 36(2) or (3).
Section 40(1) – financial and economic interests of the State
The IDA says that the details are of a type covered by sections 40(2)(j), (k), (m) and (p) of the FOI Act, and are exempt under sections 40(1)(a), (b), (c) and (d). A record that is exempt under section 40(1) may still fall to be released in the public interest (section 40(3)).
Sections 40(1)(a) to (d) are what are known as harm-based provisions. Where an FOI body relies on section 40(1), it should identify the potential harm specified in the relevant paragraph of subsection (1) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 40(2)
Section 40(2) applies to various records relating to various matters including: (j) foreign investment in enterprises in the State; (k) industrial development in the State; (m) trade secrets or financial, commercial, industrial, scientific or technical information belonging to the State or a public body, that are of substantial value or reasonably likely to be of substantial value; and (p) investment or provision of financial support by or on behalf of the State or a public body.
I accept that the details broadly relate to the matters set out in at least sections 40(j), (k) and (p). However, I do not intend to set out or analyse the IDA’s arguments in relation to section 40(2). As also noted by the IDA, a record that falls squarely within the provisions of section 40(2) must still meet the relevant test(s) in sections 40(1) in order to be exempt.
Section 40(1)(a)
Section 40(1)(a) provides that a head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head access to the record could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State. Consideration should be given to the actual content of the record and what its disclosure would actually reveal. A connection between the subject matter of the records and matters related to the economy alone does not mean that the harm envisaged by section 40(1)(a) could reasonably be expected to occur as result of release.
The IDA’s arguments
I have already set out the IDA’s comments on the importance of FDI to Ireland, the intensity of global competition, the importance of strong relationships with clients in winning new business and investment, why it carried out the survey, and the interest that other IPAs would have in the details.
The IDA says that the survey outputs, and daily client interaction, enable it to make informed decisions about policy direction and how best to support clients and win more business. It says that the details indicate how it targets, carries out due diligence on, and sustains FDI in Ireland, and disclose its plans and procedures (including for engagement with third party clients) and highly successful marketing strategies, and give an insight into its dealings/discussions with clients. It says that the details would therefore be useful to competing IPAs/countries, thus reducing the IDA’s ability to compete for the limited FDI available and perform its statutory functions; negatively impacting on existing clients’ investment, expansion, or research activities; potentially reducing a vital source of investment in the Irish economy by new and established companies; and impacting on the effectiveness of the State’s industrial development strategy.
The IDA claims that disclosure of the details could thus reasonably be expected to have a serious, adverse effect on the financial interests of the State due to the impact of reduced industrial development and FDI on employment generation, employer and employee taxes paid and the related indirect impacts on the economy.
Analysis
I have outlined already that the withheld information is largely an analysis of responses to what are apparently quite general questions, and that most of the questions and overviews of responses have been released. I accept that disclosure of the details may provide other IPAs with insights into the already released material, and with additional information on the survey questions/methodology/representative sample. Crucially, however, the IDA does not illustrate how the many harms it envisages could arise from disclosure.
Findings 1-4 explain why I do not accept that release could reasonably be expected to impact on clients’ participation/frankness in future surveys such that the IDA may not be alerted to issues relevant to long term/annual planning and target setting processes, etc. Accordingly, I do not see how disclosure of the details could impact on current clients’ relationships with the IDA such that this could impact on FDI investment or expansion decisions by those businesses. Neither do I see how disclosure could impact on investment by target or other companies, nor has this been explained. Finding No. 8 explains why I do not accept either that the details of themselves reveal the IDA’s negotiating positions, plans, etc. or that disclosure could prejudice the conduct and outcome of the IDA’s negotiations with existing and potential new clients.
Finding No. 6 explains why I do not accept that the details could be used by other IPAs to the extent that disclosure could have a significant, adverse effect on the IDA’s performance in winning FDI projects or on its performance of its statutory functions generally. To further elaborate, the survey may well provide inputs into the IDA’s formulation of policies or strategies to attract FDI. However, the IDA does not identify particular excerpts, and explain how they (either in their own right, or as analysed and/or in conjunction with other information) give sufficient insights to other IPAs that would be useful in refining their own general or sectoral FDI strategies. Thus, I cannot see, nor has it been explained by the IDA, how the record discloses the actual policies or strategies adopted, which would also presumably reflect many other external matters, e.g. Government policy on taxation, etc.
While I have no reason to dispute that the survey is part of the IDA’s general due diligence/client management, again the IDA does not explain how the details, either generally or in conjunction with other information, could give sufficient information to other IPAs to enable them to approach client or target companies and win FDI at Ireland’s expense.
In all of the circumstances, I see no basis to accept that disclosure could reasonably be expected to have such an effect on the IDA’s ability to perform its statutory functions such that, in turn, disclosure could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State. I find that section 40(1)(a) does not apply (Finding No. 11).
Section 40(1)(b)
Section 40(1)(b) provides that a head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature. I take the view that section 40(1)(b) is designed to cover business in the ordinary meaning of the word (i.e. relating to commercial activity, trade or professions), not the provision of services by or on behalf of the State.
The IDA’s arguments
For the same reasons given under section 40(1)(a), the IDA claims that disclosure could unduly disturb a particular class of business in the State, i.e. FDI by new and existing businesses. It says disclosure would be premature because the information “remains relevant to [its] work with new and existing clients in relation to new and ongoing FDI.”
Analysis
I have no reason to dispute the IDA’s view that the information remains relevant. However, for the reasons given for Finding No. 11, I see no basis to accept that disclosure could reasonably be expected to unduly disturb a particular class of business in the State i.e. FDI by new and existing businesses. Therefore, I need not go on to analyse the “premature” element of the provision. I find that section 40(1)(b) does not apply (Finding No. 12).
Section 40(1)(c)
Section 40(1)(c) provides that a head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head access to the record could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states.
The IDA’s arguments
The IDA notes the lower threshold of harm contained in section 40(1)(c) (“negative impact”). For the reasons set out in relation to section 40(1)(a), it says that disclosure can reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State; on their research activities; and, in particular, on the effectiveness of the investment strategy of the State, particularly in relation to those of other States.
Analysis
The IDA does not describe the types of client research activities that it fears may be harmed by disclosure or explain how this harm could arise from disclosure of the details. I do not see how this is the case. For this reason, and for those given for Finding No. 11, I see no basis on which to accept that disclosure could have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the investment strategy of the State, particularly in relation to those of other States. I find that section 40(1)(c) does not apply (Finding No. 13).
Section 40(1)(d)
Section 40(1)(d) provides that a head may refuse to grant an FOI request in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. The key issue in considering this exemption is the extent to which, if at all, the grant of the request would damage the interests of the State or some public body. Such damage would also have to meet the test of being "unwarranted".
The IDA’s arguments
The IDA relies again on the reasons set out in relation to section 40(1)(a) in claiming that disclosure would affect its ability to develop FDI in the State, such that this can reasonably be expected to result in various losses to the State, including reduced tax revenue. It says also that disclosure would give an unwarranted benefit to new and existing companies in their negotiations with the IDA, and would enable competing IPAs/countries to attract investment that would not otherwise have been forthcoming. It says that, accordingly, disclosure could reasonably be expected to provide these parties with an unwarranted benefit (and in turn an unwarranted loss to the IDA).
Analysis
The reasons given for Finding No. 11 are again relevant here. I therefore have no basis on which to accept that disclosure could reasonably be expected to result in a benefit to other IPAs, or to existing or target IDA clients, whether unwarranted or not, or in turn that disclosure could reasonably be expected to affect the IDA’s ability to develop FDI in the State or result in various losses to the State (Finding No. 14).
Section 29(1) – deliberative processes
Section 29(1) provides for the discretionary refusal of a request if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, 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. The requirements of sections 29(1)(a) and (b) are independent and the fact that the first is met carries no presumption that the second is also met. A record that is exempt under section 29(1) may still fall to be released in the circumstances listed in section 29(2).
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29 so as not to release a record, the public body must be of the opinion that releasing the record would be against the public interest.
The FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be contrary to 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.
Generally speaking, it would be contrary to the public interest to release a record where a specific harm to the public interest flows from release. While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make.
The IDA’s arguments
Section 29(1)(a) - relating to deliberative processes
The IDA says that withheld details are being weighed and considered as part of a number of different, still ongoing, deliberative processes e.g. formulating the IDA’s response to the changing global business environment; assisting in the formulation of Government policymaking on the competitiveness of Irish business environment, infrastructure needs, investment in various regions and the availability of skills in certain sectors, etc.; and formulating the State’s tax policy. I note also its position that the survey outputs are key drivers in developing longer term strategic initiatives and IDA policy, in that the details disclose respondents’ views (essentially, their opinions, advice and recommendations) on their experiences of the Irish business environment, and their perceptions of IDA engagement, support and performance in developing FDI. It argues that the standard required for section 29(1)(a) to apply (relating to deliberative processes) is a lower standard than e.g. "affecting or likely to affect".
Section 29(1)(b) - contrary to public interest
The IDA lists various public interest factors favouring release i.e. the need to achieve greater openness in the activities of FOI bodies; the need to promote adherence by FOI bodies to the principle of transparency in government and public affairs; the need to strengthen the accountability and improve the quality of decision making of FOI bodies; the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies; and the need to facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
The IDA lists the following public interest factors against release: the need for FOI bodies to be able to perform their statutory functions effectively; the need to allow the IDA to initiate proposals and schemes for the creation and development of industry and the provision of maintenance of industrial employment; the need to allow the IDA to give advice and guidance to persons contemplating starting new industry or expanding existing industry; the need for FOI bodies to achieve value for money; the need to protect the State from loss or prejudice; the need to protect the taxpayer from loss or prejudice; the need to achieve value for money for the taxpayer; the need to enable evidence-based decision making by an FOI body, without preventing the making of resulting decisions by releasing the evidence and consideration to the public.
The IDA says that disclosure of the record would be contrary to the public interest because it will negatively impact on ongoing deliberations, and affect its ability to make evidence based decisions. It says that disclosure of the record to competing IPAs and countries will undermine the effectiveness of the deliberations in producing the above mentioned strategies, policies and decisions; allow these parties to modify their policies and plans accordingly; and will affect Ireland’s ability to attract FDI.
Analysis
Section 29(1)(a)
While the previous decision in Case No. OIC-92084-D2T3P4 accepted that the survey outputs may feed into deliberations by the IDA and wider Government, it did not consider that the record itself relates to a deliberative process and found that section 29(1)(a) did not apply.
I have no reason to dispute that the record ultimately feeds into the deliberative processes of the IDA or other bodies. However, it is hard to imagine the survey results in their own right being a discrete and specific part of either the IDA’s own policy making, or other FOI bodies’ decision making on wider policy matters. It seems to me that these are more likely to take account of a record summarising/reflecting on, and making recommendations arising from, the key findings. It is also difficult to envisage that the Oireachtas intended section 29(1)(a) to apply to all records that are in any way remotely connected to a deliberative process. However, I must take account of the provision as worded. It specifies that section 29(1)(a) applies to a record containing matter “relating to” deliberative processes of an FOI body, including “opinions ….and the results of consultations …”. It seems to me that the record meets these criteria and I find that section 29(1)(a) applies.
Section 29(1)(b)
The factors set out by the IDA in favour of release reflect the general principles of openness and transparency contained in section 11(3) of the FOI Act (which, generally speaking, recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies). However, by considering public interest factors both for and against release, the IDA appears to have carried out a general public interest balancing test, whereas section 29(1)(b) requires consideration of whether disclosure would be contrary to, or against, the public interest.
In my view, section 29 is intended to ensure that deliberations of FOI bodies are not prejudiced or impaired by the release of records relating to those deliberations. The IDA contends that the records have ongoing relevance to deliberative processes. However, this is not, of itself, a reason to find that release is contrary to the public interest, particularly when the IDA does not explain how those deliberations may be harmed by disclosure.
I have considered all of the IDA’s other arguments. Findings 1-14 in particular explain why I am not satisfied as to how the various envisaged harms claimed by the IDA could materialise in this case. Accordingly, I am not satisfied that the IDA have shown how it would be contrary to the public interest to disclose the record. Having examined the record, neither can I see how granting the request would be contrary to the public interest.
I also see no basis, further to the IDA’s submission and the analysis above, to consider that disclosure would be contrary to the public interest by reason of the fact that the requester would thereby become aware of a significant decision that the IDA proposes to make. I find that section 29(1)(b) does not apply.
I find that the record is not exempt under section 29(1) of the FOI Act. Therefore, I need not analyse the IDA’s arguments on section 29(2).
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the IDA’s decision and I direct it to grant access to the remainder of the record.
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.
Ger Deering, Information Commissioner