Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150792-Z7L2X0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to the nightly rate per person proposed by a named hotel (the Hotel) for the accommodation of International Protection applicants on the basis of sections 30(1)(c) and 36(1)(b) of the FOI Act
In a request dated 12 April 2024, the applicant sought access to records between the Department and the Hotel in relation to its use or proposed use to accommodate International Protection applicants. I understand that the applicant had made another related request seeking records relating to the assessment of the Hotel and the Department merged both requests and processed them as one.
I understand that two sections of the Department were assigned to deal with the applicant’s amalgamated request – the International Protection Procurement Service (the IPPS) and the Ukraine Division (the UKD), but that no original decisions issued. On 23 May 2024, the applicant made an internal review request on the basis of a deemed refusal. On 20 June 2024, the applicant applied to this Office for a review on the basis of a deemed refusal as he had received no response to his internal review request. (OIC Case No. OIC-149970-D5R2F0 refers).
On foot of correspondence from this Office, the IPPS and the UKD issued separate effective position letters to the applicant on 22 July 2024. The IPPS identified 16 records relating to the applicant’s request. It refused access to the records in full or in part under sections 30(1)(c), 32(1)(a)(iii), 32(1)(b), 36(1)(b) and 37 of the FOI Act. The UKD identified 11 relevant records, which it released in part subject to the redaction of information under sections 36(1)(b)/(c) and 37(1) of the FOI Act. This Office’s file in OIC Case No. OIC-149970-D5R2F0 was closed on foot of the Department’s effective position letters.
On 25 July 2024, the applicant made an application to this Office for a review of the Department’s decisions. In particular, he queried the Department’s reliance on section 36. He also clarified that he was not seeking access to personal information which would endanger the life or safety of any persons.
During the course of this review, the applicant agreed that certain information could be taken outside the scope of this review. The Department was invited to make submissions in support of its decision in this case and it was notified of the reduced scope of the review. In response, the Department released additional records to the applicant in part. The applicant has indicated that he wishes to access the remaining limited information contained in record 12, which was withheld from release.
I notified the Hotel of this Office’s review and invited it to comment on the specific information withheld from record 12. In its response, it argued that section 36(1)(b) was relevant.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the Department’s effective position letters and its submissions to this Office, as well as to the applicant’s comments in his application for review and correspondence with this Office during the review. I have also had regard to the third party’s submissions and to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the applicant confirmed to this Office that he was not seeking access to the following categories of information contained in the records:
• The names, titles, email addresses or mobile numbers of Department staff
• The names and contact details of the owner/manager(s) of the Hotel and the relevant company name and a reference number
• The names and details of other hotels
• Fire certificates, insurance documents and a tax clearance certificate
• The name of an individual working in another public body
The applicant is also aware that IPPS record 10 is included in IPPS record 6 and that I do not intend to consider record 10 separately and has made no objection.
As noted above, on foot of correspondence from this Office, the Department released additional records in full or in part. Following further correspondence between this Office and the applicant, I am satisfied that the sole remaining information under review is the proposed rate per night put forward by the Hotel, contained in record 12.
The Department initially relied on sections 36(1)(b) and 37(1) to refuse access to record 12. During the course of this review, it informed this Office that it is no longer relying on section 36(1) to refuse access to this information. Instead, it indicated that it was solely relying on section 30(1)(c) to refuse access to the rate per person withheld from page 8 of record 12. As noted above, the Hotel has argued that section 36(1)(b) applies to this information.
Accordingly, the scope of this review is solely concerned with whether the Department was justified in refusing access to the nightly rate per person withheld from IPPS record 12, under sections 30(1)(c) and 36(1)(b) of the FOI Act.
Before I set out my substantive analysis and findings, I wish to note at the outset that the Department’s processing of the applicant’s request in this case, and indeed in other recent cases before this Office, falls well short of the requirements of the FOI Act. This Office recently highlighted our concerns with senior management of the Department about its handling of FOI requests. In this regard, I note that the Department has acknowledged its shortcomings in its management of FOI requests and that it said that it is putting in place measures to ensure that it is compliant with its obligations under the FOI Act.
Record 12 is a IPAS accommodation proposal form completed by the Hotel which includes information on the Hotel’s safety and fitness for occupancy, its catering provision and room sizes, its recreational and lounge facilities and various other criteria such as wi-fi, security provision and staffing. It also contains a proposed rate per person per night.
Section 30(1)(c) of the FOI Act provides that an FOI request may be refused if access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(2) provides that section 30(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines “negotiation” as “the action or business of negotiating or making terms with others”. It goes on to define the verb “negotiate” as “to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise”.
Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. This Office also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c). In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is any proposal for settlement or compromise, any indications of 'fall-back' positions, information created for the purpose of negotiations, the FOI body’s negotiating strategy, or an opening position with a view to further negotiation.
In its effective position letter, the Department quoted section 30(1)(c) in full but provided no explanation as to how it applied to the records identified. In its submissions to this Office during this review, the Department stated that the figure withheld “constitutes a position that the Department has taken in negotiations or plans to take in negotiations in relation to the procurement of accommodation for international protection applicants”. It stated that as the record explicitly shows the rate, the Department’s position would be disclosed by the release of this information.
Section 30(1)(c) is designed 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 important to note that the exemption does not contain a harm test and it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiating positions, plans, etc. 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 etc. used for the purposes of negotiations. In addition, the Commissioner has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.
The information at issue is the proposed nightly rate of payment. While it is a close call, I am willing to accept, on balance, that the release of that rate could disclose positions to be taken for the purposes of ongoing or further negotiations. It seems to me that the release of such information could be seen to disclose the nightly rate that the Department would be willing to pay in the particular circumstances, or at least the starting point for negotiations between the parties. Accordingly, I find that section 30(1)(c) applies to the information concerned.
My finding, on balance, that the proposed nightly rate is captured by section 30(1)(c) is not the end of the matter as I must also consider whether section 30(2) serves to disapply section 30(1)(c). As I have outlined above, section 30(2) provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the “ENet case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions to this Office, the Department stated that releasing its negotiating position on such matters where significant public funding is involved, would hamper its ability to negotiate effectively and to ensure value for money in procurement. It argued that this “poses a clear risk to the public interest”, and that any value gained to the public interest by the release of the information sought would be “heavily outweighed” by the negative impact that release could have on the Department’s ability to ensure value for money. The Department’s position, essentially, is that release of the information sought would undermine its ability to negotiate effectively in the market and ensure value for money.
I have accepted above that the disclosure of the nightly rate could reasonably be expected to disclose positions taken or to be taken. While section 30(1)(c) does not contain a harm test and makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not, such a distinction is relevant to a consideration of the public interest test.
In this regard, the applicant argued that there was “a real public interest in this matter relating to the expenditure of taxpayer’s money”.
Section 30(1)(c) is itself reflective of the public interest in protecting the negotiating positions of FOI bodies. In this case, a certain amount of information concerning the accommodation offering in question has already been released to the applicant. The remaining information at issue comprises the nightly rate of payment proposed by the Hotel. However, I understand that purchase orders over a certain threshold are published on the Department’s website. Accordingly, I am satisfied that payments made to the Hotel by the Department on a quarterly basis are publically available. While the Department has referenced its ability to negotiate in future with other providers, it is not clear to me that disclosing a proposed rate of payment in respect of one specific property could reasonably be expected to result in the harms outlined.
It seems to me that any future negotiations with perspective providers will be dependent on the specific circumstances of the negotiation and the particular specific details of the accommodation on offer. I accept that a prospective provider who is aware of the daily rate proposed by the Hotel could use that information to frame their opening negotiating position. It also seems to me that this would be the case even if the proposed rate in this case comprised the final rate agreed upon, although neither party has argued that this is the case. In any event, it also seems to me that the final negotiated outcome will depend on a range of factors that are likely to be unique to the particular property and offering that is the subject of the negotiations. As such, I consider that the public interest in protecting the information at issue is to be afforded a lesser weight than it might otherwise attract if, for example, directly comparable offerings were at issue.
On the other hand, there can be no doubt that international protection and the measures being taken by the State to ensure that applicants are safely accommodated are matters of enormous public interest. The increase in international protection applications has given rise to a significant and unprecedented demand for accommodation. The State has acknowledged that there are significant shortages in accommodation. There is a strong public interest in allowing for public scrutiny of how accommodation services are delivered; the nature and the costs associated. It seems to me that the release of the information at issue would allow for more detailed scrutiny of how the Department is addressing that demand.
Moreover, there is a strong public interest in allowing members of the public to be in a position to scrutinise the expenditure of public monies, including the manner in which relevant agreements are negotiated. The provision of international protection accommodation through the private sector has given rise to significant levels of public expenditure. The accommodation service referenced in the records is State-funded and the amount of public monies that has been expended and continues to be expended on the provision of international protection accommodation is very significant, as evidenced by the published Purchase Order details. In the case ofIndustrial Development Agency (Ireland) v the Information Commissioner [2024] IEHC 649, the Court found the public interest in ensuring the proper management and use of public funds to be a legitimate public interest.
Moreover, it seems to me that the increased demand for international protection accommodation and the well-documented difficulties the State has experienced in meeting the needs of applicants means there is a need for increased scrutiny in respect of the State’s engagement with providers and resultant expenditure. Openness in relation to the provision of such services is an important additional safeguard against abuse.
Having carefully considered the matter, I am satisfied that any harms which could flow from the release of the nightly rate of payment would be, at best, minimal. As such, I consider that the weight to be afforded to the public interest in refusing the information is lessened. On the other hand, I have identified a number of strong public interest factors in favour of release. Accordingly, I am satisfied that the public interest in disclosing the information outweighs, on balance, the public interest in refusal. Accordingly, I find that section 30(1)(c) does not serve to exempt the information at issue.
I will now consider the application of section 36(1)(b) to the information concerned, as claimed by the Hotel.
Section 36 protects certain records containing commercially sensitive information. In its submissions to this Office, the Hotel said that the information contained in the records is commercially sensitive and exempt by virtue of section 36(1)(b). Section 36(1)(b) provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 the person in the conduct or his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information “could prejudice the competitive position” of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower that the “could reasonably be expected” test in the first part of this exemption. However, this Office takes the view that, in invoking “prejudice”, the damage that could occur must be specified with a reasonable degree of clarity.
In its submission to this Office, the Hotel argued that the proposed rate details set out in record 12 comprised “financial, commercial, ... information whose disclosure could reasonably be expected to result in a material financial loss” to the Hotel, or “could prejudice the competitive position of [the Hotel] in its ... business ...”. It stated that a contract was concluded between the Department and Hotel after it sent the proposal document. It stated that “[p]resumably the contract was concluded by the Department after considering the terms offered by other suppliers”. The Hotel’s position was that its competitors should not be “made aware of what rates it proposed before the conclusion of the contract”. It argued that a competitor could use that information to tailor its own offers to the Department in relation to similar contracts in the future. In summary, the Hotel’s position was that the release of the particular information concerned could give its competitors an advantage in future negotiations with the Department. However, it did not elaborate or make any substantive arguments to this effect.
As noted above, the Department initially relied on section 36(1)(b) in respect of record 12. However, in its effective position letter, the IPPS simply quoted the exemption and did not explain how it applied. As also set out above, the Department indicated during the review that it was no longer relying on section 36(1)(b) to refuse access to the remaining records within scope. It stated that “[d]ue to the passage of time” section 36(1)(b) no longer applied.
The information at issue comprises the rate of payment proposed by the Hotel. As noted above, the Department publishes details of purchase orders over a certain threshold on its website. I am satisfied that this includes payments made to the Hotel in this case and that accordingly, quarterly payments made to the Hotel by the Department are publically available. It seems to me that this information, coupled with the detail in respect of the accommodation already released, would provide third party competitors with certain insights relating to the rates charged by the Hotel in this case. Furthermore, as set out above, there is a significant demand for suitable accommodation, combined with a shortage of such accommodation. It seems to me that, in such circumstances, even if competitors were negotiating with the Department in relation to similar offerings, that they would not necessarily need to underbid the price proposed by the Hotel in similar negotiations with the Department.
As such, I do not accept that the release of that information could reasonably be expected to result in the commercial harms asserted. I also note that while the Hotel argued that section 36(1)(b) applied, it made no substantive arguments in this regard, other than to essentially argue that the release of the rate proposed could give its competitors an advantage in future negotiations with the Department.
In light of the above, I find that section 36(1) does not apply to the rate per person withheld from record 12.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not justified in refusing access to the rate per person contained in record 12 under section 36(1)(b). I find that section 30(1)(c) applies to the information sought, but that the public interest does not, on balance, favour the withholding of the information concerned. I direct its release to 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Sandra Murdiff
Investigator