Cinneadh
Mr Conor Ryan and Cork City Council
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 140181
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 140181
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to various internal audit reports, "including management comments"
Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
In an FOI request dated 4 March 2014, the applicant sought documents referred to in a letter sent to the Council by the Local Government Audit Service, dated 11 November 2013 (the 2013 letter). He said that the 2013 letter referred to 42 reports issued by the Council's internal audit unit "in recent years". The applicant sought electronic copies of the reports, "including management comments". He also sought "reports of an external financial advisor and a firm of accountants on income generating areas", which he said were referred to in the 2013 letter, along with "the information that informed" observations in the 2013 letter concerning a shortfall relating to a number of unsold affordable houses. Finally, he sought a copy of the "After the Fact Purchase Orders report 11/09 issued in May 2011".
The Council's decision of 6 May 2014 refused access to the internal audit reports, three "internal review" reports, the financial advisor and accountant reports, and the "After the Fact Purchase Orders report". It relied on sections 21, 27, and 28 of the FOI Act. The Council sent a report relevant to the remaining aspect of the request to the applicant on 13 May 2014 along with a schedule of the records.
On 12 May 2014, the applicant sought an internal review of the Council's decision. The Council focussed on the refusal of the audit reports as it took it that the applicant was restricting the scope of the internal review application to those. The Council issued its internal review decision on 4 June 2014, affirming the original decision to refuse access and adding section 23 to the exemptions in some instances.
On 11 July 2014, the applicant applied to this Office for a review of the Council's decision. Saying that his internal review application should be taken as the grounds for his appeal, he also argued that the Council cannot apply a "blanket refusal to all internal audit reports".
The Council's submission of 11 September 2014, while suggesting that the records should be withheld as a class, also implied that the reports could be partially released.
Ms Anne Lyons, Investigator, wrote to the applicant on 2 July 2015 explaining that the scope of this review would be confined to the refusal of the 42 internal audit reports ( including the "After the Fact ..." report ) and the three internal review reports. She wrote again to the applicant on 10 August 2015 outlining her understanding that the Council intended to release a number of records in full or in part. She outlined the Council's position as put forward in its submissions and gave the applicant a general description of some information she considered to be exempt under the Act. She asked the applicant to confirm, by 28 August 2015, whether he was willing to exclude such information from the review. He did not reply.
This Office consulted third parties whose interests might be affected by release of some records.
I have decided to conclude this review by way of a final, binding, decision. In carrying out my review, I have had regard to the above; to the paper copies of the records provided by the Council on which the Council highlighted material it considered should be withheld; to the Council's submissions in this case; and to those from third parties. I have had regard also to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
The scope of this review is confined to whether the Council has justified its refusal of access to those parts of the internal audit reports, and the three internal review reports referred to above, which it has not released. The Applicant has indicated that he does not require access to the names or initials of Council staff or pensioners where this appears in the records.
Section 13(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 13(1) does not apply, however, if the copy provided for thereby would be misleading (section 13(2) refers). While the Council has released details from the records while often redacting other parts which I must deal with in the review, I take the view that, generally, neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the withheld content is limited. Finally, the release of a record under the FOI Act is understood to be equivalent to its release to the world at large.
The Council's Approach to this Review
I recognise that the records are numerous and detailed and cover many aspects of the Council's business. Several exemptions have been claimed and it is not always clear which section or subsection of the Act is relevant to the part of the record being withheld. In general, the Council's standard of decision making on the records was poor. This Office spent a huge amount of time and other resources in identifying and examining the withheld parts in the context of the submissions made and in assessing the harm-tests and other requirements of the exemptions. This is evident from the lengthy decision which has resulted from the review and from the Appendix setting out directions arising from the findings.
In relation to the quality of the records initially provided by the Council to this Office (on a CD), not all of the redactions were legible and further copies had to be requested. The Council provided paper copies of the relevant records, on which it had highlighted the details it considered should be withheld. However, the highlighted redactions did not in all cases correspond with the details described by the Council's submissions as having been withheld. All of this delayed the review.
It is also of concern that the Council took so long to release parts of records that it was no longer seeking to withhold. On 15 April 2015, the Investigator told the Council that it should release such details. On 9 June, the Council told the Investigator that the reports had not yet been released to the applicant, but would be in "this coming week". On 19 June, the Council told the Investigator that the audit reports had been emailed to the applicant that afternoon. However, on 10 July, it transpired that the Council had still not released all of the material as promised. It appears that no Council official was able to deal with the matter owing to absences on leave. On 30 July 2015, the Council said that it hoped to send the records to the applicant by the end of that week. On 4 September 2015, it said that 11 reports had been emailed to the applicant on the week commencing 17 August, that another seven had issued on 4 September and that it was "hope[d] to have the remaining reports issued by the end of next week." On 11 September, 2015, the Council confirmed that the reports had been emailed to the applicant.
I am disappointed that a public body would take so long to provide an applicant with information that it no longer considered should be withheld. Other than referring to the staff leave situation, no explanation has been given for the delay. I refer the Council to the Department of Public Expenditure and Reform's Code of Practice for the implementation of the FOI Act which makes it clear that FOI is a core function of the work of the public body. In line with the Code, I would expect the Council to ensure that the FOI function is given sufficient support to enable it to continue to deal with FOI matters appropriately and within a reasonable time.
The Council's original decision merely referred to exemptions without any explanation as to why they applied to the records at issue. The internal review decision, although offering some explanation about the importance attached by the Council to internal audit reports, suggested that such reports warranted protection as a class of record even though the exemptions it relied on are clearly harm-based.
On 22 August 2014, this Office, in accordance with procedures notified to all FOI bodies in 2014, gave the Council an opportunity to justify its decision. It explained the level of detail necessary to meet the requirements of section 34(12)(b) of the FOI Act and referred the Council to the Guidance Notes available to FOI decision makers on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. The Council made a submission on 11 September 2014. Along with the CD sent on 17 October 2014, it provided a further submission. It made a third submission on 8 May 2015. This submission was largely similar to that of 17 October 2014, and again set out the Council's reasons for refusing access in very general terms.
The Council has been subject to FOI since 1998 and should be very familiar with the requirements of the Act. It should also be well aware of the onus on public bodies to justify their decisions and of this Office's procedure of giving public bodies one final opportunity to make their case having regard to the fact that, by the time a decision comes to be reviewed, they have already had two opportunities to defend their position. Despite all of this, the Council's arguments generally fell short of those required by section 34(12)(b) of the FOI Act and in many instances, gave me no basis for affirming its decision.
Section 21 - effectiveness of tests, audits etc.
Section 21(1)(a) provides that a head of a public body may refuse to grant a request for a record if he or she forms the opinion that release of the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof.
Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused 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 a public body of any of its functions relating to management (including industrial relations and management of its staff).
Section 21(1)(c) of the FOI Act provides for the refusal of a record where, in the opinion of the head, its release 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 a public body.
A record found to be exempt under any of the provisions of section 21(1) may be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).
Arguments in Decision/Internal Review Decision/September 2014 Submission
The Council's initial decision and schedule referred to section 21 of the FOI Act in general terms. Its schedule to the internal decision cited various subsections of section 21 in relation to the entirety of each record. The Council's submission of 11 September 2014 cited only section 21(1)(b). It said that to "ensure that defined business objectives are achieved ... management must design, implement, operate and monitor an effective internal control environment", of which it said that internal audit is a part. It said that internal audit reports are "one of the means through which management monitors adherence to the controls it has deemed necessary for the attainment of its corporate goals", and that (emphasis added by the Council) "internal audit reports are intrinsically part of how management manages." Likening the release of an audit report to the release of a personnel performance appraisal, it went on to say that "disclosure of internal audit appraisal reports will have a significant, adverse effect on the performance by [the Council] of the specific functions relating to management that were being reviewed as part of the underlying audit." It stated that the "public interest would actually be harmed if management's efforts to effectively manage are played out in the public arena."
These arguments suggest that audit reports should be withheld under section 21(1)(b) as a class. Section 21(1)(b), however, is a harm-based exemption.
Arguments in Submissions of 17 October 2014 and/or 8 May 2015
The October 2014 submission cited section 21(1)(b) and (c) in relation to Appendices Two and Three of record 7, which it said comprised pages 48-50 of the record. The May 2015 submission referred only to page 48 of the record. Page 48 of record 7 comprises Appendix Two, while pages 49-50 comprise Appendix 3. The Council did not highlight pages 49-50 on the copy of record 7 it provided to this Office in May 2015. Thus, I take it that the references to Appendix 3 having been withheld is a mistake on the Council's part and that I need not consider Appendix 3 of record 7 further.
Record 7 (May 2011) concerns Low Value Purchase (LVP) Cards. As I understand it, these cards are Council payment cards used by staff for low value transactions carried out in performance of their duties. Appendix 2 sets out how the system of Low Value Purchase Cards operates. The Council claimed that release of these details may lead to increased risk of fraud and misappropriation of funds.
The Council withheld details from pages 12 and 28 of record 16 (September 2011, concerning a Park and Ride facility), under section 21(1)(c), on the basis that disclosure "may lead to loss of income and reduced contractual bargaining with regard to future contracts".
Section 21(1)(c) was claimed to exempt details from page 4 of record 20. The report is undated, but presumably dates from 2011 or 2012 as it makes recommendations to be implemented by the end of 2012. The withheld details concern Council staff standard entitlements to pay during maternity leave.
The Council withheld pages 4, 5, and 6 of record 44, in full, under section 21(1)(a) and 21(1)(c). Record 44 (December 2012) is an internal review report relating to Housing Loans. The Council said in relation to section 21(1)(a) that "disclosure ... would divulge and potentially compromise procedures and control measures employed by [the Council] in the assessment of new loan applicants". In relation to section 21(1)(c), it said that disclosure "would divulge positions taken and criteria for negotiation in the agreement of potentially (sic)new loans with customers." The May 2015 submission repeated these arguments and applied them to page 3 of record 44 in full also. However, only excerpts from page 3 of record 44 are highlighted on the copy of the record provided to this Office. Thus, I take it the May 2015 submission's description of that page being fully withheld as an error on the Council's part. The details withheld concern existing Council processes and procedure manuals while pages 4 to 6 are flow charts for the general administration of loans.
In claiming exemption under section 21(1)(a), the Council has not explained how release of the details, notwithstanding the passage of time, "would divulge and potentially compromise" the effectiveness of any tests, etc that it conducts at this point in time in assessing new loan applications, or methods employed for the conduct of such tests, etc. Its arguments in respect of section 21(1)(b) do not explain how release of the details could "reasonably be expected" to have a significant, adverse effect on the Council's prevention of fraud i.e. how the details could now, in spite of the passage of time, result in the harms claimed. In the case of section 21(1)(c), the Council has not pointed to any negotiations to which the material withheld might have been relevant.
Having regard to the content of the records and the submissions made, the Council has not justified its refusal of access under section 21 and I find that those parts are not exempt under that provision of the FOI Act.
Section 22(1)(a) - Legal Professional Privilege
Section 22(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice ("legal advice privilege"), and
confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation ("litigation privilege").
The Council's Arguments
The Council's original and internal review decisions did not refer to this exemption. Neither did its September 2014 submission. However, the October 2014 and May 2015 submissions claimed legal professional privilege in respect of parts of: page 27 of record 5; appendix 4 (pages 51 and 52) of record 7; page 28 of record 16; pages 7, 11, 28, and 29 of record 21; and pages 8, 27 and 28 of record 22. I take it that the Council is claiming legal advice privilege. No argument has been made that litigation privilege applies.
My findings resulting from consideration of the records and the Council's various submissions are as follows:
- details on page 27 of record 5 (the English Market) include advice received from the Council's Insurance Department and from its Law Department. I accept that the advice given by the Law Department is confidential legal advice given by a professional legal adviser and that section 22(1)(a) applies. I have no reason to consider that the personnel in the Insurance Department are professional legal advisers and I find that those parts are not exempt under section 22(1)(a).
- Appendix 4 (pages 51 and 52) of record 7 (LVP cards). The first paragraph (opinion of a Council staff member) is not exempt under section 22(1)(a). The remainder of Appendix 4 is legal advice provided to the Council by its law agent and is exempt under section 22(1)(a).
- bullet points on page 28 of record 16 (Park and Ride). The third withheld bullet point on page 28 attracts legal professional privilege as a request for legal advice and is exempt under section 22(1)(a). The same details are contained in the second withheld bullet point on page 12 of record 16 and I find section 22(1)(a) to apply to this detail also.
- details from pages 7, 11, 28, and 29 of record 21 (Tow Away & Clamping). The third sentence in the first withheld bullet point on page 28 contains details of legal advice received and section 22(1)(a) applies to it. The remainder is not exempt under section 22(1)(a).
- details from pages 8, 27 and 28 of record 22 (Multi Story and Off Street Parking). Only the final withheld bullet point on page 8, and the details of the two points of advice given by the law agent as included in the details withheld from pages 27 and 28 are exempt under section 22(1)(a). The material I have found to be exempt on page 8 of this record is also contained in the third withheld bullet point on page 9 of this record. I find that section 22(1)(a) applies to the third withheld bullet point on page 9 of record 22.
- one sentence on page 43 of record 40. This comprises legal advice from the Council's legal adviser and is exempt under section 22(1)(a).
Section 23 - prejudice to prevention, detection or investigation of offences or effectiveness of lawful methods
Section 23(1)(a)(i) is a harm based exemption which provides that a head of a body may refuse a request for a record if its release, in the opinion of the head, could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed.
Section 23(1)(a)(ii) provides that a head of a body may refuse a request for a record if its release, in his or her opinion, could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law.
Section 23(1)(a)(iii) provides that a head of a body may refuse a request for a record if its release, in his or her opinion, could reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property.
Section 23(1)(aa) provides for the refusal of a request for a record where its release "could, in the opinion of the head, reasonably be expected to endanger the life or safety of any person".
The exemption is subject to a public interest test; however, this only arises where certain limited circumstances exist (section 23(3) refers).
Arguments in Decision/Internal Review Decision/September 2014 Submission
The Council's initial decision and schedule did not refer to section 23. The schedule to the internal decision cited section 23(1)(a)(i) for the majority of the fully withheld records.
The September 2014 submission referred only to section 23(1)(a)(i). It said that "[m]any internal controls also comprise methods, systems, plans or procedures that are designed to prevent, detect or correct offences from being perpetrated on [the Council]" and that "[i]n undertaking its work internal audit evaluates the effectiveness of these controls." It said that "[a]udit reports highlight potential systemic weaknesses in the Council's risk management systems." It stated that identification of these affords management the chance to take corrective action and pre-empt matters from escalating and that it is not in the public interest to allow "unscrupulous individuals" to exploit knowledge of any weaknesses.
The Council claimed that section 27(1)(b) applied to the records because release of internal audit reports "will ... prejudice or impair the methods, systems, plans or procedures that are designed to prevent, detect or correct offences from being perpetrated on the organisation." This suggests a claim for exemption under section 23(1)(a)(ii).
The Commissioner takes the view that an FOI body can justifiably form the opinion that harm could reasonably be expected to flow from access to certain records where such harm is not certain to materialise but might do so. However, the harm or outcome must be identified and linked to the release of the records. A mere assertion of an expectation is not sufficient. I do not consider that the submission, which again seems to seek to withhold the records as a class under section 23(1)(a), satisfies the requirements of this discretionary exemption.
Arguments in Submissions of 17 October 2014 and/or 8 May 2015
Neither of these submissions claimed that section 23(1)(a)(i) or 23(1)(a)(ii) apply. Instead, the Council sought to claim exemptions under sections 23(1)(a)(iii) and 23(1)(aa).
The Council claimed section 23(1)(a)(iii) for parts of pages 9, 10, 17, 18 and 24 of record 36, parts of page 14 of record 38 and pages 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 15 and 18 of record 45. In a separate document found inside one of the files of records sent to this Office, it also cited section 23(1)(a)(iii) in relation to pages 3, 5, 6, 8, 9, 14, 15, 16, 17, 18, 29 and 31 of record 9. The Council said that disclosure of measures and procedures designed to safeguard individuals in the employ of the Council and Council property would undermine those security procedures and measures and put the safety of people and property at risk. It also claimed that sections 27(1)(b) and 27(1)(c) applied to some details. While in some cases different colour highlighters were used to mark the relevant excerpts provided to this Office - presumably by reference to the different exemptions claimed - the Council did not explain which colour related to which exemption. Record 36 (May 2013) relates to Mahon Golf Course; Record 38 (June 2013) concerns Burial Grounds; Record 45 (December 2012) is about Pay Parking and record 9 (June 2011) concerns a "Cash Desk Review".
The Council claimed section 23(1)(aa) for details in pages 7, 10, 11, 14, 15, 18, 22 and 24 of record 45 and for pages 3, 5, 6, 8, 14 and 22 of record 9, saying that such details would readily identify key personnel relevant to the security of cash, certain tasks carried out by staff and to various safety concerns, including potential endangering of safety and life. It referred to possession of keys and to previous break ins and the possibility that staff would be targeted.
The withheld information does not, on the face of it, appear to be sensitive from a law enforcement, public and personal safety or security perspective having regard to its content and age. The Council has not explained why the harms it envisages could result, today, from release of details from 2011, 2012 and 2013. For example, no explanation has been given as to why release of details of golf course ticket income received before May 2013 (record 36), could today result in the harm that section 23(1)(a)(iii) is intended to prevent. Some of the details concerned are general in nature and relate to procedures and practices which would not, in my view, be particularly unexpected in the context of the Council's operations. Others could be observed by members of the public using the particular facilities. In relation to the findings of the audits, it has not been argued that any of the observations remain relevant today. Indeed, recommendations, which presumably have been implemented in the meantime, were made in some instances. Many of the redactions concern routine administrative tasks. In the case of what might be argued to be more security sensitive tasks, given that staff names or initials are not required by the applicant and do not appear in most of these records, personnel would not be identified.
I find that the Council has not justified its claim for exemption of the above details under section 23(1) of the FOI Act.
Section 26(1)(b) - Confidentiality
Section 26(1)(b) provides that a that a head shall refuse to grant a request for a record if "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ... or otherwise by law."
However, section 26(2) provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" 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 a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "
A duty of confidence created otherwise by law is an equitable duty of confidence. The Commissioner has found in previous cases that each of three tests are required to be met if it is claimed that an equitable duty of confidence exists:
1. The information itself must have the necessary quality of confidence about it;
2. That information must have been imparted in circumstances imposing an obligation of confidence; and
3. There must be an unauthorised use of that information to the detriment of the party communicating it.
Arguments in Submissions of 17 October 2014 and/or 8 May 2015
The Council did not rely on this provision in its original or internal review decisions or in the submission of 11 September 2014. Both October and May submissions cited section 26(1)(b) in relation to details withheld from pages 6, 7, 8, 10, 11, 14, 16, 18, 19, 20, 21, 23, 24, 26, 27, 28, 29, 30 and 31, and pages 33-38 in full, of record 5 and pages 5, 8, 11, 15 and 23 of record 22.
The Council also sought to withhold the above details under sections 27(1)(b) and (c). However, its supporting arguments do not seek to distinguish between the exemptions in sections 26(1)(b), 27(1)(b) and 27(1)(c). In so far as the arguments appear relevant to section 26, the Council said that "[d]isclosure of this information would be contrary to the confidentiality of the contractual agreement" between it and a third party. It also said that contractual relationships between the third party and further parties are "commercially sensitive with confidentiality applying". It maintained that "[d]isclosure of any particular financial aspects of the landlord/tenant relationship would be a breach of confidentiality between [the Council] and the tenant." It referred to "possible legal action in the event of unauthorised access to this information". The latter point, of itself, is not a sufficient basis to find section 26 to apply.
In so far as record 5 is concerned, I take it that the parts the Council has withheld under section 26 concern arrangements with the company managing the English Market and/or with other parties. In this regard, I note that the Market's website states that the Council leases units to traders and otherwise must consent to the assignment of a lease from one trader to another as well as to the proposed new business. The Council appears to be claiming that it owes the contractor, and tenants of the Market, a duty of confidence that was provided for by way of an agreement. However, it has not provided details of relevant requirements imposing confidentiality in respect of its dealings with the contractor or its tenants. Neither has it referred to any confidentiality agreements that may be in place between the contractor and other parties nor explained why the details it is seeking to withhold are captured by any such confidentiality requirements.
Furthermore, the Council does not appear to have considered the provisions of section 26(2) of the FOI Act. It seems to me that the arrangement between the Council and the management agent is a contract for service, whereby the agent performs the service of managing the Market on the Council's behalf. As a consequence, I do not accept that section 26(1)(b) can apply to the details relating to the agent. The management agent's arguments to this Office on breaches of duties of confidence were confined to duties it claimed are owed to traders of the Market and its subcontractors.
Given the lack of supporting argument from the Council in relation to any duty of confidence owed to its tenants and given the lack of evidence that the management agent owes a duty of confidence to its subcontractors, I consider it more appropriate to consider these details under section 27(1)(b) below.
As far as record 22 is concerned, the Council seems to have withheld details of arrangements it made with third parties in relation to parking spaces and other matters. I cannot elaborate further on the content of the details at issue other than to say that receipt of monies by the Council is involved. I accept that arrangements between the Council and the third parties referred to in record 22 do not amount to a contract for service. Therefore, section 26(2) is not relevant.
The material withheld from page 15 of record 22 concerns how the Council independently verifies daily reports. It is not apparent how release of such details would result in a breach of a duty of confidence owed to any third party and the Council has not explained how this might arise.
In regard to the remaining material withheld from record 22, I find that the Council has not justified its decision to withhold this under section 26. It appears to be claiming that it owes third parties with whom it has contracted, and parties with whom one of those parties have contracted, a duty of confidence provided for by way of an agreement. However, it has not provided details of any contracts that impose such confidentiality. I cannot see why the nature of the arrangements would not be evident to the general public or how release of such details under FOI would breach any confidentiality agreement that may exist, or otherwise have the necessary quality of confidence about them (in so far as an equitable duty of confidence may be concerned) in order to engage this exemption.
In so far as the details relate to financial arrangements, one of the parties consulted said that it agreed with the Council that the transactions it had entered into with it (and with other parties) were "confidential and commercially sensitive". I take its position to be that it is owed a duty of confidence because of the current commercial sensitivity of the material at issue. Similarly, while the other party consulted in respect of record 22 made some arguments about section 27(1)(b), I have taken these arguments also to amount to a claim that the details are exempt under section 26(1)(b) because of their current commercial sensitivity. No argument has been made by any of the parties that a duty of confidence is owed that arises by way of agreement or statute. Accordingly, I will consider whether a duty of confidence created "otherwise by law" (an equitable duty of confidence) might exist.
It has not been argued that the identity of any of the third parties is secret. Furthermore, I do not accept that the arrangement made between one of the third parties and further parties is information not already in the public domain. In particular, I am not aware of any requirement imposed on the further parties not to disclose the arrangements concerned. I accept that the remaining details, in so far as they concern the financial arrangements made between the Council and the third parties, are not in the public domain and therefore have the necessary quality of confidence about them. It is clear that release is unauthorised, while the disclosure of information that a party does not want to be disclosed is, I understand, sufficient for me to accept that release would be to the detriment of the parties concerned. However, the key question is whether the information at issue was imparted in circumstances imposing an obligation of confidence. I do not see how information concerning terms agreed between the Council and third parties for the use of public assets can be information "imparted" by the third parties. In any event, I am not satisfied that an agreement concerning the use of public assets/receipt of public monies imposed an obligation of confidence on the Council in respect of the arrangements made, their duration or financial terms. I am not satisfied, having regard to the nature of the information at issue and the arguments made by the Council and the third parties consulted, that the second test above has been met. Thus, I find that section 26(1)(b) does not apply.
Finally, section 26 was also generally referred to by the third party consulted in relation to details on page 3 of record 16, which related to a park and ride facility. It said that the contract "is provided on a commercial basis ... and it is not in any way publicly funded." It maintained that it is "exempt from requests under the [FOI Act] under this clause". The details at issue are in a record prepared by the public body. While the third party says that the service itself is not publicly funded, details released from record 16 state that the third party was paid a sum of money for providing the particular service. In the circumstances, it seems to me that the third party is providing a service to the Council under a contract for services. I find that, in accordance with section 26(2) of the FOI Act, the details at issue on page 3 of record 16 cannot be exempt under section 26(1)(b).
Section 27 - Commercial Sensitivity
Section 27(1)(b) is a mandatory exemption for 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 the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. A record to which section 27(1)(b) applies may be released in certain circumstances (sections 27(2) and (3) refer).
Section 27(1)(c) provides for the mandatory refusal of 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 harm is certain to materialise, but whether it might do so. However, this Office expects that a body 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. It should be able to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. Section 27(1)(c) is subject to sections 27(2) and (3).
Arguments in Decision/Internal Review Decision/September 2014 Submission
The Council's initial decision and schedule referred to section 27 without specifying the subsection(s) being relied on. The schedule to the internal decision cited section 27(1)(b) in relation to the majority of the fully withheld records. The September 2014 submission said that release of internal audit reports "will have a significant adverse effect on the performance of management in [the Council]. This will also prejudice or impair the methods, systems, plans or procedures that are designed to prevent, detect or correct offences from being perpetrated on the organisation. These events could reasonably be effected to result in a material financial loss to the Council and it has accordingly claimed exemption under section 27(1)(b). However, it is acknowledged that the Council could also have claimed protection for its financial interests under section 31(1)(c), section 31(2)(n), and 31(2)(o). "
The Council appears to contend that section 27(1)(b) applies to the records on the basis that the impact of their release on its internal processes will expose the Council to financial loss. However, as I have already found in relation to the claims of the Council in support of section 21, and section 23, I do not believe that such assertions of themselves meet the requirements of section 34(12)(b) or provide a basis on which find that the section 27(1)(b) exemption applies.
Arguments in Submissions of 17 October 2014 and/or 8 May 2015
The Council cited various reasons for withholding material under section 27 in this case, which I deal with under the general subheadings that follow. Although I list the material that I do not consider to be exempt on foot of specific arguments made, some or all of the material concerned may nonetheless be exempt further to arguments made by third parties in particular.
Implications of Contractual Relationships
Both submissions claimed sections 27(1)(b) and (c) applied to details withheld from pages 6, 7, 8, 10, 11, 14, 16, 18, 19, 20, 21, 23, 24, 26, 27, 28, 29, 30 and 31, and pages 33-38 in full, of record 5 (May 2011), and pages 5, 8, 11, 15 and 23 of record 22 (June 2011). I have already described the above records in general terms and have set out the combined arguments on sections 26 and 27 in so far as they appear relevant to section 26(1)(b). The combined arguments that appear relevant to section 27(1)(b) relate to the commercial sensitivity of contractual relationships between the third party and other parties, and the contention that disclosure of any particular financial details of any landlord/tenant relationship would be a breach of confidentiality between the Council and the tenant. The Council also referred to "[p]ossible legal action in the event of unauthorised access to this information", which is not, of itself, a basis for finding that information is exempt under sections 27(1)(b) or (c).
It said, in relation to record 5, that disclosure of particular financial arrangements has potential to do harm of a financial, reputational or material nature to tenants and could prejudice the competitive position of the tenants in the conduct of business and also damage the relationship between landlord and tenants.
I accept that some details in record 5 identify and concern individual English Market tenant debtors and that disclosure of whether a tenant paid amounts due in 2011 is financial information the release of which, even today, could damage their reputations. Thus, I accept that release could prejudice the competitive position of tenants in the conduct of their business or otherwise in their occupation. Having regard to section 13, I find that the final withheld bullet point on page 7; the name of a trader mentioned on pages 10 and 19 (mentioned twice on page 19); the fifth bullet point (counting all bullet points, including those released) on page 18; and the details withheld from page 24 are exempt under section 27(1)(b).
Some of the details withheld are about rent charged to traders. In my view, this information concerns what traders were required to pay rather than whether or not they have paid. I consider this to be information relating to the Council. Therefore, this information does not reflect either positively or negatively on the traders and I do not find it exempt under section 27(1), or for that matter section 26.
The management agent for the English Market said that details of its fees and other information is commercially sensitive and would give its competitors a significant competitive edge in future tendering process. It said that the fees charged and its budget setting process and methodology form part of its unique commercial offer. It considered that the audit summary, which it stated it had not seen, "will highlight areas where in the client's view we are not performing services as expected, which information would give competitors ... an unfair competitive advantage."
I accept that successful tender prices and related material qualify as commercially sensitive information for the purposes of sections 27(1)(b) and (c). Insofar as these prices were preferential to the Council, it is reasonable to accept that their disclosure could disrupt business relationships with other customers and thus prejudice the competitive position of the successful tenderers. I also accept that the disclosure of such preferential prices could prejudice the conduct and outcome of negotiations. However, it is not apparent from the records or from the submissions how release of the details would disclose how the third party develops its budgets.
Having regard to the third parties' submissions, I also accept that details of the arrangements between the agent and its subcontractors is information of a financial nature that is commercially sensitive from the subcontractor's point of view in particular, and thus, exempt under section 27(1)(b) i.e. the details withheld from page 7 (except for details of the fee paid to the management agent and the details withheld from the section headed "Rent Review ..."); the details withheld from point 2.6, which is contained on pages 19 and 20; and the details on page 21 (except for two references to the fee paid to the management agent). In making this finding, I accept that other parties with which the subcontractors might engage today could seek to rely on details concerned to reduce the prices they might otherwise pay to the subcontractors.
I also accept that details of the monies paid by the Council to the management agent, and details of the service it was required to provide accordingly, or related commentary, are exempt under section 27(1)(b). The details concerned are: the first four withheld bullet points on page 6; details on pages 7, 11 and 21 of the fee paid to the management agent; details regarding "insurance" and "VAT on leases" on page 8; the first two withheld bullet points on page 10; the remaining details withheld from page 11; the remaining details withheld from page 14; all details withheld from page 16; the details withheld from pages 26 and 28; the remainder of page 27; the details withheld from pages 29, 30 (except for contractor's name) and 31; and pages 33-38 in full. Pages 33-38 are the audit summary of the management agreement. While the management agent appears to consider that this discusses underperformance, I am satisfied that this summary does not contain any analysis of the contractor's performance.
Some other details appear to relate to the Council alone, or to its actions or interests more than those of third parties (i.e. the details withheld from the section headed "Rent Review ..." on pages 7 and 23; and the remainder of the third bullet point on page 10 and the same details on page 19). I do not consider section 27(1)(b) or (c) to be applicable. While page 23 refers to a trader, it is not apparent from the record or the submissions why this is information to which section 27 applies.
The remaining details refer to third parties as a group from which individual businesses cannot be identified i.e. the final withheld bullet point on page 6; the first withheld bullet point on page 8; and the remainder of page 18. I find that these are not exempt under section 27(1)(b) or (c).
I have already described the details withheld from record 22 (dating from 2011) in general terms. One of the parties consulted said that it agreed with the Council that the transactions it had entered into with it (and with other parties) were "confidential and commercially sensitive". It said it was a private company and that disclosing the information at issue to other operators will give its competitors an advantage. It said it believed the details of the arrangements entered into regarding the payment details are commercially sensitive. I do not see how general details of the arrangements entered into between the third party and other parties can be commercially sensitive when I am not aware of anything that would prevent other parties from disclosing the terms of the arrangement they have with the third party. In any event, such arrangements could be observed. It seems to me that the details that the third party is really trying to protect are the financial terms and duration of the arrangement. I accept that release of the financial terms and duration of the agreement could be advantageous to other parties in the same position as the Council (to the expense of the third party) such that section 27(1)(b) and/or (c) apply.
The other party consulted in respect of record 22 said that it considered the details to be exempt under section 27(1)(b) in that release "could conceivably result in material financial loss to it in its normal commercial operations." It maintained that other parties in the Council's position could use the information concerned as a benchmark in similar negotiations, and that its commercial negotiation position would be thereby adversely affected. I accept that the details concerning to this party are exempt under section 27(1)(b) and/or section 27(1)(c).
Contractual Information "Personal" to the Council and Others
The Council said details withheld from page 3 of record 16, and pages 5, 11, and 12 of record 17, and page 13 of record 36, under section 27(1)(c) comprised "[c]ontractual information personal to both [the Council]" and the relevant "contractor". Information about a contractor is not, generally, "personal" in nature. Furthermore, the details withheld from the three pages of record 17 (February 2012) concern sponsorship of the Cork City Marathon and can be arrived at by simple arithmetic, having regard to other details released. I find that the details withheld from pages 5, 11, and 12 of record 17 are not exempt under section 27(1)(c) of the FOI Act.
The details withheld from record 16 (September 2011) refer to the operator of a park and ride facility. The identity of the operator has been disclosed in other details released from record 16 and would be obvious to anyone who uses the service. I note that the third party's submission does not raise concerns about release of its identity. The third party said that its original tender contains commercially sensitive data, particularly the price quoted to the Council to operate the park and ride and the price paid to its security subcontractors. It says these details remain commercially sensitive today and that release could result in a serious material financial loss to it. I accept the third party's position that release would reveal not only the amount paid to it by the Council, but the amount paid by it to its subcontractor. This information qualifies as commercially sensitive under section 27(1)(c).
The details withheld from record 36 (May 2013) are the yearly cost of engaging a third party to manage the Mahon Golf Course. Material released from this record states that the course is managed by a company owned by the Council which provides staff to maintain the course. In such circumstances, I would consider the Council to be in a position to make any relevant arguments on behalf of the contractor. The Council has made no argument as to why, particularly when it owns the company that manages the golf course, the yearly management cost would, even in 2013, have qualified for exemption under section 27(1)(c), much less today. I find that it has not justified its application of the exemption.
"Increased Risk and Security Threat to Both Staff and Income ..."
The Council said that details had been withheld details from pages 6, 7, 8, 10, 11, 14, 16, 18, 19, 20, 21, 23, 24, 26, 27, 28, 29, 30 and 31, and pages 33-38 in full, of record 5, from pages 3, 5, 6, 8, 9, 14, 15, 16, 17, 18, 29, and 31 of record 9, from pages 11, 14, and 26 of record 16 (related details on page 39 were also marked as withheld although not referred to in submissions), from pages 30, 31, and 32 of record 18, from pages 8, 9, 11, 12, 16, 20, 22, 23, 24, 25, 27, 28, 31 and 32 of record 22, from pages 9, 10, 17, 18, and 24 of record 36, from page 14 of record 38, and from pages 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 23 and 24 of record 45 under section 27(1)(b) and, in some instances, section 27(1)(c). The Council argued that disclosure of this information will lead to an increased risk and security threat to both staff and income as well as compromising health and safety of staff.
The details from the relevant pages comprise:
Record 5 (May 2011) - details concerning the English Market that have already been described; Record 9 (June 2011) - adequacy of procedures in Cash Desk Operation; Record 16 (September 2011) - observations on the Park and Ride; Record 18 (September 2012) - receipting and lodgment of Commercial rates money. Page 32 of record 18 contains a Council bank account number which, according to other material released from the record, appears to be in the public domain; Record 22 (Multistorey and Off Street Parking) - findings, recommendations/conclusions; extract from a Procedure Manual; Record 36 (May 2013) - access to the golf course, lodgment of monies, ticket income; Record 38 (June 2013) - receipt of monies for cemetery plots; and Record 45 (December 2012) - internal control procedures for Pay Parking.
The Council has not explained how information on the historic issues in the records is relevant today or how release could result in the harms it envisages. Given the content of the withheld information, I find that it has not justified refusal of access under section 27(1)(b) and I find that the above parts of records are not exempt on the basis of the arguments set out above.
No Argument Made
Details relating to parking were withheld from pages 38 of record 16 under section 27(1)(b), with no further explanation given. I find that the Council has not justified its decision and these parts of the record are not exempt under section 27(1)(b).
Information "May Affect" Third Party Negotiations
Both submissions said that details had been withheld from page 15 of record 17 since release "may affect that persons (sic) future negotiations", and that sections 27(1)(b) and (c) applied accordingly. The redacted part concerns the fee paid to an event organiser for the 2006 Cork City Marathon, which arrangement, according to the released details, was informally renewed since. The Council did not say how such details can have any impact on any current or expected negotiations. The contractor, having been consulted by this Office, said that they had thought the relevant audit report was already in the public domain and that they did not have any issue with that. Having regard to the content of the parts withheld and the submissions made, I find that the Council has not justified its decision and this part of the record is not exempt under section 27(1)(b).
Release of Information "May Result In Loss of Income" to Council
Details were withheld from pages 5, 19, 28, 32, 34, 35, 36 and 37 of record 18, and pages 19 and 20 of record 36 in full, under section 27(1)(b). The submissions said that disclosure may result in a loss of income to the Council.
Pages 19 and 20 of record 36 (May 2013), concern the Mahon golf course and findings on two particular issues, as well as recommendations and management responses. The details withheld from record 18 (September 2012) relate to commercial rates including write offs, bad debts and two bank account numbers, one of which I have already said I consider to be in the public domain. They include what seem to be internal account numbers and some details of debtors. The Council has not explained how release may result in a loss of income at this point in time nor is this apparent from an examination of the records. Neither have I any basis on which to find that release of the details could prejudice the Council's competitive position in the conduct of its business relating to the golf course.
However, in so far as record 18 is concerned, details that could identify a commercial rate payer as having fallen behind in paying their rates, or having had debts written off, etc, could today impact on the reputation of that rate payer. Thus, I find that section 27(1)(b) applies to such information in that release 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.
Having examined pages 5, 19, 28, 32, 34, 35, 36 and 37 of record 18, only pages 34, 35 and 36 appear to be concerned with third party interests. I find the details on page 35, and the debtor reference numbers on pages 34 and 36, to be exempt under section 27(1)(b). Furthermore, the Council has also withheld details from pages 6, 14, 15, 18, 21, 22, 23, 25, 26, 34, 35, 36, and 37 of record 18 on the basis that they comprise personal information. Given that the record concerns Commercial Rates, section 27(1)(b) is a more appropriate exemption. I have already found the debtor reference numbers on page 34 and 36 and the details on page 35 to be exempt under section 27(1)(b). The details withheld from pages 14, 15, 18, 21, 22, 23, 25, and 26 comprise internal reference/account numbers for various types of "write offs", credit notes, Court decrees, etc and would identify the relevant debtors. I find that they are exempt under section 27(1)(b). I do not consider the remaining details to be so exempt.
Similarly, details have been withheld from pages 34, 35, 36, 37, 44, 45, 49, 52, 71, 72, 73, and 77 of record 40 (December 2013) concerning "Non Domestic Water - Income and Collection". The record clearly cannot concern private individuals or comprise personal information. The withheld details relate to arrears of water rates and disconnections of supply which might identify the businesses concerned as having failed to pay bills. I accept that this might reflect poorly on the operators of the businesses and that this is a harm envisaged by the section 27(1)(b) exemption. However, I do not consider, having regard to section 13, that the details other than those in page 34 should be withheld to the extent indicated by the Council. The attached Appendix sets out the extent to which I find the details concerned to be exempt under section 27(1)(b). I find that the remainder of these pages (other than parts of page 34) are not exempt under section 27(1)(b) and should be released. There is nothing in the details withheld from page 45 that is exempt.
"May Prejudice a Contractor's Competitive Position"
The Council, citing section 27(1)(b), withheld pages 35, 36, 37, 38, 39, 40 and 41 of record 21 on the basis that disclosure "may prejudice the competitive position of the contractor".
Record 21 is titled "Tow Away & Clamping" (September 2011). The withheld parts are Appendices 6-9 on the generation of penalty notice reference numbers and responses "from the Pound's Office Supervisor". I do not consider the Council to have justified its application of section 27(1)(b) to the details concerned. However, I have considered a submission received from the third party (APCOA) named on the released page 3 of record 21 as operating the tow away and clamping services on behalf of the Council. Having regard to its references to the commercial sensitivity of the details, it clearly considers section 27(1)(b) to apply to the above. As explained earlier, I have found one sentence on page 28 of record 21 to attract legal professional privilege. I also consider it appropriate to have regard to the third party's arguments in relation to the remainder of pages 7, 11, 28, and 29 of record 21.
The third party maintained that the audits contained samples of credit card transactions and thus that the details "relating to APCOA and credit card processing" should be refused. It said that the audit listed "PCN" numbers and registration numbers and hence details "relating to APCOA's auditability" were redacted. It stated that both types of information are commercially sensitive and release would breach data protection law. It says that release of the above information "would allow tracing of audited credit card payments (and so on) and/or enable tracing the drivers of the vehicles that were clamped and towed away". Apart from considering such release to disclose personal information, it argued that release of the details at issue "would allow our competitors to discern key and confidential details of our business processes and operations", and provide competitors with "details of how [the company operates] a highly sensitive area" of its business, which would have a "direct and adverse effect on [the company's] ability to seek new and retain existing contracts. "
I presume "PCN" is an acronym for reference numbers of penalty notices, details of which are on pages 33 and 34 and which I will consider under section 28. The details at issue do not contain samples of credit cards used. Furthermore, I have no reason to consider, based on the submissions, that release of the details at issue could enable the tracing of individual credit card holders. I find, however, that the details in the first paragraph withheld from page 28, the third and sixth withheld bullet points on page 29, and the entirety of pages 35 to 41 comprise information concerning APCOA's processes and operations, and material relating to another party's commercial operations, which are exempt under section 27(1)(b). I find that the remaining details in pages 7, 11, 28, and 29 are not exempt under section 27(1)(b), however.
Information that "Could Prejudice the Collection of Arrears"
The Council withheld under section 27(1)(b) and/or Section 27(1)(c), pages 6 (in part, as per the details highlighted on the page), 23, 24, 25, 26 and 27 of record 24 and details on pages 2, 6, 8, 9, 10 and 13 of record 43 (both about House Rents) and pages 7, 14, 28, 29, 30, 31, 32 and 33 of record 25 (May 2012 and concerning ex-tenants). The submissions argued that disclosure could prejudice the collection of arrears from Rent Debtors and ex-tenants and thus may result in a loss of income to the Council. Much of the material comprises administrative procedures and controls as opposed to strategies for collection of individual accounts.
The Council has not explained how such an outcome or harm could arise at this point in time, from the release of the particular details. I find that section 27(1)(b) does not apply to the above records.
Information that May Result in Loss of Revenues/Income
The Council withheld under section 27(1)(b) and/or section 27(1)(c), pages 21, 23, 26 (parts), 27, and 40 of record 28 (December 2012); pages 8, 15 and 16 of record 34 ( October 2012) along with details on page 43 of record 40, and page 16 of record 44 in full, on the basis that disclosure of the Council's methods to safeguard income collection may result in a loss of revenue from tenants and increased expenditure for the Council. The records concern the Rental Accommodation Scheme, rent reviews and housing loans. In some cases, it is not clear from the copies provided and from the submissions which parts were withheld. For instance, no details have been marked as withheld from pages 8 or 16 of record 34.
I have already found the material withheld from page 43 of record 40 to be exempt under section 22(1)(a) of the FOI Act so it is not necessary to deal with this further.
As regards the remainder, I do not consider that the Council has justified its reliance on section 27(1) by reference to the contents of the records or the harms envisaged. Much of the material comprises administrative procedures and internal controls as opposed to strategies for collection of individual accounts. I find that section 27(1)(b) and 27(1)(c) to not apply to the above parts.
Section 27(2) and (3)
In so far as I have found any details to be exempt under section 27(1)(b), I do not consider any of the exceptions at section 27(2) to apply.
The Public Interest
In considering the public interest under section 27(3), there is a public interest in ensuring openness and accountability in respect of the use of public assets and monies (whether monies paid by or to the Council) and in relation to the nature of services that third parties are contracted to provide. On the other hand, section 27(1) itself reflects the public interest in the protection of commercially sensitive information. The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect.
In relation to the details in record 5 that I have found to be exempt under section 27(1)(b), I consider that the public interest in openness and accountability in respect of the management of the English Market outweighs the public interest in protecting details of the sum paid to the management agent (as contained on page 7, 11, and 21 (two references in the latter) and the summary of the management agreement (pages 33-38)). I also consider the public interest to weigh in favour of release of the first four withheld bullet points on page 6; the details regarding "VAT on leases" on page 8; the first two withheld bullet points on page 10 except for the figure specified; the details withheld from page 14; all details withheld from page 16 except for the figure specified in the "recommendation" and "management response" section and the details withheld from page 31.
As regards the details in record 5 that I consider to be a commentary on the management agent (the details regarding "insurance" on page 8"; the remaining details withheld from page 11; the details withheld from pages 26 and 28; and the remainder of page 27), I do not have sufficient evidence to be satisfied that the third party was given a right of reply by the Council in respect of the commentary. In such circumstances, and given that release of the details is effectively to the world at large, I consider the public interest to weigh in favour of withholding the details concerned.
As regards the remaining details in record 5 that I have found to be exempt, while release of the details would offer additional insight into how the Council engages with tenants of the English Market, and into how the Market is managed on behalf of the Council, I find that, on balance, the public interest favours withholding of the information given the impact that release would have on the third parties, including the subcontractors.
I find that the public interest weighs in favour of release of the total sum paid by the Council to the third party named on page 3 of record 16, but that in the circumstances of this case, it does not weigh in favour of release of the details of the arrangements entered into by the third party with its subcontractor. Accordingly, I direct that the first of the two withheld sentences be released and that the second be withheld.
I do not consider the public interest to weigh in favour of the release of the details in the first paragraph withheld from page 28, the third and sixth withheld bullet points on page 29, and the entirety of pages 35 to 41, of record 21. While release of the details would, I accept, offer additional insight into how the towing and clamping service is operated on behalf of the Council, I do not consider the additional insight that would be gained justifies the impact that release would have on APCOA and the further party and I find that access to those parts should be refused.
I find that the public interest requires that details of the arrangements (including the financial aspects thereof) entered into by the Council, as set out in the details withheld from pages 5, 8, 11, 15 and 23 of record 22 be released in full.
As regards the remaining material that I have found to be exempt under section 27, I find that, on balance, the public interest in favour of release does not outweigh the public interest in protecting the interests of third parties in the circumstances. However, it should be noted that, if I had found the details withheld from record 36 (dating from May 2013, comprising the yearly cost of engaging a third party to manage the Mahon Golf Course) to be exempt under section 27(1)(b) or 27(1)(c), I believe that the public interest in openness and accountability in respect of the payment of Council monies to a company that it owns for the operation of public golf course, would outweigh any public interest in favour of protecting the information.
Section 28(1) - Personal Information
Section 28(1), subject to other provisions of section 28, provides for the mandatory refusal of a record that contains personal information about an identifiable individual. "Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"
Section 2 of the FOI Act defines personal information but provides that certain information about an individual public body employee is excluded from the definition. It also provides that where an individual who "is or was providing a service for a public body under a contract for services with the body", the definition of "personal information" does not include "the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service".
Section 28 was cited by the Council in schedules to its decisions and in some of its submissions, in respect of the following records:
Pages 6, 8, 10, 11, 21, 22 and 23 of record 1 (Fire Brigade Wages); pages 12, 14, 15, 20 and 21 of record 2 (Higher Education Grants); pages 10, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 28, 30 and 31 of record 5 (concerning the English Market); page 17 of record 6 (Salary Payroll); pages 24, 29, 38, 39 and 40 of Record 7 (Low Value Purchase cards); page 13 of record 8 (Homelessness: Payments and Recoupments); pages 3, 5, 8 and 14 of record 9 (Cash Desk Review); pages 6, 7, 17, and 18 of record 13 (Christmas Markets 2010); one sentence from page 9 of record 15 (outstanding POs and GRNs); pages 16, 18, 21, 23, 25, 27, 31 and 32 of record 16 (concerning a Park and Ride); pages 6, 15, 19, 27 and 28 of record 17 (Cork City Marathon); pages 6, 14, 15, 18, 21, 22, 23, 25, 26, 34, 35, 36, and 37 of record 18 (Commercial Rates); pages 15, 22, 23, 24, 25, and 26 of record 19 (Salaries Overtime); page 24 of record 20 (PRSI, Sick Leave and Maternity Leave); pages 33 and 34, and pages 35, 36, 37, 38, 39, 40 and 41 in full, of record 21 (Tow Away and Clamping); page 31 of record 22 (Multi Storey and Off Street Parking; pages 13, 17, 19, 22, 24 ,26, 28, 30 and 31 of record 23 (Housing Rents); pages 12, 13, 14, 15, 16, 17, 18, 19, 20, 22 and 28 of record 24 (Rent Debtors); pages 12, 14, 16, 18, 21, 22, 26 and 27 of record 25 (Ex-Tenants); pages 12, 15 and 21 of record 26 (rent reviews); pages 7, 29, and 58 of record 28 (Rental Accommodation Scheme (RAS)); pages 16, 17, and 22 of record 30 (Pensions); pages 10, 11, 14, 16, 18, 20, 21, 22 of record 31 (System Security); pages 13, 14, 16, and 19 of record 32 (wages Allowances); pages 13, 14, 15, 20, 22, 24 and 26 of Record 34 (House Loans); pages 17, 18, 19, 20 ,22, 24, 27, 28 34 and 35 of record 35 (Housing Aid Grants); pages 17, 18, 20, 28 and 29 of record 37 (User Access Security); pages 34, 35, 36, 37, 44, 49, 52, 71, 72, 73 and 77 of record 40 (Non Domestic Water); two sets of parentheses on page 23 of record 41 (Fire Brigade); pages 3, 6 and 12 of record 43 (Housing Rents); pages 10, 12, 14, 15, 17 and 18 of record 44 (Housing Loans); and pages 7, 10, 11, 14, 15, 18, 22 and 24 of record 45 (Pay Parking).
Council Staff and Pensioners
The names and initials of Council staff were redacted by the Council throughout the records. I am satisfied that, where staff are carrying out their official functions, this type of information does not come within the definition of personal information in section 2 of the Act so the exemption for personal information under section 28 of the Act does not arise. However, since the applicant has indicated that he is not seeking access to the names, initials or other identifying information of present or former staff, I need not consider this any further. I list the details concerned (names or initials or identity numbers of staff or pensioners) in the Appendix. I will not therefore refer further in this decision to the details withheld under section 28 from records 16, 20, 23, 31, and 32, which are entirely comprised of details that identity current or former Council staff. I draw attention to the fact that it is only the identifying detail that is outside of scope - descriptions of actions taken by staff in the course of their duties is not exempt under section 28(1).
I do accept, however, that certain information in the records at issue comprises personal information about Council staff that is not captured by the relevant exclusion to the definition of personal information. The details withheld from record 1 disclose information in relation to superannuation and voluntary deductions made to the pay of identifiable fire-fighters. A date of retirement has been withheld from page 39 of record 7 and from page 23 of record 41 (i.e. the second withheld set of parentheses). With the exception of the final 14 words of the sentence withheld from page 9 of record 15, the relevant excerpt contains personal information which I cannot describe due to section 43(3) of the FOI Act. All of the details withheld from record 19 concern individual overtime claims. I consider such information to comprise personal information and I find section 28(1) to apply to the details concerned.
Contractors
Certain of the withheld details pertain to persons under contract to the Council. The Council withheld details from pages 10, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 28, 30 and 31 of record 5 on the basis that the details concerned comprise personal information. Pages 14, 15, 17, 18, 19, 20, 22, 24, 25, 26, 28, and 31 name Council staff, which the applicant has excluded. I have found section 27(1)(b) to apply to the name of the traders referred to on pages 10, 18, 19 and 24 which I need not consider under section 28. I note that there are no details that might comprise personal identifying information on page 23. However, in so far as page 30 refers to a contractor engaged to carry out work on the English Market, this falls within the exception to the definition of personal information and I find that it is not exempt under section 28.
The Council has withheld details from pages 6, 7, 17, and 18 of record 13 (Christmas Markets 2010) on the basis that they comprise personal information. No further explanation was given. The withheld details identify, and comment on, the performance of a person that I take to be contracted to the Council. When consulted by this Office, the third party did not reply. However, in the circumstances, I accept that the details concerned are personal information about the person concerned, especially in so far as they comment on that person's performance.
The Council has not explained why the details withheld from page 15 of record 17 comprises the relevant person's personal information. The withheld details appear to me to be captured by the exception to the definition of personal information in so far as persons under contracts for service are concerned. The contractor has not voiced any concerns over the release of the details at issue. As regards the details withheld from pages 6, 19, 27 and 28 of record 17, the Council has not explained why the details concerned are personal information. The identities of the contractor and details of payments under the terms of a contract with the Council (pages 27 and 28) appear to me to be captured by the exception to the definition of personal information and are therefore releasable. I have considered whether, given other details contained in the record, details of the sums paid to a party within the Council (page 27) would identify the party concerned in spite of the person not being mentioned by name. I have decided to err on the side of caution in accepting that this would be the case. I also accept that details of the payment concerned is information not captured by the exception to the definition, and therefore I find the relevant details to be exempt under section 28(1). It is not clear to me if the second person referred to on page 28 (i.e. not the event organiser) was a contractor or staff. If the latter, the name is not required by the applicant. If the former, it should be released (being captured by the relevant exclusion to the definition of personal information).
Other Parties
Further details pertain to persons who are not Council employees or contractors. Section 43(3) precludes me from going into much detail about the nature of the details at issue, but I can say that the details come within the definition of "personal information" as set out in section 2 of the FOI Act.
The details withheld from record 2 would identify recipients of grant monies. The details therefore comprise personal information and I find them to be exempt under section 28(1).
The Council withheld details on pages 6, 14, 15, 18, 21, 22, 23, 25, 26, 34, 35, 36, and 37 of record 18 on the basis that they comprise personal information. In so far as the details on page 6, 36 (except for a reference number to which I have found section 27(1)(b) to apply) and 37 concern an unnamed Council staff member in a personal capacity, the Council has not explained how that person's identity can be arrived at further to the details concerned. Otherwise, given that the record concerns Commercial Rates, it is not apparent how personal information can be disclosed through their release. I find that this information is not exempt under section 28(1). I have, however, found section 27(1)(b) to apply to the majority of the details concerned, in so far as such information may identify the third party rate payers and impact on their reputation as a commercial enterprise.
Pages 33 and 34 of record 21 contain penalty notice reference numbers and could identify the recipients of such notices. I consider these details to therefore comprise personal information and I find them to be exempt under section 28(1). I have already found pages 35 to 41 to be exempt under section 27(1)(b) and so there is no need for me to consider the Council's claim for exemption of the details concerned under section 28.
The Council withheld parts of pages 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, and 28 of record 24, parts of pages 12, 14, 16, 17, 18, 21, 22, 26 and 27 of record 25, parts of pages 12, 15, and 21 of record 26 and parts of pages 7, 29, 30, and 58 of record 28. Details on pages 20 and 22 of record 24, pages 12, 14 (in part), 16, 17, and 21 of record 25, and pages 12 and 15 of record 26 identify Council officials and have been excluded from the review. The remaining details are those of Council tenants who are in arrears with their house rents, or former tenants, or persons availing of the Rental Accommodation Scheme. I accept that such information is personal information about the tenants concerned, which is exempt under section 28(1). However, having regard to section 13, I do not consider it necessary to withhold the details at issue to the extent specified by the Council. I find that all that is required to be withheld under section 28 are addresses, letting dates (and a reference to the location of the tenant ("TNT") on page 18 of record 24), dates of applications for housing, account numbers, tenant reference or identification codes, and lease numbers. It is not apparent that the details withheld from pages 16 or 19 of record 24, or pages 29 and 30 of record 28 identify any tenant. The only detail withheld from page 18 of record 25 is an account number, which I consider to be exempt from release under section 28(1). Page 58 of record 28 includes an account number for the "RAS Debtors Control A/C". This is not, on the face of it, personal information, nor has the Council explained why it considers the detail to be personal information. While page 58 of record 28 also includes a person's name and account number, it is not clear from the remainder of the page if the person is a tenant or if the details refer to a Council staff member. However, in either event, the name is either exempt under section 28 or has been excluded from the review.
Some of the withheld details on pages 13, 14, 15, 20, 22, 24, and 26 of record 34 (October 2012, concerning House Loans) are personal information of third parties. However, having regard to section 13, I do not consider it necessary to withhold the details at issue to the extent specified by the Council. Thus, I find that only loan account numbers on pages 13, 15, 20, 22, 24 and 26 and two references to an address on page 22 are exempt under section 28. I do not see any details on page 14 that identify any debtor and I find that section 28 does not exempt those withheld parts.
The Council withheld details on pages 17, 18, 19, 20, 22, 24, 27, 28, 34, and 35 of record 35 on the basis that they comprise personal information. I find that the reference numbers allocated to Housing Aid Grant applicants withheld from page 18 in record 35 comprise personal information and that all of the details withheld from this page are exempt under section 28(1). Pages 34 and 35 are highlighted as withheld in full. Having regard to section 13, I do not consider it necessary to withhold the details of Housing Grant recipients in full since it is not possible to identify any individuals if the reference numbers are withheld. The redactions from the remaining pages identify Council Officials and are not in scope.
The details therefore comprise personal information and I find them to be exempt under section 28(1) of the FOI Act.
Remaining Material
The details in record 40 that were withheld under section 28 concern non-domestic water rates and therefore cannot amount to personal information. I have already considered these details under section 27 of the FOI Act.
It is not apparent to me why the remaining details (all of the details withheld under section 28 from records 6, 8, 9, and 22 and the remaining details withheld under section 28 from record 7 (i.e. a location on page 24; card numbers on pages 38, 39 and 40 and the remaining comment on page 39); record 15 (the final 14 words of the sentence withheld from page 9), 30 (the remaining details on pages 16, 17 and 22), 37 (the remaining details on pages 17, 18, and 29), 41 (the other withheld set of parentheses on page 23); 43 (the remaining details on pages 3 and 6); 44 (the remaining details on pages 10, 14, 15, 17, 18); and 45 (the remaining details on pages 7, 12, 10, 11, 14, 15, 18, 22 and 24) comprise personal information nor has the Council explained why it considers this should be the case. I find section 28(1) not to apply to the details concerned and I direct that they be released.
Section 28(2)
Section 28(2)of the FOI Act sets out certain circumstances in which section 28(1) does not apply. I am satisfied that none of those circumstances arise in this case and no argument has been made that they do.
Section 28(5)
Section 28(5) of the FOI Act provides that a request that would fall to be refused under section 28(1) may still be granted where, on balance:
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 28(5)(b) does not apply.
Section 28(5)(a) - The Public Interest
The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1), may be released if on balance, the public interest that the request should be granted outweighs the public interest in upholding the right to privacy of the individual to whom the information relates.
In July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 I.R. 729, [2011] IESC 26), ("The Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Thus, in considering section 28(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
There is, in the case at hand, a public interest in ensuring openness and accountability as to how the Council carried out the various functions the subject of the audit reports.
I have accepted certain details on page 27 of record 17 to comprise personal information about a Council staff member. I consider that any breach of rights to privacy that would be occasioned by release of the details concerned, which relate to a payment or benefit made to a staff member or contractor in relation to Council business, is minimal when compared to, say, the intrusion on rights to privacy that would result from the release of details of a staff member's Social Welfare claims or medical history. The Council has not explained why the public interest in openness and accountability does not require the release of the details concerned, which are clearly concerned with expenditure of public monies. Having weighed up the public interest in openness and accountability against the minimal intrusion on the staff member's right to privacy that would result from the release of the details on page 27 of record 17, I find that, on balance, the details should be released.
As regards the remaining details at issue, I accept that release of the details at issue would offer further insight into the operations of the Council. However, as already outlined, I am satisfied that the details comprise the personal information of staff or third parties. Release of that information, effectively to the world at large, would breach the rights to privacy of the parties concerned. In certain circumstances, where negative comment is made or implied in respect of third parties under contract, it is not apparent to me that the parties concerned had a right of reply in relation to the comments concerned (the details withheld from record 13, for example). Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest that the right to privacy of the third parties to whom the information relates should be upheld outweighs the public interest that the request should be granted.
To summarise my findings on the public interest, the only details that I have found to be exempt under section 28, which I consider should be released in the public interest, are the details about the staff member referred to on page 27 of record 17.
Section 31
The Council's September 2014 submission referred to sections 31(1)(c), 31(2)(n) and 31(2)(o). Section 31(1)(c) provides that a record may be refused where, in the opinion of the head, access to a record (and, in particular, but without prejudice to the generality otherwise of section 31(1), a record to which section 31(2) applies) could reasonably be expected to result in an unwarranted benefit or loss to a person to class of persons. Sections 31(2)(n) applies to a record relating to information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body in relation to activities carried on by it on a commercial basis, while section 31(2)(o) applies to a record relating to the economic or financial circumstances of a public body.
If the Council considered that certain details are exempt under sections 31(1)(c), 31(2)(n) and 31(2)(o), there is an onus on it to justify this assertion. It has not done so and I have no basis on which to find that this harm-based exemption applies. I find that sections 31(1)(c), 31(2)(n) or 31(2)(o) do not apply to any of the withheld parts.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal of access to parts of the records under sections 22(1)(a), 27(1)(b) and 28(1) of the FOI Act. I direct the release of some of the details I have found to be exempt under the latter two provisions to be releasable in the public interest. I annul the Council's decision to refuse access to the remainder of the records at issue, and direct that they be released.
For ease of reference, I set out in the attached Appendix the details highlighted as withheld by the Council in the copies of records supplied to this Office in May 2015, and the extent to which the withheld details should be released further to this decision.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator