Cinneadh
Mr N and Department of Public Expenditure and Reform
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-55439-W8Q7C2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-55439-W8Q7C2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether DPER was justified in refusing access to certain records relating to the allocation of funding to Waterford Airport (the Airport) towards a runway extension project under sections 28, 29, 35 and 36 of the FOI Act
22 February 2021
On 10 June 2019, the then Minister for Transport, Tourism and Sport announced a decision in principle by the Government to give an Exchequer grant of €5 million towards a €12 million runway extension project at Waterford Airport. The remainder of the cost of the project was to be met by private investors and local authority interests, who committed to funding €5 million and €2 million respectively in return for equity shareholdings in the Airport. The Minister announced that ‘this support was being provided subject to a number of conditions’. The Minister said that formal confirmation of the funding was dependent on the Airport being able to demonstrate, following the necessary procurement processes, that the project could be delivered for the estimated amount of €12 million. He said the Exchequer contribution of €5 million would only be paid when all upgrade works are completed and the runway is confirmed to be ready for service by the Irish Aviation Authority.
I understand from reports in the media that, in advance of the Government’s decision, the Minister commissioned the consultancy and auditing firm EY to prepare a report on the Airport’s future and that a copy of this EY report was provided to the Airport for comment. I further understand from media reports that the Airport subsequently commissioned another consultancy and auditing firm, PWC, to prepare its own report on the runway extension proposal, which the Airport then provided to the Minister and the Department of Transport, Tourism and Sport (the Department of Transport).
It appears that the Department of Transport prepared a number of memorandums in relation to the proposal to provide funding for the runway extension, and circulated these draft memorandums, along with other documentation, to several Government departments, including DPER, for observations.
In a request to DPER dated 14 June 2019, the applicant sought access to the following:
1. All memos and advice for the Minister related to the allocation of funds to the Airport.
2. All correspondence between DPER and the Department of Transport related to the allocation of funds to the Airport.
On 12 July 2019 DPER issued a decision in which it refused the request under sections 28(1)(a), 29(1) and 36(1)(b) of the FOI Act. The applicant sought an internal review of that decision, following which the Department affirmed its original decision. The applicant sought a review by this Office of DPER’s decision on 8 August 2019.
I took the view that the applicant had not been provided with an adequate notification of reasons for refusal of his request in accordance with the requirements of the Act. In particular, DPER’s decision omitted the mandatory consideration of the public interest. On 18 September 2019, this Office exercised its power under section 23 of the FOI Act and directed DPER to provide a statement of the reasons for its decision, including findings on any relevant material issues and consideration of the public interest. On 16 October 2019, DPER provided this Office and the applicant with a statement of the reasons for its decision.
The applicant, DPER, and the Airport all made submissions in the course of the review. PWC, which prepared a report on behalf of the Airport (record 3 in this case) was also invited to make a submission. PWC declined to make a formal submission, merely noting that information within record 3 may constitute commercially sensitive information within the meaning of section 36 of the FOI Act.
I have decided to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between DPER and the applicant as outlined above and to correspondence between this Office and DPER, the Airport and the applicant on the matter. In referring to the records at issue, I have adopted the numbering system used by DPER in the schedule of records it prepared when processing the request.
During the course of the review, DPER sought to rely on sections 28(1)(a) and/or 28(1)(c) in respect of all 26 records at issue. It also sought to rely on section 36(1)(b) in respect of records 2 to 5 and section 29(1) in respect of records 7 to 13, 15, 17 to 21, and 25.
A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I deem it appropriate to consider the applicability of the exemptions cited by DPER during the review to the relevant records.
Therefore, this review is concerned solely with whether DPER was justified in refusing access to the various records at issue under sections 28(1)(a) and (c), 29(1), and 36(1)(b) of the FOI Act.
Section 28(1)
Section 28(1)(a) of the Act provides for the discretionary refusal of a record if it has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. Section 28(1)(c) provides for the refusal of a record if it contains information, including advice, for a member of the Government, the Attorney General, a Minister of State, or the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
For the purposes of section 28, a record is defined as including a preliminary or other draft of the whole or part of the material contained in the record. There is no public interest balancing test to be applied in section 28. However, a record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3) of the FOI Act.
Section 28(3) provides that section 28(1) does not apply to a record if it contains factual information relating to a decision of the Government that has been published to the general public or if the record relates to a decision of the Government that was made more than five years before the receipt of the FOI request.
The applicant’s arguments concerning the applicability of section 28 relate solely to record 2, which is a summary of the EY report commissioned by the Department of Transport concerning the Airport. He argued that section 28(1)(a) effectively relates to cabinet confidentiality. He said it was the stated intention of the Minister in the Dáil on 7 February 2019 to share the report with the board of the Airport. He argued that the report could not be considered confidential to the cabinet when it was also to be released to the board of the Airport. He also queried whether the record was created for the purpose set out in Section 28(1)(a).
For section 28(1)(a) to apply to a record, three requirements must be met, namely that the record:
The exemption extends to records that were prepared for submission to the Government but were not actually submitted to Government. Furthermore, this Office accepts that it also applies to submissions from Ministers and/or Government Departments made in response to another Department’s invitation for observations on a draft Memorandum for Government. In Case 99450, the then Commissioner found that submissions made by Departments in response to an invitation by another Department to provide observations on a draft memorandum for Government constitute "a preliminary or other draft of the whole or part of the material contained in the record", in light of the requirement that memorandums should incorporate the observations of other Ministers or Department supplied on foot of the circulated draft.
For section 28(1)(c) to apply:
Records 1, 6, 14, 22 and 23 are all draft memorandums for Government prepared by the Department of Transport. I find that section 28(1)(a) applies to these records.
Records 2 to 5 are appendices to the draft memorandums. Record 2 is a summary of the EY report commissioned by the Department of Transport concerning the Airport, while record 5 consists of the views of that Department on the funding proposal in question. I am satisfied that both records were created for the purpose of forming part of the memorandum for Government and that section 28(1)(a) applies to both records.
Records 3A and 3B comprise the PWC report commissioned by the Airport in the context of the expansion proposal. Record 4 comprises a letter from the Airport to the Minister for Transport, wherein it provides the Minister with a copy of the PWC report and sets out its own views on the expansion proposal. I am satisfied that both records were created for the purpose of the Airport putting its case for funding to the Minister and that they were not created for the purpose of submission to the Government for its consideration. I am also satisfied that they do not contain information for use by a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government for use by such person solely for the purpose of the transaction of any business of the Government at a meeting of the Government. I find that neither section 28(1)(a) nor section 28(1)(c) apply to records 3 or 4.
Records 7 to 13, 15 and 18 and 20 consist of emails between DPER and the Department of Transport in relation to the funding proposal and the contents of the draft memorandums. Record 19 consists of emails between the Department of the Taoiseach and DPER relating to an upcoming meeting at which the Airport was to be discussed. None of these emails were submitted or proposed to be submitted to the Government for its consideration by a Minister of the Government. Neither were these records created for that purpose. Furthermore, the information in the records cannot be said to be information for the use of a Minister solely for the purpose of the transaction of business of the Government at a Government meeting. Accordingly, I find that neither section 28(1)(a) nor 28(1)(c) apply to records 7-13, 15 and 18-20.
Records 16, 17, 24 and 25 all comprise, in whole or in part, draft observations of DPER and the Minister for Public Expenditure and Reform on the draft memorandums. I find that section 28(1)(a) applies to these records.
Record 21 consists of a briefing note for the Minister for a cabinet committee meeting. I find that section 28(1)(c) applies to this record.
Record 26 is entitled “Government Decision on Final Memo Waterford Airport” in the schedules provided by DPER to the applicant and this Office. It is a record of the Government Decision to approve the funding proposal for the Airport. The record was not created for the purpose of submission to the Government for its consideration, nor does it contain information for a member of the Government for use by him or her solely for the purpose of the transaction of Government business at a meeting of the Government. Accordingly, I find that neither section 28(1)(a) nor section 28(1)(c) apply to this record.
Section 28(1)(b) provides for the refusal of a request if the record sought is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government. The Department did not claim exemption for the record under section 28(1)(b). Given that application of the exemption is discretionary and the Department did not argue that the provision applies, I am satisfied that it is not necessary for me to consider whether record 26 is exempt under that provision. I note, in any event, that the details of the key decision taken on the funding proposal and the conditions attached to the funding commitment, were published by the Department of Transport in a press release on 10 June 2019.
In summary, therefore, I find that section 28(1)(a) applies to records 1, 2, 5, 6, 14, 16, 17, 22, 23, 24 and 25, and that section 28(1)(c) applies to record 21. However, that is not the end of the matter as section 28(3)(a) provides that section 28(1) does not apply to a record if and so far as it contains factual information relating to a decision of the Government that has been published to the general public.
The term factual information is defined in section 2 of the Act as including information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner takes the view that the use of the word “includes” in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
The effect of section 28(3)(a) is that factual information relating to a decision of the Government that has been published to the general public in a record to which section 28(1) applies is not exempt under section 28(1). Section 18(1) of the Act 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 body concerned considers appropriate, of the record with the exempt information removed.
Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
The Cabinet Handbook (2006) contains guidance on the layout and contents of memorandums. It suggests that every memorandum should present factual information so that it can be easily extracted for FOI Purposes. Based on the format and layout of the information contained in records 1, 6, 14, 22 and 23, I am satisfied that Section 2 of each record, entitled “Background/Reason for Memorandum” comprises factual information relating to a decision of the Government that has been published to the general public and that section 28(1) does not apply to this information.
Having regard to this Office’s approach to the application of section 18, I do not consider that any other information within records 1, 6, 14, 22, or 23 falls for release under section 28(3), nor do I consider that any information within records 2, 5, 16, 17, 21, 24 or 25 falls for release. As I have found section 28(1) to apply to records 2, 5, 16, 17, 21, 24, and 25 in full, I do not need to give any further consideration to these records.
Section 29(1)
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant a request (a) if the record concerned contains matter relating to the deliberative processes of an FOI body, and (b) the body considers that granting the request would be contrary to the public interest. These are two separate requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to satisfy this Office that both requirements are met.
While not exhaustive, section 29(1) provides that matters relating to deliberative processes includes ‘opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or the staff of the body for the purpose of those processes’. An FOI body relying on this exemption should identify both the deliberative process(es) concerned and any matter in the records which relates to these processes.
A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
Of the remaining records to be considered, DPER relied on section 29(1) to refuse access to records 7 to 13, 15, and 18 to 20. It argued that these records were central to the deliberative process in trying to clarify text in the draft memorandums and to provide robust advice to the Minister for his use at the Government meeting. DPER said release of the records could prejudice future engagement on this issue, prejudice budget negotiations in the future and/or compromise policy relating to other airports. It claimed these harms would arise through the premature disclosure of details of discussions, plans and options relating to the funding of the Airport, which it said were the subject of continuing consideration.
Broadly speaking, the records at issue consist of emails between DPER and the Department of Transport in relation to the content, context and reasoning of a draft memorandum, and emails between DPER and the Department of the Taoiseach regarding a meeting and a briefing note for the Minister concerning the matter.
It seems to me that the deliberative process at issue in these records is DPER’s consideration and analysis of the matters raised in the draft memorandums in an effort to reach a view on those matters and formulate the Minister’s observations on the memorandums. The broader, encompassing deliberative process at issue is the Government’s consideration of the Minister for Transport’s proposal. As such, I accept that the records at issue contain matter relating to the deliberative processes of an FOI body. However, that is not the end of the matter. As I have explained above, for the exemption to apply, DPER must also show that granting the request would be contrary to the public interest.
Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.
It is also noteworthy that under section 11(3) of the FOI Act, in performing any function under the Act, public bodies must have regard to the need to achieve greater openness in their activities and to promote adherence by them to the principle of transparency in government and public affairs, the need to strengthen the accountability and improve the quality of decision-making of public bodies and the need to inform scrutiny, discussion, comment and review by the public of the activities of public bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of public bodies.
In his submission to this Office, the applicant argued that the deliberative process has ended.
While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant to a consideration of whether granting the request would be contrary to the public interest.
As I have indicated above, the Department of Transport issued a press release on 10 June 2019, announcing the Government’s decision, in principle, to give €5 million of an Exchequer grant towards a €12 million runway extension project at the Airport. It said the remaining cost of the project would be met from private investor and local authority interests who have committed to funding €5 million and €2 million respectively in return for an equity shareholding in the Airport.
It added that the support was being provided subject to a number of conditions. It said formal confirmation of the funding was dependent on the Airport being able to demonstrate, following the necessary procurement processes, that the project could be delivered for the estimated amount of €12 million and that the Exchequer contribution of €5 million would only be paid when all upgrade works are completed and the runway is confirmed to be ready for service by the Irish Aviation Authority.
DPER argued that the premature disclosure of details of discussions, plans and options relating to the funding of the Airport, which it said were the subject of continuing consideration, could prejudice future engagement on this issue, prejudice budget negotiations in the future and/or compromise policy relating to other airports. However, it has not explained how such harms might arise. For example, it has not identified any specific information in the records the release of which could be said to prejudice future budget negotiations or how such prejudice might arise. In the circumstances, I find that DPER has not shown how the release of the records at issue would be contrary to the public interest. I find, therefore that section 29(1) does not apply to the records.
Section 36(1)(b)
Section 36(1)(b) provides for the refusal of a record where the record concerned contains certain types of information the disclosure of which could reasonably be expected to result in 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 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 whether 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 than the "could reasonably be expected" test in the first part of the exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner [2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35 Kearns J. stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
In its submissions to this Office, DPER argued that records 2 to 5 are exempt under section 36(1)(b). As I have already found records 2 and 5 to be exempt under section 28(1), I do not need to consider them any further. As mentioned above, records 3 and 4 comprise the PWC report commissioned by the Airport in the context of the expansion proposal, and a letter from the Airport to the Minister for Transport enclosing that report, respectively.
In its submission to this Office, DPER argued that the records at issue contain financial and commercial information relating to the Airport, its trading position and potential options in the future. It argued that the disclosure of such information could reasonably be expected to result in a material financial loss or gain to the Airport, or could prejudice the competitive position of the Airport in the future. It said such reports contain sensitive financial information which, if released to the public, could give the Airport’s competitors an unfair commercial advantage. It said that to release the documents would require a consultation process to seek the permission of the authors of the reports/summaries. DPER also claimed that releasing the records would unnecessarily show the financial position of the Airport to their competitors or other third parties and damage them commercially in their dealings with financial institutions.
Despite having been given opportunities to do so, DPER did not provide any additional information as to how the harms it identified might arise as a result of the release of the records. For example, it did not explain how the release of any specific information in the records might give the Airport’s competitors an unfair commercial advantage or damage the Airport commercially in its dealings with financial institutions.
In its submission to this Office, the Airport said it supported DPER’s decision to refuse access to the records at issue under section 36(1)(b).
In relation to record 3, the PWC report, the Airport argued that the information shared with the authors and used in the production of the report was provided on the mutual understanding that the information was commercially sensitive, offered in strict confidence and would be treated as such. The Airport also contended that it shared the report with the Minister for Transport and his Department only on the understanding that the review would be treated with the utmost sensitivity in terms of confidentiality and that its content would not be deemed suitable for release under FOI.
The Airport said a significant proportion of the report relates to the current financial and operating position of the Airport and also contains detailed comprehensive data pertaining to its future commercial plan, which it stated would underpin its continued existence as a commercial concern. It contended that its continued existence depended on an ability to compete effectively with other regional airports for passengers and carriers, as well as an ability to negotiate effectively with carriers to service the Airport on favourable terms. It argued that the release of the record and related correspondence has the potential to severely prejudice the Company’s future competitive position vis-à-vis other competing airports.
The Airport identified specific parts of record 3 that it claimed would likely undermine the future competitive standing of the company, as follows:
The Airport made specific arguments as to why the above parts of the report were commercially sensitive. In summary, the Airport argued that disclosure of this information could be used by competitors to undermine the future of the Airport, would affect its negotiating position and could prejudice its discussions with existing shareholders. It argued that release of information concerning its route development strategy would give its competitors the opportunity to affect the Airport’s ability to secure the intended routes and/or frequencies and potential revenues. The Airport also argued that disclosure of its intended charging regime, future financial details and intended revenue streams would affect the negotiating position of the Airport. It also contended that release of its employment strategy, staffing costs and associated information would undermine the proposed development of the Airport, and that disclosure of the commercial rates it intended to levy over the period of the business plan would affect its negotiating position.
The Airport argued that competitor airports were proactively trying to influence Government to withdraw operational and capital funding for regional airports, citing recent reports in the Irish Times and the Irish Independent newspapers. It contended that it was in a vulnerable position and required meaningful investment to underpin its future viability. It argued that owing to the current focus on the finances and commerciality of the Airport by a number of its competitors, disclosure of the information had the potential to affect current and future Government funding streams and/or the capital investment programme recently approved by the Government.
The standard of proof necessary to meet the second part of the test in section 36(1)(b) (could prejudice the competitive position etc.) is relatively low. All that is required is the possibility of prejudice. Having carefully considered the arguments of the Airport, along with the content of record 3, I accept that release of some of the information identified by the Airport in the report could prejudice its competitive position. I consider it a reasonable expectation that release of the Airport’s detailed business plan for future development, along with granular details of various financial projections associated with that plan could allow competitors to undermine the Airport’s development and I accept that such an outcome would prejudice the Airport’s competitive position. While certain aspects of the Airport’s plan, such as a high level breakdown of new investment, are in the public domain, I am satisfied that other information in record 3 is far more detailed, and therefore more likely to cause the prejudice stated. I therefore accept that the following information in record 3 is commercially sensitive within the meaning of section 36(1)(b):
I find therefore that section 36(1)(b) applies to those parts of record 3 I have identified above but to no other parts of record 3.
Record 4 consists of a letter from the Airport to the Minister for Transport, enclosing the PWC report at record 3. It discusses both the EY report and the PWC report. While the Airport’s submission almost exclusively focused on the content of record 3, I consider some similar content is present in record 4. Having carefully considered the Airport’s submission, along with the contents of the letter, I consider section 36(1)(b) to apply to the following parts of record 4:
I am satisfied that the remainder of record 4 is not commercially sensitive and that section 36(1)(b) does not apply.
Other records
As I have already mentioned, the Airport’s submission focused almost exclusively on record 3. Furthermore, DPER only claimed that section 36(1)(b) applied to records 2-5. However, section 36 is a mandatory exemption. Information, which appears to have come from record 3, or is of a similar nature to information in record 3, is contained within many of the other records at issue. This includes information which appears to have come from the EY report. This Office takes the view that third parties should not be put at a disadvantage due to the failure of an FOI body to cite relevant mandatory exemptions. I do not consider it appropriate to direct the release of information that I consider may be subject to section 36 solely on the basis that DPER has not cited that exemption.
In the circumstances of the records at issue in this case and the arguments raised by the Airport, I am satisfied that a number of records or parts of records broadly concern the same types of information as I have found to be exempt under section 36(1)(b). I find that section 36(1)(b) applies to the following information:
| Record/page number | Commercially sensitive information |
| Record 7 | the monetary figure quoted twice at point 4 |
| Record 8 | All text in the main paragraph after the words: “… following the new investments is: …” |
| Record 9 – page 1 | All text between the words: “… following the new investments is” and “at Waterford Airport” in paragraph 2 |
| Record 9 – page 2 | the monetary figure at point 3 following the words: “… could be in the region of …” |
| Record 9 – page 2 | All monetary figures appearing in point 4 apart from the figure appearing after the words “… emergency payments of…” |
| Record 11 | the percentage breakdown following the words: “The new shareholder/ownership structure would be …” |
| Record 11 | the percentage and the monetary figure in the sentence beginning “Why would the state …” |
| Record 12 – page 1 | the three monetary figures in the email of 14:21, 9 May 2019 |
| Record 12 – page 2 | the percentage and the monetary figure in the sentence beginning “Why would the state …” |
| Record 12 – page 3 | the percentage breakdown following the words: “The new shareholder/ownership structure would be …” |
| Record 12 – page 3 | the percentage and the monetary figure in the sentence beginning “Why would the state …” |
| Record 20 – page 1 | All monetary figures apart from the figure appearing after the words “… emergency payments of…” |
| Record 20 – page 2 | the same monetary figure that appears twice following the phrases “… it would cost …” and “Are EY projecting an increase to …” |
Accordingly, I find that section 36(1)(b) applies to the parts of records 3, 4, 7, 8, 9, 11, 12, and 20 as specified above.
Section 36(3) - The Public Interest
Having found that section 36(1)(b) applies to parts of some of the records at issue, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing access to those parts. The parties’ arguments in relation to the public interest were made in relation to records 2-5 but in my view, they are relevant to all of the information to which I have found section 36(1)(b) to apply.
The applicant argued that there is a strong public interest in releasing record 3, given the significant amount of public money involved. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. It stated as follows:
“The Commissioner, in the present case, took the view that the size of the contract for the support of an important State-owned asset could, of itself, justify disclosure. This may reflect a view that it is desirable in the public interest to require disclosure of information regarding large public expenditure in strategically important State assets and infrastructure. If that is the basis of the decision, it seems to me to improperly rely on the general principle of openness as the decision to order release must be one that emerges from a consideration of the particular records and not from a general policy. The size of a contract was not identified in the Act as a basis for disclosure. There must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.”
DPER argued that, on balance, the public interest was against release, in view of its contention that disclosure of the information could prejudice the commercial position of the Airport and any response by Government. The Airport supported DPER’s position by arguing that release of the information would severely undermine its ability to secure a viable future for itself. In other words, the position is that the potential commercial harm caused by release is so great that it outweighs the public interest in release.
In the Supreme Court judgment mentioned above, the Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that “… the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.”
The information to which I have found section 36(1)(b) to apply broadly concerns financial information about the Airport’s current and proposed future operations, including current and projected costs, revenues, profits and losses and Exchequer financial supports or subventions. It also concerns various details of the Airport’s strategy for future development, and its future shareholding structure. I accept the Airport’s arguments concerning the potential commercial harm that could be caused by the release of the information at issue. Furthermore, I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information. Accordingly, I consider that the public interest would not be better served by its release.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of DPER and I direct the release of the following records, or parts of records:
I affirm the decision of DPER to refuse access to the remaining records, in whole or in part, under sections 28(1)(a), 28(1)(c), and 36(1)(b) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator