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Mr Y and Louth County Council (FOI 2014)

Case Number: 150295

Whether the refusal of access by the Council to certain records about oil spills is justified under sections 15(1)(a), 30(1)(a), 32(1)(a), 35(1)(a), 36(1)(b) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 8 June 2015 the applicant made an FOI request to the Council for certain information about oil spills at residential properties, land, commercial premises or petrol stations, excluding "diesel sludge" incidents which occurred or were resolved within the past three years. He listed nine items in respect of each incident report. By letter dated 1 July 2015, the Council granted access to some of the records. It refused access to others, on the basis that they were exempt from release under sections 15(1)(a), 35(1)(a), 36(1)(b) and 37(1) of the FOI Act. On 28 July 2015, the applicant applied for an internal review in respect of the records which had been withheld. By letter dated 20 August 2015, the Council issued its internal review decision, in which it affirmed its original decision. On 3 September 2015, the applicant applied to this Office for a review of the Council's decision.

In conducting this review I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the submissions of the third parties; the content of the withheld records provided to this Office by the Council for the purposes of this review and to the provisions of the FOI Act.

This review has taken much longer than I would have liked and I apologise to the applicant for this.

Scope of Review

In correspondence with this Office dated 3 September 2015, the applicant clarified the scope of his application for review. Furthermore, in correspondence with this Office, the Council clarified that it relied on sections 30(1)(a) and 32(1)(a) in addition to the other provisions cited above. Having regard to these clarifications, this review is concerned with whether the Council is justified in refusing access to the information referred to as records 10, 11, 12, 14, 24, 29/33, 35, 43, 45, 50/53, 52, 54 and 56; the redactions in record 5; and the redacted company name in record 40, under sections 15(1)(a), 30(1)(a), 32(1)(a), 35(1)(a), 36(1)(b) and 37(1) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, the way in which the Council scheduled the records in this review was extremely confusing and contributed to some delay in establishing the scope of the review. Its schedule refers to, and numbers, items of information which the applicant sought, rather than the records which the Council actually holds. Accordingly, single records are referred to by multiple numbers. I would draw the Council's attention to the Department of Public Expenditure and Reform's Central Policy Unit's manual on dealing with FOI requests (see www.foi.gov.ie), which contains a sample schedule of records and guidance on preparing schedules. It recommends that the FOI body's schedule lists the records separately and contains a sufficiently detailed description of records to enable the applicant to know what records are in issue. The Council's schedule does not do this. It is clear from that manual that the schedule of records is intended to be an essential reference point, both for the person seeking access and for this Office if the matter goes to review.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Thirdly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Council to satisfy me that its decision is justified.

Fourthly and subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request.

Finally, the applicant provided this Office with copies of a number of similar FOI requests he had made to other councils with some of their replies. I have not taken this correspondence into account in my decision as I do not consider it relevant to my analysis of the various exemptions invoked by the Council.

Analysis and Findings

Section 15(1)(a) - records do not exist or cannot be found

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Council claims this exemption in respect of information referred to as records 14, 24, 35, 45 and 56, which refer to validation certificates.

The applicant does not accept the Council's claim under this section, since another record provided by the Council refers to a "validation report". The investigator queried this point with the Council. The Council advised that the "validation report" referred to is the record referred to at number 12 of the schedule, but that no "validation certificates" existed. The applicant has provided no supporting evidence that validation certificates which his request implies may have been prepared following "remediation or containment" do indeed exist. I have no reason to dispute the Council's position that no validation certificates are held by it. This Office is not required to search for records and its understanding of its role in this type of case was approved by the High Court in Matthew Ryan and Kathleen Ryan v. the Information Commissioner (2002 No. 18 M.C.A.), which is available on this Office's website www.oic.ie. I find that the Council's refusal of access to the information referred to as records 14, 24, 35, 45 and 56 is justified under section 15(1)(a), on the basis that these records do not exist.

Section 30(1)(a) - Functions and negotiations of FOI bodies &
Section 32(1)(a) - Law enforcement and public safety

The Council claims both these exemptions in respect of records 50/53, 52 and 54. The wording of its written submissions in relation to each provision is identical.

It says that it has a statutory function to ensure the remediation of lands. It says that it has forwarded this matter to its solicitors for legal proceedings and that releasing these records could prejudice any legal proceedings, since the companies which commissioned the reports have requested that no records be released at present. It submits that on the balance of public interest, the records should not be released at this time. However, it does not provide any further detail on the public interest factors that it relies on in respect of these records which would explain its position on the public interest balancing test.

I have had regard to the harm which the Council identifies in its identical submissions under sections 30 and 32. I take this, in essence, to be an argument that releasing the records could prejudice civil proceedings. Given that this alleged harm relates to legal proceedings rather than the Council's own functions, I consider it more appropriate to consider these records under section 32(1)(a)(iv) and not under section 30. The Council has failed to justify its claim that section 30(1)(a) applies.

My understanding of the Council's argument appears to be supported by its further submissions about these records, which I outline below.

Section 32(1)(a)(iv) provides:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice or impair -

...

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal".

The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of legal proceedings. When relying on this provision, the FOI body should show how or why releasing the withheld information at the time of the Commissioner's review could reasonably be expected to harm the fairness of the proceedings. The fact that proceedings may be pending does not, of itself, mean that release of records could reasonably be expected to prejudice the fairness of those proceedings. The making available by an FOI body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing. The Commissioner has accepted, as a general point, that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.

In further submissions to this Office, the Council advises that legal proceedings are ongoing in respect of the site to which the records relate. It firstly says that in view of those legal proceedings, the harm caused by releasing the records is, in its view, "self-explanatory". It also submits that the information sought represents evidence in the legal proceedings and that it would be contrary to the principles of natural justice to release the information, particularly when no disclosure order has been granted by the court.

Finding on section 32(i)(a)(iv)

The Council has not demonstrated how any of these records could, for example, disclose aspects of its thinking on, or strategy for, the legal proceedings or identified any information within these records which could prejudice the fairness of the legal proceedings. The fact that the companies have objected to releasing the records does not of itself evidence a potential harm to the fairness of legal proceedings. In any event, I address the companies' submissions in this matter below, under sections 36 and 37 of the FOI Act.

In the circumstances, I find that the Council is not justified in refusing access to these records under either section 30(1)(a) or section 32(1)(a)(iv) of the FOI Act.

Section 35(1)(a) - Information obtained in confidence

The Council claims this exemption in respect of records 5, 10, 11, 12, 29/33, 43 and 54. Having regard to my finding on record 5 under section 37(1) below, I am not required to consider it under this section also. The remaining records consist of reports provided by third parties in relation to the investigation and remediation of oil spills.

Section 35(1)(a)

Section 35 of the FOI Act provides, insofar as is relevant:

"(1) Subject to this section, a head shall refuse to grant an FOI request if -

(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body...

(3) Subject to section 38, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned."

Under section 35(2) the confidentiality exemption at subsection (1) does not apply to a record which was prepared by a head, director or staff member of an FOI body or its service provider in the course of the performance of his or her functions, unless disclosure would constitute a breach of confidence that is owed to a person other than an FOI body etc. These records were not prepared by the Council or its service provider and therefore I do not need to consider section 35(2) further.

In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, the circumstances in which the information was received are relevant. As the Supreme Court noted in Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC 26 ("the Rotunda case"), what is protected under this section "stems from the circumstances in which the material is given, and not from the nature of the material itself". Factors that may be relevant include the expectations of the person giving the information to the FOI body and any statements or assurances given at the time the information was given.

Submissions

During this review, the investigator asked the Council to explain the process of obtaining third-party reports. The Council advised that when it receives a complaint about an oil spill, it contacts the property owner and requires them to have the oil spill investigated and remediated. The property owner commissions and pays for a report by a private company, usually through their insurance company. The Council then obtains a copy of the report by the private company, which usually sends it directly to the Council. The Council takes steps to ensure that the property owner follows the report's recommendations to remediate the oil spill and follows this up, taking enforcement measures if necessary.

In its submissions, the Council says that the information in the reports was given to it on the basis that it was confidential; it was for the Council's purposes only; it is vital to the Council's performance of its duties and the companies involved did not consent to any records being released. The Council concludes that, on balance, it is in the public interest that the records should not be released at this time. However, it does not provide any further detail on the public interest factors that it relies on in respect of these records which would explain its position on the public interest balancing test.

The investigator asked Council staff whether the Council gave the private company which prepared the report any assurances of confidentiality. The Council advised that it did not usually put anything in writing about keeping the report confidential and did not think that the private company referred to confidentiality in its correspondence either. That said, the Council considered that the private company would not expect the Council to circulate its report. The Council also advised that it was important to it to continue receiving such reports and in its view, it would not receive them if they were accessible under FOI.

This Office contacted the private companies which authored reports on the oil spills to invite their submissions on releasing the reports and received two submissions. I note that the reports of one of the private companies contains a statement that "no unauthorised distribution shall be made to any third parties without the prior consent of both (company name) and the Client (or their appointed agent)". However, while that same company referred to sections 36 and 37 of the FOI Act in its submissions to this Office, it did not refer to section 35 or to any understanding of confidentiality. Neither did the other company which made submissions to this Office refer to section 35 or to any understanding of confidentiality.

Finding on section 35(1)(a)

All four requirements as outlined in section 35(1)(a) cited above must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the FOI Act.

The first two requirements of section 35(1)(a) concern whether there was a mutual expectation of confidentiality over the reports. There appears to be a slight discrepancy in the information before me on this point. However, I consider it significant that the companies themselves do not refer to any mutual expectation of confidentiality in their submissions to this Office, although they make detailed arguments under sections 36 and 37 of the FOI Act. Therefore in the circumstances, on balance, I am not satisfied that the first two requirements are met, namely that the reports were given to the Council in confidence and on the understanding that they would be treated as confidential. Even if I were so satisfied, I do not accept that the third requirement is met. I do not believe that it reasonable to suggest that disclosing these reports would be likely to prejudice the supply of these reports to the Council, whether from the companies or the property owners themselves. This is particularly in view of the fact that the Council has advised this Office that it is entitled to require such information pursuant to its statutory functions under water pollution legislation. There is also the fact that the companies are apparently commissioned and paid for by property owners to prepare the reports. I therefore do not accept that section 35(1)(a) applies to the records. In view of this finding, I am not required to apply the public interest balancing test under section 35(3) of the FOI Act.

I find that the Council is not justified in refusing access to these records under section 35(1). However, I consider them further under sections 36 and 37 below.

Section 36(1)(b) - Commercially sensitive information

The Council claims this exemption in respect of records 5, 10, 11, 12, 29/33, 43, 50/53, 54 and the redacted company name in record 40. Having regard to my finding on record 5 under section 37(1) below, I am not required to consider these records under this section also. The remaining records are reports or parts of reports provided by third parties in relation to the investigation and remediation of oil spills and a redacted company name in record 40.
Section 36(1)
Section 36 of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of commercially sensitive information. Specifically, section 36(1) of the FOI Act provides:
"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -
...
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation".

However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

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 subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The Commissioner takes the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is that disclosure of the information could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b).

Submissions

The Council submits that the reports are commercially sensitive, as they detail how the companies carry out their investigations and present their findings and were submitted for the Council's purposes only. It says that on the balance of public interest, they should not be released at this time. However, it does not provide any further detail on the public interest factors that it relies on in respect of these records which would explain its position on the public interest balancing test.

As noted above, during this review, the investigator contacted the private companies which authored reports on the oil spills to invite their submissions on releasing the reports. Two companies made submissions objecting to the release of the reports under section 36 of the FOI Act. The wording of their submissions is very similar. Both say that releasing their reports could result in material financial loss and prejudice their competitive positions. They submit that their reports contain data which has taken considerable time and resources to develop. They say that it is foreseeable that competitors may be able to compile data to utilise the results of their scientific research to their own commercial benefit and therefore to the companies' commercial disadvantage. One of the companies states that this FOI request "has been made solely with a view to securing competitive advantage for a commercial competitor". Finally, the company which prepared record 54 replied to say that it has no view on whether its report should be released or not.

Section 36(1)(b)

I must emphasise that, as noted above, the FOI Act requires me to disregard the applicant's motive in my analysis. The fact that the applicant may or may not be a competitor of the third parties, or acting for such a competitor, is not relevant to my assessment of whether section 36(1) applies. What matters for my purpose is whether the record contains information whose release could cause material loss to the companies or could prejudice their competitive positions.

I am satisfied that section 36(1)(b) applies to some of the information in these records: specifically, information relating to the companies' methodology for assessing and remedying oil spills, and pricing. I consider that releasing this information could have negative commercial consequences for the companies, thereby prejudicing their competitive positions. I find that section 36(1)(b) applies to the following information:

- Record 10: "Section 4: scope of works required"
- Record 11: "Section 1.4 scope of works"; "Section 5 qualitative risk assessment"
- Record 12: "Section 2 summary of remediation works"; "Section 3 laboratory analysis" "Section 4 validation results"; "Section 5 quantitative risk assessment"
- Record 29/33: "Table 1: preliminary qualitative risk assessment"; "Table 2: Risk Definition"; page 4 "remedial works" section
- Record 43: section 1: "remedial works" and "cost" paragraphs on page 2; section 3: "site investigation details"; section 4 "investigation findings"; section 5 "risk assessment"; section 7 "recommendations"; section 8 "pricing"; appendices
- Record 50/53: second page
- Record 54: the costs specified on page 4

Regarding record 54, while recognising that the burden of proof lies with the Council, I believe that the company is better placed than the Council to say whether the content of its own report is commercially sensitive. In this regard, I consider it relevant that this company made no objections to release when responding to this Office's invitation to comment. On the face of the record, the only information which appears to me to be commercially sensitive relates to costs. I also consider this record under section 37 below.

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3) - The Public Interest

Having found that section 36(1)(b) applies, 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 the request. Section 36(1) itself recognises the public interest in the protection of commercially sensitive information. The FOI Act also recognises a significant public interest in FOI bodies being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider both the positive public interest served by disclosure and the harm that might be caused by disclosure.

I consider that there is a public interest in openness and transparency around how the Council discharges its functions. However, it seems to me that any such public interest is served by releasing those parts of the reports which I have found not to qualify for the section 36 exemption. The arrangements between the private companies and their clients are commercial arrangements which do not involve the expenditure of public funds. Accordingly, I do not see how the public interest would be better served by releasing the information which I have found to be commercially sensitive.

Finding on section 36

Therefore, in the circumstances of this case, I find that on balance, the public interest would not be better served by releasing the commercially sensitive information listed above. I find that the Council is justified in withholding access to this information, under section 36(1) of the FOI Act.

I find that section 36(1)(b) does not apply to the remaining records. I therefore find that the Council is not justified in withholding access to this information under section 36(1) of the FOI Act.

Section 37(1) - Personal Information

The Council claims this exemption in respect of records 5, 10, 11, 12, 29/33, 43, 50/53 and 54. I will consider it in relation to the parts of these records which I have not already found to be exempt under section 36(1) of the FOI Act.

Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information, including (iii) information relating to the employment or employment history of the individual and (xiii) information relating to the property of the individual.

The parties submit that much of the information relates to residential properties and therefore contains personal information under section 37. I note that information relating to properties of individuals is classified as "personal information" in the definition at section 2 of the FOI Act. However, in reaching my conclusion I consider it relevant that record 43 concerns the property of a housing organisation rather than the property of an individual. Furthermore, record 54 indicates that although the property concerned is not residential, it belongs to an individual.

Accordingly, I consider that the following information is "personal information":

- Record 5 - All the redacted parts
- Record 10 - All the names and addresses of individuals; "section 1.2: insured details", "section 2: site description"; Appendices 1, 2 and 3
- Record 11 - All the names and addresses of individuals; "section 2: site setting"; "section 3.2 and 3.3"; Appendices 1, 2 and 3
- Record 12 - All the names and addresses of individuals; "section 1: site/project details"; Appendices 1, 2 and 3
- Record 29/33: All the names and addresses of individuals; photograph on page 4; "preliminary site assessment details"
- Record 43: All the names of individuals
- Record 52 - All
- Record 50/53 - All the names and addresses of individuals
- Record 54 - All names and addresses of individuals and properties and appendices and photographs.

Section 37 (5) - The Public Interest

I am satisfied that the provisions of section 37(2) in relation to various exceptions to this mandatory exemption do not apply. Therefore, those parts of the records are exempt unless section 37(5) applies:

" ...Where, as respects an FOI request the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance --
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,

the head may, subject to section 38, grant the request."

I cannot see how granting the request insofar as the personal information is concerned would benefit the individuals concerned and consequently I find that paragraph (b) does not apply.

In respect of paragraph (a), I am satisfied that the public interest in openness and accountability about the Council performing its functions is met by the release of those parts of the records which I have not found to be personal information. The FOI Act itself recognises the public interest in ensuring openness and accountability of FOI bodies. However, the language of section 37 and the Long Title to the Act also recognises a very strong public interest in protecting the right of privacy which has a constitutional dimension. I find that the public interest that the request should be granted in full does not outweigh the public interest that the right to privacy of the individuals concerned should be upheld. I find therefore that section 37(5)(a) does not apply in this case.

Finding on section 37

I find that the Council is justified in refusing access to those parts of the records which I have found to qualify as personal information, under section 37(1) of the FOI Act.

I find that section 37(1) does not apply to the remaining parts of the records. I therefore find that the Council is not justified in refusing access to this information under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the decision of the Council. I affirm its decision in respect of information referred to as records 14, 24, 35, 45 and 56 under section 15(1)(a). I affirm its decision in respect of those parts of records 10, 11, 12, 29/33, 43, 50/53 and 54 which I have found to be commercially sensitive information, under section 36(1)(b). I affirm its decision in respect of those parts of records 5, 10, 11, 12, 29/33, 43, 52, 50/53 and 54 which I have found to be personal information, under section 37(1). I annul its decision to refuse access to the remaining information within the scope of this review and direct the release of that information.
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

Right of Appeal

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 requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Elizabeth Dolan
Senior Investigator