Note: This decision was appealed to the High Court on 3 August 2023.

Whether the IDA was justified in redacting, under sections 30(1), 35(1), 36(1), 37(1), and 40(1) of the FOI Act, certain information from two records relating to the purchase of a named site

7 July 2023

Background

The IDA acquired a specified site in 2021, details of which were reported in the media. In a request to the IDA dated 28 June 2021, the applicant sought copies of any valuation reports, cost benefit analysis, or business case associated with the purchase of the site. On 26 July 2021, the IDA granted partial access to two records it identified as coming within scope of the request, with parts of both being withheld under sections 30(1), 35(1), 36(1), 37(1), and 40(1) of the Act. In addition, the IDA indicated that certain portions of Record 2 were outside the scope of the request. On 27 July 2021, the applicant sought an internal review of the IDA-�s decision, following which the IDA affirmed its original decision. On 20 August 2021, the applicant sought a review by this Office of the IDA-�s decision.

During the course of the review, two relevant third parties were notified of the request and invited to make submissions on the matter. No submissions were received from either party.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the IDA in support of its decision, and to the correspondence exchanged between the IDA and the applicant in the course of the request. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned with whether the IDA was justified in redacting, under sections 30(1), 35(1), 36(1), 37(1), and 40(1) of the Act, certain information from two records relating to the purchase of a named site, and whether it was justified in redacting certain information from Record 2 on the ground that the information in question falls outside the scope of the request.

Preliminary Matters

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. In this case, therefore, the onus is on the IDA to satisfy this Office that its decision to redact certain information from the records at issue was justified.

I also wish to note that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This means that I am limited in the extent to which I can discuss certain of the information provided to me by the IDA in the course of carrying out this review.

Analysis and Findings

Records at Issue

The records at issue comprise (i) an advisory report prepared by a property consultancy firm for the IDA concerning the potential purchase of the site in question, and (ii) the agenda and notes of an internal meeting of the IDA property committee with respect to the site. The information redacted from Record 1 includes information relating to the site folio details, details of the previous owners-� expenditure on, and prior plans for, the site, a range of figures relating to the site including a potential valuation figure, and details relating to other comparable sites. The information redacted from Record 2 includes, among other things, the date of the internal meeting and the meeting number, information concerning the IDA land bank, possible potential future use for the site, its engagements with the landowner, the site folio, and the identity of the landowner.

Portions of records considered by the IDA to be outside the scope of the request

As outlined above, the IDA argued that certain portions of Record 2 were outside the scope of the request. In submissions to this Office, it identified specific sections of the record that it considered to be out of scope, and outlined the rationale for this view. In essence, it argued that none of the parts identified constituted a -�valuation report, cost benefit analysis, or business case associated with the property-� and, as such, that none of the sections of the record at issue were relevant -�given the specifics of the request-�. It argued that, instead, the various parts of the record it deemed to fall outside scope constituted (depending on the specific section of the record in question) background information, internal reflections of the property market or matters relating to the internal processes of the IDA. It said its argument that particular sections of Record 2 were outside the scope of the request was without prejudice to the exemptions that it cited in respect of those same portions.

I do not accept the IDA-�s argument. I accept that there will be occasions where parts of a record sought fall outside the scope of a request. For example, a request for records on a particular topic may capture those parts of the minutes of a meeting that contain information on the particular topic but not those parts of the minutes that do not relate to the topic. In this case, the IDA identified the two records as being captured by the request. The parts of the record identified by the IDA as falling outside the scope of the request are directly related to the subject matter of the records. Accordingly, I find that the relevant parts of Record 2 identified by the IDA clearly fall within the scope of the request.

Section 30(1)(c)

The IDA cited section 30(1)(c) as a basis for withholding all of the redacted information in both records. Section 30(1)(c) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or on whether disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, the exemption is also subject to section 30(2), which provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. Therefore, while the exemption does not require release of the records to give rise to any particular harms, such issues may be relevant when considering where the balance of the public interest lies.

This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. In its submissions, the IDA said a single foreign direct investment can involve multiple negotiations over an extended period of time, for example between the investor and the IDA and between the IDA and domestic landowners or local authorities. It said these negotiations are all interconnected as they are all serving the purpose of this inward investment but that it can take a number of years before an investment is realised. It said single foreign direct investments cannot be divorced from other current or future foreign direct investments. As such, the IDA argued that the release of the information would impact multiple current or future negotiations. As an example, it said it is actively pursuing acquisition opportunities in key locations where existing IDA land-banks have diminished due to foreign direct investment. It said there are engagements currently underway at a number of different locations.

An FOI body must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any negotiations. On the specific question of what matters covered by section 30(1)(c) the IDA considered could reasonably be expected to be disclosed if the information at issue was released, the IDA argued that disclosure of the information could reasonably be expected to disclose;

• the positions taken by the IDA based on its specialised knowledge and opinions of the Irish property market;
• the positions taken by the IDA in relation to the valuation of the property in question, including the amounts which the IDA was considering paying to the landowner for the site
• the basis for the valuation of the site, including the criteria which the IDA (and its service providers) might consider in determining what an appropriate valuation of a site might be, and
• the method by which the IDA identifies and secures potential property vendors and potential pieces of land which would be particularly suited to foreign direct investment.

The IDA said the release of the information would provide an insight into its negotiating tactics and its method of identifying appropriate land for investment.

As I have outlined above, Record 1 comprises an advisory report prepared by a property consultancy firm for the IDA concerning the potential purchase of the site in question. It contains the firm-�s analysis, advice and suggested valuation of the site and the information upon which it based that analysis, advice and valuation. Record 2 comprises the agenda and notes of an internal meeting of the IDA property committee with respect to the site and contains details of the background to the recommendation to acquire the site.

It seems to me that having sought to withhold all of the information at issue under section 30(1)(c), the IDA has essentially taken a blanket approach to the use of section 30(1)(c) as a ground for redacting all of the information. Such an approach is wholly inappropriate. As specified in paragraph (c), it is incumbent upon an FOI body to show that the granting of access to the redacted information could reasonably be expected to disclose (i) a position taken or to be taken, or (ii) plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations. For example, the IDA has not explained how the disclosure of the date and number of the meeting of the relevant committee redacted from Record 2 or details of the folio number redacted from both records could reasonably be expected to disclose any of the matters specified in paragraph (c), nor is it apparent to me how such disclosure could. Moreover, it seems to me that some of the information at issue might reasonably be described as information that was of relevance to the IDA-�s decision to purchase the lands, but it does not necessarily follow that the disclosure of such information could reasonably be expected to disclose positions taken or plans, procedures, criteria or instructions used or followed. I expect the IDA to take note of my comments concerning the adoption of a blanket approach to harm based exemptions such as section 30(1)(c) and to ensure that appropriate consideration is given in future requests to the specific nature of the information at issue.

In Case OIC-000528 (availablehere), the then Commissioner found that the purpose of what is now section 30(1)(c) -�is to protect the strategies or positions considered or adopted by a public body with a view to reaching an agreement. It is the undisclosed strategies, positions or alternatives that the provision seeks to protect. It is designed to protect negotiation positions or plans from being disclosed directly or indirectly to other parties in the current or other negotiations.-� It is also important to note that the likelihood that disclosure of certain information in a record might have particular consequences does not necessarily mean that its disclosure could reasonably be expected to result in the disclosure of a position or plan etc. as envisaged by section 30(1)(c). It seems to me that the matters the IDA identified (outlined above) as matters that the disclosure of the records could reasonably be expected to disclose, do not comprise plans, procedures, criteria or instructions used or followed for the purpose of negotiations. Having carefully examined the information at issue, I find that the IDA has not sufficiently explained how the disclosure of the information at issue could reasonably be expected to disclose 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 the IDA.

As to whether the release of the information could reasonably be expected to disclose positions taken, or to be taken, for the purpose of any negotiations carried on or being, or to be, carried on by the IDA, I accept the IDA-�s argument that the disclosure of the amounts which the IDA was considering paying to the landowner for the site and the basis of the valuation for the site could reasonably be expected to disclose positions taken in the particular negotiations for the purchase of the site in question. For that reason, I find that section 30(1)(c) applies to the following information:

Record 1:

• The information redacted from page 1 apart from the first two redactions
• All information redacted from page 2, and
• All information redacted from Appendix 1

Record 2:

• The redactions on page 2, apart from the folio number and the name of the vendor, and
• All information redacted from Appendix C

My finding that the information above is captured by section 30(1)(c) is not the end of the matter as I must also consider whether section 30(2) serves to disapply section 30(1)(c). As I have outlined above, section 30(2) provides that section 30(1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 (the -�ENet case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In Case OIC-99202 (availablehere), which involved the same parties and similar information, this Office noted that the Department of Public Expenditure and ReformCircular 17/2016 - Policy for Property Acquisition and for Disposal of Surplus Property emphasises the need to ensure that optimal value for money is achieved in managing the State-�s property portfolio and we found that the Circular reflects the public interest in allowing scrutiny of information regarding such expenditure. Likewise, I am of the view that the Circular reflects and evidences a clear public interest in allowing scrutiny of information regarding expenditure on the acquisition of state property, including the manner in which such acquisition and disposal is negotiated, as set out in the records in this case.

In light of that public interest in favour of disclosure, it seems to me that while section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not, it is very difficult to see how it could reasonably be argued that the public interest would be better served by refusing access to the information at issue in this case if release of the information could not harm current or future negotiations or cause any other related harm. For that reason, I believe it is relevant to consider whether disclosure of the information at issue will harm current or future negotiations.

Much of the lengthy argument made by the IDA in its initial submissions to this Office on the applicability of section 30(1)(c) essentially relates to its concerns that the release of information of the type at issue in this case might prejudice future negotiations. In its submissions, it said that in conducting its operations, and in particular in carrying out its statutory function of attracting foreign direct investment to Ireland, it needs to be able to deal confidentially with, and gather information through confidential interactions with, third parties. It said that, in addition, it needs to be in a position to create or receive records which may be used for or relate to commercially sensitive negotiations conducted or to be conducted by the IDA with various stakeholders including, in this case, a landowner with a view to an acquisition of property being made. It argued that such sensitive information includes, but is not limited to, valuations of the land in question. It said it also engages with and sells to indigenous Irish companies, and argued that they would also be negatively impacted by the release of sensitive and confidential information. It argued that disclosure of the redacted information in the records concerned could have a detrimental effect on its negotiating position and would negatively impact its ability to carry out its mandate.

The IDA added that it holds confidential discussions with landowners and developers and commissions confidential reports on sites of land, including with regard to their value. It argued that revealing this information could affect its ability to negotiate effectively in future and impact the quality of discussions taking place as part of its discussions with property agents and landowners. It argued that revealing this information publicly could reasonably be expected to affect the quality of discussions and prejudice the effectiveness of any advice or investigations sought on Ireland-�s options for future developments in this area. It argued that the release of information relating to its property portfolio and the availability of public and private lands in the region to national and international competitors as well as to other prospective vendors would significantly weaken its negotiating power.

The IDA further argued that there is a public interest in the IDA being able to maintain the confidentiality of its negotiations where those negotiations are on-going with promoters, investors, landowners, and property developers, as this would ultimately result in a benefit to the Irish taxpayer where foreign direct investment is secured as a result of such confidential negotiations. It argued that even where negotiations have concluded, there is still a strong public interest in exempting such details from disclosure as they will highlight the IDA-�s negotiation strategy and will be indicative of its future negotiation strategy. It argued that this may put the IDA at a significant disadvantage.

The IDA went on to say that other negotiations may also be impacted by the release of advice, valuations, strategy and other information relating to this case. It said it is actively pursuing acquisition opportunities in key locations where existing IDA land-banks have diminished due to foreign direct investment and that there are engagements currently underway at a number of different locations. It considers these locations highly confidential and sensitive at this point in time and it argued that if it became known that information such as valuations and folio numbers (which therefore link the property to the pricing) of IDA purchases and sales were likely to be made public, it could jeopardise ongoing and future negotiations with respect to investment at those locations between the IDA and potential vendors, purchasers or other relevant stakeholders.

The IDA added that the release of the information would provide an insight to competitors into its negotiating tactics and its method of identifying appropriate land for investment. It argued that it is important to note that while it is a semi-state body, it competes with private sector bodies in respect of land acquisition and it also competes with bodies which carry out a similar role to the IDA in other jurisdictions which are seeking to attract foreign direct investment. It argued that an insight into the negotiation processes and strategies of the IDA would have a similar impact on the IDA as it would have on any private sector company whose confidential and commercially sensitive information is disclosed, including providing an undue competitive advantage to competitors.

The IDA went on to identify a range of factors it deemed to be public interest factors against release of the information at issue. It seems to me that the IDA-�s arguments can generally be summarised as concerns that the release of what it regards as sensitive confidential and commercial information could reasonably be expected to prejudice ongoing and future negotiations and that release of information that discloses its negotiation strategy would be indicative of its future negotiation strategy, thereby putting it at a significant disadvantage.

During our consideration of the IDA-�s submissions, we sought further clarification on its argument that the release of the records at issue could reasonably be expected to result in material financial loss or gain to the IDA in the context of negotiations to attract foreign direct investment into Ireland. In its response, the IDA provided further information which I consider to be relevant to my consideration of the public interest balancing test in section 30(2). I am limited in the extent to which I can divulge that information by section 25(3) of the FOI Act which, as outlined above, requires me to take all reasonable steps in conducting a review to prevent the disclosure of exempt information. However, I believe I can appropriately say that the IDA has identified certain ongoing current negotiations that it considers could be adversely affected by the release the information to which I have found section 30(1)(c) to apply. It argued that the acquisition of lands in Ireland can be very sensitive and that vendors typically seek to engage on the strictest of confidence. It argued that the potential disclosure in the public domain of the amounts paid for, and other details in relation to, the site that it acquired at this highly sensitive stage could negatively impact the ongoing negotiations. It said disclosure could require it to disengage from the

confidential process as commercial/financial expectations of potential vendors may be unduly elevated.

I have carefully considered the IDA-�s arguments in light of my findings that the disclosure of the information to which I have found section 30(1)(c) to apply would not disclose 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 the IDA, but could reasonably be expected to disclose positions taken in the particular negotiations for the purchase of the site in question.

It appears to me that the IDA is arguing that third parties will refuse or be reluctant to negotiate with the IDA in relation to the acquisition of land if details such as the precise identity of the land and financial details such as the valuation of the property were to be disclosed. As a general proposition, I do not accept that parties engaged in the sale of lands to a semi-state body that has been subject to the FOI Act for more than twenty years can reasonably expect that such information would remain confidential once the sale has been completed. I fully accept that there would be a general expectation that negotiations would remain confidential whilst ongoing but I do not believe that those expectations would reasonably continue after the completion of the negotiations. Indeed, it is noteworthy that neither of the third party vendors that this Office notified of the review sought to make a submission in relation to the possible release of the certain information concerning their dealings with the IDA. Accordingly, I do not accept the IDA-�s argument that third parties will be reluctant or refuse to negotiate with the IDA in relation to the acquisition of land if such details were disclosed upon completion of the sale.

Moreover, I do not accept that the disclosure of any of the information at issue would disclose the IDA-�s negotiating position to the extent that it could be used to the disadvantage of the IDA in other ongoing or future negotiations. For example, there is nothing in the information at issue, in my view, that would allow negotiating parties to undermine the IDA-�s negotiating positions or strategies in any way, once the particular negotiations which were the subject of the records were completed. As I have already stated, the IDA has not sufficiently explained how the disclosure of the information at issue could reasonably be expected to disclose 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 the IDA.

Notwithstanding the above, as I have previously outlined, the IDA has identified certain ongoing current negotiations that it considers could be adversely affected by the release of the information to which I have found section 30(1)(c) to apply. As section 25(3) of the Act requires me to take all reasonable precautions to prevent the release of exempt information, I do not consider it appropriate to elaborate on the nature of those negotiations. I can say that in the particular circumstances of this case, I accept that the release of the following information could give rise to the harms identified;

Record 1:

• final two bullet points on page 1
• All redactions on page 2
• All information from -�Cushman-� onwards redacted from Table in Appendix 1 entitled -�Summary of Overview Numbers-�

Record 2:

• Sentence commencing -�Their initial -�-� in paragraph 3 of page 2
• Paragraphs 4 and 5 on page 2
• The final redaction on page 2

In light of the ongoing negotiations referenced by the IDA, I find that the public interest would, on balance, be better served by refusing access to the above information at this time. I consider it to be in the public interest that the IDA can continue the negotiations in question without them being adversely affected by the release of the information. However, I would add that once the negotiations in question are completed, it seems to me that the balance of the public interest would shift the balance in favour of release, particularly in respect of the price paid for the site.

On the other hand, the remaining information is, in my view, quite specific to the purchase of the specific site at issue and I do not accept that its release could adversely affect the ongoing negotiations referenced by the IDA. Accordingly, in light of the public interest in allowing scrutiny of information regarding expenditure on the acquisition of state property generally, including the manner in which such acquisition and disposal is negotiated, I find that the public interest would, on balance, be better served by the release of the remaining information.

In summary, therefore, I find that the IDA was justified in refusing access, under section 30(1)(c) of the Act, to the following information only:

Record 1:

• final two bullet points on page 1
• All redactions on page 2
• All information from -�Cushman-� onwards redacted from Table in Appendix 1 entitled -�Summary of Overview Numbers-�

Record 2:

• Sentence commencing -�Their initial -�-� in paragraph 3 of page 2
• Paragraphs 4 and 5 on page 2
• The final redaction on page 2

Accordingly, I do not need to consider the applicability of any other exemptions cited by the IDA in respect of that information. However, as the IDA cited no other exemption in respect of the first two redactions on page 1 of record 2, I direct the release of that information.

Section 35(1)

The IDA cited both sections 35(1)(a) and 35(1)(b) as grounds for refusing access to all the material it redacted from Record 1, with the exception of the redaction of the folio confirmation at page 4 of the record, which it withheld under section 35(1)(b). In relation to Record 2, it cited section 35(1)(b) in respect of the redactions made to the first three paragraphs of page 1 and all redactions made to page 4, while it cited both sections 35(1)(a) and 35(1)(b) in respect of all redactions under the heading -�Current Status-� on page 2 and the folio number on page 2. As I have already found section 30(1)(c) to apply to some of that information as described above, I will not consider if section 35 also applies to it.

Section 35 provides as follows:

(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 by it 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, or

b. disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.

As section 35(1) does not apply if the records fall within the terms of section 35(2), I consider it appropriate as a first step to examine the applicability of section 35(2) to the information at issue. According to the IDA, Record 1 was prepared by a third party -�in their capacity as agent for IDA Ireland-�, while record 2 was created by the IDA. In its submissions, the IDA acknowledged that it is not possible to rely on section 35(1) where the obligation of confidentiality is owed to a service provider which is providing services to it or to another FOI body. Accordingly, section 35(1) cannot apply to any of the information in the records unless the 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 personother thanan FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.

On this point, the IDA argued that it owes a duty of confidence to the vendor of the site in question in respect of the purchase price and that it owes a duty of confidence to a third party mentioned in record 2 in respect of the details of the sale price (overall sale price and price per acre) of the IDA-�s sale of a site to that third party. However, as I have found section 30(1)(c) to apply to that information, I do not need to consider the IDA-�s arguments as to the applicability of section 35(1).

In respect of the remaining information at issue, the IDA made no references in its submissions to why it considers a duty of confidence might be owed to a person other than the IDA or a service provider which is providing services to it or to another FOI body, nor is it apparent to me how such a duty of confidence might be owed. In the circumstances, I find that the IDA has not justified its decision to refuse access to any other of the remaining information at issue under section 35(1).

Section 36(1)

The IDA cited sections 36(1)(b) and (c) as grounds for refusing access to all of the material it redacted from Record 1, with the exception of the section beginning -�If the holding -�-� on page 1. In relation to Record 2, it made the following redactions under sections 36(1)(b) and (c):     

• The redactions made to the first and second paragraphs under the heading -�Executive Summary-� on page 1
• All redactions made to page 2 under the heading -�Current Status-�
• All redactions made to page 2 under the heading -�Recommendation-�
• All redactions made to page 4

In addition, the IDA redacted information from page 11 under the heading -�Appendix C-� under section 36(1)(b) but not under section 36(1)(c).  

Section 36(1)(b) of the Act provides that an FOI body shall refuse to grant a request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. 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.

For section 36(1)(b) to apply, there must be a link between disclosure and the harms alleged. In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J held that it was 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. As the Supreme Court observed inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 (the -�ENet case-�), it is not sufficient for the FOI body to merely assert that disclosure could prejudice its competitive position; an FOI body must also have a reasonable basis for that position.

Section 36(1)(c) provides for the mandatory refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, this Office expects a party relying on section 36(1)(c) to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and to explain how exactly the disclosure could prejudice the conduct or outcome of same.

Much of the IDA-�s submissions in respect of the applicability of section 36 concern the information in the record relating to the valuation and proposed purchase price of the site, which I have found to be exempt under section 30(1)(c). Accordingly, I do not intend to address the IDA-�s arguments in respect of the applicability of section 36 to that information. Apart from that, the IDA made no specific reference to any of the other redacted information in it submissions. On the applicability of section 36(1)(b), it argued that disclosing the redacted information would give insight into the value of a particular site and the competitive position and strategy of the IDA and the owners of the site. It said the redacted information discloses the costs associated with the purchase of the site and that its release could reasonably be expected to result in a financial loss or gain to the vendor of the site as it might highlight the vendor-�s approach to property sales by revealing its negotiating position.

The IDA further argued that the release of the redacted information could be expected to result in material financial loss to the IDA in the context of negotiations to attract foreign direct investment where all underlying costs of a project are in the public domain and would give competitors an insight into the State-�s position and strategy in this area.

On the applicability of section 36(1)(c), the IDA again argued that disclosing the costs associated with the purchase of the site could be expected to prejudice the outcome of future negotiations that the IDA may have with other vendors and with foreign investors where those negotiations relate to the acquisition and/or use of lands by revealing the negotiating position that the IDA tends to take.

The information remaining at issue in record 1 comprises, among other things, the site folio, details of amounts spent on work to the site by the vendor and costs of further infrastructural works, and details of other available market evidence. The information remaining at issue in record 2 contains information relating to the IDA-�s land-bank, details of a previous sale of land by the IDA, general details of engagements with the vendor, the site folio, the identity of the vendor, and details of the IDA-�s marketable lands.

Having considered that information, I do not accept the IDA-�s arguments as to the harms that might arise by its release. The release of that information would not, in my view, give insight into the value of the particular site or the competitive position and strategy of the IDA. Moreover, its release would not result in all underlying costs of the project being in the public domain.

On the matter of the harm to the vendor identified, the IDA has not satisfactorily explained how the disclosure of the information at issue might highlight the vendor-�s approach to property sales or its negotiating position. It is relevant, in my view, that the vendor made no submissions despite having been invited to do so.

It seems to me that the IDA has made rather broad arguments in support of its position that no salient financial information relating to land purchase transactions should ever be released. While it has identified numerous harms it argues could arise, it has generally not, in my view, supported those arguments with a sufficient explanation of how such harms might arise from the release of the remaining redacted information at issue. The identification of specific harms alone, without identifying how such harms might arise as a result of the disclosure of the specific information at issue, does not meet the FOI body-�s obligation to justify its refusal of a request.

In summary, therefore, having regard to the provisions of section 22(12), I find that the IDA has not justified its refusal of the relevant information under section 36(1).

Section 37(1)

The IDA cited section 37(1) as the basis for withholding the following information from the records:

Record 1:

• Folio details of the site in question (pages 1, 3 and 4)
• Monetary amounts in first paragraph and first 2 bullet points (page 2)
• Valuation figure (shown twice) (page 2)
• Folio number of a separate property under the heading -�Appendix 1; Summary of Limited Available Market Evidence-� (page 3)

Record 2:

• The section of the record under the heading -�Current Status-� (page 2)
• Recommendation (page 2)
• Folio Number (page 2)
• Name of vendor (page 2)
• Price (page 2)
• Folio details (page 4)

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Section 2 of the Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details 14 specific categories of information that is personal without prejudice to the generality of the foregoing definition including, at paragraph (ii) of section 2, information relating to the financial affairs of the individual and, at paragraph (xiii), information relating to property of the individual (including the nature of the individual-�s title to any property).

In its submissions to this Office, the IDA argued that the name of the landowner is personal information, as is the price he was paid for the land sold, comprising information relating to his financial affairs. It noted that the vendor is an individual with the property registered in a company which incorporates his name and from which he is clearly identifiable.

In case 98022, the then Commissioner said the following in relation to whether certain information about a company can be said to comprise personal information relating to an individual:

-�The essential question to be decided in relation to all the records sought is whether they contain information about Mr AAG. Where a document contains a record of the views, comments or actions of a company director in relation to the business of the company or the views, comments or actions of another party in relation to the company director in his capacity as a director, I am of the view that the mere reference to the director by name in the record is not sufficient to enable it to be said that the record relates to personal information about the director. A company can only act through the agency of natural persons, generally its directors or employees. As a consequence it is almost inevitable that in a record referring to matters about a company or its business, references will also be made to such persons. In such cases it is necessary to decide whether the information in the record is about that individual or about the company-�.

It is clear from the definition of "personal information" that the term can only apply to information about an identifiable individual, meaning a natural person as opposed to a legal person such as a company. In my view there is no basis for seeking to treat a company as the same person as its directors or shareholders or any of them, for the purposes of the FOI Act.-�

The records at issue concern the IDA-�s dealings with a named limited company. Accordingly, it seems to me that the information is about the business of the company and does not comprise personal information relating to an individual. The fact that the name of the limited company may incorporate the name of an individual does not, in my view, mean that the information is personal information relating to that individual for the purposes of the FOI Act. I find that none of the redacted information relating to the site in question comprises personal information for the purposes of the FOI Act.

Regarding the folio number of a separate property as it appears at page 3 of Record 1, the details of the sale of the property are included under the heading -�Summary of Limited Available Market Evidence-�. The contents of the record suggest that the information in question was publicly available. The IDA argued that the specific folio number is personal information. While there is no evidence before me to suggest that the disclosure of the folio number would involve the disclosure of personal information relating to an identifiable individual, it seems to me, in any event, that section 37(2)(c) would serve to disapply the exemption in section 37(1). Section 37(2)(c) provides that section 37(1) does not apply if information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. Folio numbers are publicly available through the Property Registration Authority.

In summary, therefore, having regard to the provisions of section 22(12)(b) of the Act, I find, for the reasons set out above, that the IDA has not justified its decision to withhold any of the information at issue under section 37(1) of the Act.

Section 40(1)

The IDA cited sections 40(1)(a) and (c) as grounds for refusing access to all the material it redacted from Record 1, with the exception of the section beginning -�If the holding-�-� at page 1. It also cited sections 40(1)(a) and (c) as grounds on which to withhold all the material it redacted from Record 2, with the exception of the IDA meeting number and date at the top of page 1.

I should add that while the IDA cited sections 40(1)(a), (b), (c), and (d) as grounds for withholding information from page 11 in a schedule of the redactions it supplied to this Office, it made no reference to sections 40(1)b) or 40(1)(d) in its submissions to this Office. I take it, therefore, that the IDA did not rely on those provisions as a basis for withholding any information, and even if it had intended to do so, it seems to me that the IDA has failed to meet the requirement under section 22(12)(b) that it must justify its refusal to the satisfaction of the Information Commissioner.

Section 40(1) is a harm-based provision. Where an FOI body relies on section 40(1) it should, firstly, identify the potential harm specified in the relevant paragraph of subsection (1) that might arise from disclosure and, secondly, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should show the link between granting access to the record concerned and the harm identified. A claim for exemption under section 40(1) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

Section 40(1)(a)

Section 40(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record sought could reasonably be expected to have a serious, adverse effect on the ability of the Government to manage the national economy or on the financial interests of the State.

In relation to section 40(1)(a), the IDA submitted that its ability to attract foreign direct investment to Ireland had a direct impact on the economic prosperity of the State. It argued that the release of the unredacted records would result in the loss of an ability to negotiate on a confidential basis and the loss of an ability to protect commercially sensitive information, which had the potential to damage the State's broad financial interests, particularly in the areas of industrial development and foreign direct investment, to the detriment of the taxpayer. It argued that access to the records could result in potential market disruption at the location of the property. It argued that the release of the records could give a competitive advantage to other developers and third parties, and could encourage speculative bidding for lands by competing investors and funds, potentially driving up the value of lands at a significant cost to it and ultimately the taxpayer.

The IDA-�s first argument relating to its ability to attract foreign direct investment is based on the assumption that the release of the information at issue would result in the loss of an ability to negotiate on a confidential basis and the loss of an ability to protect commercially sensitive information. As will be clear from my findings in respect of the other exemptions above, with the exception of the information I have found to be exempt under section 30(1)(c), I do not accept that disclosure of the remaining information at issue could reasonably be expected to result in those harms. Regarding its concerns about speculative bidding, the IDA has not explained how the release of the information at issue could give rise to those harms. I note, for example, that it is already public knowledge that the IDA has purchased the site in question. For these reasons, and having regard to the provisions of section 22(12), I find that the IDA has not justified its refusal of the relevant information under section 40(1)(a).

Section 40(1)(c)

Section 40(1)(c) provides that an FOI body may refuse to grant a request if it considers that access to the record sought could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State, on their research activities or on the effectiveness of the industrial development strategy of the State, particularly in relation to the strategies of other states.

The IDA argued the disclosure of the information contained in the records about the value of lands and negotiating position taken by the IDA would prejudice the IDA in future negotiations with investors as the underlying costs of any IDA proposal related to these lands would be in the public domain. The IDA has not explained how such harms might arise. For the same reasons as I have set out above, I do not accept that the release of the remaining information at issue could reasonably be expected to prejudice the IDA in future negotiations. I find, therefore, having regard to the provisions of section 22(12), that the IDA has not justified its refusal of any of the information at issue under section 40(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the IDA in this case. I find that it was justified in redacting, under section 30(1)(c) of the Act, the following information:

Record 1:

• Final two bullet points on page 1
• All redactions on page 2
• All information from -�Cushman-� onwards redacted from Table in Appendix 1 entitled -�Summary of Overview Numbers-�

Record 2:

• Sentence commencing -�Their initial -�-� in paragraph 3 of page 2
• Paragraphs 4 and 5 on page 2
• The final redaction on page 2

I find that it was not justified in redacting any of the remaining information under the exemptions cited and I direct the release of that information.

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.

Stephen Rafferty
Senior Investigator