Whether NUIM was justified in refusing access to records relating to a planning application

13 June 2023

Background

In a request dated 2 October 2022, the applicant sought access to any report, sanction, approval, cost-benefit analysis, value for money audit, or other such record, relating to NUIM-�s decision to scrap plans to build a new student centre. On 26 October 2023, NUIM refused the request, citing sections 32(1), 29(1), 30(1) and 36(1) of the FOI Act. On 27 October, the applicant sought an internal review of NUIM-�s decision. Among other things, he noted that no schedule of records had been provided, nor did the decision explain why NUIM considered the exemptions cited to apply or indicate that the public interest tests in the various exemptions had been considered.

NUIM failed to issue an internal review decision within the period provided for by the FOI Act and on 16 December 2022, the applicant sought a review by this Office of the refusal of his request. Subsequently, on 13 January 2023, NUIM informed the applicant of its effective position on his request. It identified five records as falling within the scope of the request, and withheld all five under sections 29(1)(a), 30(1)(c), 31(1)(a), 36(1)(b) and 36(1)(c) of the FOI Act.

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 correspondence between the applicant and NUIM as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether NUIM was justified in withholding access, under sections 29(1), 30(1)(c), 31(1) and 36(1) of the FOI Act, to the five records sought by the applicant.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, the manner in which NUIM processed the applicant-�s request in this case was very poor. Its original decision fell well short of the requirements of section 13(2)(d) of the FOI Act which requires that a decision to refuse a request must contain the reasons for the refusal, any provision of the FOI Act pursuant to which the request is refused, the findings on any material issues relevant to the decision, and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. NUIM also failed to follow the Code of Practice published by the Minister for Public Expenditure and Reform which provides that the FOI body should include with its decision a schedule of records identified, providing details of those records being released in full, of those to which partial access is being given and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made.  Moreover, NUIM also failed to issue its internal review decision on the applicant-�s request within the timeframes set down in the FOI Act. I wish to take this opportunity to urge NUIM to take immediate steps to ensure that its FOI processing procedures comply with both the statutory requirements of the Act and with the published Code of Practice which is available atwww.foi.gov.ie.

Secondly, it is important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.-�

Finally, section 22(12)(b) of the Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. In this case, therefore, the onus is on NUIM to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Analysis and Findings

Section 36(1)

Having examined the records at issue, and the exemptions in the FOI Act under which NUIM sought to withhold each record from release, I consider it appropriate to analyse the applicability of section 36(1) first. NUIM cited sections 36(1)(b) and (c) as grounds to withhold records 1, 2, 4 and 5. The relevant records are as follows:

• record 1 is a paper presented by the Bursar and Secretary (the Bursar) to NUIM-�s Governing Authority on 22 September 2022 on the matter of the student centre;
• record 2 is a document outlining costings related to the student centre project, which was presented to NUIM-�s Governing Authority on 22 September 2022;
• record 4 is a report dated 5 July 2022 on a claim made by the contractor;
• record 5 is a PowerPoint presentation prepared by the Bursar and provided to the Governing Authority on 22 September 2022.

Section 36(1)(b)

Section 36(1) of the FOI Act provides a mandatory exemption to the release of a record where it 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.  It should be noted that 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 whether disclosure of the information -�could reasonably be expected to result in material financial loss or gain-�. The test in this regard is not a question of probabilities or possibilities, but rather whether the FOI body-�s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate the nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record at issue.

The harm test in the second part of subsection (1)(b) is whether 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. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

In its submissions on section 36(1)(b), NUIM identified as the relevant information material relating to the pricing of the student centre project, fluctuations in costs over time, a detailed breakdown of spending on project, costs and budgeting information. I accept that this is financial, commercial and technical information for the purposes of section 36(1)(b).

In respect of the material financial loss or gain which it expected to result from the disclosure of the relevant information, and in relation to its expectation that such disclosure could reasonably be expected to cause that result, NUIM stated as follows. It argued that the release of the information could would give a material advantage to a future tenderer in pricing a tender for any further or similar projects within NUIM, as they would have knowledge of what NUIM could afford to pay in certain scenarios. NUIM stated that this would result in it suffering a material financial loss. Additionally, NUIM argued that if  current and potential future contractors had access to the information in the records, they would be able to form a view as to its internal governance, financial budgets and spends, contractual imperatives and approach to project and risk management. Such disclosures, NUIM argued, would result in it being compromised in its ability to apply optimum leverage in such arrangements. NUIM argued that, taken as a whole, the information in the records, if disclosed, could reasonably be expected to result in a less advantageous deal for it. This in turn could result in delays to the roll-out of student facilities for the benefit of the student population and greater expense to NUIM, which in turn would reduce value for money for the State which also provides it with funding.

Regarding the basis on which NUIM believed the release of the records could prejudice its competitive position, it stated that the information in the records, relating to strategy, risk, governance and pricing assessments, could place contractors at a significant advantage by gaining knowledge relating to its position on such matters. It argued that disclosure of the financial, commercial and technical detail in the records could significantly reduce the level of competition in the market for contractors as these contractors would all be able to use this information to tailor (i.e. increase) pricing for specific service, to NUIM-�s detriment.

I have considered the content of the records in light of NUIM-�s arguments above and find as follows. I consider that each of records 1, 2, 4 and 5 contain specific and granular detail about the costing and budget for the student centre project. I take the view that this is clearly information that would likely to be of great interest to third parties seeking to contract with NUIM. Any such future contractors would be able to avail of this information to their advantage in tendering for contacts with NUIM, and could therefore place themselves at an advantage, and NUIM at a disadvantage, in entering into future contracts. I therefore accept that the release of the information could reasonably be expected to result in the harms identified by NUIM, and to both result in financial loss to it and to adversely affect its competitive position. I therefore find that both harm tests in section 36(1)(b) of the FOI Act are satisfied.
Having so found, I am required to go on to consider the public interest test in section 36(3) of the FOI Act, which provides that, subject to section 38, section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. In its submissions on the public interest in the context of section 36(1), NUIM identified, as public interest factors in favour of releasing the records, the public interest in transparency, accountability and facilitating scrutiny of its use of public funds. Against this, it stated that the public interest factors favouring withholding the records included the fact that the student centre project did not utilise public money (having been funded by way of a student levy) and that key information about the project had already been made public. NUIM also argued that providing access to the records risked causing disruption and prejudice to the delivery of the student centre or other student facilities and the remedies available to it in respect of its dealings with the external contractor. NUIM stated that, in balancing the competing factors, its assessment was that the public interest was better served by refusing access to the records. NUIM also noted that it had engaged with the Oireachtas Public Accounts Committee (PAC) in relation to the decision to terminate the construction contract for the student centre, and that the PAC had agreed not to release the information contained in the records that were the subject of this request into the public domain. NUIM argued that, as a result of this engagement, the public interest in transparency and accountability had been served.

I have carefully considered the public interest factors for and against the release of the information and, on balance, I am minded to accept the arguments put forward by NUIM. I consider that, especially in light of the fact that the student centre project was not funded by public money, and in light of the potential harms NUIM has identified, and which I accept, the public interest is better served by the withholding, rather than the granting, of access to the records.
Accordingly, I find that records 1, 2, 4 and 5 are exempt from release under section 36(1)(b) of the FOI Act.

Section 36(1)(c)

In circumstances where I have found that the records at issue are exempt under subsection (b) of section 36(1), I am not required to consider the extent to which they might also be exempt under subsection (c).

Section 29(1) and Section 30(1)

NUIM cited section 29(1) of the FOI Act as a basis for refusing access to records 1 and 5, and section 30(1)(c) as a basis on which to withhold access to records 1, 2, 4 and 5. In circumstances where I have found that records 1, 2, 4 and 5 are all exempt from release under section 36(1)(b) of the FOI Act, I am not required to examine the extent to which they also might be exempt under either section 29(1) or section 30(1)(c).

Section 31(1)

NUIM cited section 31(1) of the FOI Act as a basis for withholding records 1, 3, 4 and 5. In circumstances where I have found records 1, 4 and 5 to be exempt from release under section 36(1)(b), it is not necessary for me to examine the extent to which they might also be exempt under section31(1). It therefore remains for me to consider the extent to which section 31(1) might operate to exempt from release record 3, which is a memo to NUIM from its solicitor dated 8 August 2022.

Section 31(1) of the FOI Act provides that Section 31(1)(a) provides for the mandatory refusal of access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).

LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege) and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

NUIM argued that legal advice privilege attached to record 3. The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity.

On an examination of record 3, it seems clear to me that it falls within the scope of legal advice privilege. The record is undoubtedly a communication between a client (NUIM) and its legal adviser (NUIM-�s solicitor), and the latter is equally clearly acting in its professional capacity. Having considered the nature and contents of the records at issue, I find that legal advice privilege attaches to record 3, and therefore that section 31(1)(a) of the FOI Act applies to exempt that record from release.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm NUIM-�s decision. I find that NUIM was justified in withholding the records sought under section and 31(1) and 36(1)(b) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Neill Dougan
Investigator