THE HIGH COURT Record No. 2015 MCA 394 IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 Between:- THE MINISTER FOR COMMUNICATIONS ENERGY AND NATURAL RESOURCES Appellant AND THE INFORMATION COMMISSIONER Respondent AND GAVIN SHERIDAN First Notice Party AND E-NASC EIREANN TEORANT A (trading as enet) Second Notice Party OUTLINE LEGAL SUBMISSIONS OF THE APPELLANT Factual background 1. In January 2015 the First Notice Party, Mr Sheridan, made a request under the Freedom of Information Act 2014 (hereinafter ?the 2014 Act?) to the Appellant for access to the following records: ?The assets registry of the departments, including all lands, buildings and vehicles owned by the Department (?rst record) Lease registry including all properties leased by the Department (second record) an itemised record of any and all individual payments made to the MAN provider eNet in 2014, 2013 and 2015 (third record) any contracts from 2009 between the department and eNet in relation to the provision of broadband services via Metropolitan Area Networks (fourth record)? 2. The third and fourth records as identi?ed above are the records the subject matter of this appeal. 3. The Metropolitan Area Networks (MANs) were ?rst developed under the National Development Plan 2000-2006 for the Irish Government as part of the Regional Broadband Programme. The MANs are owned by the Appellant, the Minister for Communications, Energy and Natural Resources, and the Local Authorities in whose areas they are located. MANs consist of underground telecommunications networks linking the main commercial and public buildings to ?co-location centres?, where service providers locate their telecommunications equipment and access the network. MANs are available on a Wholesale, open-access basis to authorised telecommunications service providers to enable them to offer high- speed broadband to their retail customers Without having to build their own networks. 4. Following a competitive tender, the Appellant appointed the Second Notice Party, e-Nasc Eireann Teoranta (hereinafter ?enet?), in 2004 as a Management Service Entity to manage, maintain, market and operate the MANs (Phase I). By way of second competitive tender, enet again succeeded in tender and was appointedin 2009 to manage, maintain, market and operate the MANs (Phase II). In the ?rst tender competition, three tenderers competed for the contract. In the second tender competition, one tenderer competed. 5. Where reference is made to Phase I and Phase II, this refers to the delivery of the MANs Programme over two phases in the period 2002 to 2009. Twenty-eight MANS were constructed under Phase I between 2002 and 2004 and 60 MANs covering 66 towns were constructed under Phase II between 2006 and 2009. 6. enet provides ?bre-based services and products to authorised telecommunications service operators on a wholesale, open-access basis. Telecommunications operators obtain capacity and managed service from enet which they use to provide their services to their customers. This can include providing connectivity between sections of their own networks, whether owned directly or 10. leased from other third parties, or between their own networks and individual customers. Maximum prices are advertised publicly by enet to the market. These prices do not necessarily re?ect individual, commercially-negotiated prices, i.e. prices provided to or obtained by individual service providers in respect of speci?c connectivity between speci?ed locations. There are other competing infrastructures to these MANS in the areas where the MANs are located such that enet?s customers can obtain connectivity through other operators. Regarding the third category of record sought, on 14 January 2015 the Appellant consulted enet in accordance with the statutory procedure prescribed under s. 38 of the 2014 Act. Section 38 provides for a consultation in respect of an FOI request to which 5. 35(3), s. 36(3) or s. 37(5)(a) applies and which, apart from s. 38, the document would fall to be granted. Where that procedure is engaged, the Appellant must consider any submissions from a person to whom the information relates before deciding whether to grant or refuse to grant the request. Having considered the submissions of enet, the Appellant decided to refuse the request. Appellant?s FOI decision 11. 12 By letter dated 16 February 2015, the Appellant informed the First Notice Party that it was declining-the request under s. 35(1)(b) and s. 36(1) of the 2014 Act. The Appellant further did not con?rm the existence of record 3. .The Appellant refused access to the records as it considered that a duty of con?dence existed between the parties to the concession agreements, and that it would be a breach of that duty to release them under 01. The Appellant also considered inter alia that the release of the Concession Agreements could have a negative impact on the ability of enet to continue the business of managing the MANs on behalf of the State in a competitive environment and/or could prejudice the competitive position of enet in the conduct of its business. 7 Appeal to Respondent 13. On 2 March 2015, the First Notice Party applied to the Respondent for review of the Appellant?s decision in relation to the third and fourth records (and other matters not the subject of this appeal). 14. The Respondent made its decision on 30 November 2015, which was outside the time permitted to it under section 22(3) of the 2014 Act. 15. In its decision the Respondent varied the decision of the Appellant by: annulling the decision is respect of the fourth record and directing its release with the exception of paragraphs 2.1 to 2.3.4 of Schedule 4, Schedule 16 and 21 of the fourth record as they were already in the public domain; and (ii) directing the Appellant to con?rm or deny the existence of the third record and, if the third record existed, to decide whether to grant access to it. 16. In respect of the third record, the existence thereof is now effectively in the public domain in circumstances where, in private correspondence with a member of Dail Eireann dated 25 June 2015, the existence of payments was con?rmed, and draft text relating to the existence of payments for insertion in said correspondence was released under a recent OI request on 1 March 2016. For that reason only it is no longer in issue in this case. An erroneous statement of law is fatal to a decision 17. In a statutory appeal under the Freedom of Information Acts, it is well established that ?if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that is a ground for setting asidethe resulting 93 decisiOn see Deely Information Commissioner [2001] 3 IR 439, per McKechnie at 452. In that case the Court speci?ed the scope of this Court in considering an appeal on a point of law:-- it cannot set aside findings of primary fact unless there is no evidence to support such ?ndings; it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw; (0) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and ?nally; if the conclusion reached by such bodies shows that they have taken an erroneous View of the law, then that also is a ground for setting aside the resulting decision: 18. In Westwood Club Information Commissioner [2014] IEHC 375 Cross J. held that:? ?46. I accept that proposition that while there is a presumption in favour of disclosure there is no absolute right to disclosure.? In that case a decision of the Respondent: that incorrectly stated the burden of proof was set aside on appeal. 19. It is submitted that in this case the Respondent fell into error in each of the ways identi?ed in the grounding af?davit. Without prejudice to the generality of that, these outline submissions concern primarily the most significant of these errors. The Respondent erred in the following signi?cant ways: by substituting his own tests and criteria for that enacted by the Oireachtas the s. 36(3), and (ii) by placing an onus on the Appellant pursuant to s. 22(12)(b) where the said section did not apply to exemptions, by misinterpreting s. 36 in a manner which the Oireachtas cannot have intended, by misinterpreting s. 35 in a manner which the Oireachtas cannot have intended. As a result, the decision the subject matter of this appeal is, it is respectfully submitted, tainted by illegality and cannot stand. Mis-application of the presumption under s. 22(12)(b) 20. Section 22( 12) of the 2014 Act provides: In a review under this section? a decision to grant a request to which section 38 applies shall be presumed to have been justi?ed unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justi?ed, and a decision to refuse to grant an FOI request shall be presumed not to have been justi?ed unless the head concerned shows to the satisfaction of the Commissioner that the decision was justi?ed. 21. It is respectfully submitted that the Respondent erred in law in misinterpreting the presumption under as applying to a request to which section 38 applies. At pages 2 and 3 of the Respondent?s decision, under the heading ?Preliminary Matters?, it stated as follows: ?[S]ection 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justi?ed unless the public body ?shows to the satisfaction of the- Commissioner that the decision was justi?ed?. Therefore, in this case, the onus is on the Department to satisfy me that its decision is justi?ed.? 22. In Rotunda Hospital Information Commissioner [2013] 1 IR 1 Macken J. held as follows at p. 78 in relation to s. 34(12)(b) of the Freedom of Information Act 1997 (the materially similar enactment to s. 22(12)(b) of the 2014 Act under the 1997 Actl) and the non-operation of the presumption in respect of exempted records: separate argument of a more general nature is made by the respondent that she was entitled, in considering the application of s. 26(3), to have regard to the provisions of s. 34(12)(b) of the Act. It provides:- decision to refuse to grant a request under section 7 shall be presumed not to have been justi?ed unless the head concerned shows to the satisfaction of the Commissioner that the decision was justi?ed.? This is a very clear statement which, on its face, appears to apply to all decisions. I have no dif?culty in its application to all circumstances covered - by the right of access in s. I have a signi?cant dif?culty in its application to requests made in respect of information exempt from disclosure under Part of the Act, which by statute mandates a refusal, and to which no right of access exists. It is dif?cult to see how it would apply to the provisions of ss. 19 to 32, other than the head in question meeting the terms of the various sections. Even then it is dif?cult to see how a head goes about ?justifying? a decision in the case of, say, 5. which exempts from disclosure, inter alia, a record which has been or is proposed to be submitted to the Government for its consideration, which I take as the ?rst example of the type of record covered. Either s. 34(12) does not apply to such exempt records, or it is suf?ciently satis?ed by proof that the record in question is, in fact, one submitted to or is proposed to be submitted to the Government. Such proof would likely suf?ce if it is (made by an appropriate person, and could not be rejected by the respondent, save in the most exceptional circumstances, of which I can imagine none.- If therefore 34(12) of the Act does apply, and I do not accept the respondent has established that it does, to Part records, 1 S. 34(12) In a review under this section?e a decision to grant a request to which section 29 applies shall be presumed to have been justi?ed unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justi?ed, and a decision to refuse to grant a request under section 7 shall be presumed not to have been justi?ed unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified then compliance with the terms of s. 26(l)(a) also appears suf?cient to justify the decision made. In the present case I am satis?ed that that legal requirement was complied with by the submissions made on the part of the appellant responding to the criteria mentioned in the section itself, and from the terms of its original refusal. As I have mentioned previously in this judgment, neither the respondent nor the High Court Judge suggested that the opinion criteria mentioned in s. 26(1)(a) were not met.? 23. As is clear from the decision of Macken ., in respect of Part exempt records records which are contended to be commercially sensitive or con?dential), the presumption under s. 22(12)(b) does not apply and the Appellant is under no onus to satisfy the Respondent that the decision to refuse the request was justi?ed; as Macken J. held: ?the statute mandates a refusal?. This reasoning applies to refusals by a head pursuant ss. 35 and 36 of the 2014 Act. 24. Accordingly, the Respondent erred in law by imposing this onus on the Appellant and applying the general; provision under s. 22 in the manner it did in the impugned decision. 25. On this basis alone the decision ought to be set aside. Section 36 26. Section 36 of the 2014 Act provides in relevant part as follows: ?36(1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains? ?nancial, commercial, - scienti?c or technical or other information whose disclosure could reasonably be expected to result in a material ?nancial loss or gain to the person to Whom the information relates, or could prejudice the competitive position of that person in the 27. 28. 29. 30. 31. 32. conduct of his or her profession or business or otherwise in his or her occupation . (3) Subject to section 38, subsection 1) does 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 F01 request.? At page 6 of the Respondent?s review, he correctly identi?es that s. 36(1)(b) prescribes that an FOI request be refused where either criterion is satis?ed. The ?rst criterion is whether the disclosure of the information sought could reasonably be expected to result in a material ?nancial loss or gain to the person to whom the information relates. The second, alternative criterion, is whether the disclosure 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 Respondent held that the threshold for the ?rst is higher than that of the second: the head must satisfy itself that material ?nancial loss or gain could reasonably be expected where the ?rst is concerned, whereas it must only satisfy itself that the competitive position of the person concerned could be prejudiced where the second criterion is concerned. It is to be noted that in deciding to refuse the F01 request, the Appellant was of the opinion that the second criterion of the test under s. 36(1)(b) was satis?ed, i.e. enet?s competitive position could be prejudiced in the event of disclosure of the fourth record. 7 The Respondent herein decided that the ?rst criterion was not satis?ed. The Appellant did not decide the application on the basis of that ?rst criterion and it is dif?cult to see the relevance of setting out the test in relation to the ?rst. 33. 34. 35. 36. 37. The Respondent agreed with the Appellant that the second criterion was satis?ed, commenting as follows at page 7 of the determination: ?Having examined the submissions, I accept that in broad terms, the details provided point to a possibility that enet?s competitors and/or customers could seek to use the information in the contract to their advantage, thereby prejudicing enet?s competitive position. I am therefore satis?ed that section 36(l)(b) applies to the fourth record.? To this point the Appellant and the Respondent agree. However, the precise basis upon which the exemption was established was not relevant. It is noted that the Respondent de?ned the ?rst criterion as seemingly involving a more onerous test. That is irrelevant: either a record is covered by or it is not: in this case the Respondent accepted that it was so covered and that the record thereby concerned commercially (etc) sensitive information. Public interest test In the circumstances, it: became necessary-for the Respondent (and, prior to him, the Appellant) to decide whether, on balance, the public interest lay in the disclosure or non?disclosure of the fourth record; this is prescribed by section 36(3). The Respondent fell into error when applying the test in respect of public interest under s. 36(3). In particular, in applying the burden of proof, the Respondent substituted its own test for that as set out in the statute, seemingly ignoring that the public interest in granting the request is to be balanced against the public interest in refusing it. In addition, the factors considered were-not relevant. As can be seen from page 7 of the Respondent?s review, he overturned the decision of the Appellant not to release the fourth record due to the parties not having pointed-to ?any exceptional circumstances that apply in this case such as to override the need for transparency?. [Emphasis added] Insofar as this is a legal test it is not one provided for by law and is the appliCation of too high a threshold and is an error of law. 10 38. 39. 40 41. 42. At paragraph 3 of page 7 of the decision the Respondent expressly applied and adopted the views of the Respondent in Case 99183 (McKeever Rowan) and Case 98049 (Henry Ford) to section 36. The Respondent quoted the ?principles? and ?views? that he was adopting to section 36 in the immediately preceding paragraph. The Respondent expressly adopted for the purpose of s. 36 an interpretation that the Department could not reasonably be expected to keep con?dential information or commercially sensitive information free from disclosure in the absence of exceptional circumstances. In the same paragraphs, the Respondent expressly adopted for the purpose of s. 36 an interpretation that no public body could have an understanding that the details of the. expenditure of public funding would be kept con?dential following the enactment of the Freedom of Information Act 2014. . In the same paragraphs the Respondent observed when interpreting and applying 5. 36 that the parties had not pointed to exceptional circumstances that would over?ride the need for disclosure. The wording used here by the Respondent suggests that he read into s. 36 a presumption that all records containing commercially sensitive information are to be released except where there are exceptional circumstances justifying their non- disclosure. That is not the statutory test and there is no justi?cation for either rewriting the section or implying . in either statutory condition. In doing so the Respondent erred in law. No High Court authority is quoted to support this interpretation of s. 36, which is erroneous. The Respondent put weight on the fact that eNet was the successful bidder at a tender process for the use of a State-owned asset which generates revenue and that there should be transparency around this transaction. In that the Respondent fundamentally erred: the true meaning of the Act is that there should be transparency around the transaction unless the exemption under s. 36 applies. ,11 43considering the public interest the Respondent repeatedly made reference to the ?information contained in the record.? It is of note that the Respondent had accepted that the information was in fact prima facie exempt as commercially sensitive under section 36, but the information is never described by it in those terms when considering and applying the public interest test. The Respondent?s decision as a whole expresses the opinion that contracts with State bodies should be transparently disclosed and that the 01 Act exists to achieve this. This is to ignore the enactment of s. 36, the purpose of which is to primafacie exempt records from disclosure which fall within the test stipulated by the Oireachtas. To decide that, because a commercial entity was the successful bidder at a tender process: for the use of State owned asset-Which generates revenue, the records Should be disclosed is to render s. 36 of no effect and deprive that enactment of its purpose. The Respondent is required to consider the stipulations in the enactment, not to ignore or rewrite them. It is submitted that the reverse is mandated by statute: prima facie such commercially sensitive records are notto be disclosed; release is to be made only where the public interest in their disclosure outweighs the statutorily recognised interest in non-disclosure. It seems that the Respondent believed that section 36 required that the Appellant demonstrate that releasing of the contract would ?totally undermine? enet?s business (see ?fth paragraph page 7). The Respondent?s own decision in Case 98114 is quoted as authority for this. This is an error of law. The Respondent manifestly erred in law by requiring a disclosure to ?totally undermine? the business of the company or to deter private bodies from transacting business with the State in order for the public interest test to be satisfied. This reasoning is a further, if collateral, undermining of the criteria set by the Oireachtas in section 12 49. 50. 51. 36(1)(b) of the Act. It is an incorrect legal interpretation of the public interest and a legally incorrect application thereof. The Respondent when interpreting and applying 3. 36 was mindful of the principle of openness expressed in section 11(3) of the Act, as referred at paragraph 6, page 7 of the decision. But he failed to identify or make reference to section 11(7) which provides that: ?nothing in this section shall be construed as applying the right of access to an exempt record where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release.? The Respondent disregarded that enactment and failed to heed its wording or intent. It is respectfully submitted that the test as applied by the Respondent is one which would disproportionately favour disclosure in the circumstances, whereas the Oireachtas intended that such information was not to be disclosed save where a proportionate balancing of the public interest resulted in a determination that disclosure was preferable. The case of Rotunda Hospital Information Commissioner [2013] 1 IR 1 concerned a requester who made an FOI request to the appellant hospital for information relating to his birth mother. This request was refused due to the said information containing personal information and being therefore a Part exempted record. The Commissioner annulled the decision of the hospital, on the basis of the public interest override, ?nding that there was a strong public interest in persons generally having the fullest possible information on their origins. The hospital was unsuccessful in its appeal of the'Commissioner?s decision to the High Court, and appealed further to the Supreme Court. The Supreme Court allowed the appeal. Fennelly and Macken JJ. commented at length on the matter of the public interest. 13 52. Macken J. made the following comments at p. 76: ?It seems not at all clear to me that there is anything in the Act which supports or suggests that there is, in law, an overriding public interest of the type invoked by the respondent. On the contrary, such an approach in considering only a so-called public interest in a requester having information relating to the circumstances of birth, suggests an interpretation of the Act coming close to establishing a right of access to exempt information, which can only be denied by some exceptional circumstances. That is not a correct application of s. 26(3) of the Act, and ignores the provisions of s. 6(7) of the Act as they apply to Part The passage continues: Rather, as mentioned above, in circumstanCes where a tension exists between a right of access under s. 6(1) rights of aCCess and other rights recognised as being important, and therefore exempt-from disclosure under Part of the Act, the Act mandates a refusal of information. The right generating the exemption under s. 26(1)(a) is a private interest right vesting primarily in the appellant, on the facts of this case, and the information sought must be refused, provided the appellant is in a position to meet the tests set out there. In such circumstances, any ?public interest? would, in my View, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law. In the present case, the respondent made a statement of alleged policy as constituting the 6public interest?. There is no evidence that the Oireachtas has adopted such a policy. I am of the View that, at least on the materials mentioned, no established public interest has been properly identi?ed. I am not satisfied that the private right Vesting in the appellant, arising from the giving of information and its status in its hands, and the private right of a person to have information concerning his birth mother, are those which fall into, the category of public interest rights contemplated by s. 26(3). The structure of Part is to permit and even mandate refusal, provided the terms 14 of s. 26(1)(a) are met, as I ?nd they were here. A true ?public interest? over and above the terms of the section, must therefore be found to exist. That adopted by the respondent does not fall into the category of a clear policy decision, which the respondent is not, in any event, mandated by the Act to adopt.? 53. The above extract is quoted in extensio because it concisely encapsulates the argument sought to be advanced by the Appellant. The logic in Macken comments cannot be impugned, and an obvious parallel can be drawn between the error into which the Commissioner fell in the Rotunda case and the error that the Commissioner fell into in the present case. 54. In contrast the Appellant applied the correct test in deciding to refuse the F01 request. It is clear that the Appellant formed the opinion that, on balance, the public interest would not have been better served by releasing the fourth record. The Appellant balanced the general principle of state and. local government accountability, particularly in the realm of the expenditure of public money, against inter alia: the harm that might be occasioned to enet?s competitive position, and (ii) the prejudicing of future contracts of a similar nature, particularly where future tenderers might be reluctant to engage in the tender process given the possibility of their commercial information being released pursuant to an FOI request. 55. Underpinning these errors is a consistent ?aw in approach: the Respondent erred in favouring the purpose of the FOI Act in general (to ensure openness and accountability of public bodies as to how they conduct their business) whilst failing to identify and take into account the specific purpose(s) of Section 35 and Section 36 enacted by the Oireachtas. In its decision, the Respondent repeatedly emphasises the former while failing to consider or minimising the latter. The public interest generally under s. 35 and 36 56. Where the Appellant (or, on review, the Respondent) is charged with deciding whether the public interest favours the disclosure or non-disclosure of an exempted record under s. 35 Or s. 36 of the 2014 Act, various competing elements 15 must be balanced against one another. The long title of the 2014 Act explains its purpose as being:- ?to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it . . 57. Section 11(3) expands further: An FOI body, in performing any function under this Act, shall have regard the need to achieve greater openness in the activities of F01 bodies and to promote adherence by them to the principle of transparency in government and public affairs, . the need to strengthen the accountability and improve the quality of decision?making of FOI bodies, and . the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of F01 bodies. 58. On 26 May 2015, Ms Breda Holly of the Department of Communications, Energy and Natural Resources sent an e-mail to Mr. Richard Crowley of the Office of the information Commissioner detailing the reasoning behind the Appellant?s decision not to disclose the relevant records; this e-mail is exhibited at FRI of Ms Finola Rossi?s af?davit grounding this appeal. As can be seen therefrom, when the Appellant conducted the public interest balancing-test as mandated by the 2014 Act, the following reasons were enumerated infavour of the release of the fourth record: 16 There is a public interest consideration in enhancing the accountability of government. (ii) There is a public interest in ensuring that state and local government agencies are accountable to the public for the decisions they make and related expenditure. 59. However, the Appellant balanced the above reasons against the following favouring non-disclosure: The company (enet) should be able to carry out its business with the State, its customers and its suppliers in an effective manner without being impeded. (ii) Clause 32 of the Concession Agreements provides that all the parties to the Concession Agreement keep con?dential the Agreement and all matters relating to the Agreement.- It further provides that the Contracting Authority will use reasonable endeavours to prevent (or procure the prevention of) such disclosure in respect of Con?dential Information or commercially Sensitive Information. There is no overriding public interest for the release of the information which would constitute a breach of con?dence. (iv) enet is a private company managing assets on behalf of the State on a commercial basis. Any release of contractual or ?nancial information could prejudice its competitive position. The State?s position in any future similar type contracts could be seriously undermined if potential bidders were aware that commercial information of the nature requested could be released under an FOI request. This could cause serious harm to the State?s ability to attract bidders for infrastructure projects. 17 60. 61. 62. 63. (vi) Third Party consideration enet produced a strong case for the information not to be released. It is submitted that the Appellant?s Opinion, that the public interest favoured the non?disclosure of the fourth record, was well founded, in that speci?c reasons weighed against the disclosure of the record whereas only general principles. weighed in favour of the disclosure. The interest of parties other than the Appellant and second Notice Party was not properly considered by the Respondent in his determination of the public interest as regards the disclosure of commercially sensitive information. It is accepted that previous decisions of the Commissioner are not binding on this Honourable Court; however, where such said decisions are well reasoned, it is respectfully submitted that it is appropriate for the Court to be informed of them. In this regard, reference is made to Irish Times Department of Transport (Case No. 0600054, 27 July 2010), which concerned a request for the release of records relating to the large-scale transport investment programme entitled ?Transport 21 In this case, it fell to be determined whether the public interest lay in permitting access to certain records, where s. 21(1)(c) of the 1997 Act vested a discretion in a head to refuse access where same might reasonably be expected to ?disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body?; section 21(2) provided for the usual saver in respect of the balancing of the public interest. Though not dealing directly with confidential or commercially sensitive records within the meaning the 2014 Act, the section pertains to an ?exempted record? and, accordingly, it is respectfully submitted that the reasoning of the former Commissioner is applicable to the present case: ?Public Interest 18 I also consider it reasonable to accept that release of the details as contained in the records would be to the advantage of the tenderers involved, particularly where the effectiveness of normal competitive tender processes is likely to be reduced by the limited number of tenderers that would be capable of progressing such large scale and complex projects such as those the subject of the records. In this regard, it may be worth reiterating that only four consortia world-wide met the pre-quali?cation criteria for Metro North. As set out earlier in this decision, despite the fact that the records at issue in this case can be seen as historic, I am satis?ed that tenderers could derive current total capital costs by combining details in the records with other details in the public domain, which could result in tendered prices that are towards the top end of the budgets concerned. I have also, as set out earlier, been satis?ed that tenderers would be similarly able to arrive at current component costs (such as operating budgets and risk allowances). Particularly where quantitative and qualitative assessments of risk allowances are concerned, I have been satis?ed that such disclosurecould lead to a greater risk of in?ated compensation claims from contractors than might otherwise be the case (such risk being likely to exist in respect of the Transport'21 projects until ?nal accounts are signed off). I have also been satis?ed that disclosure of details relevant to the ?nancing of the Line B1 project could compromise the ability to negotiate the 'best possible terms for funding and security packages for other Transport 21 project-s. Overall, I accept that scenarios such as the above could result in the various Transport 21 projects becoming excessively expensive, which is not in- thepublic interest of- ensuring value for taxpayer money for that overall investment programme. Thus, having considered the public interests in favour of and against release of the details at issue, I ?nd that it is appropriate for me, in the circumstances of this case, to ?nd that the public interest in favour of withholding the details outweighs the public interests in their release. I ?nd, accordingly, that the remaining details should not be released further to section 21(1)(c) of the FOI Act.? 19 64. It is respectfully submitted that the views of the Commissioner as set out above are rational, sensible and logical. It is fair to paraphrase the ?ndings therein as being that the release of certain commercially sensitive information would be detrimental to the tender process by reducing the competiveness inherent in such a process. The Respondent did not explain in the impugned decision why it did not determine this appeal in a manner consistent and comparable with its decision in the Irish Times case. The issues raised in the said decision were very similar to those raised herein though the public interest was found to lie in favour of non- disclosure of the relevant records. It is submitted that the same result should have followed. No regard was had to that previous decision or its rationale by the Respondent in the impugned decision. Other issues:- 65. The Respondent erred in law in considering that because of an overlap between information obtained in con?dence and commercially sensitive information that the Respondent should treat them both as governed by the Section 38 procedure, contrary to the wording of Act which does not make s38 applicable to information that is con?dential pursuant to of the Act. 66. The Respondent erred "in law- by stepping into the role of the head and/or in substituting its opinion for that of the head and/or in failing to show due deference to the decision of the head pursuant to s. 35(3) and/or 36(3) of the 2014 Act. (This is without prejudice to our earlier submission that s.35(3) is inapplicable in this instance; see para 65.) 67. Insofar as the Respondent applied its own previous decisions concerning the sale of a public assets or thedirect expenditure of public monies, these are not relevant to the issues raised or the particular public interest under consideration. 68. The Respondent erred in holding at page 7 that: ?the parties have not pointed to any exceptional circumstances that apply in this case such as to override the need for transparency. to apply an exceptional circumstances test is legally incorrect. Secondly, the ?need for transparency? must be tempered by the fact that the record in question is recognised as being primafacie exempt. 20 69. 70. The Respondent held (page 7) that there was a contradiction between the arguments on the one hand, competitors will use the information in future tenders, and yet on the other hand, competitors will be deterred from entering into future tenders. No reason was cited as to why this is a contradiction. It is entirely possible for certain potential bidders to consider the information in making a bid, but for others to be deterred from making a bid. The Respondent engaged in pure supposition without any evidential basis and the conclusion is irrational. The Respondent further held (page 7) that the contract under consideration relates to one particular phase and it did not follow that the State?s requirements will be exactly the same. This is pure speculation on the part of the Respondent and is a failure to provide adequate reasons as mandated by section 22( 10.) In any case, the Respondent cannot deny that the requirements may well be exactly the same, in which case this reasoning is manifestly'inapplicable and incorrect. Section 35 duty of con?dence - 71. 72. 73. 74. The Respondent?s reasoning under this section is confused and wrong. The Respondent erred in law in ?nding that it was not satisfied that releasing the fourth record would breach a duty of a confidence for the purpose of Section 35(l)(b) of the FOI Act. This was a misinterpretation of that provision and operates to deprive it of any real effect. At page 8 paragraph 5 the decision records that: ?on examining clause 32, I note that it itself is subject to the 0] Act?. And, the point is picked up again at the final paragraph, where it is said that -?although Clause 32(1): of the contract requires the parties to keep the contract con?dential, clause 32(2) disapplies this obligation to disclosures which are required under the FOI This is circular reasoning. No High Court authority is quoted in support of this approach and interpretation of section 35. 21 75submitted that this reasoning is defective and unfair. If this decision stands, a body that enters into an agreement with a private company involving an express duty of con?dentiality, but which informs the private body that it is subject to release under the provisions of the FOI Act, is precluded from relying on s. 35 because the reference to release under the F01 renders the section inapplicable because the duty is broken by the inclusion of the reference. That is an irrational and circular reasoning or interpretation of section In one sense it compels of the public body the impossible - or that which it cannot do or in any event should not do. It also has the far-reaching consequence that a public body that includes such a clause in a con?dentiality agreement, which is a standard clause in such contracts, is thereby precluded from relying on section 35. That cannot be the intention of the Oireachtas. If section 35 is not available to prescribed bodies in this circumstance the section is robbed of its basic effect and purpose. The capricious nature of the reasoning becomes clear when one considers that the legal effect of the Respondent?s reasoning can only be escaped if a public body does not inform a third party that the con?dentiality is subject to some higher authority, such as a court order or a decision under the FOI Act. But agreeing contracts-with private parties (such as eNet) that expressly promise that con?dential information will not be disclosed by the public body, are not enforceable given that the FOI Act is of general application to prescribed public bodies and is contrary to the overall objectives of promoting and informing about the transparency requirement in the FOI Act. That interpretation of section 35(1)(b) which compels the absurd Or the impossible is not normally to be attributed to the legislature: [ex non cogz't ad impossibilia. The fact that the contract contained a statement concerning the application of 01 Act is legally irrelevant: the Act is applicable whatever the terms of the contract, 22 save to the extent permitted by the very terms of itself. The impugned reasoning negates this latter exclusion. 82. The Respondent further erred in law in ?nding that the parties did not have a mutual expectation of con?dentiality concerning the contract. Same was contained in the contract and was submitted to the Respondent by enet. In any case, the Respondent?s decision on that aspect also relied on the wrong and circular reasoning that the relevant contractual clause did not put the contract out of reach of the 01 Act. No contractual provision or other agreement ordinarily can. 83. In addition, the Respondent erred in law:- in ?nding that the records should be disclosed because eNet entered into a contract with the State to manage a valuable State owned asset which would bear income for eNet; in ?nding that the department?s initial proposal to release the contract in the public interest undermined the assertion of the parties felt bound by mutual expectation of con?dentiality. Section 35(2) 84. The Respondent erred in considering matters under Section 35(2) without making a speci?c ?nding in respect of Section 35(1) of the FOI Act, 2014. 85. The Respondent also erred in the manner in which it applied section 35(2), which provides:- ?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 con?dence 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 01 body or of such a service provider.? 23 86. 87. 88. 89. The Respondent held this sub-section to disapply s.35(1) in this case as there was an agreement between the head and the service provider. That is a misreading of section 35(2) which applies to a record prepared by the head (or other person acting as agent such as a service provider) in the course performance of his or her functions qua head. In this instance, enet was such a third party, not a service provider performing the functions of a head: it did not negotiate an agreement on behalf of the head with itself. The duty owed in the relevant record (the agreement) is owed by the head to a third party that is such a third party in the context of that agreement. That the third party is also a service provider pursuant to that agreement is not the issue. That the section applied to such records only as are created by a head (or service provider acting in his or her stead) in the performance of the relevant function qua head is clear from the use of the phrase ?or of such a service provider.? [Emphasis added] The service provider thereby referenced is the same as that mentioned in the earlier brackets that created the record acting qua head. Conclusion 90. The Respondent?s decision manifests signi?cant errors of law which were directly pertinent to the decision taken and the decision should be set aside. February 9th 2017. DAVID DODD BL CONOR POWER SC Word Count:7,562. 24