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Whether the Department was justified in its decision to refuse access to records, concerning the hosting of American Football events in Ireland, under various provisions of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 26 March 2013, the applicant made an FOI request to the Department for all records concerning (i) an American Football game which took place between Navy and Notre Dame in Aviva Stadium in 2012 ("the Emerald Isle Classic"); (ii) a bid or potential bid to host an American National Football League (NFL) game in Dublin in 2013 or beyond; (iii) Penn State University playing a fixture in Ireland and (iv) a U.S. based American Football Tournament Promoter.
The Department advised the applicant that granting access to certain requested records would affect eight third parties. The Department decided to informally consult with these third parties to allow them an opportunity to make submissions in relation to access to the records concerned. Three of the third parties objected to the release of the records concerning them. In its decision of 30 May 2013, the Department found that 70 records fell within the ambit of the request. The Department released 20 records in full, it released 17 records in part and it refused to release 33 records. The applicant sought an internal review of the Department's decision on 5 July 2013, which included the Department's refusal to release records that it had located, and its apparent inability to find further relevant records which the applicant believed it held. The Department issued its internal review decision on 30 July 2013. It stated that in relation to the absence of the records described by the applicant, it had searched its files again and found no further relevant records. Of the 70 relevant records, the Department decided to grant full access to 23 records; it granted part access to 28 records and it refused access to 19 records.

The applicant applied to this Office for a review of the Department's decision on 1 November 2013. On 28 November 2014, the applicant accepted this Office's view that certain elements of records 17, 47, 48, and 66 were exempt on the basis that they contained personal information. Accordingly, I will not address the redactions contained in these records in my analysis and findings.

On 1 December 2014, this Office gave a preliminary view to the Department in relation to the records it withheld in full or in part. On 7 January 2015, the Department agreed to release the records, with the exception of three groups of records. The Department redacted one line on page 6 of record 9 as it argued that it contained commercially sensitive information. The Department refused to release certain elements of records 19, 25, 26, 64, 66 and 67, which it considered to be outside the scope of the request. Finally, the Department refused to release records 22, 55, 57, 68 and 70, which contained information supplied by three third parties who had objected to the release of the records further to the Department's informal consultation. On 13 and 14 January 2015, this Office wrote to the three third party objectors to seek their comments regarding records 22, 55, 57, 68 and 70 before a final decision was made. Two of the third parties maintained their objections to the release of records relating to them. The other third party no longer objected to the release of the records concerning it.
In conducting my review, I have had regard to the submissions of the applicant, the third parties described above and the Department. I have also had regard to the contents of the records at issue, copies of which were provided to this Office for the purposes of this review. Finally, I have had regard to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the review

The applicant has made submissions in relation to the inadequacy of the Department's practices and procedures for the purposes of compliance with the FOI Act. However, a review such as this cannot assess the adequacy of the practices and procedures in place in a public body. Such an assessment, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act, while the present review, conducted pursuant to section 34 of the FOI Act, must be confined to reviewing whether the Department has justified its refusal of the request under the FOI Act.

The scope of this review is confined to whether the Department has justified its refusal of the remainder of records 19, 25, 26, 64, 66 and 67 and of records 22, 55, 57, 68 and 70 in full. I will also consider whether the Department was justified in redacting one line from page 6 of record 9.
I note that the applicant raised the adequacy of the Department's searches at internal review stage. The applicant did not specifically refer to the adequacy of searches in his submissions to this Office; however he did attach a copy of his internal review to his submissions and stated that the arguments made within are still valid. As the applicant was not satisfied that he received all relevant records in this application, he made a further request to the Department to capture any records not released. The decision of the Department in that case is the subject of a separate review application to this Office under reference 130272. In that case, this Office considered whether section 10(1)(a) of the Act applied i.e. whether the Department had carried out reasonable searches for any further records that might be held. The adequacy of the Department's searches is not, therefore, considered in this decision.

Analysis and Findings

At the outset, it is relevant to note a number of preliminary matters.

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

The release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of Mr. Justice O'Caoimh in Minister for Education and Science v Information Commissioner [2001] IEHC 116. Finally, section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest).

Records outside of Scope

Having considered the details withheld from records 19, 25, 26, 64, 66 and 67, I am satisfied that the details concerned relate to sports or events that are not specified in the applicant's original request. In these circumstances, I have no jurisdiction to consider the release of the details concerned and I find that they do not fall within the scope of my review.

Section 21(1)(c)
In relation to record 22, the Department relied on section 21(1)(c) of the FOI Act which provides that a head may refuse to release a record if, in the opinion of the head, granting the request 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 a public body. The section is designed to protect negotiating positions taken by or on behalf of the Government or a public body from being disclosed directly or indirectly to other parties in negotiations. A record found to be exempt under section 21(1)(c) shall be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).

Record 22
Record 22 is an email from a company to the Department requesting certain information from the Department concerning the Emerald Isle Classic. Record 22 does not contain details of any positions taken by the Department or the third party. Neither has the Department, or indeed, the third party, identified any negotiations that were being entered into at the time, or related negotiations that can reasonably be expected at this point in time, to which the details in the records were or may now be relevant. Furthermore, the Department has not identified any potential harm that might arise from disclosure. I find, therefore, that the Department has not justified its reliance on section 21(1)(c) in relation to record 22.

Section 27(1)(b)
The Department cited section 27(1)(b) in respect of part of record 9 and all of records 22, 55, 57, 68 and 70. Section 27(1)(b) protects 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 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

Record 9
The Department withheld details on page 6 of record 9 which reveal the negotiated price for stadium rental in relation to the Emerald Isle Classic game. The Department submitted that in relation to section 27(1)(b), it must take into account the fact that third parties may be in negotiations with other parties in relation to future commercial opportunities. According to the Department, the information contained in this document is such that, if disclosed, it may adversely affect the third party concerned in contractual negotiations which it may hold with other third parties in the future. In coming to its decision, the Department consulted with the third party concerned who objected to release of information concerning it. I am satisfied that release of this information could reasonably be expected to prejudice the competitive position of the stadium owner by weakening its ability to negotiate a higher price for future events. I therefore accept that section 27(1)(b) applies to the withheld details on page 6 of Record 9. I find accordingly.

I am required to consider, in accordance with section 27(3), whether the public interest would, on balance, be better served by the release of the information sought. There is a very strong public interest in government being open and accountable. However, there is also a public interest in preventing harm to parties by the disclosure of commercial information where disclosure could reasonably be expected to prejudice the position of the party concerned. It is important to note in this case that while Fáilte Ireland provided some sponsorship in relation to the Emerald Isle Classic, the stadium rental was paid by a private company. Having examined the information withheld in record 9, I am satisfied that, on balance the public interest is not better served by granting the request than by refusing it.

Record 22
The Department has claimed that record 22 is exempt under sections 27(1)(b). When consulted, the company which sent the record said that it would not like to upset its clients by having such information in the public domain and on this basis it objected to release of the record. I can find no financial, commercial or other information contained in the email which, if disclosed, could reasonably be expected to result in prejudice to the competitive position of the company or its client. I find that the Department has not justified its reliance on section 27(1)(b) in relation to record 22.

Records 55 and 57
Records 55 and 57 contain a letter sent by the Director of Athletics at an American Football Team to a third party. The letter was forwarded by the third party to the Department. The Department sought the views of the third party in relation to the release of this record. After considering the views of the third party, the Department decided that the records were commercially sensitive.

Ms. Mary Byrne, Investigator with this Office, invited the third party to explain why release of the records would be harmful to its business. In its reply, the third party said that it had built up a good commercial relationship with the team, that this relationship involves an element of trust which would be irreparably damaged if the letter was released resulting in the team refusing to enter into any future commercial negotiations with the third party. The third party also argued that other American Football Teams who had expressed an interest in hosting similar events would be discouraged from dealing with it. The third party therefore submitted that granting access to the records would cause it to suffer a financial loss and detrimentally affect its commercial operations. Finally, it argued that it was not in the public interest to grant access to the records.

The first harm test provided for under section 27(1)(b) exempts records whose disclosure "could reasonably be expected to" result in a material financial loss or gain to the person to whom the information relates. This test is not concerned with probabilities or possibilities, but rather the question of whether or not the decision maker's expectation is reasonable. The second harm test provided for under section 27(1)(b) exempts records the disclosure of which "could prejudice" the competitive position of the person to whom the information relates, in the conduct of his or her profession or business. The standard of proof required i.e. "could prejudice" is lower than that required under the "could reasonably be expected" test. In case number 98144 (Eircom Plc and Henry and the Department of Agriculture and Food available on www.oic.ie), the former Commissioner said:-

"It seems to me that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so..."

The third party has argued that the American Football Team would refuse to enter future commercial negotiations with it if the record was released. However, it seems that it was at the team's request that the third party sent the record to the Department. I also note that, despite certain difficulties in relation to the game in 2012, which were publicised, another high profile American Football game took place in Ireland in 2014. I am not satisfied that the standard of proof in relation to the first or second limb of section 27(1)(b) has been met. Accordingly I find that section 27(1)(b) does not apply to records 55 and 57.

Records 68 and 70
Records 68 and 70 were created by an American Football Tournament Organiser. These records refer to its dealings with the applicant's organisation, when attempting to organise American Football Tournaments in Ireland. The Department initially submitted that release of these records could harm any future plans that the Tournament Organiser might have for attracting future games to Ireland. In light of the Department's arguments, Ms. Byrne asked the organiser to confirm if it still objected to release of the records. In its reply, the third party said that it had no issue with release of the records. The exceptions to the application of section 27(1) are provided for in section 27(2). The first exception prevents the application of the exemption in circumstances where the person to whom the record relates has consented to its disclosure. As the third party has consented to the disclosure of records 68 and 70, I am satisfied that they are not exempt under section 27(1)(b) of the Act. I find accordingly.

Sections 31(1)(a), 31(2)(k), and 31(2)(n)
The Department cited sections 31(1)(a), 31(2)(k), and 31(2)(n) in respect of records 55, 57, 58 and 70. These sections of the FOI Act provide as follows:

Section 31(1)

"A head may refuse to grant a request under section 7 in relation to a record (and in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if in the opinion of the head"-

(a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy....

Section 31(2)

"This subsection applies to records in relation to"
...
(k) industrial development in the state
(n) information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body in relation to activities carried on by it on a commercial basis.

Section 31(1) does not apply, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 31(3) refers).

Records 55, 57, 68 and 70
In its submission, and notwithstanding that the relevant third party does not object to the release of records 68 and 70, the Department argued that the publication of these letters would draw attention to difficulties and thus make it more difficult to sell Ireland as a destination in a situation where it is competing with other countries. The Department also submitted that it is important to consider the economic value of these events. It said that, for example, the Notre Dame v Navy match saw 35,000 U.S. visitors visit Dublin. Reports have estimated that this one game generated an estimated boost of €100 million to the economy as a whole including €25 million in tax revenue. The Department submitted that, given the value of such events to the Exchequer as a whole and the value of such events to individual hoteliers and others involved in the tourism trade, the records fall to be considered under section 31(1)(a) of the FOI Act. The Department also considered that the records meet the description provided for in Section 31(2)(k) and (n). Finally, the Department submitted that there is no public interest in releasing information that could lead to loss of tourism earnings for the State, the loss of bed nights and other tourism expenditure to hotels, shops and businesses and thus impact on support for badly needed jobs in the economy.

Records 55, 57, 68 and 70 outline difficulties, which organisers and participants of an American Football game allegedly encountered with a private organisation. I am not satisfied that these records are captured by the category of information identified at section 31(2)(k) i.e. that they relate to industrial development in the state. I am also not satisfied that these records are captured by section 31(2)(n) i.e. that they contain information the disclosure of which could reasonably be expected to affect adversely the competitive position of a public body. Even if a record does not fall into any of the classes at 31(2), it could still be exempted under section 31(1); it is therefore necessary to consider section 31(1)(a) in relation to the records in their own right having regard to the Department's arguments and section 34(12).

It is hard to see how release of the type of information in the records at issue could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy. The issues surrounding the Navy v. Notre Dame game were well documented and publicised at the time leading up to and after the game and I do not accept that the content of the records is such that the Department's expectations are reasonable in all the circumstances. Accordingly, I do not consider the Department to have justified its refusal of the records at issue on the basis of section 31(1)(a) of the FOI Act and I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department. I direct the Department to release the withheld records remaining within the scope of this review to the applicant with the exception of the details concerning the negotiated fee for stadium rental contained on page 6 of record 9 which should be redacted.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator