Cinneadh
Mr Ken Foxe, Right to Know CLG and IDA Ireland
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-113635-G4L4W9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-113635-G4L4W9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
i) Whether IDA Ireland were justified in withholding information on the basis that article 8(a)(iv) applies
ii) Whether IDA Ireland were justified in withholding information to certain information on the basis that article 9(1)(C) applies
4 November 2025
1. On 30 June 2021, the appellant requested the following information from IDA Ireland (I have labelled them Parts 1-4 for ease of reference):
1. Copies of all correspondence between Apple and IDA Ireland with regard to the purchase or location of sites for use as data centres.
2. Copies of any business case, cost benefit analysis, or other such discussion documents associated with the purchase or sale of land for use by Apple as a data centre.
3. Copies of any valuations associated with the purchase or sale of lands by the IDA from Coillte and/or Apple for use as a data centre.
4. A copy of the contract between IDA Ireland and a/ Coillte or b/ Apple with regard to the purchase of land for use as a data centre.
2. IDA Ireland asked the appellant to refine the scope of the request. The appellant subsequently agreed to refine the scope of part 1 of the request to the following (my emphasis in bold):
- Copies of all correspondence (from 1 March 2021 to the date the request was received and 1 Feb 2018 to 31 June 2018) between Apple and held in the email account of the CEO of IDA Ireland, and the email account of the Head of Property of IDA Ireland with regard to the purchase or location of sites for use as data centres.
3. IDA Ireland issued its original decision on 16 August 2021. It stated it had identified one record related to part 3 of the appellant’s request, a 33-page Valuation Report, and it was withholding certain information contained within it on the basis of article 8(a)(i), article 8(a)(iv) and article 9 (1)(c) of the AIE Regulations.
4. With regards part 1 of the appellant’s request, IDA Ireland stated that correspondence from the Head of Property and the CEO were searched in order to locate these records however, no records were found in the timeframe requested.
5. With regards part 4 of the appellant’s request, IDA Ireland stated that“there are no environmental or business case details of relevance to this request in the files gathered for review. IDA does not have consents from all the parties to this request. Therefore, I would consider that commercially sensitive information with respect to contracts cannot be released in order not to prejudice the position of the parties to this request.”
6. IDA Ireland stated it had attached a schedule of records with the decision. IDA Ireland also stated that it took into account whether the information at issue relates to emissions in accordance with article 10(1). It concluded that it did not. IDA Ireland also took into account the public interest balancing test, in accordance with article 10(3) and 10(4) of the AIE Regulations. It concluded that the public interest would not be served by disclosing the information requested by the appellant.
7. Firstly, with regards the information it refused release of under article 8(a)(i), contained within the Valuation Report, it considered the following in favour of release:“Requesters exercising their rights under FOI Act, and, openness and transparency of public bodies.” In favour of withholding it stated: “protecting the rights to privacy, information is not environmental information, and, information provides no insight into the workings of public bodies.” IDA Ireland concluded that it is not in the public interest to release this information.
8. With regards the information redacted within the Valuation Report under article 8(a)(iv) and article 9 (1)(c), IDA Ireland stated the following:“As part of its strategy, IDA Ireland regularly reviews its property portfolio to determine if it meets the needs of current and future clients. At all times the agency must be aware of its commitment to ensuring that it invests in the right property to gain maximum benefit for the Irish economy. In this regard IDA holds confidential discussions with landowners and developers and commissions reports on particular lands. IDA Ireland is responsible for the attraction and development of foreign investment in Ireland and if suitable potential sites were not identified and sourced by IDA Ireland this would hamper IDA’s ability to attract FDI projects.”
9. With regards article 9(1)(c), IDA Ireland stated that“disclosing this information could impede IDA in future negotiations and seriously impede its ability to make informed decision while carrying out its functions. Some of the redacted information in the Valuation Report relates to lands owned by a third party and release of this data could undermine their negotiating position and could reasonably be expected to result in a material loss of income. The release of this information could also prejudice the competitive position of this land-owner and affect IDA Ireland’s negotiating position with regard to client expansions and new foreign direct investment. Disclosing this information would also prejudice companies and third parties from providing information of a similar nature. IDA Ireland will continue to need this type of information from third parties to make informed decisions in its ongoing role in presenting potential property solutions to client companies and the ongoing task of attracting and retaining Foreign Direct investment in Ireland. It is the view of IDA Ireland that the disclosure of this information could reasonably be expected to affect adversely the competitive position of the Agency in relation to these activities carried out by our Property Department and in turn result in unwarranted loss to the organisation and the State. While it is in the public interest to know that operations of Government and public bodies are transparent, it would not be in the public interest to release the redacted information as this could result in a reduction in income both for the third parties and public bodies. There is also a public interest in the body and third parties being able to maintain the confidentiality of their deliberative process where those deliberative processes relate to ongoing and future negotiations. Therefore, on balance it is not in the public interest to release this information. It would be in the public interest to release the information for the following reasons;
• the right of individuals to have access to information
• The public interest in openness of administration, including the need for the public to be better informed
• The general public interest in obtaining access to information held by public bodies.
• Accountability for use of public funds
It would be contrary to the public interest to release the information for the following reasons;
• IDA Ireland is operating in a very competitive international market for FDI and the disclosure of IDA’s deliberations on the preparation of this record could reveal sensitive data to our competitors
• This could reveal IDA’s competitive position and future investment plans, which could impact on IDA’s ability to deliver on the IDA Strategy
• The need to protect the integrity and viability of the decision-making processes of IDA Ireland.
• The potential impact on the efficient and economical performance of IDA Ireland and the country.
• The release of this information could impede IDA in future negotiations and seriously impede its ability to make informed decision while carrying out its functions.
• The release of this information would seriously impact the quality of internal discussions in IDA and the relationship between IDA Ireland and key stakeholders.
• Undermining IDA Ireland’s competitive position.
• The release of this information could reduce the effectiveness of internal procedures within IDA Ireland and undermine the deliberations of staff.
• IDA Ireland should not be unduly impeded in the effective pursuit of its business.
Having weighed up the public interest regarding the release or non-release of the information in these records, on balance I have decided that preserving IDA Ireland’s credibility in its internal deliberations which would impact relations with its stakeholders and its ability to deliver results in economic development terms for the country and its people takes precedence to the public interest in the openness and accountability of public bodies.”
10. The appellant requested an internal review on 17 August 2021, stating the following:“we revised the scope of this request on the basis it was likely to encompass a large number of records. However, given only a single record has been scheduled, it now appears this refinement was sought in bad faith - the information is not commercially sensitive, and certainly does not continue to be so given the passage of time involved. The IDA continues for reasons best known to itself to ignore decisions of the Information Commissioner relating to expenditure of public funds.
- some of the redacted information appears to be information that was in the public domain relating to other similar properties, which were on sale at the time.
- despite the revision of scope, we do not believe that all relevant records have been scheduled for this request.
- any information relating to this project is demonstrably environmental given it relates to the purchase of land for the development of a data centre. This is supported by multiple recent decisions of the OCEI available on their website.”
11. IDA Ireland issued its internal review on 17 September 2021. It stated it was varying the original decision. It stated that in addition to the one record (the Valuation Report) already released, it had identified and was providing an“appropriately redacted” second record relating to part 2 of the appellant’s request. It described this as“the agenda and notes of an internal meeting of the Property Committee of the Board of IDA Ireland with respect to those lands” , hereinafter referred to as the“Committee Note.” The internal review set out its response to each of the four parts of the appellant’s request in turn.
12. Regarding part 1 of the request-“copies of all correspondence” , IDA Ireland submitted that the email account of the CEO, and the email account of the Head of Property, were searched in order to locate relevant correspondence however, no correspondence was found.
13. Regarding part 2 of the request –“copies of the Business Case, Cost Benefit Analysis, Discussion Documents” , IDA Ireland referred to the Committee Note record stating it had been“appropriately redacted to exclude elements that are commercially sensitive, obtained in confidence, out of scope or that would not be released under FOI (Article 8(a)(iv)).”
14. Regarding part 3 of the appellant request –“copies of any Valuations” , IDA Ireland stated it was affirming this element of the original decision in respect of granting access to one record with some information redacted by reason of article 8(a)(i), Article 8(a)(iv),and article 9 (1)(c).
15. Finally, with regards part 4 of the appellant’s request, the contracts, IDA Ireland stated that these records do not contain environmental information and so are“outside the scope of this request.” It also stated that“in addition, these records are commercially sensitive and would not be released under FOI and therefore Article 8(a)(iv) would apply”.
16. IDA Ireland stated that the information at issue does not relate to emissions in accordance with article 10(1). It then went on to consider the public interest balancing test as required by - article 10(3) and 10(4). IDA Ireland determined that the public interest would not be served by disclosing the redacted information within the scope of the appellant’s request. IDA Ireland set out the same points it had made in the original decision in respect of this weighing up, and concluded that the public interest in withholding the information outweighed the interest served in disclosing the information.
17. IDA Ireland also set out the public interest test in respect of the information redacted in the two records on the basis of Article 8(a)(iv). It stated that IDA Ireland“regularly reviews its property portfolio to determine if it meets the needs of current and future clients. The agency must be aware of its commitment to ensuring that it invests in the right property to gain maximum benefit for the Irish economy. Revealing this information would adversely impact the relationship between IDA Ireland and key stakeholders. IDA Ireland must be able to gather information through internal and external interactions with assurances of confidentiality to carry out its function of winning FDI. In this regard IDA holds confidential discussions with landowners and developers and commissions reports on particular lands. IDA Ireland is responsible for the attraction, retention and development of foreign direct investment (FDI) in Ireland, and if suitable potential sites were not identified and sourced by IDA Ireland, this would hamper IDA’s ability to attract and retain FDI. Therefore, as a result, this could significantly affect IDA’s competitiveness in attracting and retaining foreign direct investment in Ireland, and potentially reduce a vital source of investment for the Irish economy. IDA also needs to be able to present commercially sensitive information gathered in confidence to internal decision makers so that they can make informed decisions on the management of the IDA Property portfolio”.
It would be in the public interest to release the information for the following reasons:
• The public interest in openness of administration, including the need for the public to be better informed.
• The general public interest in obtaining access to information held by public bodies.
• Right of individuals to have access to information. It would be contrary to the public interest to release the information for the following reasons:
• Disclosure of this information would hinder IDA’s ability to make informed decisions whilst carrying out its functions.
• The release of this information would seriously impact the quality of confidential internal discussions in IDA and the relationship between IDA Ireland and key stakeholders.
• The need to protect the integrity and viability of the confidential decision-making processes of IDA Ireland.
• The release of this information could harm future decision making without countervailing benefit to the public.
• Need to preserve confidentiality having regard to the subject matter and the circumstances of the communications.
• IDA Ireland should not be unduly impeded in the effective pursuit of its business. In recognising the right of the public for access to information and the accountability of Government Bodies, the disclosure of these records could pose a serious risk to the internal workings of IDA Ireland and its confidential decision-making processes. On balance, having weighed up the public interest regarding the release or non-release of the information in these records, I have decided that preserving IDA Ireland’s authority in its internal deliberations, which would impact its ability to deliver results in economic development terms for the state and its people, takes precedence to the public interest in the openness and accountability of public bodies.“
18. IDA Ireland stated it is relying on article 9 (1)(c) to withhold the contract records, and certain information within the Valuation Report and Committee Note. In this regard it states“I would consider that commercially sensitive information with respect to contracts cannot be released in order not to prejudice the position of the parties. Disclosing the information within the valuation report could impede IDA in future negotiations and seriously impede its ability to make informed decision while carrying out its functions. The redacted information in the Valuation Report relates to lands owned by a third party and release of this data could undermine their negotiating position and therefore could reasonably be expected to result in a material loss of income. Revealing this information could also prejudice the competitive position of this landowner and affect IDA Ireland’s negotiating position with regard to future client expansions and new foreign direct investment. Disclosing this information would also prejudice companies and third parties from providing information of a similar nature. IDA Ireland will continue to need this type of information from third parties to make informed decisions in its ongoing role in presenting potential property solutions to client companies and the ongoing task of attracting and retaining Foreign Direct investment in the state. As stated above IDA needs to be able to present commercially sensitive information gathered in confidence to internal decision makers so that they can make informed decisions on the management of the IDA Property portfolio. The provision of appropriate property solutions is utilised by IDA when competing with other jurisdictions to attract FDI to Ireland. It is the view of the agency that the disclosure of this information could reasonably be expected to affect adversely the competitive position of IDA Ireland in relation to these activities carried out by our Property Department and in turn result in unwarranted loss to the organisation and the State.
It would be in the public interest to release the information for the following reasons;
• The right of individuals to have access to information
• The public interest in openness of administration, including the need for the public to be better informed
• The general public interest in obtaining access to information held by public bodies.
• Accountability for use of public funds
It would be contrary to the public interest to release the information for the following reasons;
• The release of this information could impede IDA in future negotiations and seriously impede its ability to make informed decision while carrying out its functions.
• Undermining IDA Ireland’s competitive position.
• IDA Ireland should not be unduly impeded in the effective pursuit of its business.
• IDA Ireland is operating in a very competitive international market for FDI and the disclosure of IDA’s deliberations on the preparation of this record could reveal sensitive data to our competitors
• The need to protect the integrity and viability of the decision-making processes of IDA Ireland.
• The potential impact on the efficient and economical performance of IDA Ireland and the country.
• The release of this information would seriously impact the quality of internal discussions in IDA and the relationship between IDA Ireland and key stakeholders.
• The release of this information could reduce the effectiveness of internal procedures within IDA Ireland and undermine the deliberations of staff. While it is in the public interest to know that operations of Government and public bodies are transparent, it would not be in the public interest to release the redacted information as this could result in a reduction in income both for the third parties and public bodies. There is also a public interest in the body and third parties being able to maintain the confidentiality of their deliberative process where those deliberative processes relate to ongoing and future negotiations. In addition, preserving IDA Ireland’s credibility in its deliberations which would impact relations with its stakeholders, and its ability to deliver results in economic development terms for the country and its people, takes precedence to the public interest in the openness and accountability of public bodies. Therefore, on balance it is not in the public interest to release this information.”
19. On 28 September 2021, the appellant submitted an appeal to this Office of IDA Ireland’s internal review decision.
20. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the IDA Ireland. I have also examined the contents of the records at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
21. During the course of the appeal, a number of detailed submissions were provided by IDA Ireland in relation to requests for focussed submissions sent by investigators from this Office. An investigator from this Office also wrote to the two third parties involved, the purchaser of the land in the transaction to which the AIE request relates, and the agent who carried out the Valuation Report. Both responded and their views have been taken into account in this review. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
22. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I may require the public authority to make available environmental information to the appellant.
23. IDA Ireland’s position in its initial submission to this Office, with regards the“contracts” pertaining to Part 4 of the appellant’s request, was that they do not fall within the definition of environmental information in accordance with article 2(1) of the AIE Regulations. IDA Ireland has since changed its position on this, and now accepts that these records do fall within the definition of environmental information, but are refusing access to these records in their entirety on the basis of article 8(a)(iv) and article 9(1)(c).
24. Further, IDA Ireland originally sought to rely on article 8(a)(i) to withhold the name of the surveyor in the Valuation Report record. Article 8(a)(i) protects-“the confidentiality of personal information relating to a natural person, who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.” In the course of the appeal, IDA Ireland amended its position and has determined that, “although the name of the author previously withheld in the Valuation Report constitutes “personal information relating to a natural person who has not consented to the disclosure of the information” on balance, the confidentiality of this information is not still otherwise protected by law due to the passage of time. Therefore, IDA Ireland proposes releasing this information to the requester and as stated above.”
25. Accordingly, IDA Ireland is no longer relying on article 8(a)(i) to withhold the name of the surveyor in the Valuation Report, therefore this information is outside the scope of this review.
26. The following records have been identified as being in scope of the appellant’s request:
- The “contracts” – IDA Ireland rely on article 9(1)(c) and article 8(a)(iv) to withhold these records in their entirety
- Valuation Report – IDA Ireland rely on article 8(a)(iv) to withhold certain information is contained within this record
- Committee Note - IDA Ireland rely on article 8(a)(iv) to withhold certain information contained within this record
27. I am satisfied that the scope of this review is concerned with whether IDA Ireland was justified in refusing access to information coming within the scope of the appellant’s request contained in the aforementioned records under articles 8(a)(iv) and 9(1)(c) of the AIE Regulations.
28. I consider it appropriate to comment on the unusual length of time this appeal has been with this Office. The Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court (in relation to another appeal), seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014.
29. As IDA Ireland in the present appeal had sought to rely on both articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, it was not possible to progress this case until the High Court provided its legal guidance. As such, this appeal was placed on hold pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at 2023 IEHC 227 .
30. In this judgment, the High Court stated at paragraph 111:
“The FOI Act only protects the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act. Records are only exempt where the public body seeking to withhold access is a body subject to the FOI Act, as defined by section 6 of the FOI Act, and where (if applicable), both limbs of the test for exemption are met: the records come within an exemption protecting the confidentiality of proceedings of public bodies and the public interest does not warrant disclosure. As Coillte is an “exempt agency” under the Act, the confidentiality protection under the FOI Act identified in Regulation 8(a)(iv) is not available to Coillte.”
31. As IDA Ireland is an FOI body, it follows from the above that it is open to it to rely on the provisions of the FOI Act when seeking to apply article 8(a)(iv) and article 9(1)(c) in the AIE Regulations to information sought in an AIE request. I will proceed with my review on this basis.
32. IDA Ireland have sought to withhold the following information on the basis that article 8(a)(iv) and article 9(1)(c) applies (for ease of reference I have labelled them records 1, 2 and 3):
Record 1 – certain information contained within the Valuation Report from September 2014. Of this 33-page document, IDA Ireland are withholding three key pieces of information. These are all financial figures and can be categorised as follows:
- The price that 8 other “comparable” lands sold for
- The capital value the land is estimated at
- The special assumption value the land is estimated at
Record 2 – certain information contained within the IDA Ireland Property Committee of the Board memo dated 13 January 2015. The redacted information can be broadly summarised as follows:
- The financial figure the investment is estimated at
- The financial figure agreed by IDA Ireland to Coillte for the transaction of the land in question
- Detail of the acquisition process
- 5 conditions that the Property Committee of the Board recommended that the Board approval is subject to
Record 3 – the contracts for the sale of land in their entirety.
33. Article 8 (a)(iv) permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law, (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).
34. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect the interest being protected. Further, as per Land Baden Wurttemberg at paragraph 69, “a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon.”
35. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality of the final stage of decision-making being undermined must be reasonably foreseeable and not purely hypothetical.
36. The term“proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings“refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based.
37. The Court noted“…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that“the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
38. In the present case, IDA Ireland has relied on article 8(a)(iv) to refuse access to the contracts of sale in their entirety, as well as certain information contained within the Valuation report and the Committee Note.
39. In this case, I consider the relevant proceedings to be the decision-making process involved in the purchase and sale of lands by IDA Ireland from Coillte to Apple for use as a data centre. It is crucial to note that article 8 (a)(iv) of the AIE Regulations only protects the“final decision-making stage” of the process and not the entire administrative process leading up to that decision. IDA Ireland’s position is that“the redacted information in both the Valuation Report and the Committee Note, along with the entirety of the Contracts, consist of information on the “final stages” of the IDA’s decision-making process. These documents relate directly to the final stages of the decision-making procedure as they concern the decision by the Board to undertake to assist in the purchase and sale of land to an industrial undertaking, which IDA Ireland is empowered to do under the 1986 Act IDA Ireland submits that the redacted information in both the Valuation Report and the Committee Note, along with the entirety of the Contracts, consist of information on the “final stages” of the IDA’s decision-making process. These documents relate directly to the final stages of the decision-making procedure as they concern the decision by the Board to undertake to assist in the purchase and sale of land to an industrial undertaking, which IDA Ireland is empowered to do under the 1986 Act.”
40. IDA Ireland’s position is that “the term“proceedings” does not cover only the very last and final stage of a decision-making process (being the making of the decision), but the final stages, to include final deliberations and the final stages leading up to the ultimate decision.” I have considered IDA Ireland’s point here, however, as I have set out above, Advocate General Szpunar in Saint-Gobain Glass Deutschland was clear in his statement that“the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
41. Turning to each of the records individually, first I will consider whether the Valuation Report is the“final decision-making stage” of the process and not merely a part of the administrative process leading up to that decision. IDA Ireland’s position is that in this record,“the estimated price was redacted on account of it being an extremely significant (if not the most significant) factor that the Board was required to consider in deciding whether to acquire and dispose of the land. In its simplest form, it was an “expression of view” that necessitated consideration by the Board. The Board was required to assess the valuation provided by the service provider in deciding whether to sign off on the proposed transaction. Consequently, it directly relates to the “final stages” of the decision-making process. Disclosure of the redacted information in the Valuation Report would amount to disclosure of IDA Ireland’s assessment of the project at the time it was considered. IDA Ireland submits that the un-redacted sections of the report provide sufficient insight into the administrative procedure undertaken in any land purchase or sale that it pursues.”
42. The Valuation Report was carried out by a third-party company specialising in this area. Its contents were not binding on the Board of IDA Ireland. I consider the purpose of the Valuation Report as being to inform IDA Ireland’s decision, rather than constituting the deliberation itself. In such circumstances, I cannot see how such a Valuation Report could amount to or form part of the “final decision-making stage” of the process. I consider the Valuation Report to be a step in the administrative procedure, at the end of which IDA Ireland hold their proceedings as outlined in Saint-Gobain. For this reason, I consider that the Valuation Report does not form part of the final decision-making stage of the process, and article 8(a)(iv) cannot be found to apply.
43. Secondly, I have considered whether the Committee Note forms part of the“final decision-making stage” of the process and not merely a part of the administrative process leading up to that decision. IDA Ireland’s position is that the information redacted therein concerns“the project-specific factors regarding the site that the Board was required to consider. … the general factors the Board need to consider in any acquisition or disposal of land are set out in Section 16 of the 1986 Act and these factors are accessible to any member of the public. However, a substantial portion of the Committee Note (and the sections ultimately redacted) relate to information that was disclosed by the proposed purchaser of the land. This information links directly to {the third party purchaser’s] commercial intentions in their proposed use of the land, and were provided in confidence to IDA Ireland. The Board is required to be informed of this material information in carrying out its assessment of the commercial viability and employment prospects of the project, which is highly sensitive in nature. Disclosure of the redacted information in the Committee Note would equate to the disclosure of expressions of view on the transaction at the deliberation stage.”
44. My understanding is that the Committee Note would have been used to inform the discussion and deliberations of the Board of the IDA. It contains the Property Committee’s opinion as to the merits of the project, rather than detailing the discussions of the Board who make the final decision. As stated by IDA Ireland in submission to this Office,“the ultimate decision of the Board to either approve or reject the proposed transaction at the price considered and recommended by the Property Committee Board.” IDA Ireland stated in submission to us that the Board“technically would have had the power to act without the recommendation of the Property Committee, but that it would likely have led to corporate governance and due diligence questions being raised.” The record does not contain the deliberations or discussions that took place at IDA Ireland Board level as to whether or not to accept and act on the recommendation of the Property Committee Board. I consider that it is a step in the administrative procedure, at the end of which those authorities hold their proceedings as outlined in Saint-Gobain. For this reason, I consider that the Committee Note does not form part of the final decision-making stage of the process, and article 8(a)(iv) cannot be found to apply.
45. Finally, I have considered whether the contracts of sale form part of the“final decision-making stage” of the process. IDA Ireland’s position is that the contracts should be withheld in their entirety, on the basis that“they were ultimately the documents that would be approved or rejected as a result of the decision taken by the Board. The Contracts were considered carefully by the Board in detail at the final stage of this process. Disclosure of the Contracts would amount to disclosure of the expressions of view within IDA Ireland in how best to manage relationships with clients at the final stages of a significant transaction.”
46. The contracts at issue are for the sale of land and having examined them in detail I can see they relate to concluded agreements, which set out the decision itself to purchase/sell the land, and the agreed terms. I consider these clearly to be post- deliberation rather than part of the final stage deliberation process. I do not agree with submission from the IDA that the contracts contain “expressions of view” on the management of relationships with clients at the final stages of this transaction. Contracts for sale are legal documents which are drawn up once the decision to sell land, and therefore the final decision-making stage of the process has concluded. For this reason, I consider that the contracts do not form part of the final decision-making stage of the process, and article 8(a)(iv) cannot be found to apply.
47. As I have set out above, there are a number of elements, which must be satisfied before a refusal of information under article 8(a)(iv) arises – the first two being the case must involve “proceedings” of public authorities, and that it protects the “final decision-making stage” of the process and not the entire administrative process leading up to that decision. For the reasons set out above, I have found that the records at issue do not relate to the final decision-making stage of the process, therefore I cannot find that article 8 (a)(iv) applies in the circumstances of this appeal. In these circumstances, it is not necessary on this occasion for me to consider whether those proceedings have an element of confidentiality, whether that confidentiality would be adversely affected by the disclosure of the information requested; and whether the confidentiality would be protected by law. Similarly, it is not necessary on this occasion for me to consider the public interest balancing test as required by article 10(3) and 10(4) of the AIE Regulations.
48. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Articles 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
49. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4)
50. When relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The adverse effect on its legitimate economic interest must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
Is the information at issue commercial or industrial in nature?
51. Having examined the records, I am satisfied that the information at issue is commercial / industrial in nature. Within record 1, the Valuation Report record, IDA Ireland seeks to withhold the estimated value of the land, the estimated special assumption value and the similar local property sale prices. Record 2 is the Committee Note wherein the committee board approved the recommendation to sell the land. The redacted information includes the sale price agreed to and the conditions of this recommendation. The remaining records consist of contracts of sale and amendments to contracts of sale for the land at issue. Having closely examined the records, all of which relate to financial, legal and organisational matters, I am satisfied the information at issue is commercial/industrial in nature.
Does that commercial / industrial information have an element of confidentiality? Is that confidentiality provided for in law to protect a legitimate economic interest(s)? Would that economic interest, and thereby its confidentiality, be adversely affected by disclosure of the information at issue?
52. As noted above article 9(1)(c) of the AIE Regulations is based on Article 4(2)(d) of the AIE Directive which states:“Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect: the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy.”
53. While Article 4(2)(d) has been referenced by the Court of Justice of the European Union (“CJEU”) in a number of cases, the CJEU has not provided detailed guidance on this exemption. The CJEU has, however, provided useful guidance on the interpretation and application of Article 4(2) more generally: see in particular the judgment of the Grand Chamber of 14 February 2012 in C-204/09 Flachglas. As appears from that judgment (paragraphs 61-63):
• By specifying in Article 4(2) of Directive 2003/4 that the protection of the confidentiality must be ‘provided for by law’, the European Union legislature clearly wanted “an express provision to exist in national law with a precisely defined scope, and not merely a general legal context”.
• However, this specification “cannot be interpreted as requiring all the conditions for application of that ground for refusing access to environmental information to be determined in detail since, by their very nature, decisions taken in that domain are heavily dependent on the actual context in which they are adopted and necessitate an assessment of the nature of the documents in question and the stage of the administrative procedure at which the request for information is made”.
• Public authorities should not be able “to determine unilaterally the circumstances in which the confidentiality referred to in Article 4(2) of Directive 2003/4 can be invoked”.
54. In addition to the findings in Flachglas, the CJEU also considered the obligations on public authorities relying on exemptions in C-619-19 Land Baden-Württemberg v D.R. In that case the Court relied on Article 4(5) of the Directive, the last sentence of which puts an obligation on a public authority to state reasons for refusal of access to environmental information in writing to the requestor. At paragraph 69 of Land Baden-Württemberg v D.R the Court stated:“On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
55. Taking the above into account, I consider that article 9(1)(c) requires me to address the following questions:
• Is the confidentiality of the information protected by a national or EU law?
• Is that law in place to protect commercial or industrial confidentiality? • Does that law have a precisely defined scope?
• Is that law objective, such that it does not permit public authorities to determine unilaterally the circumstances in which confidentiality can be invoked?
• Would disclosure of the information have an adverse effect on a legitimate economic interest?
56. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c) the appellant must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51).
57. IDA Ireland have sought to refuse access under article 9(1)(c) of the AIE Regulations by reference to the following:
• Section 36(1)(b) of the FOI Act
• Section 36(1)(c) of the FOI Act
• Irish contract law
• Irish common law
58. I will first turn to section 36(1)(b) of the FOI Act which provides the following:
“36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains— (a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.”
59. The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm that might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. 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 records at issue should be shown by an FOI body or a third party relying on this provision.
60. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. While the degree of harm required to meet the harm test in the second part of this provision (“could prejudice”) is lower than that required to meet the test in the first part, the Commissioner takes the view that, in invoking the phrase "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
61. In considering the applicability of section 36(1)(b) in any case, other relevant factors may need to be considered, such as the availability otherwise of the information and whether it is in the public domain, the passage of time, and the broader context and rate of change in the relevant industry.
62. IDA Ireland has made a number of points throughout the course of this appeal regarding the material loss and harm that would result from the disclosure of the information at issue. Broadly speaking, IDA Ireland’s position with regards section 36(1)(b) is that“Disclosing the redacted information contained within the Valuation Report, Committee Note and the Contracts would give insight into the value of a particular site at a particular point in time. It also discloses the costs and acquisition process associated with the purchase of the land, as well as the terms on which it was purchased and the development investment the owner was planning to make, which is commercially sensitive information relating to the owner of the land.”
63. As set out earlier in the decision, the withheld information within the Valuation Report includes the estimated value of the land, the special estimated value of the land, and the price that 8 other “comparable” lands sold for in the area. IDA Ireland’s position is that disclosure of the information could reasonably be expected to affect the onward sale of the land by the current owner of the land, which might result in material/financial loss to the current owner of the land. In particular, it states that there is a risk that revealing past site valuations and comparable site prices may prejudice the value that the owner can now obtain for the site. It also states that this risk is not mitigated by the fact that the Valuation Report is from 2014.
64. I am not persuaded by the explanation provided by IDA Ireland that such harms could reasonably be expected to result from disclosure of the particular information in the Valuation Report. It is not apparent to me how such harms might arise when the valuation and indeed the sale took place over a decade ago, and property/land values have changed substantially over that time. I consider any prospective buyer is likely to arrange for their own due diligence checks to be carried out. This would likely include commissioning their own valuation report, which would likely take into account comparable site prices as is standard practice. I fail to see how the contents of this record, in particular the valuation itself or the price the comparable land was sold for would, in and of itself, result in a material financial loss to those parties or could prejudice their competitive position. I consider IDA Ireland has failed to provide specific detail as to how the release of the information (which is over 10 years old) would affect any future sales process in a way that could reasonably expected to result in a material loss, or could prejudice the competitive position of the parties.
65. Within the Committee Note specifically, the redacted information can be broadly summarised as follows: the financial figure the investment is estimated at, the sale price agreed for the transactions of the land in question, details of the acquisition process and five conditions that the Property Committee of the Board recommended Board approval subject to. I do not accept that the release of the financial figure the investment was estimated at would result in the harms suggested by IDA Ireland. Descriptions of how much this investment was estimated to be worth have been widely circulated in the media in the years since this transaction took place. Similarly, I do not accept the sale price agreed for the transaction of the land in question would result in the harms suggested by IDA Ireland. As I have already set out, the sale took place over a decade ago, and property/land values have changed substantially over that time. I consider any prospective buyer is likely to arrange for their own due diligence checks to be carried out before agreeing to a sale price. I am not persuaded by the explanation provided by IDA Ireland that the release of this information"could reasonably be expected to result in material loss.”
66. IDA Ireland’s position is that disclosing the information within the Committee Note and the contracts of sale records would damage its legitimate economic interest as it would serve to reveal IDA Ireland’s commercial practices. I cannot detail the specifics of this commercial practice as this would be tantamount to revealing the content of the record, but IDA Ireland state that by releasing this information it may incentivise sellers to seek higher prices from IDA Ireland. It added that it“would also suggest to the market that this is a common practice for IDA Ireland, which is not the case.”
67. I do not accept that such harms as outlined by IDA Ireland can reasonably be expected to arise. Any member of the public who carries out a very basic internet search can see press articles detailing other, more recent, transactions between IDA Ireland and the third party in question which clearly involve similar patterns of commercial practice regarding the sale of state-owned land to a multi-national corporation. I am not persuaded by IDA Ireland’s explanation as to how harm could reasonably be expected to arise as a result of this information from a transaction that took place over 10 years ago being disclosed. As for IDA Ireland’s statement that the commercial practice they used in this transaction, as outlined in the Committee Note and evident in the contracts, may give the impression, “wrongly”, that this is common practice, when actually it is used in “rare circumstances” - I do not consider it to have demonstrated a harm which would be sufficient reason to withhold the information. In any case, any legitimate concerns over misunderstandings or mis-interpretations could easily be addressed by IDA Ireland adding an explainer note addendum to the record if it feels it is necessary.
68. IDA Ireland has also sought to rely on section 36(1)(C) of the FOI Act which provides the following:
“36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains—
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates
69. Under section 36(1)(c), access to a record must be refused where disclosure of information contained in the record 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. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
70. With regards Section 36(1)(c), IDA Ireland’s position is that“the redacted information contained in the Valuation Report and the Committee Note, and the information in the withheld Contracts, includes the price paid for the land and the information relating to the valuation process for the land as well as other commercially sensitive factors which were considered by the Board when approving the purchase and sale of the land. Disclosing this information while the lands are available for sale could very clearly prejudice the outcome of contractual or other negotiations of the owner in any sales negotiations it may enter in the medium term, by providing the market with information that it would not normally have access to in connection with those negotiations.”
71. IDA Ireland’s position is that the price paid for the land still remains relevant to a future prospective sale, as the land itself has not changed significantly in the intervening period, i.e. no development has taken place. It submits that the disclosure of the Contracts in particular would breach the binding confidentiality obligations placed on IDA Ireland under the Contracts - meaning that no future clients of IDA Ireland could have a reasonable expectation of confidentiality in its contractual dealings with IDA Ireland when it comes to the sale or purchase of land. It states this would place IDA Ireland at a disadvantage to its competitors in other jurisdictions. It states that these consequences would have a significant adverse effect on IDA Ireland’s ability to attract international investors to Ireland and would in turn damage IDA Ireland’s legitimate economic interest.
72. I am not persuaded by IDA Ireland’s assertion here. I do not see how the sale price for the land as approved in the Committee Note,“other commercially sensitive factors which were considered by the Board when approving the purchase and sale of the land” , or indeed the contracts for sale could prejudice future negotiations around the subsequent sale of the land. As I have already stated above, I consider any prospective buyer is likely to carry out their own due diligence checks which would likely include commissioning their own valuation report, which would likely consider comparable site prices as is standard practice. It seems to me that a variety of factors are likely to be in play in any future negotiations and that the price IDA Ireland received for the sale of the lands is likely to be of limited relevance to future negotiations. I am not persuaded by IDA Ireland’s argument that the disclosure of the contents of the Valuation Report, Committee Note or Contracts could prejudice the conduct or outcome of sale negotiations of the current owner.
73. As I have found that the disclosure of this information would not result in any identifiable harm, it follows that section 36(1)(b) or 36 (1)(c) can not apply to the information at issue. As set out earlier in the decision, in order for information to be justifiably withheld under article 9(1)(c), release of the information must adversely affect the legitimate economic interest of the party seeking to rely on it. As I have found that disclosure would not result in any identifiable harm under section 36(1)(b) or 36(1)(c) of the FOI 2014, it follows that there is also no adverse effect to the legitimate economic interest of the party seeking to withhold the information. The final step in article 9(1)(c) is that release would adversely affecting the legitimate economic interest has, for all intents and purposes, already been considered as it is broadly the same analysis as required by the test set out by section 36(1)(b) and 36(1)(c) which I have considered in detail above. It therefore does not need to be considered separately.
74. I have found that section 36(1)(b) and 36(c) for the FOI act cannot be relied on by IDA Ireland to protect the information at issue, and have explained that it follows that the release of the information would not adversely affect the legitimate economic interest of the party seeking to rely on it. IDA Ireland has also sought to rely on Irish contract law and Irish common law as the law in place to protect commercial or industrial confidentiality as required by article 9(1)(c). In the circumstances where I have found that the release of the information at issue would not adversely effect the legitimate economic interest of the parties seeking to rely on it, it is unnecessary for me to consider the other laws that IDA Ireland has sought to rely on – as the ultimate outcome would be the same. Article 9(1)(c) is not engaged and therefore cannot protect the information.
75. Article 10(3) and article 10(4) of the regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal, and that that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. I have found that article 9(1)(c) is not engaged therefore there is no requirement for me to consider the public interest balancing test.
76. Having carried out a review under article 12(5) of the AIE Regulations, I annul IDA Ireland’s decision, and direct release of the information at issue.
77. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary on behalf of the
Commissioner for Environmental Information