20 August 2018

Whether the Department was justified in refusing under various provisions of the FOI Act to fully grant the applicant's request for records concerning the possible costs and benefits of hosting the Rugby World Cup 2023, the portion of costs payable by the Northern Ireland Executive, and all minutes and reports from the Committee set up to oversee Ireland's bid

Background

On 14 December 2016, the applicant made an FOI request to the Department for (i) all reports and memos in its possession concerning the possible costs and benefits of hosting the Rugby World Cup 2023 and the portion of costs that would be paid by the Northern Ireland Executive, and (ii) all minutes and reports from the Committee set up to oversee Ireland's bid.

The Department's decision of 15 August 2017 granted partial access to one record and refused access to 20 others under various provisions of the FOI Act. The applicant sought an internal review of the Department's decision on 8 September 2017, which the Department affirmed on 28 September 2017. On 7 October 2017, the applicant sought a review by this Office of the Department's decision. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Department, two third parties whose interests may be affected by my decision (i.e. the Irish Rugby Football Association (IRFU) and Northern Ireland's Department for the Economy (DfE)), and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the Department has justified its refusal to fully grant the applicant's request.

This Office's email to the applicant of 12 June 2018 noted the Department's publication of records 3 and 6-16 on its website and said it was being taken, unless he said otherwise, that these records would be excluded from the scope of this review. The applicant did not comment on this. 

Accordingly, my review is confined to whether the Department has justified its refusal of records 1 (in part), 2, 4, 5, and 17-21.

Preliminary Matters

It is relevant to note a number of preliminary matters. 

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs. 

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request 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 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in my analysis and reasoning is very limited. 

Finally, the Courts have recognised that a decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office, rather than any facts and circumstances that applied at an earlier date.

Findings

Section 22(12)(b)
The Department's original and internal review decisions refused the records under sections 30(1)(c) (negotiations of FOI bodies or the Government), 35(1)(a) (confidential information), 35(1)(b) information subject to a duty of confidence, 36(1)(b) (commercially sensitive information), 36(1)(c) (information prejudicial to the conduct or outcome of negotiations), 40(1)(a) (information affecting the economy or financial interests of the State), 40(1)(b) (premature disclosure of information disturbing the ordinary course of business in the State) and 40(1)(c) (information affecting investment or research or industrial development).

On 13 December 2017, this Office invited the Department to make a submission. It acknowledged this by saying that it would "of course respond on the case." The Department subsequently engaged with this Office in relation to its publication of some of the records the subject of this review but did not make any submission. 

The arguments in the Department's original and internal review decisions, with the exception of section 35, largely concerned the impact it envisaged that the grant of access would have on the bid process for the hosting of the Rugby World Cup 2023. However, that process has now concluded. The onus is on the Department to explain how the grant of access to the records at this point in time could result in the particular harm that the relevant exemptions are intended to prevent. I have, accordingly, no basis on which to find that most of the provisions relied on by the Department apply in this case. 

However, the records also concern the IRFU and the DfE. The FOI Act gives third parties a right to make submissions to the Commissioner and to have these taken into account before a decision is made that might affect their interests. My Office consulted with the these third parties on 9 May 2018. Both made submissions, which I will take into account along with relevant details in the Department's original and internal review decisions. 

Section 33(3)(c)(i)
Records 17-21 comprise documents prepared by the DfE concerning its views and related information regarding the sharing of costs by the Northern Ireland Executive, and/or documents prepared by the Department which analyse that and other information. 

Section 33(3)(c)(i) is a mandatory exemption that applies to a record that contains information, communicated in confidence to any person inside or outside the State from any person in or outside the State, relating to various matters including matters relating to Northern Ireland, and expressed by the latter person to be confidential or to be communicated in confidence. It does not require consideration of the public interest. 

Although section 33(3)(c)(i) was not relied on by the Department, it is appropriate for me to consider it in light of details supplied by the DfE and the mandatory nature of the exemption.

The DfE acted on behalf of the Northern Ireland Executive regarding cost sharing. It says that the information it provided to the Department accordingly was given in confidence. It says it is bound by a Deed of Confidentiality (the Deed) in place between the IRFU and World Rugby (a copy of which had already been provided to this Office by the Department). The DfE also provided other evidence regarding its understanding that all matters concerning its involvement in the bid were confidential. I have had regard to the contents of these supporting records in making my decision.

I am satisfied that the DfE provided its views and related information in confidence, and that it expressed that the information concerned was confidential or communicated in confidence. I am also satisfied that the grant of access to any details of the Department's analysis of the information provided by the DfE would have the effect of disclosing the information so provided. Finally, I consider that to direct the grant of access to any other information that may be included in the records (i.e. to direct release of redacted copies of these records) would have the effect of rendering the ensuing copies misleading. This would be in breach of section 18(2) of the FOI Act.

I find records 17-21 to be exempt under section 33(3)(c)(i) of the FOI Act. 

Section 35(1)(b)
Given the arguments made by the IRFU, section 35(1)(b) appears to me to be the most relevant exemption to consider regarding records 1, 2, 4 and 5. 

Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for, inter alia,by a provision of an agreement. 

The parties' arguments
The IRFU says that it and both Governments are bound by the Deed's requirements, which extend to one year after the 2023 tournament, and that the grant of access to the records will breach those requirements. The Department's original and internal review decisions also referred to the requirements of the Deed. 

The applicant's submissions note that a technical assessment of the three remaining bids (including Ireland's) has been published by World Rugby. He says that this contains extensive detail on the contents of all the bids. He says, effectively, that there must be evidence that the IRFU shared information on the basis that it would remain confidential and that it "ought to have known that records could be released once the bid process concluded". He also says that if the Department was not a party to the Deed then the Deed's requirements do not apply to it. Finally, he notes the public expenditure on the bid, and says that the public interest weighs in favour of the grant of access "so there can be a proper autopsy of this failed bid process" to enable understanding of why Ireland failed and improve the prospects of success in any future bids to host significant sporting tournaments. 

Duty of confidence provided for by agreement
I have no reason to conclude that World Rugby's publication of certain details of the bids received means that it has set aside the requirements of the Deed. On their face, I accept that the remaining records contain information that is covered by the very broad requirements of the Deed. Furthermore, having regard to records provided by the Department to this Office at the start of the review, I also accept that the Department is bound by the Deed's confidentiality requirements. 

Thus, I accept that the grant of access to the records would constitute a breach of a duty of confidence provided for by a provision of an agreement. However, it is well established that an action for a breach of confidence is subject to a public interest defence. This Office notes that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow. Such grounds had regard to by the Courts include the exposure or avoidance of wrongdoing or danger to the public; ensuring the maintenance of the principles of justice; the release of what could generally be described as "government" information; and because information concerns matters of very significant public importance. In my view, there is no basis for setting aside the requirements of section 35(1)(b) in this case. I find records 1, 2, 4 and 5 to be exempt under section 35(1)(b) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal of the request, having found that the records are exempt under sections 33(3)(c)(i) (information communicated in confidence relating to Northern Ireland) and 35(1)(b) (duty of confidence).

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal. 

Elizabeth Dolan
Senior Investigator