Mr & Mrs X c/o Y Solicitors and The Office of Public Works

JudgeElizabeth Dolan Senior Investigator
Judgment Date26 June 2017
Case OutcomeThe Senior Investigator affirmed the OPW's refusal to grant access to the requested records. She found them to contain technical information belonging to the State or the OPW that is of substantial value or reasonably likely to be of substantial value (section 40(2)(m) refers), the release of which could reasonably be expected to result in an unwarranted benefit to the applicants and other persons with an interest in the information. She found the records to be exempt under section 40(1)(d) of the FOI Act, with the public interest not warranting their release.
CourtInformation Commission
Record Number160529
RespondentOffice of Public Works
Case Number: 160529
Whether the OPW has justified its refusal to release river survey data relating to the Shannon CFRAM project
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
Background

The Catchment Flood Risk Assessment Management (CFRAM) project is a core component of the National Flood Policy, which was adopted in 2004. The CFRAM project commenced in 2011. Further to six national studies, including that of the Shannon area, detailed flood maps will be produced and flood risk management measures identified, assessed, and prioritised.

The OPW has, to date, prepared draft modelling and mapping for each of the 300 towns that are at significant risk of flooding, which included the surveying and modelling of 6,700 km of watercourse. It has held public consultations. These included the publication of various maps, although in a different format to those requested in this case. Submissions made on foot of the consultations will be reviewed, and the OPW is finalising the relevant plans. It will then submit them for Ministerial approval. The approved plans must then be adopted by Local Authorities for implementation. The preferred measures will in due course be prioritised via a Multi Criteria Analysis. €430 million will be invested over six years.

The applicants' solicitor acted on their behalf at all stages in the FOI process in this case. All references to "the applicants" in this decision include references to their solicitor.

On 24 August 2016, the applicants made an FOI request to the OPW for the river survey data collected under the Shannon CFRAM project. The request specified various technical information and formats. The OPW's decision of 5 October 2016 refused to grant access to the records sought, under sections 29(1) and 40(1)(d) of the FOI Act. These are, respectively, provisions of the FOI Act that may be applied to records relating to an FOI body's deliberative process, and to records whose release could reasonably be expected to result in an warranted benefit or loss to a person or class of persons. On 10 October 2016, the applicants sought an internal review of the OPW's decision, which the OPW affirmed on 2 November 2016. On 28 November 2016, the applicants sought a review by this Office of the OPW's decision.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above, and to correspondence between this Office, the OPW, and the applicants. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether or not the OPW has justified its refusal to grant access to the requested records.

Findings

Section 40(1)(d) - Unwarranted Benefit or Loss
It is the OPW's position that the records are of a sort specified at section 40(2)(m) of the FOI Act, which are exempt under section 40(1)(d) of the Act.
Section 40 protects, generally speaking, certain records relating to the financial and economic interests of the State.

Section 40(1)(d) is a discretionary exemption that provides for a refusal to grant access to records whose release could reasonably be expected to result in an warranted benefit or loss to a person or class of persons. Where an FOI body relies on section 40(1), this Office expects it to identify the potential harm - unwarranted benefit or loss to a person or class of persons- that might arise from disclosure. It must also consider the reasonableness of any expectation that the harm will occur.

Section 40(1)(d) may be applied to any record, but particularly those of a sort described in section 40(2) of the FOI Act. Section 40(2)(m), to which the OPW's submissions refer, concerns records relating to trade secrets or financial, commercial, industrial, scientific or technical information belonging to the State or a public body, that are of substantial value or reasonably likely to be of substantial value.

The OPW provided a copy of a data release agreement with...

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