Mr X and Dublin City Council

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 15 July 2015
• Case Outcome: The Senior Investigator varied the decision of the Council by affirming the decision to refuse access in relation to some of the records on the ground that the records are exempt under section 27 of the FOI Act and by directing the release of certain other records.
• Court: Information Commission
• Record Number: 140225
• Respondent: Dublin City Council

Whether the Council was justified in deciding to refuse access to records relating to a successful tenderer (the third party) on the ground that the records are exempt under section 27 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 23 May 2014 the applicant made an FOI request to the Council for the copy of a contract submission by the third party for a weed control contract with the Council. By letter dated 20 June 2014, the Council granted partial access to the records and refused access to the remaining records on the ground that they contain personal information and/or are commercially sensitive under section 27 of the FOI Act. On 22 June 2014, the applicant applied for an internal review of the decision in respect of the following records: 8; 15 - 17; 18 - 19; 74 - 97; 111 - 116; and 118 - 123. The Council had refused access to these records on the basis that their release "could reasonably be expected to prejudice the competitive position of (the third party) in the conduct of its business". The Council issued an internal review decision by letter dated 12 August 2014, in which it affirmed its original decision. On 18 August 2014 the applicant applied to this Office for a review of the Council's decision.
In conducting my review, I have had regard to the Council's decision on the matter; the Council's communications with the applicant, the third party and with this Office; the applicant's communications with the Council and with this Office; the third party's communications with the Council and with this Office; the content of the withheld records, provided to this Office by the Council for the purposes of this review.
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.

Preliminary Matters

Unfortunately, there was a considerable delay before the review was assigned to an investigator in this Office, due to a backlog of cases on hands and the limited resources available. I am glad to say that both of these issues have now been addressed.
I would also like to make the following points. First, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43. Secondly, section 13 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Section 13 shall not apply if the copy of the record provided would be misleading.

Analysis and Findings

Section 27
As noted above, the records which the applicant...