Mr X c/o Y Solicitors and Dublin City Council

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 24 August 2021
• Case Outcome: The Senior Investigator annulled the decision of the Council and directed the release of the information sought.
• Court: Information Commission
• Respondent: Dublin City Council
• Record Number: OIC-101829-H4Q3X8

Whether the Council was justified, under section 36(1)(b) and (c) of the FOI Act, in refusing access to details of the amount of BID levy collected each month by the Council for each of the months from January 2020 to September 2020

24 August 2021

Background

In December 2017, this Office issued a decision on a request for information relating to the Business Improvement District (BID) Levy (Case No. 170132, available on our website www.oic.ie). The decision noted that the levy was established by the Local Government (Business Improvement Districts) Act 2006 (the 2006 Act) in order to enable and finance schemes under which projects, services and works are carried out for the benefit of the relevant districts. The 2006 Act states that the local authority shall establish a BID fund for the BID scheme and this shall be paid to a BID company. The establishment of a BID company is also provided for under the 2006 Act and states that the principle objectives of that company are to implement, administer and manage a BID scheme and to ensure each project, service and work under the scheme is carried out. According to the Council its Rates Office bills and collects the levies on behalf of the BID company. However, the BID company itself manages and pursues any debts.

The request in case 170132 was for details of the number of businesses that paid the BID levy, did not pay the levy and were issued with legal proceedings in relation to non-payment of the levy from 2008 to 2016 inclusive. The Council refused the request under section 36 of the FOI Act, which is concerned with the protection of commercially sensitive information. The Senior Investigator annulled the decision of the Council and directed the release of the information sought.

In a request dated 14 October 2020, the same applicant sought details of the amount of BID levy collected each month by the Council for each of the months from January 2020 to September 2020. In a decision dated 11 November 2020, the Council refused the request under sections 36(1)(b) and (c) of the Act. The applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request. On 23 December 2020, the applicant, though his legal representative, sought a review by this Office of the Council’s decision. For the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with his legal representatives.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the relevant parties who made submissions and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the Council was justified, under section 36(1)(b) and (c) of the FOI Act, in refusing access to details of the amount of BID levy collected each month by the Council for each of the months from January 2020 to September 2020.

Preliminary Matter

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot generally have regard to the applicant's motives for seeking access to the information in question.

Analysis and Findings

Section 36(1)(b)

Section 36(1)(b) provides for the mandatory refusal of a request where the record sought contains 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.

The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person in the conduct of his or her profession or business or otherwise in his or her occupation.

In its submissions to his Office, the Council argued that this case is distinguishable from Case 170132. It said the earlier case was concerned with the number of businesses who paid and who did not pay the levy and that the current request relates to the specific amounts collected per month...