Council is told to reveal contract details
DECISION BY THE INFORMATION COMMISSIONER CAN BE APPEALED
WICKLOW County Council has been instructed to turn over most of its ‘Bray Town Centre’ development agreement documents to Cllr Joe Behan, who has been asking to see the papers since contracts were signed.
The office of the Information
Commissioner found that the council was ‘not justified’ in refusing access to the majority of its records relating to the agreement.
The council refused a 2018 freedom of information request, and refused its subsequent appeal. Cllr Behan said that he made the requests, and requested the review by the OIC, in the interest of transparency. ‘The council will get €2.5 million at the end of this process,’ said Cllr Behan. ‘This is a valuable piece of public property which has been a nightmare for more than 20 years,’ he said.
He added that changes have been made to the development since members agreed to the initial terms. They include the introduction of underground parking, and the removal of access to Florence Road.
WICKLOW County Council was not justified in refusing access to the majority of its records of an agreement with the development of the Florentine Centre in Bray, the offices of the information commissioner found.
Its defence of withholding records included the council’s claim that a garda investigation is under way involving the council and the Florentine Centre.
Cllr Joe Behan had made a freedom of information request to the Local Authority in September 2018 seeking access to the agreement between the council and the developer and related communications. The council granted access to some records and refused access to others, on the grounds that they were exempt, they said, under section 35(1)(b) of the FOI Act.
In October 2018, Cllr Behan applied for an internal review of that decision and, when it affirmed the original decision, later sought a review by the information commissioner.
The information commissioner has directed the council to release the majority of the documents to Cllr Behan. The commissioner directed that information specific to the financial dealings of the developer could remain private.
All sides can appeal to the High Court if they are not happy and the decision does not have effect until the four-week appeal period is over.
The withheld information includes the development agreement itself, and email correspondence with attachments, which discloses parts of the agreement.
The council said in its submission that it was contractually obliged to keep the agreement confidential.
The developer said that the development agreement was subject to a confidentially clause, saying in its submission: ‘We do not see any basis for disclosure at this stage on the basis that we have participated in a public tender process which was conducted in accordance with public procurement rules. Once the contract was awarded, its terms are to be kept confidential’.
‘ The Developer and WCC hereby covenant and confirm with each other that they will keep confidential the contents of this Agreement and will not divulge to any third party the details thereof (other than to necessary professional advisers and in any proceedings issued or intended to be issued or as required by law),’ read the confidentiality agreement.
‘Neither the Developer nor WCC shall make, or permit any person to make, any public announcement or communication concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). The parties shall consult together on the timing, contents and manner of release of any announcement.’
The decision turned on whether the exemption applied to Wicklow County Council, a public body, and on land owned by the council until the development of the site is complete.
‘FOI law has been in force for over 20 years,’ wrote the investigator. ‘ The council publicly tendered for the development of publicly-owned land. In the circumstances, I cannot accept that the parties could reasonably have had a mutual expectation of confidentiality over the entire agreement which governs that development.’
The council also said in its submission that the records should not be released as the harm that would be caused to the advancement of the commercial activity on the site relating to the agreement would be ‘prohibitive’.
The developer said that the records contain sensitive information which goes to the core of its private business and should never be made publicly available. It said that negotiations with tenants are highly confidential and disclosing this information could jeopardise these negotiations. It said that the cost of the project or any element of the project are extremely sensitive details which are never revealed to the public.
Cllr Behan said in his submission that the project entails the sale of public land to a private developer. He said that he sought a copy of the agreement to ascertain whether it conveys any additional financial advantage to the developer at the expense of the taxpayer, and that transparency is essential when public assets are being disposed of.
During the review process, the council claimed that the records are also exempt under section 32(1)(a)(i). It said that there is a Garda investigation of allegations relating to the council. It said: ‘ the investigation into matters relating to Wicklow County Council includes all matters and agreements surrounding the Florentine Centre which relates to this agreement’.
It submitted that disclosing the records now would interfere in the progress of a live investigation and risk prejudicing both the individuals involved and a fair trial. It submits that it would leave any possible prosecution unsafe because of a potential challenge to a lack of fair procedures.
The investigator said that there was no link established between the release of records and the harms envisaged.
She wrote that ‘on balance’, the public interest would be better served by the release of the information, with some exceptions regarding the developer’s finances.