Commissioner rules on 1998 Cabinet level documents

Back in December the Information Commissioner issued a decision in my favour in relation to records pertaining to industrial grants from 1998. The full decision has been published, and it is the first decision of the Commissioner pertaining to Section 19 of the FOI Act – the part that relates to Cabinet documents, and their becoming available after 10 years has passed.

The issue at hand was whether the Department of the Taoiseach (and by extension the Department of Jobs, Enterprise and Innovation) were correct in redacting the names of certain companies that had received industrial grants in 1998. I had an issue with this. When I put the request in back in 2010, it was already 12 years since the events had taken place. Section 26 and Section 27 (Commercial Sensitivity) were cited by the DJEI as reasons not to release. Then late in the process (in 2013) they withdrew the arguments under those sections and instead argued under Section 31 (Financial and Economic Interests of the State and of Public Bodies).

Per the Commissioner, the Department argued:

The basis of the DJEI’s claims for exemption under section 31(1)(a) and (c) is that the State operates in a highly competitive international environment in seeking to attract and maintain direct foreign investment. According to the DJEI, no other competing jurisdiction releases the following type of information relating to industrial grant or other similar investment incentive schemes: the name of the company featured on the Cabinet record; the actual monetary value of the grants, whether employment, capital, or training grants; and the grant cost per job. The DJEI argues in essence that the release of such information would weaken Ireland’s competitive position in making offers relating to industrial development and encourage forum shopping by business operators. The DJEI places great emphasis on the “‘mobile nature’ of industry and its ability to relocate to another jurisdiction at the first sign of perceived breaches of confidence by the State Department with responsibility for industrial development”. It describes the redactions it proposes as “minimal” and “particularly relevant to the issue of protecting Ireland’s ‘bidding strategy’ in a fiercely competitive international playing field”.

They also argued closely to a Queensland FOI case, but the Commissioner gave that short shrift:

This is not Queensland. The records at issue are now over 15 years old. They were created during the heyday of the so-called “Celtic Tiger”. The Irish and world economies have drastically changed since then. I do not doubt that competition for direct foreign investment is as fierce as ever, if not more so. However, industrial grant aid is just one of many factors that determines a multinational company’s foreign investment decisions. It is my understanding, for instance, that Ireland’s low corporate taxes are considered to be a more important factor, as indicated by IDA spokesman Brendan Halpin in any article in The New York Times, dated 3 March 2005, entitled “Dublin withdraws promise of aid to Intel”. I simply do not accept that industrial grant information dating from over 15 years ago is of any relevance in today’s economy.

The companies originally contacted by Mr. Stokes did not object to the release of the information concerned. The Director of the parent company who made submissions in June 2013 indicated that only information of a more detailed nature than what is at issue in this case would be of concern to his company. Thus, the question of a breach of confidence is also not relevant.

I am not satisfied that access to the records concerned could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy. I am also not satisfied that access to the records concerned could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I find that sections 31(1)(a) and (c) do not apply. In the circumstances, it is not necessary for me to address the matter of the public interest under section 31(3) of the FOI Act.

This is a good decision and should go some way towards obtaining more Cabinet related documents from the late 1990s and early 2000s. The documents in question have now been released to me in full.