A private leisure operator has won a High Court order overturning a decision by the Information Commissioner who ruled Bray Town Council was not required to disclose certain financial records concerning a company operating a public swimming pool in Bray.
Westwood Club had challenged Ombudsman and Information Commissioner Emily O'Reilly's decision affirming the council's refusal to grant Westwood access to records concerning Bray Swimming Pool and Sports Leisure Centre Ltd, trading as Shoreline.
The council had argued it would negatively impact on Shoreline to release such information to a rival. Shoreline was set up under a Council Resolution of April 2007 to operate leisure facilities.
A contract for construction of a pool was signed in 2007 and it was decided the Shoreline board would comprise directors of nominating bodies approved by the council and some members of the council. The leisure project was part funded by the Department of Arts, Sport and Tourism with the balance from the council.
Some €10 million was provided to Shoreline by the council, the leisure centre was built on council lands and occupied by Shoreline, initially without any lease and later under a lease at what Mr Justice Kevin Cross said was "uneconomic rent".
In April 2011, in an effort to establish the funding relationship between the council and Shoreline, Westwood sought access to its financial records for 2008 and 2009.
After the freedom of information officer for Wicklow County Council told Westwood that Shoreline was a private company not subject to the provisions of the FOI Act and other refusals, Westwood appealed to the Commissioner who upheld a preliminary view by an investigator for her office the council was not required to disclose the records.
Granting Westwood’s appeal against that decision, Mr Justice Cross ruled the Commissioner erred in failing to properly analyse two central issues — control of Shoreline and whether the information sought was confidential.
Westwood claimed it was entitled to the information because public money funded Shoreline and its 2010 accounts stated there was a €10.7 million loan due to the council from construction of the pool which the council would not be seeking repayment of “in the foreseeable future”.
The Commissioner’s investigator concluded Westwood’s request should be rejected on grounds including her view the Council did not control the day-to-day operation of Shoreline and it was in business of its own account.
The judge found relevant matters relating to control of Shoreline were either not considered at all, not adequately considered or were erroneously considered by the Commissioner.
What was not considered was the council’s provision of a loan of more than €10 million to Shoreline, the Commissioner erred in describing that as “grant monies” and Shoreline’s accounts made clear it had that debt to the council, he said.
He found the council controlled Shoreline and the Commissioner’s conclusion to the contrary was irrational and an error of law. The Commissioner also failed to take into account Shoreline held the pool under a non-commercially viable lease and he was satisfied, if the Council was to charge Shoreline an economic rent, the company would be insolvent.
While the Commissioner had asked the council how it could be asserted the documents sought were financially sensitive given their antiquity, she ruled in the Council’s favour without receiving any real reply from it on that issue, the judge said.
The Commissioner was obliged to consider whether the release of the historic commercial information would result in the detriment the council alleged and erred in ruling the council was not obliged, on confidentiality grounds, to release the documents.
The Commissioner also erred in relying upon a preliminary view of her investigator that was tainted because it included a legally incorrect statement shifting the burden of proof onto Westwood, he said. All sides accepted the burden of proof lies in favour of disclosure and the onus was on the Council to show why the documents should not be released.
