Derry Council against disclosure

Derry council has voted to take a High Court case against the FOI Commissioner, who said that the council should disclose a deal it did with Ryanair regarding the council-owned Derry airport. Eamonn McCann reports

Nationalists and unionists on Derry Council have united against disclosure of a deal between the council-owned City of Derry airport and Ryanair. The disclosure has been ordered under the Freedom of Information (FoI) Act. But all three main parties on the council, Sinn Fein, the DUP and the SDLP, voted on 15 March to fund a High Court appeal against the ruling by UK Information Commissioner Richard Thomas. 

The case has potentially wide implications for public bodies across the UK engaged in commercial activity.  Airport committee chairman Gerry Diver, SDLP, told local media after the 15 March meeting that the three parties, which together hold 29 of the 30 council seats, “feared for...the future of the region if the council was forced to comply with the information request.” The FoI issue arose in January last year when the Belfast Telegraph invoked the Act in a request to the Council for details of its agreement with Ryanair, asking specifically how much the airline was paying for the use of airport facilities.  The council issued a formal refusal notice the following month, citing a number of grounds on which, it claimed, the information was exempt from FoI provisions. In March 2005, the Telegraph asked the Information Commissioner to review this decision.

Commissioner Thomas observed in his ruling last month that the case for secrecy had been generally undermined by the February 2004 European Commission decision on arrangements between Ryanair and the Walloon Region at Charleroi airport. “As a result of the decision, there is public awareness of the fact that carriers are offered incentives by airports in certain circumstances.” Ryanair's deal with Derry Council has been a matter of intrigued local discussion since the airline began operating two flights a day to Stansted in 1999. Controversy sharpened in October 2003, when the council voted to extend the airport runway to accommodate Ryanair's introduction of Boeing 737-800 aircraft to replace its fleet of smaller 737-200s. The poposal involved the demolition of 17 homes along the Donnybrewer Road, adjacent to the airport.

Leaders of the three main council parties vigorously supported the plan, explaining that Ryanair would otherwise withdraw from the airport, putting the facility's viability, and therefore the economic prospects of the region, at risk. A residents' group demanded details of the Ryanair deal and of the data which had led the council to believe that without Ryanair the region's future was fraught.  Kieran O'Brien, whose family home stands just yards from the airport's perimeter fence, said at the time: “If they were able to show that the future of Derry depends on us losing our homes, we'd obviously have to think about it. But all they are saying is that Ryanair is insisting on the runway extension. That's not a good enough reason.”

Ryanair threaten to pull out
As the council hesitated about moving towards evictions, Ryanair, in July 2004, announced plans to withdraw one of its daily flights to Stansted, warning that it would withdraw the other, too, if the runway issue wasn't resolved by spring 2005.  “We are going out of our way to keep the single return flight a day,” said a spokesman. “But the airport knows the situation, and the clock is ticking.”

In January 2005, the company duly withdrew its morning Stansted service. The evening service continued, using the new 189-capacity ‘plane---but with 40 seats left vacant to comply with safety regulations for the existing runway. In spring, however, the threatened total withdrawal failed to materialise. Instead, in October, the company resumed the twice-daily service. Last month, Ryanair added a daily Liverpool service. Next month will see the introduction of daily flights to East Midlands. All routes use the 737-800s, with capacity restrictions. Last year, Ryanair carried 105,000 passengers from Derry. This year, the company hopes to double that figure.

Last June, Commissioner Thomas wrote to the council, asking it “to explain how disclosure...would prejudice the commercial interests of Ryanair, the likelihood of this prejudice occurring and how the Council had assessed the risk.”
In his ruling, Commissioner Thomas quoted the council's response:
 “(i) Ryanair is a low cost airline that enters into a range of contracts and agreements with airport authorities throughout Europe. As the low cost airline sector is highly competitive such airlines preserve their positions by closely guarding the arrangements they have with airport authorities.
“(ii) Disclosure of information would undermine Ryanair's competitive position in Northern Ireland as a provider of low-cost services from City of Derry Airport.
“No further information was provided by the Council in support of this argument.”
Thomas found that, “given...the lack of any evidence to support the Council's arguments,” he hadn't felt it necessary to consider whether any public interest exemption from the FoI Act arose.

Commenting on Thomas's ruling, Louise Townsend of the giant commercial law firm Pinsent Masons, told the website OUT-LAW News: “Public authorities can no longer hide behind blanket confidentiality obligations in contracts, and contractors can no longer expect them to. Contractors should consider what information they give to the public sector, from tender stage through to post-completion, and how this will be protected. Public authorities are being advised to amend standard confidentiality clauses and contractors must recognise that the onus is on them to justify why this information should not be disclosed. Not even financial information will always warrant protection.”

In the meantime, the Donnybrewer families watch the SDLP, Sinn Fein and the DUP standing shoulder-to shoulder in determination to keep the airport deal secret, and wonder whether and when the three parties will send in the bulldozers and have them evicted, in order to keep Ryanair sweet.