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Case: 170059

Whether the Board was justified in its decision to refuse access to records relating to the applicant's deceased mother under sections 31(1)(a), 31(1)(b), 35(1)(a), 35(1)(b) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 12 November 2015, the applicant made an FOI request to the Board for access to the following records relating to its legal representation of her deceased mother in divorce proceedings:
1. Annual case review and case progression notes of the deceased's Solicitor (2002-2010);
2. Annual case review and case progression notes of the relevant Managing Solicitor (2002-2010);
3. Records of all telephone calls to and from the Board regarding the deceased's case (2007-2010);
4. Any notes regarding the legal advice, representation and action taken by the Board on the deceased's behalf from August 2007 to September 2010;
5. Any notes regarding the legal advice, representation or services provided to the deceased and her family members from May to September 2010;
6. Any notes regarding the Board's decision not to prioritise or act on the deceased's behalf prior to and following her death (2010);
7. Any notes regarding the legal advice given by the deceased's Solicitor to a named family member following her death (2010).

In its original decision, which was upheld on internal review, the Board refused access to the records requested on the basis of sections 35 and 37 of the Act (provisions relating to confidential information and personal information). The applicant applied to this Office for a review of the Board's decision. This Office annulled that decision as the Board failed to consider section 37(8) of the Act in reaching its decision. Under Section 37(8), the Minister may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is deceased. In this case the request was commenced under the 2009 Regulations (S.I. No. 387 of 2009). This Office directed the Board to undertake a fresh decision making process in respect of the applicant's request, having regard to section 37(8) and the 2009 Regulations.

On 1 November 2016, the Board issued a fresh decision. The Board refused access to all 57 records coming within the scope of the applicant's request on the basis of sections 35 and 37 of the Act. The Board also relied on sections 31(1)(a) and 31(1)(b) of the Act (provisions relating legal professional privilege and contempt of court) in refusing access to the records. The applicant requested an internal review of the Board's decision. On 3 January 2017, the Board varied its original decision and released 6 of the records to the applicant in full or in part. On 31 January 2017, the applicant applied to this Office for a review of the Board's decision.

Both the applicant and the Board made submissions in the course of this review. In its submissions, the Board stated that it was no longer relying on 31(1)(a) of the Act in relation to certain identified records. However, it said that these records are exempt under 37 of the Act. This Office informed the applicant who argued that neither section 31(1)(a) nor section 37(1) apply to the records concerned. The applicant also provided this Office with a folder of documents which contain detailed submissions, a copy of the deceased's will, correspondence from the personal representative appointed by the deceased and relevant case law.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Board, to correspondence between the Board and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of Review

During the course of this review, the applicant narrowed the scope of her request to the following records: 3, 5, 6, 7, 8, 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, 43, 48, 49, 50, 56 and 57.

I am satisfied that records 5 and 6 fall outside the scope of the applicant's request as they were created in 2015. The applicant has not requested records created after September 2010. Record 7 is a legal aid certificate dating from 2002. As the only records that the applicant requested from 2002 are case reviews or case progression notes, I am satisfied that record 7 falls outside the scope of the request. Record 8 is a Land Registry Folio. The applicant has confirmed in writing that she did not request this record and that she already has a copy of the Folio. I am satisfied that record 8 also falls outside the scope of the applicant's request.

In its original decision, the Board relied on sections 31, 35 and 37 of the Act in refusing access to the requested records. However, in its internal review decision the Board did not rely on sections 35 and 37 in relation to records 3, 9, 14, 18, 19, 20, 21, 48 and 49. The application of sections 35 and 37 is mandatory. This means that the head of a public body who receives a request for records falling within the scope of either of these exemptions must refuse access to them. This Office wrote to the applicant and explained that it intended to consider sections 35 and 37 in reviewing the records which fall within the scope of the applicant's request. The applicant acknowledged this point and provided a replying submission.

The scope of this review is confined to whether the Board has justified its decision to refuse access to the following records on the basis that they are exempt under sections 31(1)(a), 31(1)(b), 35(1)(a), 35(1)(b) or 37(1) of the FOI Act:

- 3, 9, 12, 14, 15, 16, 17, 18, 19, 20, 21, 43, 48, 49, 50, 56 and 57.

Preliminary Matters

The applicant states that in 2002, the Board granted the deceased legal aid to divorce her estranged spouse. She states that the Board's Solicitor was aware that the deceased suffered from poor health, that the family home was held jointly between the deceased and her spouse and that if the deceased died before the divorce concluded, the spouse would automatically inherit her share of the family home. The applicant states that the deceased left her share of the family home to her children in her will, but that as the deceased's divorce was not concluded before her death in 2010, the family home passed to the deceased's spouse who sold the house. The applicant states that the Board failed to take reasonable steps to prioritise or act to secure the best interests of the deceased while aware of her illness and she questions whether the Information Commissioner "has jurisdiction to review the decisions of the Legal Aid Board and explain the unreasonable time delays or particular reasons for the Board's decision not to Act on the deceased's behalf"?

The Information Commissioner does not have jurisdiction to adjudicate on how public bodies perform their functions generally. The role of this Office is confined to deciding whether a public body has justified its decision to refuse access to records having regard to the provisions of the FOI Act. This Office does not have jurisdiction to review the steps taken by the Legal Aid Board in acting on the deceased's behalf.

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large. Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

I note that at internal review stage, the Board's decision maker took the view that legal professional privilege applied to some of the records. In those circumstances, I would normally begin by considering whether section 31(1)(a) applied to the records over which privilege was claimed. In the particular circumstances of this case, the applicant submits that the personal representative of the deceased has waived legal privilege in favour of the applicant. The situation is that all of the records contain a large amount of personal information relating to the deceased and her spouse. Therefore, I have decided to address the section 37 exemption in relation to personal information after examining section 31(1)(b) and the issue of whether release of any of the records would constitute a contempt of court.

Section 31(1)(b) - Contempt of Court
The Board argues that record 12 and record 43 documents 4 and 5 are exempt under section 31(1)(b) of the Act. Section 31(1)(b) of the FOI Act provides that:-

"A head shall refuse to grant an FOI request if the record concerned -

(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court"

It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. In camera proceedings are proceedings which are held otherwise than in public. The in camera rule applies to family law proceedings and certain proceedings involving minors.

According to the Board, record 12 and record 43 documents 4 and 5 include affidavits and court orders which derive from family law proceedings involving the applicant's parents that were held in camera. The Board argues that these records are exempt under section 31(1)(b) of the Act.

I accept that record 12 and record 43 documents 4 and 5 emanate from family law divorce proceedings held in camera and as I am not aware of the existence of any prior judicial authority for their release, I consider that release of these records to the applicant on foot of her FOI request would constitute contempt of Court. Accordingly, I find that these records are exempt under section 31(1)(b) of the FOI Act. I consider the application, or otherwise, of section 37(1) of the Act to the remaining records falling within the scope of this review below.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

The definition of "personal information" is contained in section 2 of Act:

"Personal information means information about an identifiable individual that, either -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by an FOI body on the understanding that it would be treated by that body as confidential,

and, without prejudice to the generality of the foregoing, includes -

(ii) information relating to the financial affairs of the individual;
(xiv) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI Body concerned relates to the individual;
(xiii) information relating to property of the individual (including the nature of the individual's title to any property);
(xiv) the views or opinions of another person about the individual."

Where the personal information relates to a deceased individual, section 37(8) if relevant. Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may make regulations for the grant of an FOI request in certain circumstances where the individual to whom the information relates is dead. As outlined above, in this case the request was commenced under the 2009 Regulations (S.I. No. 387 of 2009). The exceptions are described in the 2009 Regulations as follows:-

4(1) Notwithstanding section 28(1) a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997, be granted where:

(b) the individual to whom the record concerned relates is dead ("the individual") and the requester concerned belongs to one of the following classes of requester:

(i) a personal representative of the individual acting in due course of administration of his or her estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, and

(iii) the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

The Minister for Finance has published Guidance Notes on the 2009 Regulations. In relation to categories 1 and 2, the Guidance Notes clarify that only those persons who have taken out a grant of probate or letters of administration in the cases of an intestacy or who have been appointed by the Court are covered. In relation to category 3, the notes clarify that next of kin covers the child of the person to whom the records relate. The Guidance Notes specify that the following factors are to be considered in deciding whether the public interest would be better served by granting than by refusing to grant the request: (i) the confidentiality of personal information; (ii) whether the deceased, if living, would have consented to release of the records to the requester; (iii) whether the deceased's will or other written instrument consents to the release of personal records etc.

Applicant's Submissions

The applicant provided this Office with a copy of the deceased's will and a copy of a letter from the personal representative named in the will. The personal representative states that because the deceased's interest in the family home passed automatically to her estranged spouse on her death, there was no reason to extract a grant of probate. He also confirmed that it is his wish that all records containing the deceased's personal information be provided to the applicant. The applicant states that she is the next of kin of the deceased and she states that the deceased, if living, would have consented to the release of the records to her. She argues therefore, that the public interest would on balance, be better served by granting than by refusing to grant access to records containing the deceased's personal information.

The Board's submissions

The Board argues that in order for a personal representative to act on behalf of the deceased, he or she must be legally confirmed in that position. It argues that in the absence of this legal confirmation, the personal representative has no standing in managing the deceased's estate and the fact that he or she has given permission for the applicant to act in his place cannot be taken into account. The Board accepts that the applicant is the next of kin; however, it argues that the public interest is not served by releasing confidential records which were created between solicitor and client. Finally, the Board argues that in addition to containing the personal information of the applicant's deceased mother, the records also contain the personal information of a third party.

The Records
The remaining records include notes of meetings between the deceased and her solicitor, correspondence between the deceased's solicitor and her barrister, correspondence between the deceased's solicitor and the solicitor for the other party to the proceedings and legal opinions provided by the barrister. I have examined the records closely and I am satisfied that the records either contain the personal information of the deceased which is intertwined with the personal information of the third party or the third party's personal information. The records were created in the context of divorce proceedings and contain a mix of the personal information of both parties including information in relation to property interests, financial affairs, employment history, age and medical history. Having regard to the content of the records and the context for their creation, it seems to me that it is not practicable to separate the personal information of the deceased person from that of the third party.
Neither section 37(8) nor the 2009 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating both to a deceased person and a third party, except where the third party is the requester. I find, therefore, that the records are exempt from release on the basis of section 37(1), subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
A request which would otherwise be refused under section 37(1) may be granted where the public interest that it be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. The Commissioner's view is that the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37 itself. This public interest in protecting privacy rights is also reflected in the Long Title to the Act which makes it clear that the release of records under FOI must be consistent with the right to privacy. The Commissioner also notes that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution.

In relation to the issue of the public interest, it is important to take note of the obiter comments of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest". Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law". Thus, a public interest (a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law) should be distinguished from a private interest.

The Commissioner takes the view that both section 13(4) of the FOI Act and the Rotunda case stand for the principle that a requester's private interest in certain records cannot be construed into a public interest based on the requester's own motives for seeking access to the records. He considers that an objective rather than subjective standard applies in determining the public interest in granting access to records.

Applicant's Submissions
The applicant argues that there is a public interest in openness and transparency in relation to how the Board carries out of its functions. She refers to the case of O'Donoghue v. Legal Aid Board, the Minister of Justice, Equality and Law Reform, Ireland and the Attorney General [2004] IEHC 413. In that case the High Court held that a delay of 25 months in granting a certificate for legal aid amounted to a breach of the constitutional entitlements of the plaintiff. The applicant argues that there was an unreasonable delay in this case. In her application to this Office, the applicant states "In order to seek the administration of Justice for our mother the (named) family request that the Information Commissioner consider all of the circumstances of this case and consider granting permission to access all relevant documents required to prove the misrepresentation of our mother..."

The Board's submissions
The Board argues that the records at issue are of an inherently private and sensitive nature and the public interest in the release of the records does not outweigh the public interest in protecting the privacy rights of the third party.

The Commissioner does not consider it open to him as Information Commissioner to determine that further personal information should be provided to an applicant, in the public interest under section 37(5)(a) of the FOI Act, as a means of remedying any actual of suspected wrongdoing by an FOI Body. This is reflected in the High Court decision in FP v The Information Commissioner [2014 No. 114 MCA] where McDermott J stated:

"It is clear that "private" as opposed to "public" interests are not a sufficient basis upon which to exercise the discretion in favour of the appellant under s. 28(5)(a) [now s. 37(5)(a)]. Thus the suggestion that access to the records might assist in some way in determining whether he had a cause of action against any of the parties or in advancing such a claim or might provide the basis for making a criminal complaint or mounting a judicial review... do not qualify as matters of public interest in that respect."

The fact that release of the remaining records might assist the applicant in some way in advancing a cause of action against the Board is not a matter that can be taken into consideration in determining where the balance of public interest lies. I am not satisfied that the public interest in the release of the records outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates.
In summary, I find that the remaining records are exempt from release on the basis of section 37(1) and that none of the exceptions under section 37 apply.

In light of the above finding's it is not necessary to further consider whether the records are also exempt under sections 31(1)(a) or 35(1)(a)/(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Board's decision.
I affirm the Board's decision that section 31(1)(b) applies to record 12 and record 43(4) and 43(5) which relate to Court proceedings subject to the in camera rule.
I affirm its decision to refuse access to the remaining withheld records on the basis that section 37(1) of the FOI Act applies since the withheld information concerns personal information of individual(s) other than the applicant and the public interest that the request should be granted does not outweigh the public interest that the right to privacy of those individual(s) should be upheld.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator