Whether TII was justified in refusing to grant access to additional records, relating to a review of a workplace investigation on the basis of sections 15(1)(a) and 31(1)(a) of the FOI Act

18 July 2018 

Background

The applicant made an FOI request to TII for records relating to a review of a workplace investigation. TII granted access to some information and refused access to the rest of the information sought, on the basis that it was exempt under sections 15(1)(a), 15(1)(i), 30(1)(b), 31(1)(a), 35(1)(a) and (b), 36(1)(b) and 37 of the FOI Act. On 26 May 2017, the applicant applied for an internal review of that decision. TII issued its internal review decision on 16 June 2017, in which it affirmed its original decision. On 22 June 2017 the applicant sought a review by this Office of TII's decision. 

This Office carried out a review of TII's decision inCase No. 170322, which is available atwww.oic.ie. In that separate case I affirmed TII's decision to refuse to grant access to records on the basis of sections 31(1)(a), 36 and 37 of the Act. This review is concerned with whether TII was justified in refusing to grant access to additional records. In correspondence with this Office, the applicant indicated that he was specifically concerned with records relating to the decision to undertake a review of the original investigation and records relating to the appointment of a third party company (the company) to carry out a review of the initial investigation.

During the course of this review, TII located six additional records, to which it refused to grant access on the basis of section 31(1)(a) of the FOI Act (legal professional privilege). This Office's Investigator contacted the applicant and informed him of this and of the search details provided by TII in its submission. She also outlined her view that TII had justified its decision to refuse to grant access to additional records on the basis of sections 15(1)(a) and 31(1)(a) of the FOI Act, and invited him to comment. On 19 June 2018, the applicant indicated that he was not satisfied with TII's explanations of its procedures in relation to the matters at hand and that he did not agree with the Investigator's view.

Having completed my review, I have decided to bring this case to a close by way of a formal, binding decision.

In conducting my review, I have had regard to the correspondence between the applicant and the TII as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the records located during this review that were provided to this Office by TII for the purposes of this review. 

Scope of Review

This review is solely concerned with whether TII was justified in its decision to refuse to grant access to additional records on the basis of sections 15(1)(a) and 31(1)(a) of the FOI Act.

Preliminary Matters

It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

It is also important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Finally, I note that, in his correspondence with this Office the applicant queried TII's submissions in relation to TII's lack of adherence to procurement guidelines in relation to the review of the initial investigation. However, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. 

Analysis and Findings

Section 15(1)(a)
TII refused to grant access to additional records on the basis of section 15(1)(a). 

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. On the basis of the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.

TII investigated a workplace complaint and a report was issued with various findings. The company was subsequently engaged to carry out a review of the report. The records the applicant is seeking in this case relate to TII's decision to carry out a review, the relevant procurement process and the engagement of the company.

Searches
TII stated that as well as the initial searches it had taken to locate relevant records, it had carried out additional searches during the course of this review. It said that both searches involved the following:

• Manual searches of hardcopy files stored in locked HR filing cabinets
• Electronic searches of the employee relations folders held on the HR Network Drive and the secure archived National Roads Authority drive
• Electronic searches of relevant email accounts held in secure email folders using various relevant keywords

I deal below with the specific categories of records the applicant had referred to in his correspondence with this Office.

Records in relation to the decision to undertake the review
TII stated that its decision to carry out a review of the initial report was based on oral legal advice from its legal advisers. The applicant was of the view that such a review was outside the provisions of TII's anti-bullying and harassment policy. In response TII stated that it was perfectly appropriate for it to adapt or extend internal policies and procedures having regard to its overall obligations and duties to employees. In essence, it said that the decision to carry out a review of the earlier report was discussed verbally and that no records were created as a result, other than those already identified (and some additional records referred to below). 

Records concerning the company's appointment to carry out the review
TII said that its legal advisers engaged the company on its behalf and engaged with it in agreeing the terms of reference of the review. It also said that it had located two internal records relating to this part of the applicant's request. It stated that it asked its legal advisers to check their files, who located four additional records relating to the appointment of the company. Its position is that these records are exempt from release under section 31(1)(a) of the FOI Act (legal professional privilege). I shall consider these separately below. 

Records relating to procurement
Essentially, TII said that it did not run a mini tender competition as the review needed to be undertaken urgently and it considered it unlikely that there would be three investigators readily available with the necessary expertise. It stated that EU procurement law did not apply in the circumstances, as the contract fell well below the monetary threshold to advertise the proposed contract. It also said that it was of the view that there was no realistic prospect of any interest in the contract from outside Ireland. It acknowledged that the Department of Public Expenditure and Reform guidelines reflected best practice, as noted by the applicant. However, its position was that the guidelines were not legally binding on TII and that it complies with them except where exceptions apply. Overall, TII's position is that no records relating to procurement exist or could be located as no procurement process was carried out.

The applicant's view
The applicant stated that it does not seem credible that such a review, which he contends was carried out in a manner which would deny him his constitutional rights to fair procedures and the protection of his good name, was decided on the basis of oral advice. 

The applicant is also of the view that TII's statement relating to "TII's engagement with [the company]" in its internal review decision directly contradicted its submission to this Office, which stated that its legal adviser engaged the company. Having reviewed the earlier comment and the information now before me, I do not see any contradiction. It appears to me that TII was speaking generally in its earlier letter, whereas in its submission it was responding to specific questions from this Office concerning its procurement process. TII provided a fuller response to this Office and set out the various issues which affected its ultimate decision not to go through its usual procurement procedures. These have all been provided to the applicant. In any event, even if I was to accept that contradictory statements had been made, this would not determine the matter of whether additional records are held.

Overall, as I understand it, due to the urgency and sensitivity of the issues arising, TII contacted its legal advisers and took their advice how to proceed. TII stated that its legal advisers engaged the company on TII's behalf and has provided copies of the newly located records, which bear this out. As set out above, this Office has no role in determining the appropriateness of how the company was engaged. In any event, TII has clearly stated that it did not go through any of the usual procurement channels to do so, which is why no records such as those sought by the applicant exist. I have no reason to doubt this explanation.
It seems to me that TII has adequately explained why no additional records exist or can be located relating to the three categories above, other than those identified in the previous case and the six additional records located during this review. I also note that TII has stated that it is willing to release two attachments to the newly located records to the applicant, although I believe he already has these. Taking the above into account, I find that TII was justified in refusing to grant access to any further additional records as sought. 

I will consider TII's refusal to grant access to the six newly located records under section 31(1)(a) below.

Section 31(1)(a) - Legal Professional Privilege
TII relied on section 31(1)(a) in its refusal to grant access to the six records which were located during this review. Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and 
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

During the course of this review TII made a submission in relation to these records and provided further information to this Office concerning related matters. Having reviewed TII's submission and the content and context of the records concerned, I am satisfied that section 31(1)(a) applies to them, on the basis that they comprise confidential communications between a client and a professional legal adviser, or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which was the preparation for contemplated or pending litigation. 

The applicant is of the view that public money has been spent by TII in such a way as to deprive him of fair procedures, as well as being in breach of Government Procurement Guidelines and TII's own guidelines. He argued that there is significant public interest in these matters and that TII should be directed to release the records concerned in full. However, section 31(1)(a) is a mandatory exemption, which clearly applies to the type of records at issue in this case. Furthermore, unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. I do not consider that the Commissioner has the power to make the direction sought by the applicant.

Accordingly, I find that TII was justified in withholding access to the six newly located records under section 31(1)(a) of the FOI Act.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm TII's refusal to release additional records relating to a review of a workplace investigation on the basis of sections 15(1)(a) and 31(1)(a) of the FOI Act.

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 to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator