Whether the Council was justified in its decision to refuse access under various sections of the FOI Act to records about roadside public lighting

29/03/2019

Background

On 19 February 2018, the applicant requested access to records held by the Council about the maintenance, repairs and upkeep of the roadside public lighting of an area near to a named public house. In its original decision, the Council granted access to one record and refused access to the remaining 28 records on the basis of sections 30, 31 and 32 of the FOI Act. However, other than applying all three exemptions to many of the records in its decision schedule and later stating that some records that it had scheduled were outside the scope of the request, the Council did not provide any information about the reasons for its decision, as required by section 13(2)(d)(i). 

Following a request for an internal review, the Council affirmed its decision but again did not provide the applicant with any information about the reasons for its decision. On 11 September 2018, this Office received an application for review of the Council's decision from the applicant.

During the review, the Council stated that other records were refused on the basis that they are not within the scope of the FOI request. The applicant was advised by this Office about the Council's position.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Council and to correspondence of the applicant, the Council and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. 

Scope of Review

This review is concerned solely with whether the Council was justified in deciding to refuse access to records falling within the scope of the applicant's FOI request as made, on the basis of sections 30(1)(c), 31(1)(a), 32(1)(a)(iv) and 37(1) of the FOI Act.

Preliminary Matters

The applicant explained why access to the records was required. It would not be appropriate here to go into the detail of that explanation but I understand that the request relates to a number of tragic road accidents in the area near to the public house. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. 

I am disappointed with the decision making process of the Council in this case. Its handling of the case caused confusion and delay in my review. It is not appropriate that the Council would seek to apply apparent "blanket" exemptions to all records coming within the scope of the request. Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. The Council did not comply with the Act's requirement in this regard. Given that the Council has been subject to the provisions of FOI legislation since 1998, it ought to be fully aware of its obligations under the FOI Act. There is a wealth of training material and other resources to assist FOI bodies on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (DPER) at www.foi.ie, and on the Commissioner's website (www.oic.ie). Considerable confusion arose in the review also as the Council appeared to have difficulty in confirming which, if any, of the records had been the subject of an Order for Discovery in legal proceedings which could have affected their status under the FOI Act. 

Reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. 

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.

Findings

Withheld Information - Outside scope of request and review

The Council stated that records 6, 13-22, 24 and 25-29 were refused on the basis that they are not within the scope of the FOI request as made. This is unsatisfactory given that all of these records had initially been identified by the Council in response to the request as made.

Having carefully examined these records, I am of the view that most of them contain matters which are not within the scope of the applicant's request. However, I find that the content and date of records 22, 25, 26 and 27 brings them within the scope of the review. 

Accordingly, I find that the records listed above, with the exception of records 22, 25, 26 and 27, are not within the scope of this review. The Council did not claim any other exemption for record 22 but due to its content, I consider that it is appropriate to deal with it below in the same sections as record 23. I will consider records 25, 26 and 27 further in this decision.

Are further records held?
During the review the applicant stated that she was not satisfied that the records listed by the Council in its decision schedule were the "sum total of the documents available" to the Council. The Investigator invited the applicant to provide further information in support of her point that further records may exist. However, while the applicant stated that she believed further records exist, no additional information was provided. The Council was informed of the applicant's reference to further records. 

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records.

I do not consider that this Office has any basis on which to find that the Council holds further records falling within the scope of the request which it has withheld. If the applicant has identified specific additional records which she believes are held by the Council, it is open to her to consider making a fresh request for access to those. 

Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. 

Section 31(1)(a) - Legal Professional Privilege

Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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 

(b) 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).

The Council refused access to records 4, 5, 7, 8, 9, 10 and 11 under section 31(1)(a) of the FOI Act on the basis that litigation privilege applies. It is clear from submissions of both the applicant and the Council that there are legal proceedings in being.

Litigation Privilege

For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation. In the judgment of the High Court in University College Cork -� National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) (the ESB case) Finlay Geoghegan J. stated -
"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation".
She also noted that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action."
As such, a body claiming the exemption must satisfy the Commissioner, on balance, that litigation is apprehended or pending and consideration must be given to the purpose or purposes for which the records were created. 
In Silver Hill Duckling v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516 O' Hanlon J. held: "once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege". 

I do not believe that I would be revealing exempt information in violation of section 25(3) of the FOI Act by noting that the records are confidential email communications between the Council and its professional legal advisors and/or third parties that were created in 2017 and have a subject title of the legal proceedings involving the parties in this case.
I accept that the dominant purpose of most of the records was the preparation for litigation that was contemplated during this period of time. Accordingly, I am satisfied that the following records are exempt under section 31(1)(a) on the basis of litigation privilege: records 4, 5, 7, 8, 9, 10 and 11  
Having found records 4, 5 and 7-11 to be exempt under section 31(1)(a), a mandatory exemption, it is not necessary to consider those records under the discretionary exemption at section 32(1)(a)(iv) below.

Section 30(1)(c)

The Council refused access to records 2, 3, 12 and 23 under section 30(1)(c). I include record 22 in this section.

Section 30(1)(c)

Section 30(1)(c) provides for the refusal of a request if the body considers that access to the record sought could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Where the body relies on section 30(1)(c), it must also consider whether the public interest would, on balance, be better served by granting than by refusing to grant the request (section 30(2) refers).  

This provision is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test and records relating to past, present or future negotiations may be protected under section 30(1)(c). However, previous decisions of this Office have found that FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

The Council stated that the records relate to pending personal injuries/public liability proceedings taken against it which remain outstanding. However, it did not identify any information in the records that would disclose positions taken (or to be taken), etc., for the purpose of any negotiations. The Council stated that it did not consider the public interest at section 30(2) as there was no "public interest which would overturn [its] use of section 30(1)(c)". 

Having examined the records, I see nothing in them to suggest that they contain positions taken or to be taken or that they form part of any negotiations so that they fall within the terms of the exemption.
 
Accordingly, I find that 30(1)(c) does not apply.  

Section 32(1)(a)(iv)

The Council refused access to records 2-5, 7-12 and 23 on the basis of section 32(1)(a)(iv), which is a discretionary exemption. However, having found records 4, 5 and 7-11 to be exempt under section 31(1)(a), I will consider records 2, 3, 12 and 23 only in this part of the decision. I also include record 22.

Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. Under section 32(1)(a)(iv), it is necessary for the Council first to identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue. Having identified the potential harm, the Council is then required to show that its expectation of such harm arising is reasonable.

Other than quoting the provisions of section 32(1)(a)(iv), the Council made no argument in either its decision or its submission about how granting access to information in the records could potentially prejudice or impair the personal injuries/public liability proceedings previously referred to. The mere existence of related court proceedings is not sufficient to show that any harm could arise from the release of the records at issue. The Council has not shown how it expects the release of the records to prejudice or impair the proceedings concerned. Neither has it shown that any such expectation of harm is reasonable, and having examined the contents of the records, I find that section 32(1)(a)(iv) does not apply to them.

Section 37- Personal Information

During the review the Council was informed by this Office that it might be appropriate to consider the mandatory section 37 provision of the Act in the context of personal information to be found in records 25 and 26. As mentioned earlier, I have decided to consider record 27 under this section also.

Section 37(1)

Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual". 

I am satisfied that the withheld information is personal information relating to individuals other than the applicant.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act 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.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In considering the public interest test in section 37(5)(a), I must have regard to the judgment 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 (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, -�a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law-� must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

On balance, I do not see how in this case the public interest that access to the records should be granted outweighs the public interest that the right to privacy of the third parties should be upheld. Accordingly, I find that section 37(1) of the Act applies in full to records 25 and 26 and in part to record 27.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision in this case as follows:
I affirm its decision to refuse access to records 4, 5, 7, 8, 9, 10 and 11 under section 31(1)(a) of the Act on the basis of legal professional privilege. 
I affirm the Council's decision to refuse access in full to records 25 and 26 and in part to record 27 (redact the email dated 03 September 2012 15:54) under section 37(1) of the FOI Act, on the basis that they contain the personal information of individuals other than the applicant. 
I annul the Council's decision with respect to records 2, 3, 12, 22 and 23 and direct their release subject to redaction of personal information under section 37(1).

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator