Whether the Council was justified in refusing access to records relating to works carried out at an identified location under section 32(1)(a)(iv) of the FOI Act

6 November 2020

Background

On 11 December 2019, the applicant submitted a request to the Council for access to all documentation relating to works carried out by or on behalf of the Council at a specified location in the five years up to the date of her request.   

As the Council failed to issue a decision on the request within the statutory time frame the applicant sought an internal review of the deemed refusal of her request.  As the Council also failed to issue an internal review decision within the required time frame, the applicant submitted an application to this Office, which was received on 6 May 2020, seeking a review of the refusal of the request.

Following correspondence with this Office, the Council issued its effective position to the applicant on 19 June 2020, in which it refused the request under section 32(1)(a)(iv) of the FOI Act.  It did not provide any other information relating to the records to which access was refused. On 16 July 2020, the applicant asked this Office to proceed with our review.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting the review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for records relating to works carried out at an identified location under section 32(1)(a)(iv) of the FOI Act.

Analysis and Findings

Section 32(1)(a)(iv) of the FOI Act provides that a request may be refused if access to the record sought 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. The principal purpose of the exemption is to prevent the disclosure of information which could result in unfairness in the conduct of legal proceedings.

When relying on this provision, the FOI body should show how or why releasing the withheld information at the time of the Commissioner's review could reasonably be expected to harm the fairness of the proceedings, i.e. what it is about the particular record or the particular information in the record which, if released, is expected to cause the harm envisaged and how or why is that harm expected to occur. The making available by an FOI body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing.

In correspondence with this Office, the Council asserted that the applicant sought access to the records at issue to support her public liability claim against the Council. It said it received legal advice that the records sought are more appropriately sought via the applicable legal channels, i.e. through discovery, whereby the appropriateness of releasing of said documents is ventilated in open court and discovery of such records is adjudicated upon by a judge, who will only order release of records sought if he/she considers the documents in question relevant and necessary. It said it was advised, therefore, that the release of requested documents could reasonably be expected to prejudice or impair the fairness of civil proceedings by circumventing the normal channels of administration of justice.

This Office has, on a number of occasions previously, addressed the argument that FOI is not an appropriate forum for obtaining records that a body considers should be more appropriately sought through discovery. For example, in Case 020179 (Organisation A and the Department of Arts, Sport and Tourism) the former Commissioner made the following observation, which I consider to apply equally to this case:

"I am aware of no restrictions on the use of the FOI Act as a means of obtaining documents held by a public body which might otherwise be available through the process of discovery".

She cited H.(E.) v Information Commissioner [2001] IEHC 58, in which O'Neill J commented:

"I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery".

The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of particular court proceedings. There are many instances where the release of information could prejudice or impair the fairness of such proceedings. For example, if the disclosure of information were to result in the manufacture or destruction of evidence, interference with potential witnesses, etc. then clearly the fairness of the court proceedings would be prejudiced or impaired. Furthermore, the Commissioner has accepted, as a general point, that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.

During the course of this review, Ms Swanwick of this Office wrote to the Council and invited it to make a submission in support of its decision to refuse the applicant’s request under section 32(1)(a)(iv).  No response has been received from the Council to date. 

In earlier correspondence with this Office, the Council explained that there is a considerable volume of documents relating to the request. It described the records as including drawings, tender documents, contract documents, Health and Safety documents, working drawings, quotes for materials, invoices and payment records, memos and other administrative records.

It is clear to me that the Council has adopted a “blanket approach” to the request by seeking to refuse access to all records under section 32(1)(a)(iv), regardless of the nature or contents of the records coming within the scope of the request, and that it did so based on its view that the records should more appropriately sought through discovery. As I have outlined above, the fact that the request may be in a position to obtain records through discovery does not mean that they are exempt under section 32(1)(a)(iv).

While it may well be the case that certain records are exempt from release on the basis of the exemption cited, the Council has not undertaken any substantial consideration of the contents of the individual records as required. For example, it is clear from the Council’s description of the nature of some of the records that section 32(1)(a)(iv) would not apply to such records.

In the circumstances, I consider that the most appropriate course of action to take is for me to annul the Council’s refusal of the quest. However, I do not consider it appropriate to simply direct the release of all records without giving the Council an opportunity to properly examine the records and to determine if a right of access exists. Instead, I consider that the request should be remitted back to the Council to allow it to undertake a fresh decision-making process in respect of the request.  The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s fresh decision. 

In considering the request afresh, I would draw the Council’s attention to a number of matters. First, under section 13(4), in deciding whether to grant or refuse a request, the Council must disregard any reason it believes the request has for making the request. As such, the fact that the requester may be seeking access to records to support her claim against the Council does not provide a valid ground for refusing the request.

Second, I would remind the Council that it has a statutory obligation to process requests and to issue decisions within the time-frames set out in the Act. Furthermore, when issuing decisions on requests, the Council must provide reasons for refusing requests, details of the provisions of the Act on which the refusals are based, and findings on any material issues relevant to those decisions (sections 13(2)(d) and 21(5)(c) refer).

Third, the Minister for Public Expenditure and Reform has published a Code of Practice for public bodies pursuant to section 48 of the Act. The Code is available on the website of the Department’s Central Policy Unit (www.foi.gov.ie). Under section 48(3), public bodies must have regard to that Code of Practice in the performance of their functions under the Act.

Among other things, the Code provides that the decision maker must prepare a schedule of records. The schedule should provide details of those records being released in full, of those to which partial access is being given and of those being refused and setting out the reasons why access is not being granted in full or in part and referencing relevant sections of the Act where refusals are made. 

Finally, it appears that the Council may have some concerns about the volume of records coming within the scope of the applicant’s request. Section 15(1)(c) provides for the refusal of a request where the body considers that granting the request would, by reason of the number or nature of the records concerned, require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with or disruption of its work, including disruption of work in a particular functional area. The interference with, or disruption of, the Council’s work must be substantial and unreasonable for the provision to apply. Furthermore, it is important to note that a body cannot seek to refuse a request under section 15(1)(c) unless it has assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused on those grounds (section 15(4) refers).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision to refuse, under section 32(1)(a)(iv), the applicant’s request for records relating to works carried out at a specified location and I direct it to undertake a fresh decision-making process on the request.

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.

 

Stephen Rafferty

Senior Investigator