Case 98032

Records containing allegations about requester - legal professional privilege - section 22(1)(a) - information given in confidence - section 26(1)(a) - whether public interest better served by release - section 26(3) - disclosure of identity of sources - section 46(1)(f) - application of section 13.

Case Summary

Facts

The requester in this case was the subject of an investigation and successful prosecution by the Department of Agriculture and Food following a series of allegations made about him to the Department. The Department decided to grant access to a number of records, partial access to others and to withhold others invoking the exemptions under section 22(1)(a), (Legal professional privilege), section 26(1)(a), (information obtained in confidence) and 46(1)(f), (information given in confidence in relation to the enforcement of criminal law).

Decision

The Commissioner decided that certain records attracted legal professional privilege and were exempt under section 22(1)(a). He found that records created by the Office of the Attorney General were exempt under section 46(1)(b). With regard to records relating to the investigation of the requester's activities, the Commissioner decided that it was necessary to make a distinction between information relating to the identity of an informant and the content of the information provided by the informant. In this particular case the Commissioner was of the view that information in some of the records could identify the informant. Such information was protected by section 26. He decided that the remainder of the record should be released. He decided that the public interest did not require the disclosure of the identity of the informants in this case. He found that the exclusion at section 46(1)(f) also applied. He concurred with the decision of the Department to rely on section 13 to delete the information excluded under section 46(1)(f) and to release the remainder of the record.

Date of Decision: 09.11.1998

DECISION

Background:

Mr AAK applied to the Department of Agriculture and Food on 30 April l998 under the FOI Act "to see my file and any other information you may have on me". Following consultation with the Department he clarified that he wished to see his file in relation to the distribution and use of animal remedies back to 1983. A decision was made on this request by the Department. The Department decided to grant access to a number of records, granted partial access to others and exempted others under Section 22(1)(a) - legal professional privilege, Section 26(1)(a) - information obtained in confidence and Section 46(1)(f) - information given in confidence in relation to the enforcement of the criminal law.

Mr AAK appealed this decision to internal review and the decision by the reviewer was to vary the original decision in that two of the documents which it was proposed to release were now deemed to be protected under Section 26(1). The decisions on the remainder of the records were upheld.

Mr AAK applied to the Information Commissioner to review this decision on 9 July 1998. The Commissioner decided to review the case and invited submissions from the relevant parties.

Mr AAK, in his submission, disputes the application of Section 22(1)(a) and suggests that these records would not be protected from production in a court of law as he claims they relate to the unsubstantiated word of anonymous informers.

The Department made a submission in relation to the receipt by them of confidential information, the release of which could lead to the identification of sources of information. They contend that the identification of informants would be prejudicial to the effectiveness of the investigative unit of the Department.

The background to this case is that Mr AAK was the subject of a number of allegations to the Department over a period of years in relation to offences involving illegal growth promotors and clenbuterol. Following an investigation he was prosecuted and pleaded guilty to possession of a syringe containing a hormone cocktail.

Mr AAK's request relates to information about him which is held by the Department. The Department have conceded that the records contain personal information in respect of which Mr AAK is entitled to retrospective access under the Act. The issue to be considered is whether the various exemptions in the Act have been correctly invoked in relation to these records.

A full schedule of the records concerned has been provided to Mr AAK by the Department. It is not necessary for the purposes of this decision to describe each record separately, but where reference to particular records is required I have used the number stamped on that record by my Office.

The records in this case can be divided into the following broad categories viz.

• records containing details of allegations regarding Mr AAK from anonymous or unnamed sources - (Group 1, numbers 1 and 2)
• records relating to miscellaneous Departmental investigations (Group 2, numbers 3 to 10)
• correspondence between the Department and Mr AAK (Group 3, numbers 11 to 13)
• records relating to the prosecution taken against Mr AAK (Group 4, numbers 14 to 56a)
• correspondence between Mr AAK's legal representative and the Department threatening legal action, and related correspondence (Group 5, numbers 57 - 64a)
• records of the Special Investigations Unit which are mainly concerned with allegations from named parties about Mr AAK (Group 6, numbers 65 - 84).

There are two records in the first group. One record (number 1) is a note of an allegation made to the Department by telephone, relating to Mr AAK and another named party. The informant is not identified by name although his occupation and a general geographical location are mentioned. The second record (number 2) is a note of an anonymous phone call, again making an allegation against Mr AAK. The initial decision was to release these records but this was varied by the internal reviewer who claims that Section 26(1)(a) applies. I have dealt with the possible application of Section 26(1)(a) to each of these records separately below.

Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3)of the Third Scheduleof an enactment specified in that Schedule) or otherwise by law".

For Section 26 (1)(a) to apply it is necessary for the Department to show four things,viz

• that the information was given in confidence, and
• that the information was given on the understanding that it would be kept confidential, and
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

A record of an allegation could, as in the case of record number 1 contain two distinct matters viz. (i) information relating to the identity of the informant and (ii) information consisting of the actual contents of the allegation. For the purpose of applying Section 26(1)(a) I have considered these two matters separately.

(i) Information relating to the identity of the informant in record number 1.

Where information comes from an anonymous source, it is reasonable to assume that information given about the informant and which might identify him is given in confidence and on the basis that it will be kept confidential. This situation differs little from that of an allegation from a named informant who explicitly requests confidentiality. Therefore it is important to consider if the information regarding the occupation and location of the informant in this record could lead to his identification.

Having examined the record in this case, I accept that the information contained in it could lead to the identification of the source of the information. Therefore, I accept that the first two requirements of Section 26(1)(a) are met in this case. I also accept that if information about an informant, which might identify that informant, is disclosed this is likely to prejudice the giving of similar information concerning an informant in the future. This is because fear of disclosure of the identity of the informant is likely to result in future information being supplied only on an anonymous basis.

The final requirement of Section 26(1)(a) is that it be of importance to the public body to receive such information (i.e. information about the informant) in the future. In deciding whether this requirement of the Section is met, I have considered two issues. The first is whether obtaining information from informants is important. The Department maintains that it is. It says that investigations are often initiated on foot of information received. It claims, and I accept this to be the case, that if the flow of information is cut off, the Department's ability to detect such offences would be impaired. Failure to detect and to eliminate such offences could have serious consequences for agriculture in Ireland. Therefore, while the Department has not put a detailed case to me as to how significant an impact the loss of such information would have on its capacity to investigate such offences, I accept that the detection of such offences is itself of such importance as to require that, as far as possible, nothing be done to adversely affect this capacity. Therefore, I accept that it is of importance to the Department to continue to receive information about alleged offences.

The second issue which I have considered is whether it is important to the Department that it knows the identity of informants or is given some details about them as distinct from the details of their allegations. The Department has indicated that, by and large, it finds information from identifiable sources more useful than anonymous information. This is because it is usually easier to determine the quality and accuracy of the information if the source is known. I accept that this is so and that, therefore, it is of importance to the Department that informants continue to identify themselves or at least give such details about themselves as may assist the Department in assessing the quality of the information supplied.

Therefore, I accept, that the requirements of Section 26(1)(a) have been met in relation to that part of this record which relates to information about the informant. However, the requirements of Section 26(3) must also be considered. This subsection requires the public body to consider whether the public interest would, on balance, be better served by granting rather than by refusing to grant the request. The Department does not appear to have properly considered this at internal review stage. In my view, there is a significant public interest in the Department being able to effectively detect and eliminate offences of the kind which were the subject of the allegations made against Mr AAK. On the other hand, there can also be a public interest in an individual against whom allegations are made knowing about these allegations and being given an opportunity to refute them.

However, in the present case I do not accept that there is a public interest in Mr AAK being given information which might identify the parties who made allegations about him. Subsequent to the allegations, an investigation was carried out, a prosecution was made and Mr AAK pleaded guilty to one of the alleged offences. The matter having been concluded in this way, it seems to me that the public interest does not require Mr AAK to know the identity of informants whose allegations may, in part, have led to the investigation, which resulted in his prosecution.

(ii) Contents of the allegations in record number 1.

The second matter which requires to be considered in the light of Section 26(1)(a) is the actual contents of the allegations in record number 1. Once again the four requirements of Section 26(1)(a) mentioned earlier need to be considered. One of these requirements is that the information must be given on the basis that it be kept confidential. It might be possible to make a case that if disclosure of the full details of the allegation would be likely to reveal the identity of the informant, then these details are given on the understanding that they will be kept confidential. Having examined the record in this case, it is clear that it contains nothing which an informant might want concealed from Mr AAK. Therefore, I have decided that Section 26(1)(a) does not apply to the contents of the allegations in record number 1, because the information was not given on the understanding that it would be treated as confidential.

Insofar as the first record relates to a third party, the Department has accepted that the information contained in it relating to a third party is personal information about that individual and should be protected under Section 28. Accordingly, I have decided that this record should be released, after deleting the details about the informant and the name of the third party.

In the case of record number 2 the only matter for consideration is whether there is an implied understanding that the content of the allegation should be kept confidential. Having examined this record, I have decided that it contains nothing which an informant might want concealed from Mr AAK. Therefore, I have decided that Section 26(1)(a) does not apply to this record.

The records in group 2 (numbers 3 to 10) relate to investigations by the Department into various activities carried out and are primarily listings of van operators, searches carried out and cases awaiting prosecution. In each case Mr AAK is one of a number of parties mentioned in the record. In these instances I consider that partial access only should be allowed to Mr AAK under Section 13 as the third party information contained in these records is protected under Section 28 (1). Therefore, I concur with the decision of the Department in this matter.

The records in group 3 (numbers 11 to 13) consist of correspondence between the Department and Mr AAK and a related internal minute. It is proposed to release these to Mr AAK and I concur with this decision.

The records in group 4 (numbers 14 to 56a) relate to the prosecution of Mr AAK. Some of these records have been withheld by the Department under Section 22(1)(a) on the grounds that they would attract legal professional privilege. The records consist mainly of correspondence between the Department and the Chief State Solicitor's Office regarding the court case. There is also correspondence from the Gardaí submitting the files to the State Solicitor for prosecution.

Section 22(1)(a) states that "A head shall refuse to grant a request under Section 7 if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege". I am satisfied that legal professional privilege may be claimed in respect of all the correspondence passing between the Department and its legal advisor, the Chief State Solicitor's Office, in contemplation of litigation. It is clear to me that the dominant purpose for these documents coming into existence was the preparation for litigation. In the light of the case of Silver Hill Duckling Limited v Minister for Agriculture, l987 IR 289, I have decided that this is sufficient to permit exemption under Section 22 (1)(a). For the same reason, I accept that the communication between the Gardaí and the Chief State Solicitor's Office (records number 51 and 51a) are exempt. I am also satisfied that records concerning the practical matters of summoning witnesses etc, created by the Chief State Solicitor's Office are, in any event, excluded from the operation of the Act by Section 46(1)(b). There are two records (numbers 15 and 17) which are internal memos summarising legal advice given to the Department. I am satisfied that record number 17 attracts legal professional privilege. I am satisfied that the final two paragraphs of the minute numbered 15 attracts legal professional privilege. The remainder of this record, including the annotation, is simply an account of the court proceedings and I have decided that it should be released. The records in group 5 (numbers 57 to 64a) arose out of correspondence from Mr AAK's solicitor threatening legal action against the Department. All records have been released except two - a letter to the Office of the Attorney General seeking advice on how to respond to the threat of legal action and the Attorney General's reply. I am satisfied that both these records attract legal professional privilege. The record created by the Attorney General's Office is also excluded under Section 46(1)(b).

The records in group 6 (numbers 65 to 84) are held on an unregistered file of the Special Investigations Unit of the Department. These records relate to the investigation of the alleged activities of Mr AAK. The exemptions under Section 26(1)(a) and Section 46 (1)(f) have been applied by the Department. However, the Department is prepared to allow partial access under Section 13 to these records with the deletion of the protected information in some instances and to release a typed copy with deletions in others. All the other records have been made available to Mr AAK. The Department may determine the form of access to the record and Mr AAK has not raised this as an issue on appeal.

The records in respect of which exemption is claimed consist of correspondence from third parties which relate to the alleged activities of Mr AAK and records which relate to the investigations carried out by the Special Investigation Unit, which document their findings and the sources of this information. The exemption in Section 26(1)(a) was invoked by the Department in relation to the records containing information given to the Department which it says was given in confidence and on the understanding that it would be kept confidential.

Having examined these records, I accept that they contain information which was given to the Department in confidence, in the sense that the informant in each case understood that his identity would not be disclosed to Mr AAK. However, I am not satisfied that the content of the allegations was given on the understanding that it would be kept confidential. The informants clearly hoped that the Department would take action and there is no evidence that any of the informants requested that the existence of the allegations not be disclosed to Mr AAK.

Therefore, and for the reasons already given in relation to the records in group 1, I have decided that the contents of the records should be disclosed but after deleting anything which might identify the source. In so deciding, I accept that the Department is entitled to rely on either Section 26(1)(a) or Section 46(1)(f) in order to refuse access to information about the informants.

Accordingly, I uphold the Department's decision on this point but I consider that some further minor deletions are necessary to fully protect the identity of the informants. I have indicated the required deletions on records number 65 and 69, attached.

Submissions

Findings

Decision

Having considered all aspects of the decision of the Department of Agriculture and Food, both initially and on internal review, I uphold the decision of the Department insofar as it relates to the documents proposed to be released in full.

I have varied the decision of the Department of Agriculture and Food in so far as it relates to record numbers 1,2,15,65 and 69. I have detailed my decision in relation to each individual record in the attached schedule.

SCHEDULE A

Information Commissioner

09 November 1998