Case 98036

Intelligence reports - whether release might adversely affect the security or defence of the State - section 24(1) - legal professional privilege - section 22(1)(a).

Case Summary

Facts

The requester had been dismissed from the Defence Forces over twenty years ago following an investigation which found that he could be a security risk. He sought, unsuccessfully, to have this decision quashed by the High Court. He sought access to all records about him which were held by the Department. The Department of Defence refused access to some records under section 24(1) on the grounds that disclosure could reasonably be expected to adversely affect the security or defence of the State. It claimed that release of the records would prevent sources of information being available to the Defence Forces in the future. The Department also contended that release of the records would show such matters as how it gathers intelligence and how it co-operates with the Garda Síochána. The Department also refused access to some records under section 22(1)(a).

Decision

The Commissioner concluded that nothing which might reasonably be expected to affect adversely the security or defence of the State would be revealed by the release of the records. He decided that the records should be released, subject to the deletion of personal information about certain third parties. The Commissioner accepted that the Department was obliged to refuse access where records would be exempt from production in court proceedings on the grounds of legal professional privilege but that the exemption did not extend to certain records which were created subsequent to court proceedings and which were concerned with recoupment of costs.

Date of Decision: 18.11.1998

DECISION

Background:

Mr AAM was discharged from the Defence Forces in April 1975. His discharge followed an investigation by the Defence Forces which found that he could be considered a security risk. He was not court martialled nor were any of the matters which were alleged against him proved. Mr AAM subsequently applied for an order of Certiorari to have his discharge quashed. This was refused by the courts. It was, however, conceded before the courts by the Defence Forces that his certificate of service should have had a conduct rating of "Fair" instead of "Unsatisfactory". In 1995, Mr AAM threatened to initiate further proceedings in respect of the failure of the Defence Forces to amend his certificate of service accordingly. Following some correspondence, the certificate was amended and the matter settled out of court.

On 21 April 1998, Mr AAM sought access to all documents about him held by the Department of Defence from 1972. On 25 May, the Department decided to grant access to some records in full, to grant partial access to certain records and to refuse to grant access to the remaining records. The Department also passed his request to the Defence Forces as another body holding records relevant to the request.

Mr AAM applied for an internal review on 3 June which was received in the Department on 9 June. This review affirmed the original decision of 30 June. Mr AAM applied to this Office for a review on 9 July and his application was received on 15 July.

Mr AAM in his application for review accepts that the Department granted him access to some documents but denied him access to other documents which he claims "will clearly prove my innocence and will also show that I was 'cleverly framed'". He considers that the reasons for denial are unjust and unfair and are simply a tactic to deny him justice. He asked that I contact the Garda Síochána and the Royal Ulster Constabulary. I have not done so because I have decided that no such contact is necessary for the purposes of the review.

The Department of Defence and the Defence Forces made a submission on this review and I have dealt below with the points which they made.

In reviewing this case, I have examined all of the records supplied to me by the Department of Defence. The main file is entitled "Discharges: Discharge of Mr AAM (Legal proceedings for re-instatement)". This file consists of 424 pages with a pocket containing a further 100 pages. The file contents are numbered by page 1-524 with the contents of the main file being given record numbers 1- 328. The file also contains four pages created after the request was received. Access is not granted to these since they did not exist at the time of the request. A further three pages from another file entitled "Discharges, Assessments of conduct" were also submitted.

The 524 records on the main file and the other three records can be divided into four groups: - records which the Department claims are exempt under Section 24. (Group 1 records number 20-24 and 29), - records for which the Department claims legal professional privilege under Section 22(1)(a). All except record numbers 77 and 79 relate to the two court cases. (Group 2 records number 2, 4-10, 13, 14, 17-19, 25-27, 30-61, 63-64, 67-73, 77, 79-98, 101-103, 107-113, 115-119, 122-125, 161, 163-164, 166-169, 176-178, 180-182 and pages from the file pocket numbered 429, 473-482, 496-498, 500-501, 503-506, 509-510, 512-524), - records which contain information provided for the information of the Minister and which contain elements of legal advice and which the Department has deleted before granting access. (Group 3 record numbers 186, 214, 222, 242, 258, 269, 280 and page numbers 427-428 in the file pocket.) - records which the Department claims do not contain personal information about Mr AAM and which were created before 21 April 1998 and to which access is refused under Section 6. (Group 4 records number 467-472 and 502 in file pocket of the main file and three records from the other file.) - Records to which the Department has agreed to grant access in full. (Group 5 records number 1, 3, 11-12, 15-16, 28, 62,65-66, 74-76, 78, 99-100, 104-106, 114, 120-121, 126-160, 162, 165, 170-175, 179, 183-185, 187-213, 215-221, 223-241, 243-257, 259-268, 270-279, 281-328 and pages numbered 425-426, 430-466, 483-495, 499, 507-508 and 511 in the file pocket.)

Submissions

Findings

Records in Group 1

The Department initially refused access to these records under Section 24(2)(a)(i). It now accepts that the mere fact that a record is covered by Section 24(2)(a)(i) is not sufficient to accord it exemption. It must also meet the test in Section 24(1) but the Department contends that this test is met in the case of the records in Group 1. Section 24 provides that

"(1) A head may refuse to grant a request under Section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head, access to it could reasonably be expected to affect adversely

(a) the security of the State,

(b) the defence of the State,

(c) the international relations of the State, or

(d) matters relating to Northern Ireland.

(2) This subsection applies to a record that (a) contains information -

(i) that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State, ..."

For the purposes of this review, this section requires that

(a) the Department shows that the record contains information that was obtained or prepared for the purpose of intelligence in respect of the security or defence of the State and

(b) the Department shows that access to it could reasonably be expected to affect adversely one of the interests listed viz., the security of the State, the defence of the State, the international relations of the State, or matters relating to Northern Ireland.

The Department contends that the release of records 20, 21, 22 and 23 will affect it in the future in a number of ways. First, it says that the records will affect the willingness of sources to provide information in the future if it becomes known that these sources may be revealed. Having examined the contents of the records in this case and considered the circumstances in which they were compiled, I cannot accept this argument. In the case of all four records the sources of the information came from within the Defence Forces and the information is related to matters pertaining to the Defence Forces. This is to be distinguished from the situation in which information comes from external sources and the identity of these sources may be protected by other exemptions of the Act. The Department also contends that release of the records will show such matters as how it gathers intelligence and how it co-operates with the Garda Síochána. However, having carefully examined the records I have come to the conclusion that their contents will not reveal anything of substance about these matters and, in particular, nothing which might reasonably be expected to affect adversely the security or defence of the State.

Record 20

This is a copy of a Military Police report

This record relates to an incident involving Mr AAM which occurred after his discharge. A military police report was subsequently filed. I accept that this report was prepared for the purposes of intelligence in respect of the security of the State. However, having regard to the fact that the report relates to an incident which occurred 23 years ago, and that access to it now is unlikely to affect adversely the security or defence of the State, I have decided that the exemption in Section 24 does not apply and the record should be released. The name of the other person with Mr AAM should be deleted because this is personal information about the other person (Section 28) and the public interest that the request should be granted does not outweigh the right to privacy of this person.

Record 21 This is a copy of a 1975 Military report. This report is headed "Soldiers Union" and covers an incident which happened in 1975.

The report and its contents were referred to in the affidavit presented to the High Court. Having examined this report, I accept that it was prepared for the purpose of intelligence in respect of the security of the State. It is clear from the final paragraph of the report that it was prepared in the context of continuing enquiries although the subject matter of the enquiries is not clear from the report. However, as with record number 20, it relates to an incident 23 years ago and access to the record is unlikely to affect adversely the security or defence of the State. I have decided, therefore, that the exemption in Section 24 does not apply and that the record should be released. The name of the other person with Mr AAM should be deleted because this is personal information about the other person (Section 28) and the public interest that the request should be granted does not outweigh the right to privacy of this person.

Records 22 and 23

Records 22 and 23 may be considered together. Record 22 contains a recommendation from an intelligence officer that Mr AAM should be discharged. This record gives the reasons for the recommendation for discharge and was prepared for the purpose of the discharge.

Record 23 is a report which indicates, inter alia, that Mr AAM was considered a security risk. The general contents of this report have been put to Mr AAM but he is unaware of the specifics as to why he was regarded as a security risk. I am satisfied that these records contain information that was obtained for the purpose of intelligence in respect of the security or defence of the State. However, the Department has failed to show that an adverse effect on the security or defence of the State could reasonably be expected if the record was now released. I have decided that Section 24 does not apply and that the records should be released.

Record 24

Record 24 is a reply to an internal query about an incident which occurred in 1973. It is clear from the date of the reply that it was prepared in the context of litigation and the Department is obliged to refuse access on the grounds of legal professional privilege under Section 22(1)(a), as opposed to Section 24.

Record 29

Record 29 is a copy of record 22 and the same considerations apply. Access to the record should be granted.

Records in Group 2

The Department has refused to release a number of records under Section 22(1)(a) which provides that

"A head shall refuse to grant a request under Section 7 if the record concerned (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,....."

In Silver Hill Duckling v Minister for Agriculture, O' Hanlon J. held "that 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."

He further held that the defendants were entitled to claim privilege in respect of documents "prepared in connection with the claim and for the primary purpose of dealing with the claim"

The first record on the file (record number 1) is a letter dated 20 February 1976 from Mr AAM's solicitors informing the Department that the solicitors have been instructed to commence proceedings. I am satisfied that documents subsequently placed on the file were so placed in the context of the threat of litigation. Records numbered 2, 4-10, 13, 14, 17-19, 25-27, 30-61, 63-64, 67-73, 77, 80-98, 101-103, 107-113 and pages from the file pocket numbered 429, 473-482, 496-498, 500-501, 503-506, 509-524 all relate to the court proceedings brought by Mr AAM against the Attorney General and Minister for Defence regarding his dismissal. All of these records were clearly prepared for the purposes of the litigation and I accept that these would be exempt from production in court on the grounds of legal professional privilege.

Record number 77 records legal advice sought in connection with representations received and would also be exempt from production in court on the grounds of legal professional privilege.

Record number 79 is a copy of a recommendation tangential to Mr AAM's case. It mentions as an aside the fact that judgement has not yet been given in the AAM case. I find that this record does not contain personal information relating to Mr AAM and that the Department is entitled to refuse access under Section 6 of the FOI Act as the record was created prior to 21 April 1998.

Records numbers 115 and 116 relate to follow-up action after the Court's judgement and records 117-119, 122-125 cover the recoupment of costs at the conclusion of the case. Records numbers 115 and 117 were created by the Office of the Attorney-General and do not concern the general administration of that Office so the Freedom of Information Act does not apply to them, as provided for by Section 46(1)(b). Record 116 does not contain personal information relating to Mr AAM and the Department is entitled to refuse access under Section 6 of the Freedom of Information Act as the records were created prior to 21 April 1998. Record numbers 118-119 and 122-125 contain personal information and access to these should be granted.

The next set of records to which access has not been granted came into being as a result of a letter from Mr AAM's solicitors, in June 1995, threatening further legal action. These are documents numbered 161, 163-164, 166-169, 176-178, 180-182. Again these documents were prepared in the context of the threat of litigation and I accept that these would be exempt from production in court on the grounds of legal professional privilege.

Accordingly, with the exception of record numbers 118-119 and 122-125, none of the records in Group 2 fall to be released by reference to Section 6, Section 22(1)(a) or Section 46(1)(b) as appropriate.

Records in Group 3

This group of records has been released with deletions on the grounds of legal professional privilege. The records are notes prepared for the information of the Minister and the Department claims that they contain legal advice and has made deletions accordingly. These are records numbered 186, 214, 222, 242, 258, 269, 280 and pages 427-428 and 430-431.

I am satisfied that the deletion of the last paragraph of record number 186 is justified on the grounds of legal professional privilege since it contains legal advice relating to the court cases.

Record 214 contains legal advice in relation to the threatened litigation. This is contained in the second paragraph of item 7 and I am satisfied that legal professional privilege would apply. Records numbered 222, 242, 258, 269, 280 and page numbers 427-428 are copies or earlier drafts of record 214 and the same considerations apply as to record number 214.

Records in Group 4

Mr AAM's name appears in these records in the context of the court case because the judgement had implications for the assessment of conduct in other cases of discharge. These records were created before 21 April 1998. I have decided that these records do not contain personal information about Mr AAM and that the Department is entitled to refuse access under Section 6 of the FOI Act.

Records in Group 5

I agree with the Department's decision to grant access to these records.

Decision

I have decided to annul the decision of the Department and to make a new decision as follows:

- Grant access to record 20 in full, subject to the deletion of the name of the person with Mr AAM.

- Grant access to record 21 in full, subject to the deletion of the name of the person with Mr AAM.

- Grant access to record 22 and 23 in full.

- Refuse access to record 24 on the grounds of legal professional privilege.

- Grant access to record 29 in full.

- Refuse to grant access to records number 2, 4-10, 13, 14, 17-19, 25-27, 30-61, 63-64, 67-73, 77, 79-98, 101-103, 107-113, 116, 161, 163-164, 166-169, 176-178, 180-182 and pages from the file pocket numbered 429, 473-482, 496-498, 500-501, 503-506, 509-510, 512-524 on the grounds of legal professional privilege exemption under Section 22(1)(a) or Section 6 as appropriate.

- Refuse to grant access to record numbers 115 and 117 because the Act does not apply to them. (Section 46(1)(b))

- Grant access to record numbers 118-119 and 122-125.

- Grant access to record number 186, subject to the deletion of the last paragraph.

- Grant access to records number 214, 222, 242, 258, 269, 280 and pages 427-428 subject to the deletion of the second paragraph of item 7.

- Refuse to grant access to page numbers 467-472 and 502 in file pocket and to the records on the file "Discharges, Assessments of conduct" on the grounds that they do not contain personal information and were created before 21 April 1998.

- Grant access to records number 1, 3, 11-12, 15-16, 28, 62,65-66, 74-76, 78, 99-100, 104-106, 114, 120-121, 126-160, 162, 165, 170-175, 179, 183-185, 187-213, 215-221, 223-241, 243-257, 259-268, 270-279, 281-328 and pages numbered 425-426, 430-466, 483-495, 499, 507-508 in the file pocket.

Information Commissioner

18 November 1998