Case 98084. Pre-commencement records - personal information about other individuals - whether information received in confidence - application of section 26(1)(a) - legal professional privilege - application of section 22(1)(a) - whether release would prejudice or impair the investigation of offences - application of section 23(1)(a).

Case Summary

Facts

The Pensions Board refused access to certain records on the grounds that some were created before the commencement of the Act and did not contain personal information about the requester, that some would be exempt from production in court proceedings on the grounds of legal professional privilege, that some contained information received in confidence, that some contained personal information about third parties and that access to some records could reasonably be expected to impair the investigation of offences. One of the third parties consented to the release of the records containing personal information and the Board agreed to release them.

Decision

The Commissioner did not accept the claim for exemption in respect of section 26 because he found that the Board could rely on its powers under the Pensions Act to obtain such information and explanations as it requires to discharge its functions. He did not accept that the release of information could reasonably be expected to prejudice or impair the investigation of offences and enforcement of, or compliance with, the Pensions Act. Accordingly, he did not accept the claim for exemption on the basis of section 23(1)(a). The Commissioner affirmed the Board's decision regarding the claim in respect of legal professional privilege and the decision not to release pre-commencement records.

Date of Decision: 18.12.1998

DECISION

Background:

On 22 April 1998, Mrs AAQ made a request to the Pensions Board under the Freedom of Information Act for "all information held by the Board" in relation to her late husband's superannuation and pension rights. Mrs AAQ had previously asked the Board to investigate the payment of certain monies due from her late husband's pension scheme and she requested full information held by the Board about this investigation and how the Board decided that these monies were properly paid out. The Board decided on 18 May to grant access to certain records but to withhold information relating to the superannuation and pension rights on the basis that this was personal information about her husband. They also withheld information regarding legal advice sought and received by the Board during the investigation (Section 22(1)(a)) and information that related to the deliberative processes of the Board (Section 20(1)).

Mrs AAQ applied for an internal review of this decision on 23 May. The reviewer decided to grant access to some extra records but continued to withhold access from other records on the grounds that some were created before the commencement of the Act and did not contain personal information about Mrs AAQ, that some would be exempt from production in court proceedings on the grounds of legal professional privilege, that some contained information received in confidence, that some contained information related to the deliberative processes of the Board, that some contained personal information about individuals other than the requester and that access to some records could reasonably be expected to impair the investigation of offences.

Mrs AAQ applied for a review of this decision by this Office in a letter dated 4 September which was received on 7 September.

Mrs AAQ's application was signed on behalf of herself and her son. Following enquiries into the matter by my officials, I am now satisfied that Mrs AAQ's son has consented to the release of any personal information about him to Mrs AAQ. I have proceeded, therefore, on the basis that I am reviewing Mrs AAQ's original request.

Submissions

Submissions were invited from the Pensions Board, Mrs AAQ and Irish Pensions Trust (IPT). IPT's submission concerned record number 8. IPT said that it was "strongly of the opinion that this record should not be released" and claimed that Section 26 of the Act applies to the record. The Board's submission is dealt with in detail below. Mrs AAQ did not make a formal submission.

Findings

For the purposes of the review, I have divided the records into four categories as follows:

• Nine records which do not contain personal information about the requester (Group 1 record numbers 1, 2a, 2b, 2c, 3a, 3b, 4, 5, 9)
• Seven records in respect of which the exemption in Section 22(1)(a) (Legal Professional Privilege) has been claimed (Group 2 record numbers 10a, 10b, 10c, 10d, 10e, 10f and 10g)
• A record containing personal information about other individuals (Group 3 record number 11)
• A record in respect of which the exemption in Section 26(1)(a) (Information obtained in confidence) has been claimed (Group 4 record number 8)

Group 1

Since all of the records requested were created prior to 21 April 1998, there is a right of access to them under the Freedom of Information Act only if

• access is necessary or expedient in order to understand records created after that date, or
• if they relate to personal information about the person seeking access to them (Section 6(5)).

No argument has been made that access to any of the records sought is necessary or expedient in order to understand records created after 21 April 1998. Therefore it follows that the primary matter at issue in the case of these records is whether the records relate to personal information about Mrs AAQ. Only if the records are found to relate to personal information about Mrs AAQ is it necessary to examine the other arguments of the Board against the release of the records.

Record number 1

This is a letter dated 14 August 1987 from the Pensions Board to the Department of Social, Community and Family Affairs. Partial access has been granted to this record. The Board has argued that the parts of this record contain personal information about individuals other than the requester and that parts relate to the deliberative processes of the Board.

I consider that the parts of the record to which access has not been granted do not relate to personal information about Mrs AAQ as defined by Section 2, and accordingly do not fulfil the requirements of Section 6(5) of the Freedom of Information Act, 1997. Therefore, I affirm the decision of the Board to refuse access to the parts of the record in question.

Record numbers 2a, 2b and 2c

This is an internal memo dated 27 June 1997 (2b) and responses thereto (2a and 2c). The Board has argued that these records do not contain personal information about Mrs AAQ and that they relate to the deliberative processes of the Board. I consider that the records in question do not relate to personal information about Mrs AAQ as defined by Section 2, and accordingly do not fulfil the requirements of Section 6(5) of the Freedom of Information Act, 1997. Therefore, I affirm the decision of the Board to refuse access to the records in question.

Record numbers 3a and 3b

These are two copies of a letter dated 24 June 1997 from the Department of Social, Community and Family Affairs to the Pensions Board. The Board had argued that this letter does not contain personal information about Mrs AAQ and that it relates to the deliberative processes of the Board. It now accepts that the first paragraph does contain personal information about Mrs AAQ and has decided to release this information, subject to a deletion to protect the privacy of another individual. I concur with this decision.

Record number 4

This is a letter dated 27 June 1997 from the Pensions Board to the Department of Social, Community and Family Affairs. The Board has argued that this record does not contain personal information about Mrs AAQ and that it relates to the deliberative processes of the Board. I consider that the record in question does not relate to personal information about Mrs AAQ as defined in Section 2, and accordingly does not fulfil the requirements of Section 6(5) of the Freedom of Information Act, 1997. Therefore, I affirm the decision of the Board to refuse access to this record.

Record number 5

This is an internal memo dated 1 July 1997. Partial access has been granted to this record. The Board has argued that the parts of this record to which access has not been granted do not contain personal information about Mrs AAQ and that parts relate to the deliberative processes of the Board. I consider that the parts of the record to which access has not been granted do not relate to personal information about Mrs AAQ as defined by Section 2, and accordingly do not fulfil the requirements of Section 6(5) of the Freedom of Information Act, 1997. Therefore, I affirm the decision of the Board to refuse access to the parts of the record in question.

Record number 9

This is a memo for the file dated 6 October 1994. The Board has argued that this record does not contain personal information about Mrs AAQ and that it relates to the deliberative processes of the Board. It further argues that the record contains matter, the disclosure of which could reasonably be expected to prejudice or impair the investigation of offences. I consider that the record in question does not relate to personal information about Mrs AAQ as defined by Section 2, and accordingly does not fulfil the requirements of Section 6(5) of the Freedom of Information Act, 1997. Therefore, I affirm the decision of the Board to refuse access to this record.

Group 2

This group of records consists of a letter from the Board to its legal adviser dated 22 November 1995 seeking legal advice (record number 10g), letters from the legal adviser to the Board dated 24 November 1995 (record numbers 10f and 10e) and 5 June 1997 (record numbers 10b and 10a), a record of a telephone conversation with the legal adviser dated 13 December 1995 (record number 10d) and an extract from the legal opinion of the legal adviser (record number 10c).

The Board has refused to grant access to these records on the grounds that they would be exempt from production in court on the grounds of legal professional privilege. Having examined the records, I am satisfied that the records were created in the context of seeking legal advice from a professionally qualified legal adviser and that they would be exempt from production in court on the grounds of legal professional privilege. Therefore, I affirm the decision of the Board in relation to these records.

Group 3

Record number 11 is a hand-written note of telephone conversation dated 8 October 1994 on a copy of a letter to Mrs AAQ dated 23 September 1994. The Board refused access to this note because it contains personal information about individuals other than the requester. One of these individuals (Mrs AAQ's son) has now consented to the release of this record and the Board has agreed to release this part of the record. I concur with the Board's decision to grant partial access to the record and to refuse to grant access to that part of the record which contains personal information about the other individual.

Group 4

Record number 8 is a letter dated 16 January 1996 from IPT to the Irish Pensions Board. IPT claims that the information in the letter was given in confidence and that the release of this record would threaten the co-operative relationship which exists between the Pensions Board and IPT. It also claims that the release of this record would prejudice the giving of further similar information in the future.

The Board refused to grant access to this record on the basis that it contained information received in confidence (Section 26) and also that access could reasonably be expected to prejudice or impair the investigation of offences and enforcement of compliance with the Pensions Act (Section 23(1)). In the internal review, the decisionmaker noted that Mrs AAQ might take issue with the contents of this record and this appears to have been the decisive factor in the decision to refuse access since other correspondence with IPT was released.

For the exemption in Section 26(1)(a) to apply it must be shown that

• the record concerned contains information which was given in confidence and on the understanding that it would be kept confidential,
• in the opinion of the head of the public body, 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 should continue to be given to the body.

In relation to the first requirement, I note that the letter in question is headed "Strictly Private and Confidential." This tends to support the view that the communication was intended to be kept confidential. However, an examination of the contents of the letter suggests that there is nothing in it of an inherently confidential nature. The letter is a reply to a letter from the Pensions Board to IPT which asked IPT to furnish certain information to Mrs AAQ which she says that she never received from IPT. The letter from IPT merely disagrees with Mrs AAQ's version of events, speculates as to why an apparent misunderstanding has arisen and confirms that the information sought will be provided a second time. I can see no reason why the substance of the letter, thus stated, should be considered confidential. Therefore, I am not convinced that the information in the letter is information which IPT intended would be kept confidential.

However, I have also considered whether disclosure might prejudice the giving of further similar information to the Pensions Board in the future. In so doing, I have considered the following matters. The Board's functions include monitoring and supervising the operation of the Pensions Act. Under the Pensions Act, the trustees of a scheme have a duty to furnish the conditions of the scheme to certain classes of people and Mrs AAQ belonged to one such class. She claimed that IPT had not provided her with information to which she was entitled and the Pensions Board wrote to IPT asking that they provide the information to Mrs AAQ and requesting that a copy of their letter to Mrs AAQ be furnished to the Board. As I have indicated, the record at issue is the response from IPT to this letter.

Section 18 of the Pensions Act 1990 allows the Board to authorise its employees to inspect or investigate the state and conduct of a pension scheme. Section 18(2) provides that

"The Board or an authorised person, may, in relation to a scheme, require the employer concerned or the trustees of the scheme to furnish it within such reasonable period as may be specified with such information and explanations and such books of account and other documents as may be specified."

It may well be that one result of release in this case is that, in the future, trustees might provide less detailed explanations to the Pensions Board. I have given careful consideration to this matter in the context of the second and third requirements of Section 26(1)(a). I am satisfied that the Pensions Board, in reliance on its powers under the Pensions Act, will be able to obtain such information and explanations as it requires to discharge its functions. The possibility that release in this case might result in material previously supplied to the Pensions Board, but not of importance to it in discharging its functions, no longer being available, is not sufficient to enable it to be said that the third requirement of Section 26(1)(a) is met. Therefore, I have decided that the exemption in Section 26(1)(a) does not apply.

Finally, I turn to the argument that Section 23(1) applies. This section provides that

"A head may refuse to grant a request under Section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to

(a) prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

(ii) the enforcement of, compliance with or administration of any law...."

The Pensions Board did not fully develop its argument as to why the exemption in Section 23(1)(a)(i), (ii) or (iii) might apply to this record. However, its concern appears to be that disclosure of the conduct of the Board's investigations will tend to prejudice or impair its effectiveness in these matters.

While it is possible to imagine circumstances in which the release of correspondence with trustees could have this effect, I do not agree that the release of information in this case could reasonably be expected to prejudice or impair the investigation of offences and enforcement of compliance with the Pensions Act. Therefore, I have decided that access should be granted to this record.

Decision

I have decided to vary the decision of the Board and to grant access to record number 8 in addition to the records to which the Board has already granted access or agreed to grant access.

Information Commissioner

18 December 1998