Case 99230

Request for records relating to a civil action taken by an official of the Department against the Minister - whether personal information - section 28 - whether records attract legal professional privilege - section 22(1)(a).

Case Summary

Facts

The request applied for access to all records held by the Department in relation to the action taken by a named official against the Minister for Enterprise, Trade and Employment before the High Court. The Department refused access to two groups of records on the grounds that the first group contained personal information relating to third parties and that the second group attracted legal professional privilege. The requester applied to the Commissioner for a review of that decision.

Decision

The Commissioner noted that the records were either personnel records of the kind referred to in section 6(6)(a) of the FOI Act or records relating to the employment or employment history of two individuals, one of whom was the official taking the action. He further noted that the records contained material which illustrate in detail the nature of a dispute involving the official, a second official of the Department and the Department itself, a dispute involving work related grievances. He found that both the Department and the parties concerned understood the information contained in the records would be treated by the department as confidential. He further found that actions taken in conducting the dispute and pursuing grievances were not actions undertaken for the purpose of the performance of the functions of the two officials concerned and that the exclusion in subparagraph (I) of the definition of personal information did not apply. He found that section 28 applied to the records in group 1.

On the matter of where the public interest lies, the Commissioner considered that employees, whether public servants or not, are entitled to a degree of privacy in relation to the evaluation of their work performance, competence or ability and in relation to matters involving work related grievances. He found that the public interest in protecting the right to privacy of the individuals concerned outweighed, on balance, the public interest in granting the request.

The Commissioner noted that the second group of records consisted of (i) communications between the Department and the Chief State Solicitors Office (CSSO), (ii) legal advice furnished to the Department via the CSSO, and (iii) correspondence between the Department and a third party in preparation for pending litigation. He was satisfied that the dominant purpose in creating all of these records was to prepare for a civil case that had been initiated against the Minister of that Department. He found that section 22(1)(a) applied to the records

Date of Decision: 17.05.2001

Our Reference: 99230

17.05.2001

Mr. X

Dear Mr. X

I refer to your request for a review of the decision of the Department of Enterprise, Trade and Employment ("the Department") in relation to your FOI request for access to all records held by the Department in relation to the action of Ms A V the Minister for Enterprise, Trade and Employment before the High Court.

I have now completed my review. In brief, I have decided to affirm the decision of the Department and my findings and my decision are as set out below.

Background

In carrying out this review, I have had regard to:

• the correspondence between you and the Department on the matter;
• your submission of 28 May 1999 to this Office;
• the Department's submission of 16 July 1999;
• your submission which was received on 8 March 2001 in response to a letter of 15 February 2001 from Ms. O'Connor of this Office.

I have also examined the records which are at issue in this case. In its decision of 19 April 1999, the Department refused access to the records by virtue of sections 22, 28 and 46. The original decision was upheld by the internal reviewer on 14 May 1999 who refused access by virtue of sections 22(1)(a) and 28 of the FOI Act. The documents concerned were enumerated in a schedule which was provided to you and I will use the numbering in that schedule for the purposes of referring to the records in the remainder of this decision.

Scope of Review

My review is concerned solely with the question of whether the Department's decision to refuse you access to the records set out in the schedule to its decision is correct.

Findings

I note that in her letter of 15 February 2001, Ms. O'Connor explained the position in relation to section 22(1)(a) and legal professional privilege and section 28 and personal information and it is not necessary for me to repeat those explanations, although I will refer to them for the purposes of explaining my decision.

Having examined the records in question, I note that they fall into two broad categories:

• Group 1 (records 1 to 10, 12, 13, 15, 16, 17) and
• Group 2 (records 11,14, 18, 19, 20).

Group 1 records

Personal Information

The Department claims exemption in respect of the documents in this category (with the exception of records 15 and 16) under section 28 of the FOI Act. In broad terms, the records are either personnel records of the kind referred to in section 6(6)(a) or records relating to the employment or employment history of two individuals, one of whom is Ms. A. Having regard to the fact that you are aware of proceedings initiated by Ms. A against the Department, I can say without fear of disclosing exempt material that the records contain material which illustrate in detail the nature of a dispute involving Ms. A, the other individual referred to above and the Department, a dispute involving work related grievances. Your submission of 6 March 2001 queried whether this information was, indeed, held on the understanding that it would be treated as confidential. You claimed that "it is not sufficient to believe that the individuals may have believed or would have expected that the information would be treated as confidential". If by this you mean that a public body is not entitled to conclude that there was an understanding of confidence in the absence of an express assurance to this effect, then I have to disagree. As I explained in my decision in Case Number 99168 Mr. Richard Oakley and the Office of the Houses of the Oireachtas: "[m]any, if not all, of the types of information referred to in the list of items (i) to (xii) [in the definition of personal information] were understood by the parties to be confidential in the past....because society expected (and still expects) these matters to be treated as confidential....Generally speaking, the enactment of the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential". Having examined these records, I am satisfied that both the Department and the parties concerned understood the information contained in them would be treated by the Department as confidential.

Your submission also suggested that a person who sues the State cannot expect that information on their legal action will be treated as confidential. I agree that if the dispute proceeded to a hearing and the matters in these records were aired in open court then it could be argued that any understanding of confidence was waived. However, the Department has indicated that the proceedings have not reached this stage. Bearing in mind that the dispute may still be resolved without a hearing, I do not accept that Ms. A, by initiating proceedings, has waived her right to confidentiality.

Your submission also referred to the qualification contained in subparagraph (I) of the definition of personal information. I note that some of the records at issue contain material written by Ms. A and the other official referred to earlier. This material was written in the course of the dispute which culminated in the issuing of proceedings by Ms. A. In my view actions taken in conducting this dispute and pursuing grievances are not actions undertaken for the purpose of the performance of the functions of the two officials concerned. Therefore in my view the exclusion in subparagraph (I) of the definition of "personal information" does not apply. I am satisfied that all of the records in this group contain personal information about Ms. A and the other official. I find that access to these records would involve the disclosure of personal information about these parties.

I note your comment that the "individuals concerned were not even canvassed for their views". Having carefully considered the contents of the documents in Group 1, I am satisfied that given the nature of the documents, it was not appropriate to do so in this instance.

The public interest

Personal information about an individual can be released to a third party without the individual's consent only where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld or where the release would benefit the person to whom the information relates. I cannot see how release of the records in question could benefit the individuals concerned. Release would also involve a serious intrusion on the privacy of the officials concerned. It seems to me that employees, (whether public servants or not) are entitled to a degree of privacy in relation to the evaluation of their work performance, competence or ability and in relation to matters involving work related grievances.

Set against this right to privacy is the public interest in achieving the maximum openness and transparency in relation to the workings of government, which includes its personnel policies and how they are implemented. Having considered the matter it does not seem to me that this latter public interest outweighs the right of privacy in this case. In my view the public interest would not be served by making material of the kind referred to above available generally under the FOI Act. Far from assisting in the proper evaluation of staff or the proper resolution of grievances, public knowledge would be likely to make the achievement of both these objectives more difficult. In the circumstances, I have decided that the public interest in you exercising your access rights does not, of itself, outweigh the right of privacy of the individuals concerned. I find therefore that section 28(1) applies and that you are not entitled to access to the records in this category which have been refused.

Group 2 records

The Department claims exemption in respect of the documents in this category under section 22(1)(a). I have carefully considered the contents of these documents and note that they consist of (i) communications between the Department and the Chief State Solicitors Office (CSSO), (ii) legal advice furnished to the Department via the CSSO, and (iii) correspondence between the Department and a third party in preparation for pending litigation. It is clear from my examination of these records that the dominant purpose in creating all of these records was to prepare for a civil case that had been initiated against the Minister of that Department.

There are some situations in which legal professional privilege may not attach to communications between lawyer and client such as non-confidential communications or legal assistance other than the giving of advice or communications in furtherance of a criminal offence. I am satisfied that these exceptions do not apply here. In your submission of 6 March 2001 you suggested that 'in the event that the Department had engaged in wrong doing in this matter, either criminal or civil, I believe that legal, professional privilege is destroyed'. In my view this overstates the exception to legal professional privilege which I referred to in my decision in Mr. AAI and the Department of Health and Children viz that communications between lawyer and client made in furtherance of a criminal offence were not privileged. I am satisfied that the records in respect of which exemption is claimed under section 22(1)(a) do not fall into this category. Accordingly, I am satisfied that all such communications would be exempt from production in proceedings in a court on the ground of legal professional privilege. I am satisfied that these documents are exempt by virtue of section 22(1)(a) of the FOI Act and the Department is therefore entitled to refuse access to them.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Department.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner