Case 99180

Note: This case was appealed to the High Court on a point of law but the appeal was withdrawn in August 2004.

Application for access to pre-commencement records - whether records concerning a company and its directors relate to personal information about the requesters - section 6(5)(b) - whether such records covered by legal professional privilege - whether privilege waived - section 22(1)(a)

Case Summary

Facts

The requesters are directors of a company, ABC Limited. In early 1986, a fire broke out in the company's premises, which were destroyed. The requesters applied to the Circuit Court under the Malicious Injuries Act, 1981, on behalf of the Company, claiming compensation from the Council for the loss sustained from the fire (the M.I. claim). The Circuit Court found in favour of the Company but the Council appealed this decision to the High Court, which reversed the Circuit Court decision. The requesters sought access to all Council files relating to the fire.

All the records sought were created before the commencement of the Freedom of Information (FOI) Act, 1997. The Council decided that any reference to the directors in these records was not in their personal capacities but was in their capacity as directors of ABC Limited. It refused the request on the grounds that the records were pre-commencement records and that no right of access arose to the records under section 6(5)(b) of the FOI Act. The Council also said that, in any event, the records would be exempt from release as they attracted legal professional privilege and so were exempt under section 22(1)(a) of the FOI Act. The requesters appealed to the Information Commissioner for a review of the Council's decision.

Decision

The Commissioner noted that a central feature of the request was for access to records which allege the personal involvement of the requesters in the starting of the fire which destroyed the Company's premises. He found that the fact that the alleged wrong-doer is also a company director, and that the alleged wrong-doing relates to the affairs of the company, does not mean that the allegation relates only to the individual as a company director. In this type of situation, he was satisfied that such allegations do constitute personal information about the individual in question.

He noted that, of the hundreds of individual records at issue, only a small number contained direct references to the requesters (or either one of them) by name. He was satisfied that records, containing such direct references to the requesters, disclosed personal information about them. However, he also found that the fact that a record did not contain a direct reference to the requesters did not rule out the possibility that it may, nevertheless, relate to personal information about them. He relied on the judgement of O'Neill J. in EH and the Information Commissioner, and found that the remaining records, which concern the company's premises, the fire itself and the actual claim submitted on behalf of the company, related to the "substantial personal interest" of the requesters in the allegations. He found that there was, in this case, a "substantial link" between the personal information about the requesters and the remaining records. He found that a right of access, to all records held by the Council which were subject to this review, arose under section 6(5)(b) of the FOI Act.

He found that all the records created after the Council had received notice of the requesters' intention to submit a M.I. claim, including internal documentation, were created with the dominant purpose of preparation for litigation or for the seeking or giving of legal advice and, thus, attracted legal professional privilege. He found that the dominant purpose of the creation of one of two records which were created before the receipt of notice of the M.I. claim was in preparation for anticipated litigation and also attracted legal professional privilege. He found that the other record was not created with the dominant purpose of preparation for litigation and did not attract legal professional privilege.

He found that the legal professional privilege over the records had not ended. As no case was made to him that any of the documentation had been produced in Court, nor was any argument developed that the Council had waived privilege by virtue of its reliance in Court on such documentation, he found that it would not be appropriate to conclude that the Council waived privilege on the records, either intentionally or implicitly.

Date of Decision: 10.07.2002

Our Reference: 99180

10.07.2002

Messrs. X

Dear Messrs. X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of Carlow County Council (the Council) on your request of 22 January 1999. At the outset, please accept my apologies for the delay which has arisen in dealing with your case. This has been due to pressure of work and, until recently, staff shortages.

Background

You are directors of a knitwear company, ABC Ltd. On 29 January 1986, a fire broke out in the company's premises, which was destroyed. In accordance with the Malicious Injuries Act, 1981 you applied to the Courts, on behalf of the company, claiming compensation from the Council for the loss sustained from this fire (the M.I. claim). The Circuit Court found in favour of the company but the Council appealed this decision to the High Court, which reversed the Circuit Court decision. I understand that further actions have taken place in both the High Court and Supreme Court in connection with the fire, and that one action taken by you against Mr Redvers Skelton and the Council is currently under appeal to the Supreme Court.

In your request, you said you wished to inspect the Council files relating to the fire as they contained fire reports and paperwork which relate to you and your property "on a personal basis" and that they contained opinions of other persons about you. You asked for access to a file of the IIRS (Institute of Industrial Research and Standards - now Enterprise Ireland) which submitted reports to the Council. You asked for access to a file in the possession of Mr Redvers Skelton, a fire investigator contracted by the Council. Finally, you asked for the reasons "that allowed the Council to accuse us both of starting the fire which destroyed our property". Having clarified the matter with you, the Council decided to treat the final element of your request as a request for records.

The Council's decision, given on 16 February 1999, was to refused access to all records on the basis that they were created before the commencement date of the FOI Act and did not relate to personal information about you. It told you that any reference to you in the records was in the context of your position as directors of the company. Furthermore it told you that, in any event, it considered the records to be exempt as they attracted legal professional privilege. The Council upheld this decision at internal review and you made your application to this Office on 22 April 1999.

I have now decided to conclude my review and issue a formal decision. In so doing, I have had regard to your application to this Office, to various letters sent by you and your solicitor to this Office, and to details of telephone conversations you have had with various members of my staff. I have taken into account letters sent by Ms Moran of this Office to you, as well as details of correspondence between Ms Moran and the Council along with details of various telephone conversations she had with the Council. Finally, I have also taken into account the provisions of the FOI Act, as well as the original records themselves, which were supplied to my Office for inspection.

Scope of Review

The Council clarified with you that you did not seek access to the following records:

• Records held by the Council in relation to areas other than the fire and the subsequent M.I claim, such as Planning, Housing, Motor Tax etc.
• Transcripts or Summary Reports of proceedings in relation to the Court Hearings;
• Communications between legal agents of ABC Ltd and those of the Council;
• Communications between other agents employed by ABC Ltd and those engaged by the Council.

I note that Ms Ivory, formerly of this Office, and Ms Moran asked you at various points throughout the review whether the Council's understanding in this regard was correct. As you have not responded on this, I am taking it that you are not disputing the Council's understanding and I have conducted my review on this basis. You were also asked whether you are seeking access to any witness statements, provided to An Garda Síochána, which may contain personal information about you. I note that you have not said whether or not you want these records and, consequently, I have proceeded on the basis that you are not seeking access to these statements. I note that the Council did not describe the records to you, nor did it supply either you or my Office with a schedule of the records. The contents of the files can be briefly described as follows:

• Eight booklets containing transcripts of various court proceedings;
• One booklet, containing estimates and quotations which were addressed to you, and which I assume was prepared by you in support of your malicious injury claim;
• Seven Standard Files as follows:

File 1. Consists mainly of correspondence between the Council and various agents relating to costs and fees, dating from approximately 1987 to 1991. This file also contains some records relating to the claim you initiated in 1992 against the Council and Mr Redvers Skelton, as well as records relating to the other Court actions regarding the fire.
File 2. Consists mainly of records dating from October to December 1986, which refer to the application for planning permission (reference PL 1208) for the company's factory, which was submitted in 1969. It also contains some records, dating from 1969, relating to the application itself. The file also contains records relating to the Circuit Court hearing and the quantum aspect of the MI claim.
File 3. Consists entirely of records relating to planning permission sought by a Parish Priest for a recreation centre in [place name], dating from February to April 1969.
File 4: Consists entirely of planning records, relating to PL 1208, which date from 1986 to 1988, along with some records dating back to 1969.
File 5: Consists entirely of planning records relating to PL 7815, which was an application by yourselves for planning permission to rebuild the factory in 1986.
File 6: Consists entirely of planning records relating to PL 8094, which was an application by yourselves for planning permission to build on a store to the factory in 1986 -1987.
File 7: The IIRS file.

• One box file containing planning records relating to PL 1208 dating back to 1969, along with records prepared on behalf of the Council for its defence to the M.I. claim.
• Lever Arch File 1: consisting entirely of records relating to the various court actions, dating from 1986 to 1989.
• Lever Arch File 2: consisting of records prepared on behalf of the Council for its defence to the M.I. claim as well as planning records relating to PL 1208.

I note that amongst the files listed above are transcripts of court proceedings, summaries of Court judgements, correspondence between your solicitors and those of the Council, correspondence between you and the Council as well as a small amount of correspondence between agents for you and the Council or its agents. I will not be considering these particular records in my review. I have also excluded records, contained on the files listed above, as follows:

• Standard File 1: I consider that your original request cannot be interpreted as seeking access to the Council's records in relation to costs and fees incurred by it in the course of the court actions.
• Standard File 2: All planning records regarding PL 1208.
• Standard File 3: The entire file, as it appears to have no relevance whatsoever to your request.
• Standard File 4: All planning records relating to PL 1208.
• Standard File 5: The entire file, as I do not consider the records to be relevant to your request for records concerning the fire in 1986.
• Standard File 6: The entire file, for the same reasons as outlined in respect of Standard File 5.
• Box File: All planning records relating to PL 1208.
• Lever Arch File Number 1: Fire Reports relating to another fire which took place in 1969, along with quotations presumably supplied by yourselves in support of the M.I. claim.
• Lever Arch File Number 2: All records relating to the 1969 fire.
• Booklet containing quotations: I have taken it that you do not want access to this booklet, on the assumption that the quotations therein were supplied by you in support of the M.I. claim.

The remaining records on the files, which I consider to be the subject matter of my review, can be described as:

• Records outlining communications between the Council and its legal advisors, or between the legal advisors and third parties, or between the Council and third parties in relation to the Council's defence of the M.I. claim and other Court actions.
• Internal Council memos drawn up in relation to its defence of the M.I Claim and other Court actions.
• The IIRS file and the reports prepared by it dated 26 March 1986 and 6 April 1987.
• The report by Mr Redvers Skelton dated 11 April 1986. I note that in 1991 Mr Skelton told the Council that he had destroyed all his files upon retirement in November 1990. Thus, it appears the only Skelton records which exist are those submitted by him to the Council. I note that that you have not challenged Mr Skelton's contention that his records no longer exist and consequently I have not included this issue in my review.

My review is solely concerned with deciding whether or not the Council was justified, in accordance with the FOI Act, in refusing you access to the records as identified immediately above.

Findings

Before dealing with the exemptions claimed by the Council, I wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of some of the records at issue is somewhat limited. I would also draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The first issue for consideration in this case relates to the dates on which the relevant records were created [section 6(5) of the FOI Act]. Should access to any records arise under this provision of the FOI Act, the second issue is whether these records are, in any event, exempt from release on the grounds of legal professional privilege [section 22(1)(a)]. Finally, I must also consider whether or not the Council has waived legal professional privilege in relation to any of these records.

Section 6(5) - Pre-Commencement Records

All of the records you are seeking are pre-commencement records, that is to say, they were created before the commencement date of the FOI Act (which, for local authorities, was 21 October 1998). This means that access to a record held by a local authority, and created before that date, is limited to two scenarios. One scenario is where access to pre-commencement records is necessary or expedient in order to understand a record created after 21 October 1998 [section 6(5)(a) of the FOI Act]. You do not contend, nor am I aware, that there exists any record, created after 21 October 1998, which cannot be understood without reference to these earlier records. Accordingly, I find that a right of access does not arise under section 6(5)(a) of the FOI Act. The other scenario is where the record relates to personal information about the person seeking access to the record [section 6(5)(b) of the FOI Act].

I understand it to be your position that the Council took action against you personally in defence of the M.I. claim submitted by your company; that the files were created on what you term "a personal accusation basis"; and that they contain the opinions of other persons about you. The Council, on the other hand, contends that any reference to you in the records at issue is in the context of your capacity as directors of the company.

While listing a number of examples of what might constitute personal information about an individual, personal information is defined in section 2 of the FOI Act as being: "information about an identifiable individual that - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential"

and includes "the views or opinions of another person about the individual"; it also includes "information relating to the criminal history of the individual".

In a previous decision in Case No. 98022 (Mr Tom Cronin and the Director of Consumer Affairs), a copy of which was previously supplied to you, I said that

"Where a document contains a record of the views, comments or actions of a company director in relation to the business of the company or the views, comments or actions of another party in relation to the company director in his capacity as a director, I am of the view that the mere reference to the director by name in the record is not sufficient to enable it to be said that the record relates to personal information about the director. A company can only act through the agency of natural persons, generally its directors or employees. As a consequence it is almost inevitable that in a record referring to matters about a company or its business, references will also be made to such persons. In such cases it is necessary to decide whether the information in the record is about that individual or about the company."

Where a record has references to an individual's actions, being actions which, clearly, are taken in the normal course of that individual's functions as a company director, then these references (as happened in the Cronin case) are not likely to qualify as personal information about that individual. Where the references are to actions which, while taken by a company director, are not actions which are taken in the normal course of that individual's functions as a company director (e.g. wrong-doing), then the situation is likely to be different.

A central feature of your request is that you wish to access records which allege your personal involvement in the starting of the fire which destroyed your company's premises. It seems clear to me that any allegation of wrong-doing or of criminal action by an individual, contained in a record held by a public body which is not a prosecuting body, is a record held on the understanding that it would be treated as confidential. As such, it is very likely to constitute personal information as defined in the FOI Act. The fact that the alleged wrong-doer or criminal is also a company director, and that the alleged wrong-doing relates to the affairs of the company, does not mean that the allegation relates only to the individual as a company director. In this type of situation, I am satisfied that such allegations do constitute personal information about the individual in question.

At this point it is relevant to explain that, of the hundreds of individual records at issue, only a small number contain direct references to you (or either one of you) by name. I am satisfied that records, containing such direct references to you, disclose personal information about you. However, the fact that a record does not contain a direct reference to you does not rule out the possibility that it may, nevertheless, relate to personal information about you.

On 21 December 2001, in his judgement in the case EH and the Information Commissioner, O'Neill J. set out the approach to be taken in construing the term "relate to personal information" as contained in section 6(5)(b) of the FOI Act. He noted that it is "absolutely clear from the use of the phrase 'relates to' that a document need not itself contain 'personal information' about the requester". He identified the relevant test to be applied, in determining whether or not a record relates to personal information, as:

�... 'whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question'. I do not think one should go further than this in formulating a test in this regard."

O'Neill J. further elaborated:

"If the record contains an express reference to the requester, be it however insubstantial or trivial then clearly it 'relates to personal information', about the requester. Here one would have in mind records such as letters which contained no personal information but are about or refer to the requester, such as holding type letters or pro forma or replies. Where the record does not name or has no express reference to the requester a substantial link will be established, if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of large scale class of the same."

I have found that any allegations about your involvement in the fire amount to "personal information" about you and, therefore, it can be said that you have a "substantial personal interest" in such allegations. The remaining records, which concern the company's premises, the fire itself and the actual claim submitted on behalf of the company, relate to your "substantial personal interest" in the allegations. It seems to me that there is, in this case, a "substantial link" between the personal information about you and the remaining records. Accordingly, I find that a right of access, to all records held by the Council which are subject to this review, arises under section 6(5)(b) of the FOI Act. However, this right of access is subject to the consideration of other exemptions contained in the FOI Act.

Section 22(1)(a) Legal Professional Privilege

It is the Council's position that the records in question are exempt from release by reference to section 22(1)(a) of the FOI Act. Section 22(1)(a) provides that a request for a record shall be refused if it "would be exempt from production in proceedings in a court on the ground of legal professional privilege". This provision does not require the consideration of the public interest.

In previous decisions, I concluded that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between the client and a legal adviser, or the legal adviser and a third party, or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

I consider that the vast majority of the records fall under the second category of legal professional privilege, for the following reasons. I consider that the Council is entitled to privilege in relation to communications between it and its legal advisors, or between the legal advisors and third parties, or between it and third parties, after it had received notice, on 3 February 1986, of your intention to submit a M.I. claim to the Circuit Court. All such records created after this date, and before the Circuit Court Judgement, were created with the dominant purpose of preparing for the Council's defence to the M.I. claim. I note that judgement was given on 23 October 1986 but the Order was not dated until 28 January 1987. During this time, the issue of quantum had not been settled and thus there was a possibility of further litigation. I consider, therefore, that all records created between the date of the judgement and 28 January 1987 also attract legal professional privilege. The Council then appealed to the High Court on 30 January 1987. I note that one record was created between 28 and 30 January 1987, which is a letter containing legal advice given to the Council by its solicitors. Therefore, I consider the record to fall under the first category of legal professional privilege.

I consider all such records created between 30 January 1987 and the date of the High Court judgment on 3 June 1988 to attract legal professional privilege in that the dominant purpose for their creation was the preparation by the Council for litigation. I note that one record was created on 23 March 1988, which was after the final date of the hearings of this case (21 March 1988). The record was a letter to the Council from its solicitors, enclosing an undated reply from a third party to a letter sent by the Council's solicitors on 4 March 1988. The letter of 4 March 1988 was sent with the dominant purpose of preparation for the Council's argument in the High Court case. It seems to me that, although the reply was sent by the third party after the court hearing, the dominant purpose of the communication between the solicitors and the third party of 4 March 1988 was the preparation by the Council for its argument in what was then a pending Court action. Thus, I consider the reply of 23 March 1988 and the undated reply to fall under the second category of legal professional privilege. I also note that there was a period of time between the perfecting of the order in this High Court appeal by O'Hanlon J., on 28 July 1988, and the lodgement by you of the subsequent notice of appeal in the Supreme Court on 12 August 1988. During this time no records appear to have been created by the Council. One judgment, in relation to the Supreme Court challenge, was given in the High Court on 9 December 1988. Two records were created after this date, which gave summaries of that judgment and therefore are not required by you. Following the perfection of the order on 17 January 1989, some records were created concerning the Council's costs. As I outlined earlier, I do not consider the scope of your request to extend to such records. On 2 February 1989, the Council received notice of your appeal on the judgment of 9 December 1988. In my view, those records created after this date in preparation for the case are covered by the second limb of legal professional privilege. I understand that judgment was finally given in the Supreme Court in May 1990, following which no further records appear to have been created.

I note that the Council received notice of the latest set of proceedings being taken by you against it and Mr Skelton on 13 January 1992. There are a number of records created in June and July 1991, at which stage it cannot be said the Council had notice of such proceedings. Some of the records are communications between you and Mr Redvers Skelton or the Council's solicitors, which I note are not required by you. One record is a letter to the Council from its solicitors, dated 2 July 1991, seeking instructions on foot of your request to Mr Skelton for access to reports submitted to him by the IIRS. The other record is the Council's reply, dated 3 July 1991. However, I note that in a letter to the Council's solicitors dated 1 July 1991, your solicitors indicated that proceedings would be served if permission was not forthcoming from the Council for you to inspect these reports. As it can be said that that litigation had been threatened at that stage, I find that the Council is entitled to rely on the second limb of legal professional privilege in respect of these records.

In the circumstances, I accept that the Council is entitled to rely on section 22(1)(a) of the FOI Act in withholding all records created after 3 February 1986, which can be described as communications between it and its legal advisors, or between the legal advisors and third parties, or between it and third parties, on the grounds that they attract legal professional privilege.

I have also considered whether or not internal Council records, created after the date of receipt of notice of your intention to submit a M.I. claim, qualify for exemption under section 22(1)(a). I have had regard to the judgment in Silver Hill Duckling Limited, Ronald Stuart Steele and Elizabeth Patricia Steele v The Minister for Agriculture, Ireland and the Attorney General [1987 I.R 289] in which O'Hanlon J. held that the defendants in that case were entitled to claim privilege in respect of internal documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the plaintiffs. I have also had regard to the judgment in the case of Blaise Gallagher (A Minor) suing by his mother and next friend, Avril Gallagher v Joseph Stanley and the National Maternity Hospital([ 1998] 2 I.R. 267) in which it was held that the test in relation to privilege was whether the dominant purpose for which the documents came into being was in apprehension or anticipation of litigation.

In this case, I am satisfied that those internal records, created after 3 February 1986, were created for the purpose of the Council's defence to the M.I. Claim and that the dominant purpose for their creation was in anticipation of litigation. Therefore, I find these internal records to be exempt under section 22(1)(a) of the FOI Act. I also note that no internal records appear to have been created between the various dates between judgments and subsequent appeals etc. as set out in earlier paragraphs. I note that two internal records were created prior to the receipt of notice of your intention to submit a M.I. claim. One record is a report drawn up by the County Engineer on 30 January 1986, and the second is a report drawn up by the Assistant Chief Fire Officer on 3 February 1986. There are also three Fire Reports from Carlow Co. Fire Brigade which relate to the actions of each unit of the Brigade on the night in question. I assume that you have obtained copies of the latter reports in the course of your court action.

The report of the County Engineer (to the County Secretary) advises that a M.I. claim is likely to be taken and advises on the appointment of various experts in relation to investigating the circumstances surrounding the fire and to assessing the value of any potential claim. The report of the Assistant Chief Fire Officer (to the County Engineer) describes the actions of the Fire Brigade units on 29 January 1986. It also puts forward the view that a M.I. claim will be instigated and makes various recommendations in this regard. However, the wording of the Assistant Chief Fire Officer's report suggests that, at the time of writing, he was unaware that a M.I. claim had actually been initiated.

It was put to the Council by my Office that legal professional privilege could not apply to these records as both were created at a time when the Council was unaware of your intention to claim compensation. The Council's reply was that, in the normal course, neither the County Engineer nor the Assistant Chief Fire Officer would produce such reports following a fire; it said that these reports were very much exceptional items, which arose for the specific purpose of seeking approval to engage specialist firms to provide reports and expert evidence in relation to a possible M.I. claim. I accept that the filing of such reports by the County Engineer and the Assistant Chief Fire Officer would not arise in the case of what could be termed a "normal" fire. However, I would expect that reports of this nature would be generated following a fire of the magnitude of the one which took place on 29 January 1986.

As outlined above, the test in determining whether legal professional privilege applies to these records is whether or not they were created for the purpose of the Council's defence to the M.I. Claim and that the dominant purpose for their creation was in anticipation of litigation. I have been advised in this regard that a crucial question is whether or not the records were actually made available to the Council's legal advisors. In this regard, I note that a further report issued from the County Engineer on 10 February 1986, attaching the Assistant Chief Fire Officer's report of 3 February 1986 and referring to his own report of 30 January 1986. This further report recommended that copies of the reports involved should be collated and forwarded to the Council's legal advisors at the earliest opportunity. I also note a subsequent letter on file, addressed to the Council's advisors, attaching the file on the matter. On the face of it, it appears that the records were furnished to the legal advisors.

Due to the lapse of time since the creation of the records, it has not been possible to ascertain, from the persons who created the records, what the dominant purpose of their creation was. Accordingly, my conclusion must be based on an examination of what is revealed on the face of the records along with consideration of what is revealed in the Council's files generally. From the wording and contents of the County Engineer's report of 30 January 1986, together with the context suggested by the Council's files generally, I am satisfied that the dominant purpose of its creation was by way of preparation for anticipated litigation.

However, I note that the Assistant Chief Fire Officer's report, inter alia, outlines the actions of the Fire Brigade Units on the night in question, explains why the fire spread and why a second Unit was delayed in arriving at the scene of the fire. I am not convinced that the dominant purpose of the creation of this report was preparation for litigation. While the report does make recommendations to retain various experts, I note that the recommendations are quite brief in comparison to the account of the Fire Brigade's actions and in comparison to questions raised regarding certain statements, made by you, as to how the fire was discovered. On the face of it, preparation for apprehended litigation does not seem to be the dominant purpose for the creation of this record. It is my view that the report was created with a view to explaining why the Brigade was not able to contain the fire in question and, on foot of this, concludes that a malicious injuries claim may well ensue.

Accordingly, I find that legal professional privilege applies to the County Engineer's Report of 30 January 1986 and that it is exempt from release by virtue section 22(1)(a) of the FOI Act. I find that legal professional privilege does not apply to the Assistant Chief Fire Officer's report of 3 February 1986 and I direct that it be released.

Has Legal Professional Privilege Ended?

I note that in your application to this Office you contend that you have never "issued any proceedings against the Council so to claim legal privilege over concluded proceedings would be incorrect". You appear to contend, firstly, that because you are seeking access to the records in your personal capacity and because the action was taken by the company against the Council, the Council cannot claim legal professional privilege over records concerning the claim taken by the company. This is not the case. Once a client is in a position to claim legal professional privilege over records, such records are privileged, not only from access by the person or entity involved in litigation, but from the world as a whole, unless the client chooses otherwise. Accordingly, you are incorrect in any assumption you might be making that the Council cannot claim privilege because you did not issue proceedings against the Council in your personal capacity.

You say that "all proceedings against the Council by the Company under the M.I. application ...have been finally dealt with by the Courts and are finished", and appear to contend that any legal professional privilege held by the Council has ended. This is not so. In any event, I note that there is a further case outstanding between you and the Council and Mr Redvers Skelton.

Has the Council waived legal professional privilege over the records?

However, an issue that I must address is whether or not the Council has waived privilege over the records in question.

I have considered whether the presentation of the Council's defence would have waived privilege, either intentionally or implicitly, or whether fairness requires a finding of waiver. In the case at hand, the Council says that it would not have produced in Court the correspondence between itself and its legal advisors, correspondence between the Senior Counsel and its legal advisors, or the opinions of Senior Counsel.

It also says that, at the time the initial cases were heard, the Rules of Discovery would not have required that the reports of Redvers Skelton and the IIRS be produced in evidence. The Council contends that Mr Skelton would have given evidence and would have been cross examined on his evidence alone. It says that "[a] prerequisite to waiver a privilege must be the deployment of such documents themselves in Court" and "[t]he fact that Mr Skelton may have given opinion/evidence in open Court does not amount to a waiver of privilege of the report previously prepared by him unless extracts from that report were read, summarised or quoted in Court, or the report was actively used in court such as to refresh his memory" while giving oral evidence.

Having examined the transcript of the evidence given by Mr Skelton in the Circuit Court, I note that Mr Skelton refers to a diagram in his report. This is the only reference he appears to have made to that report and I do not consider that this brief reference waives privilege over the report's main text, containing Mr Skelton's analysis and findings. It appears from the transcripts that Mr Skelton gave testimony, and was cross-examined on that testimony. The Council also submits "that it is generally not permissible for a witness to use a report in court to refresh his memory unless the report has been prepared contemporaneously". No suggestion has been made to me that a copy of the report was furnished to you, or to your legal team, before or during the course of the trial.

I note that Mr Dynes from the IIRS also gave evidence but the transcripts do not show that he referred to any reports prepared by the IIRS in the course of giving his evidence. It seems to me that the reports of the IIRS were not produced in evidence and so I find that privilege was not waived in respect of these reports.

No case has been made to me that any of the documentation was produced in Court, nor have you developed any argument that the Council waived privilege over its reliance in Court on advice provided to it in the course of its correspondence with its legal advisors. Therefore, it would not be appropriate for me to conclude that the Council waived privilege on the records, either intentionally or implicitly, or that fairness requires such a finding, in the absence of any argument that the Council waived privilege by means of its actions.

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My finding, therefore, is that while the records at issue are potentially releasable to you by virtue of section 6(5)(b) of the FOI Act, they are, with the exception of the Assistant Chief Fire Officer's Report of 3 February 1986, exempt from release by virtue of section 22(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby vary the decision of the Council in this case; in relation to all of the records, but one, I affirm the decision of the Council to withhold these records; in relation to the report of the Assistant Chief Fire Officer dated 3 February 1986, I direct that the Council grant access in full.

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