Case 010420. Request from complainant for records relating to the investigation of his complaint of harassment - whether information in a note from an official accused of harassment created during the course of the public body's investigation was given in confidence - section 26(1)(a) and (b) - whether the note contains the personal information of the accused official - section 28(1) - whether disclosure of the note could prejudice the effectiveness of the Department's investigation or future investigations, or have a significant adverse effect on the Department's management functions - section 21(1)(a) and (b) - whether access to the note could disclose the plans procedures, etc. for the purpose of negotiations carried out by the Department before the ODEI - section 21(1)(c) - whether access to the note could prejudice or impair the investigation of offences or the systems or procedures employed - section 23(1)(a)(i) - whether access to the note could prejudice or impair the fairness of criminal proceedings in a court or tribunal - section 23(1)(a)(iv) - whether legal professional privilege attaches to internal memoranda created as part of the Department's defence of its case before the ODEI - section 22(1)(a)

Case Summary

Facts

Mr X had made a complaint of harassment against another official in the Department. The Department initiated an investigation into the complaint in accordance with the "Anti Harassment, Sexual Harassment and Bullying Policy for the Civil Service". The Department suspended the investigation of the complaint pending the outcome of Mr X's separate complaint to the Office of the Director of Equality Investigations (ODEI) and subsequent appeal to the Labour Court. Mr X sought access under the FOI Act to records relating to his initial complaint to the Department. The Department granted access to a number of records but refused access to a note from the accused official to the Department's Corporate Services section created after the commencement of the Department's investigation and to three internal memoranda concerning the Department's defence of its case before the ODEI.

Decision

The Commissioner decided that access to the accused official's note should be granted with the deletion of a small amount of personal information. The note contained the comments by the accused official on the procedure to be employed for the investigation. Given the nature of comments and the requirements of the Civil Service Policy to disclose certain comments in the interests of natural justice during the conduct of such investigations, the Commissioner found that it was not appropriate for the Department to treat these comments as confidential in relation to Mr X, a party to the investigation.

While the Commissioner found that the note was not written by the official in his official capacity he did not accept that it met the definition of personal information in the FOI Act.

The Commissioner decided that the Department was justified in refusing access to the internal memoranda concerning the Department's preparation of its defence before the ODEI. Although the ODEI is not a court the Commissioner was satisfied that the memoranda were confidential communications the purpose of which was the preparation of contemplated or pending litigation. The Commissioner was satisfied that litigation could be said to have been contemplated by the Department given the possibility of a further appeal from the Labour Court to the High Court.

Date of Decision: 29.04.2003

Our Reference: 010420

29.04.2003

PRIVATE Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the [name of particular Department] to refuse access to certain records relating to your complaints to the Department. I apologise for the delay in dealing with your application.

Background

I have now completed my review of the Department's decision in accordance with the Freedom of Information Acts 1997 and 2003 ("the FOI Acts"). In carrying out my review I have had regard to your original request to the Department and your correspondence with my Office. I have also had regard to the Department's decision, its submissions of 17 October and 1 November 2002, and I have examined the records to which you were refused access and those to which the Department decided to grant access.

During the course of my review I consulted with Mr Y, the author of one of the records and I have considered the points raised in his submission of 12 February 2003.

Scope of Review

The details of your request under the FOI Act are set out in your letter to the Department of 1 August 2001. Your request can be summarised as a request for access to records relating to:

(i) your complaint of 13 October 1999 to the Department which resulted in an investigation by the Department and

(ii) your complaint of 25 October 2000 to the Department.

Your application to my Office of 26 January 2001 appealed the Department's decision in relation to the request at (i) above. The Department's decision in relation to those records was reviewed in decision number 010037 which issued to you on 5 December 2002. My review in this case will address the Department's decision in relation to your request for access to records relating to (ii) above.

In response to your request the Department refused access to the four records it numbered 2, 4, 7 and 9 on its schedule of records attached to its decision to you of 4 September 2001. As set out in Mr Nutley's letter to you of 6 November 2002 this review is concerned solely with the question of whether the decision of the Department to refuse access to these four records is justified.

Findings

Before dealing with the relevant exemptions, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43, as amended by the FOI Act 2003, that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve the right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons that I can give is limited.

The second point that I wish to make is that section 34(12)(b) of the FOI Act provides that in any review by me the Department's decision shall be presumed not to have been justified unless the Department "shows to the satisfaction of the Commissioner that the decision was justified". In other words the onus is on the Department as the person objecting to release of the information to show that its decision is justified.

The Department refused access to four records it numbered 2, 4, 7 and 9 on the schedule of records provided to you with its decision letter of 4 September 2001.

Record 4 - Note by Mr Y of 1 November 2000

Record numbered 4 by the Department is a brief note dated 1 November 2000 from Mr Y to the Department's Corporate Services Division. I do not believe that I am in breach of section 43 of the FOI Act, as amended by the FOI Act 2003, by saying that the note created by Mr Y was in response to a letter from Corporate Services Division advising Mr Y that you had made a complaint against him and that the matter would be investigated in accordance with the "Anti Harassment, Sexual Harassment and Bullying Policy for the Civil Service", (see record numbered 3 which was released to you in full). Mr Y's reply contains comments relating to the procedure involved. The Department refused access to the note under sections 21(1)(a), (b) and (c), sections 23(1)(a)(i) and (iv), section 26(1)(a) and section 28(1) of the FOI Act. For the reasons set out later in my decision under the section dealing with the question of exemption under section 28(1), I regard the comments made by Mr Y to have been made in his personal capacity and not comments made during the course of his official duties. Therefore I have also consulted with Mr Y regarding his views on the effect of disclosure of his comments. I have addressed Mr Y's arguments in this decision when addressing the relevant exemptions.

Sections 21(1)(a) and (b)

Section 21(1) allows a head, subject to consideration of the public interest, to refuse to grant a request made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,

(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff) ....".

In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable.

Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of investigations, etc. of a public body or that release will prejudice the "procedures or methods employed for the conduct thereof". It seems to me that the use of the word "effectiveness" in section 21(1)(a) of the FOI Act must be interpreted as the ability of the investigation or inquiry, etc. to produce or lead to a result of some kind or the ability of the procedures or methods employed for the conduct of the investigations or inquiry, etc. to achieve their purpose.

In my view, in the case of a claim under section 21(1)(b), the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). In other words, not only must the harm be reasonably expected but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).

Other than the specific references to industrial relations and the management of staff, section 21(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management". Implicit in the Department's arguments in this case is its view that its functions relating to management include investigating complaints relating to harassment and bullying involving its staff. I accept that such investigations are a function relating to management.

The Department has made two arguments that relate to sections 21(1)(a) and (b). First it has argued that disclosure of the comments of the type in question here, made by a member of staff such as Mr Y, in relation to the procedure involved could have undermined the investigation of your complaint, future investigations, as well as the procedure involved for carrying out those investigations. It has also argued that release of the comments could have the effect of causing other employees to not co-operate with similar investigations and this in turn could have a significant adverse effect on its ability to carry out investigations of the type in question. The Department also seems to be arguing that the procedure or methods used for its internal investigations generally could reasonably be expected to be prejudiced by disclosure of comments made about the procedure by an official such as Mr Y.

The Department has informed me that the investigation into your complaint of 25 October 2000 is suspended as the matter was referred by you to the Office of the Director of Equality Investigations (ODEI) and subsequently, on appeal to the Labour Court. I have examined the contents of the note. It has not been explained to me nor is it apparent to me, how disclosure of comments in relation to those procedures made freely by Mr Y in his personal capacity and not in his position as an official in the Department, could have the harms envisaged by the Department. I accept that it is desirable that parties to the type of investigation in question in this case have confidence in the procedures employed for that investigation. However I do not believe, and the Department has not explained to me how release of the particular comments made by Mr Y could reasonably be expected to prejudice the effectiveness of the procedures employed by the Department for such investigations.

In addition I do not accept that the co-operation of an employee against whom a complaint or an allegation has been made is a pre-requisite to the effective investigation of the complaint or allegation. Clearly, such co-operation is highly desirable, but if it is not forthcoming then I would expect a public body faced with such a situation to employ alternative means at its disposal to deal with the matter.

Having regard to section 34(12)(b) I find that the Department has not justified its decision to refuse access under section 21(1)(a) or 21(1)(b).

Section 21(1)(c)

Section 21(1)(c) provides that a public body may refuse to grant a request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body."

Generally speaking paragraph (c) is designed to protect negotiation positions or plans etc. of a public body from being disclosed directly or indirectly to other parties. I would also accept that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 21(1)(c). In order to claim an exemption under section 21(1)(c) it is necessary for a public body to point to negotiations that have been are being or will be carried on by it. In this case the Department has argued that disclosure of the contents of the note could weaken its case currently before the Labour Court. The appeal before the Labour Court is clearly not a matter of negotiation but rather a case where the Court hears both parties to the appeal and decides on the matter. In any event having examined the contents of Mr Y's note it is clear to me that it does not disclose the position of the Department in relation to any negotiations. I find that section 21(1)(c) does not apply.

Section 23(1)(a)(i) and (iv)

The Department also claims that the note is exempt by virtue of section 23(1)(a)(i) and (iv). These sections provide that a request may be refused 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,...

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal,"

In its submission the Department explained that you lodged a complaint against the Department with the ODEI which encompassed your complaint of 25 October 2000. This complaint is now the subject of an appeal before the Labour Court. The Department has argued that access to the note could reasonably be expected to prejudice the hearing of your complaint and the ability of the Department to defend its position. The Department has not explained how any of the matters referred to in section 23(1)(a)(i) could be prejudiced or impaired. Neither has it explained how its ability to defend its position or how the hearing could be prejudiced by release of comments made to it by Mr Y. The appeal before the Labour Court is a matter between the Department and yourself. It is not a case taken against Mr Y although Mr Y may be involved as a witness. Having examined the contents of the note I do not see how any of the matters referred to in sections 23(1)(a)(i) or (iv) could reasonably be expected to be prejudiced or impaired by release of Mr Y's note.

Having regard to section 34(12)(b) I find that the Department has not justified its decision to refuse access under section 23(1)(a)(i) or (iv).

Section 26(1)(a)

Section 26(1)(a) of the FOI Act provides that a public body must refuse a request if -

• the record contains information given to a public body in confidence and
• on the understanding that it would be treated by it as confidential, and
• in the opinion of the public body, disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or the persons, and
• it is of importance to the public body that such further similar information should continue to be given to the public body.

The first question which arises is whether the comments made by Mr Y in his note were given by Mr Y to the Department in confidence and on the understanding that they would be treated as confidential. I found, in case number 98049 (Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works), that it is not sufficient for the provider of the information to assume or to "understand" that it would be treated as confidential and that a mutual understanding of confidence must exist. I also explained in case number 98058 (Mr Phelim McAleer and the Department of Justice, Equality and Law Reform) that where an understanding of confidence is asserted by both parties, as is the case here, then in the absence of any independent evidence, I consider it appropriate to examine the contents of the records with a view to establishing whether the nature of the contents is consistent with the existence of an understanding of confidence.

I have already given a general description of the contents of Mr Y's note. In its note of 27 October 2000, the Department informed Mr Y that the complaint would be investigated in accordance with the "Anti Harassment, Sexual Harassment and Bullying Policy for the Civil Service". Section 7.6.12, page 11, of that policy provides that :

"If a person demands that information provided to an investigating officer remain confidential there is no legal duty to maintain confidentiality. Where the investigating officer is of the view that natural justice ...requires disclosure such obligation may override any undertaking of confidentiality".

While Mr Y's comments were made to the Corporate Services Division and not to an investigating officer, it seems to me that parties involved in an investigation of this type cannot expect that comments such as Mr Y's, which concern the procedure being used to investigate the complaint, to be treated as confidential in relation to the other party to the complaint. In addition natural justice and fair procedures would normally require that such comments should be disclosed to the other party involved in the complaint in order to afford them an opportunity to respond to an issue affecting them.

Mr Y has referred to the fact that your complaint of 25 October 2000 is being addressed in the context of your appeal before the Labour Court. Mr Y argues that as no investigation took place the issue of disclosure of his comments to you in order to accord procedural fairness and natural justice does not arise. The Department has informed me that the investigation has not been closed pending the outcome of your appeal to the Labour Court. However the fact that the investigation has not yet taken place is irrelevant to my considerations. For the purposes of my findings, I need to establish if it was appropriate for the Department to treat Mr Y's comments as confidential at the time the comments were received by the Department. The provisions of the "Anti Harassment, Sexual Harassment and Bullying Policy for the Civil Service" highlight the requirement to disclose certain comments in the interests of natural justice. If there had been debate over the procedure being used by the Department to investigate the complaint then it would seem to me to have been at least a possibility that the Department would have been required to disclose Mr Y's comments to you. In such circumstances I believe it would be inappropriate for the Department to treat Mr Y's comments as confidential in relation to you, the other party to the complaint. In coming to my decision I have taken account of the fact that you as complainant, are a party to the investigation by the Department. In this case I do not accept that it was appropriate for the Department to treat Mr Y's comments as confidential vis-a-vis you, a party to the investigation. Different considerations may have arisen if the person seeking access to this record was not a party to the investigation.

That is not to say that all information given to the Department in the course of an investigation into allegations of bullying or harassment is not confidential. I accept that there will be many situations where a mutual understanding of confidence would be appropriate. However, having regard to the contents of Mr Y's note, the requirement to accord fair procedures and the provisions of the "Anti Harassment, Sexual Harassment and Bullying Policy for the Civil Service", I do not believe this to be such a situation.

Mr Y has stated that the purpose of his note was to put on record his comments on the procedure being employed by the Department in the event of subsequent proceedings by him or against him. Mr Y envisages that his comments could then be produced "at the appropriate stage". It seems to me that Mr Y would be prepared to disclose his comments but only at a particular stage in proceedings. Mr Y's willingness to disclose his comments, albeit at a time of his choosing, has fortified my view that it is inappropriate to regard such comments as being made in confidence to the Department.

For the reasons set out above I find that the first two requirements of section 26(1)(a) are not met in relation to record 4.

I should add that even if I were to find that the first two requirements of section 26(1)(a) were met in this case, I am satisfied that the third requirement is not met. The information in question here concerns Mr Y's views on the procedure being employed by the Department to investigate the complaint against him. I do not accept that disclosure of the comments made in Mr Y's note would be likely to prejudice Mr Y or any other individual, from making the same or similar comments to a public body in relation to the procedure being used to investigate a complaint against them.

Section 26(1)(b)

Although neither the Department or Mr Y has specifically raised it I have considered whether section 26(1)(b) of the FOI Act could apply to exempt disclosure of record 4. Section 26(1)(b) provides that a public body should refuse to grant a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. I am not aware of any relevant agreement or statute which might apply in this case. I have also considered whether there is an equitable duty of confidence, that is, a "duty of confidence...provided for...by law", owed to Mr Y. In doing so, I have applied the tests set out in the leading case of Coco v. A.N.Clark (Engineers) Limited F.S.R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R.611) in which Megarry, J. stated as follows :

"Three elements are normally required if, apart from a contract, a case of breach of confidence is to succeed. First, the information itself.....must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

I note that the first two requirements of the "Coco" tests correspond to a large extent with the first two requirements of section 26(1)(a) of the FOI Act. Therefore, for the same reasons as I have outlined in respect of section 26(1)(a) above, I am not satisfied that the information contained in Mr Y's note was imparted in circumstances imposing an obligation of confidence. Furthermore, given the provisions of the "Anti Harassment Sexual Harassment and Bullying Policy for the Civil Service" it is not clear to me how the disclosure to you of the information contained in Mr Y's note would constitute an unauthorised use of that information. I find that section 26(1)(b) does not apply.

Section 28

Section 28 of the FOI Act, as amended by the FOI Act 2003, provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the FOI Act section 2 defines personal information as :

"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, the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential,".

Subsection (I) provides that the definition of personal information does not include, among other things, information written or recorded by a member of staff of a public body in the course of and for the purpose of the performance of his or her functions.

As I already mentioned, the note created by Mr Y was in response to a letter from Corporate Services Division advising Mr Y that you had made a complaint against him and that the matter would be investigated in accordance with the "Anti Harassment and Bullying Policy for the Civil Service", (see record numbered 3 which was released to you in full). It is clear to me that as the letter related to a complaint of harassment against him, Mr Y was acting in his personal capacity and not during the performance of his official functions when issuing a reply and that subsection (I) does not apply to exclude the information from the definition of personal information .

In relation to the definition of personal information at (a), I do not consider that the information in question here can be said to be information known only to Mr Y his family and friends , etc. as this is information which has been given voluntarily by Mr Y to the Department concerning the method being used to investigate the complaint against him. The question then arises as to whether it can be regarded as information held by the Department on the understanding that it would be treated by it as confidential.

It will follow from my comments in relation to the applicability of section 26(1)(a) that I do not consider that it was appropriate for the Department to treat this particular comment by Mr Y as confidential, given that it relates to the procedure to be used to investigate the complaint.
Both the Department and Mr Y have contended that the information in the note is personal information as it contains the personal views and opinions of Mr Y. However the FOI Act only provides that the "views or opinions of another person about the individual" are without prejudice to the provisions at (a) or (b), the personal information of that individual and not, in my view, the person expressing the views. I do not accept that Mr Y's views on how the complaint should be handled are the personal information of Mr Y.

I have also considered whether access to the note could be said to disclose personal information about Mr Y, the information being that a complaint has been made against him and that the Department saw fit to investigate the complaint. However this information is contained in a note from Corporate Services to Mr Y dated 27 October 2000 (record numbered 3 on the Department's schedule) which the Department has already disclosed to you. Accordingly disclosure has already occurred and access to Mr Y's note cannot be said to disclose this information which is the requirement in order claim exemption from release under section 28(1).

In his note Mr Y refers to the reason for his absence from the office for a number of days. I consider that this reference contains the personal information of Mr Y and access should only be granted to the note with the deletion of this reference which is contained in brackets in the second paragraph.

Records 2, 7 and 9 - Letter of 12 February 2001 from Mr A to Mr Y

Record numbered 2 is a note from Mr A, Assistant Secretary, to Mr Y dated 12 February 2001. Records numbered 7 and 9 are copies of this note. It is evident from the parts of those records released to you that the note concerns the Department's preparations for its submission to the ODEI in response to your submission. The Department refused access to the remaining parts of the records under section 20(1), sections 21(1)(a), (b) and (c), and sections 23(1)(a)(i) and (iv). However, in this case, I consider that the application of section 22(1)(a) is relevant.

Section 22(1)(a)

Section 22(1)(a) provides that :

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

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.

As the communication in question here is not a communication between a client and a legal adviser, the issue before me is whether the contents of the records meet the second limb of the definition of legal professional privilege. I am advised that records generated by the client, such as internal memoranda, come within the ambit of legal professional privilege if the dominant purpose of their creation was the preparation for contemplated or pending litigation.

It could be argued that proceedings before the ODEI cannot be classed as litigation as the ODEI is not a court as provided for under the Court Acts. However, in order to meet the second limb of the definition of legal professional privilege it is not necessary to identify the forum in which this litigation may take place. Litigation can be contemplated before the forum for litigation is considered.
I have been advised that case law suggests that litigation is "contemplated" where there is a definite prospect, apprehension or threat of litigation and not a mere anticipation of it. In the case of Silver Hill Duckling v Minister for Agriculture & Anor., O’Hanlon, J. had the following to say in this regard:

“Having considered the relevant authorities, I am of the opinion 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. This seems to have been the view taken by the House of Lords in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Comrs. (No. 2) [1974] A.C. 405 while their Lordships also took the view that litigation in that case should not be regarded as apprehended or threatened until the Commissioners had made their assessment and put it formally to the taxpayer for the purpose of having it rejected by the taxpayer as a preliminary step on the road to arbitration. On that aspect of the case I would have been more inclined to favour the view taken in the Court of Appeal that once it was apparent to both sides that they were not going to reach agreement and that the ultimate recourse to arbitration was well-nigh inevitable, then a situation had arisen where litigation between the parties could fairly be regarded as apprehended or threatened.”

If privilege attaches to documents prepared in the circumstances outlined by O’Hanlon, J. above, where the focus appears not to be on the particular forum in which the matter might be resolved but rather on the fact that proceedings of whatever type might well be necessary to resolve it, then the fact that the proceedings were before the ODEI in this case is irrelevant. On this view, the only relevant criterion is whether or not the parties are involved in a dispute of some kind that has reached a stage at which it is apparent that the matter can only be resolved by means of proceedings in another forum, the nature of which need not be ascertained or identified at the time of the preparation of the relevant documents.

Alternatively, records could still attract legal professional privilege if the records have been prepared in contemplation of an appeal following the decision of a body such as the ODEI. In this case a right of appeal exists from the ODEI to the Labour Court and to the High Court on a point of law. I am satisfied that the Department in preparing its defence before the ODEI would have been aware of the further right of appeal to the High Court and that this would have been in its mind in preparing the relevant documents. Therefore I am satisfied that litigation before the High Court was contemplated by the Department in this case when the memorandum was prepared. This argument would not apply of course if there was clear evidence that any appeal or review mechanism was not going to be availed of by the Department. In this case I am not aware of any such evidence. Therefore, I am satisfied that the records in this case can be said to have been prepared in contemplation of litigation.

Having examined the records which are clearly concerned with the Department's preparations for its defence of your claim, I am satisfied that the dominant purpose for the records being brought into existence was for the preparation of contemplated litigation and that the Department is entitled to claim exemption in respect of these records.

As I have found that section 22(1)(a) applies, I do not believe it is necessary for me to consider the application of the remaining exemptions claimed by the Department.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 I vary the decision of the Department in that I direct that access be granted to record 4 with the deletion of the phrase in brackets in the second paragraph.

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 eight weeks from the date of this letter.

Yours sincerely

Information Commissioner