Case 020481. Request for records relating to legal proceedings to which the requester and the Department were parties - whether release could reasonably be expected to prejudice or impair the fairness of the civil proceedings - section 23(1)(a)(iv) - 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 of Justice, Equality & Law Reform in relation to an action he had taken against a number of parties, including the Department, before the High Court. The Department refused access to three groups of records pursuant to the provisions of sections 23(1)(a)(iv), 22(1)(a) and 46(1)(b) of the FOI Act. The requester applied to the Commissioner for a review of that decision.

Decision

The Department argued that the release of those records in respect of which exemption was claimed pursuant to the provisions of section 23(1)(a)(iv) would place the Department in a disadvantageous position as regards the civil action in question. It argued that it would seem contrary to natural justice to allow the Act to be used by one party in the context of ongoing civil proceedings to seek and gain access to records relating to the action held by the other party while the latter party does not enjoy a similar right to trawl through papers held by the other side.

The Commissioner explained that he was not aware of any restrictions on the use of the FOI Act as a means of obtaining documents held by a public body which might otherwise be available through the process of discovery and that any such request falls to be dealt with in accordance with the provisions of the FOI Act and must be granted subject only to the application of any relevant exemptions. He found that section 23 of the FOI Act is a harm based exemption and cannot be applied to particular records simply as a result of their falling within a particular class of records and that for a claim pursuant to the provisions of section 23(1)(a)(iv) to succeed, he has to be satisfied, in the case of each record, that granting access could reasonably be expected to prejudice or impair the fairness of the pending proceedings.

Having examined the contents of the records, the Commissioner was not satisfied that their contents were such that their release could reasonably be expected to prejudice or impair the fairness of the civil proceedings in question. He found that section 23(1)(a)(iv) did not apply. The Commissioner found that section 22(1)(a) applied to a number of records as he was satisfied that the dominant purpose for their creation was in preparation for the civil proceedings and that they would, therefore, be exempt from production in court on the grounds of legal professional privilege. He also found that the Act did not apply to a number of records which were created by the Office of the Attorney General, in accordance with the provisions of section 46(1)(b) of the FOI Act.

Date of Decision: 27.02.2003

Our Reference: 020481

27.02.2003

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 Department of Justice, Equality & Law Reform ("the Department") relating to your request for all records relating to yourself and Y.

Background

I have now completed my review of the Department's decision. In carrying out that review, I have had regard to your correspondence with the Department and to the Department's correspondence with my Office. I have also examined the records at issue.

Scope of Review

I note that the Department advised you that the majority of records held on file relate to correspondence received from you or from members of the Oireachtas enclosing correspondence forwarded by you to them and I understand that the Department has agreed to release these records. The Department identified, in its decision letter dated 6 August 2002, those records to which access was being refused pursuant to various provisions of the FOI Act. You applied for a review of the Department's decision to refuse access to the records identified.

When forwarding copies of the records at issue to my Office for inspection, the Department explained that it had located three further records which were relevant to your request and it provided a revised schedule to take account of the three records to which it decided to refuse access. A copy of the revised schedule is enclosed for your information. For ease of reference, I have adopted the numbering system used by the Department in the schedule in referring to the records at issue. Subsequently, when making a submission to my Office following its consideration of the preliminary views of Mr Rafferty of my Office on the matter, the Department advised that it had located four other records, numbered 372, 373, 374 and 375. It has also decided to refuse access these records. It has, however, agreed to release records numbered 6, 7, 28 and 31 (which is a copy of 28).

Of the remaining records at issue, the Department has categorised them into three groups on the basis of the exemptions cited for refusing access. Group 1 comprises those records to which access was refused pursuant to the provisions of section 23(1)(a)(iv) of the FOI Act. Group 2 comprises records to which access was refused pursuant to the provisions of sections 22(1)(a) and 23(1)(a)(iv) of the Act. Group 3 comprises records to which access was refused pursuant to the provisions of section 46(1)(b) of the Act on the ground that the records were created by the Office of the Chief State Solicitor ("the CSSO"). For convenience, I will refer to the records in the order in which they are contained in the revised schedule.

During the course of the review, Mr Rafferty of my Office advised the Department of his preliminary view that section 46(1)(b) does not apply to attachments to records created by the CSSO unless the attachments themselves were created by that Office. He advised it of his preliminary view is that section 46(1)(b) does not apply to record numbers 61, 64-66, 68-70, 80A, 81-83, 87A-87F, 89C-89D, 89F-89H, 93A( with the exception of the annotation on the fifth page and the sixth page in full), 96-99, 101-103, 104-107, 115-116, 117-121, 125-139, 141, 142, 144-146, 149, 151-156, 158-160, 162-164, 172A-172E, 174, 176-185, 187-193, 195-199, 201-204, 208, 212-214, 217-218, 220-221, 222-224, 229, 231-233, 235-240, 241-242, 244-245, 246-247, 248-254, 257-269, 270, 271-285, 287-288, 290-299, 301-316, 320-336, 337-339, 341-345, 353-354 and 357-359(incl. 357A).

The Department accepted Mr Rafferty's preliminary views in relation to the status of attachments generally. However, it indicated that it now wishes to rely upon the exemption contained in section 22(1)(a) of the FOI Act to refuse access to records numbered 87B, 87C, 104-107, 115-116, 117-121, 141, 144-146, 149, 151-153, 154-155, 156, 195-199, 201-204, 270, 287-288 and one of the four additional recently located records, viz. record numbered 374. For convenience, I will re-categorise these records as Group 4 records. The Department has advised that it is now willing to release the remaining records in Group 3. The records in question are 61, 64-66, 68-70, 80A, 81-83, 87A, 87D-87F, 89C-89D, 89F-89H, 93A (with the exception of the annotation on the fifth page and the sixth page in full), 96-99, 101-103, 125-139, 142, 158-160, 162-164, 172A-172E, 174, 176-185, 187-193, 208, 212-214, 217-218, 220-221, 222-224, 229, 231-233, 235-240, 241-242, 244-245, 246-247, 248-254, 257-269, 271-285, 290-299, 301-316, 320-336, 337-339, 341-345, 353-354 and 357-359(incl. 357A). Accordingly I have excluded these records from the scope of this review.

In summary, therefore, the records remaining at issue in this case are as set out below:

Group 1: 3-5, 19, 18, 14, 8, 12, 10, 9, 15, 20, 2, 16, 17, 13, 1, 1a, 11, 22, 21.

Group 2: 24-26, 40, 34, 53, 52, 51, 50, 49, 27, 44, 45, 48, 46, 47, 41, 42, 43, 32, 30, 33, 35, 37-39, 29, 23, 36 and 54

Group 3: 55, 58&59, 60, 62, 63, 67, 56&57, 71&72, 73, 74-79, 80, 84, 85, 86&87, 88&89, 89A, 89B, 89E, 89I, 90-93, 93A in part (annotation on page 5 and page 6 in full), 94, 95, 100, 108-112, 113, 114, 122, 123, 124, 140, 143, 147, 148, 150, 157, 161, 165-171, 172, 173, 175, 186, 194, 200, 205-206, 209&211, 210, 215, 216, 219, 225-226, 227&227A, 228, 230, 234, 243, 254A, 255, 256, 286, 289, 300, 317&318, 319, 340, 346-351, 352, 355, 356360-365, 369, 370, 371, 366, 367, 368, 372, 373, 375 and CSSO note dated 17.2.02 (not numbered).

Group 4: 87B, 87C, 104-107, 115-116, 117-121, 141, 144-146, 149, 151-153, 154-155, 156, 195-199, 201-204, 270, 287-288 and 374.

Accordingly, my review is concerned with the question of whether the Department was justified in deciding to refuse access to the Records described above as remaining at issue in Groups 1 to 4.

Findings

Group 1 Records

The Department has refused access to the records in Group 1 as described above pursuant to the provisions of section 23(1)(a)(iv) of the FOI Act. Section 23(1)(a)(iv) provides for the refusal of a request where the public body considers that access to the record could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

The Department says that the records in group 1 relate to the Department's handling of a civil action initiated by you which is still before the Courts. On this point, I understand that a motion brought by the Department to have the proceedings dismissed was recently heard by the Court and that judgement was reserved. The Department argues that section 23(1)(a)(iv) remains relevant even if the proceedings are dismissed given the likelihood of such a decision being appealed. It argues that release of the records would place the Department in a disadvantageous position as regards the civil action in question. I note that Mr Rafferty advised the Department of his preliminary view that the release of the records at issue could not reasonably be expected to damage the fairness of the proceedings. He went on to say that, in his view, the mere fact that the disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings. In response, the Department argues that the disclosure of information which might weaken the prosecution or strengthen the defence would most definitely damage the fairness of the proceedings by giving one party an advantage not enjoyed by the other party. It believes this to be the principle behind section 23(1)(a)(iv). It goes on to say that it would seem contrary to natural justice to allow the Act to be used by one party in the context of ongoing civil proceedings to seek and gain access to records relating to the action held by the other party while the latter party does not enjoy a similar right to trawl through papers held by the other side, i.e. one party can supplement the normal legal avenues open to them in court by way of discovery.

I wish to make a number of points in relation to the Department's arguments. Firstly, I am aware of no restrictions on the use of the FOI Act as a means of obtaining documents held by a public body which might otherwise be available through the process of discovery. This means that any such request falls to be dealt with in accordance with the provisions of the FOI Act and must be granted subject only to the application of any relevant exemptions. On this point I note that in his judgement of 4 April 2001 in the case E.H. and the Information Commissioner, O'Neill J. commented that "I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery". In this case, the only question I must consider, therefore, is whether access to the records concerned could reasonably be expected to prejudice or impair the fairness of the pending civil proceedings.

Secondly, the Department appears to be of the view that a requirement on it to release records relating to its handling of a civil action in the absence of any such requirement on the other party would be manifestly unfair, regardless of the contents of the records at issue. I do not accept this argument. Section 23 of the FOI Act is a harm based exemption and cannot be applied to particular records simply as a result of their falling within a particular class of records. For a claim pursuant to the provisions of section 23(1)(a)(iv) to succeed, I have to be satisfied, in the case of each record, that granting access could reasonably be expected to prejudice or impair the fairness of the pending proceedings.

Thirdly, in my view the principle purpose of section 23(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of particular court proceedings. There are many instances where the release of information could prejudice or impair the fairness of such proceedings. For example, if the disclosure of information were to result in prejudicial pre-trial publicity, the manufacture or destruction of evidence, interference with potential witnesses, etc. then clearly the fairness of the court proceedings would be prejudiced or impaired. Furthermore, while Mr Rafferty's comments concerning the relevance to the fairness of proceedings of the disclosure of information which might weaken the prosecution or strengthen the defence would appear to have particular application to criminal proceedings, I have previously accepted in the case of Mr and Mrs ABJ and the Office of the Revenue Commissioners (decision No. 98102), that "the imposition of a requirement on the Revenue to disclose its proposed conduct of a case in advance without a corresponding requirement in the case of the appellant would, in many cases, impair the fairness of the proceedings", the proceedings in question relating to an appeal before the Revenue Appeal Commissioners. I have also found, in the case of Mr ABM and Others and the Office of the Revenue Commissioners (decision No. 99017) that "based on the lack of reciprocity, the potential for making a possible detrimental inroad into the Revenue's ability to prepare confidentially for the conduct of proceedings in the case ..... I am satisfied that it could reasonably be expected that release in this case could prejudice or impair the fairness of any proceedings before the Circuit Court". It should be noted, however, that I also found that the disclosure of the records at issue in that case could reasonably be expected to disclose an aspect of the case which the Revenue might want to make before the Court. It is clear, therefore, that I do not accept that the lack of reciprocity, of itself, provides a sufficient basis on which to claim exemption pursuant to the provisions of section 23(1)(a)(iv).

Having examined the records at issue in this particular case, I am satisfied that they do not contain legal strategy, nor do they contain details of how the Department proposes to conduct its case. In such circumstances, it is not clear to me how the disclosure of the records could possibly give rise to the fairness of the court proceedings being prejudiced or impaired and I note that, apart from record 8, the Department has put forward no specific argument as to how such harm might arise. On the matter of record 8, the Department argues that the disclosure of the record would disclose a possible weakness in the case to be made by the State. However, it has not explained how such an outcome might occur or, even if it did, how the fairness of the proceedings could be prejudiced or impaired. In the circumstances, and having regard to the provisions of section 34(12)(b) of the FOI Act which places the onus on the Department of satisfying me that its decision to refuse access was justified, I find that the exemption contained in section 23(1)(a)(iv) does not apply to the records in Group 1.

Group 2 Records

The Department claims that sections 22(1)(a) and 23(1)(a)(iv) of the FOI Act applies to the records at issue in group 2 as described above. Section 22(1)(a) provides that access shall be refused to records which 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.

I have examined the records in Group 2. I am satisfied that the dominant purpose for their creation was in preparation for the ongoing civil proceedings to which the Department is a party. I find, therefore, that they would be exempt from production in court on the grounds of legal professional privilege and that the Department is entitled, under section 22(1)(a) to refuse access to these records. Given my finding that section 22(1)(a) applies, I do not need to consider the Department's claim for exemption pursuant to the provisions of section 23(1)(a)(iv) in respect of the records in Group 2.

Group 3 Records

The Department claims that section 46(1)(b) of the FOI Act applies to the records at issue in group 3 as described above. Section 46(1)(b) provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record concerning the general administration of that Office. In this context, it should be noted that the CSSO forms part of the Attorney General's Office. I have examined the records in group 3 and I am satisfied that they were all created by the Office of the Attorney General and that they relate to matters other than the general administration of that Office. I find, therefore, that section 46(1)(b) applies to these records and that you do not have a right of access to them.

Group 4 Records

The Department claims that section 22(1)(a) of the FOI Act applies to the records at issue in Group 4 as described above. Having examined the records, I am satisfied that the dominant purpose for their creation was in preparation for the ongoing civil proceedings to which the Department is a party. I find, therefore, that they would be exempt from production in court on the grounds of legal professional privilege and that the Department is entitled, under section 22(1)(a), to refuse access to these records.

Decision

Having carried out carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the Department of Justice, Equality & Law Reform. I direct that the records in Group 1 be released in full, viz. records numbered 3-5, 19, 18, 14, 8, 12, 10, 9, 15, 20, 2, 16, 17, 13, 1, 1a, 11, 22 and 21.

A party to a review, or any other person affected by a decision of the 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 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner