Case 040031. Request for all records relating to requester and in particular the legal advice which requester contends was given to the Minister regarding the Memorandum and Articles of Association of a client company - section 10(1)(a) - whether Department had untrammelled right of access to client company's records and whether legal professional privilege would apply to legal advice received by company - section 22(1)(a)

Case Summary

Facts

The Department was grant aiding a community development company that had adopted a clause in its Memorandum and Articles of Association which debarred former members or directors of a particular company from becoming members or directors. The requester was aware that the company had received legal advice on this issue and considered that the Department must be in possession of a copy of that advice.

Decision

The Commissioner accepted that the Department did not have a copy of the legal advice and that the company could have refused access to it on the grounds of legal professional privilege. The decision of the Department was therefore upheld.

Date of Decision: 05.07.2004

Our Reference: 040031

05.07.2004

X

Dear X

I refer to your application to the Information Commissioner ("the Commissioner") for a review of the decisions made by the Department of Community, Rural and Gaeltacht Affairs ("the Department") on 14 April, 2003, 15 May, 2003 and 23 October, 2003 in respect of your Freedom of Information (FOI) requests dated 8 March, 2003, 25 April, 2003 and 23 September, 2003.

Background

In your FOI application to the Department dated 8 March, 2003 you requested:-

"......that you forward to me all documents relating to a consultant's report commissioned by the Department. This report is in reference to ........ Ltd......... Who in the Department requested the Consultants report? What the reasons were for requesting the report? What remit was the consultant given? Did the Department act on the findings from this report? On the basis of the report, did the Department set down conditions to exclude myself .........from being a member of ...........Ltd? What was the final costing of the report? Any personal information in reference to my exclusion from .................Ltd from the Ministers office Department of Community, Rural and Gaeltacht Affairs previous Department Social Community Affairs, any and all bodies funded by the Department, that I have mistakenly overlooked, please inform me."

On 14 April, 2003 the Department issued its decision (ref. no. deleted) granting you access to records it considered relevant to your request.

In your FOI application of 25 April, 2003 you requested:-

"...all correspondence to your Department from...................Limited, and..............Limited, in which they explain their legal position to exclude me as a member of .................Limited."

On 15 May, 2003 the Department wrote to you (ref. no. deleted) advising that all documentation in respect of this request had been provided in response to your earlier FOI request.

In your FOI request of 23 September, 2003 you requested:-

"....any/all personal documents/files from Jan 2003 to date."

On 23 October, 2003 the Department issued its decision ( ref. no. deleted) granting you access to these records.

On 22 December, 2003 you requested an internal review on the grounds that:

" I want an internal review of all personal letters/memos held by the above Department about me. I am of the opinion that all files/memos which I requested under the FOI Act '97 were not given to me, i.e. legal advice the department gave to the Minister Noel Ahern T.D. which he wrote to Brian O'Shea T.D. and myself on the 14 November (ref. no. deleted)."

On 26 January, 2004, notwithstanding the fact that your request for internal reviews were submitted outside the four weeks specified for such an appeal under section 14(7) of the FOI Act, the internal reviewer gave a decision covering all three of your FOI requests. In his decision the reviewer held that:-

"Having carried out a fresh review of those decisions and examined the papers ...I have been unable to locate any relevant documents that have not already been released to you."

In a letter dated 27 January 2004 you applied for a review of the Department's decision by the Information Commissioner. Consistent with the Department's internal review, this review will cover the three FOI requests outlined above.

Scope of Review

This review therefore will consider whether the Department is justified in claiming that all relevant records have been released to you and that, in effect, section 10(1)(a) of the Act applies. In making my decision I will take account of the submissions made by yourself, including your phone conversations to this Office and also those of the Department.

Findings

Section 10(1)(a)

Although not quoted explicitly, the exemption claimed by the Department is section 10(1)(a) of the FOI Act. This section provides that:-

A head to whom a request under section 7 is made may refuse to grant the request if:-

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,

At this point it is important to state that while there have in the past been some misconceptions about the role of this Office in cases of this nature, with requesters expecting officials from this Office to carry out a search for the records in question, the Commissioner views her role as one of reviewing the decision of the public body and deciding whether its decision was justified. This approach has been upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the (then) Information Commissioner (2002 No. 18 MCA) where Mr. Justice Quirke stated:-

I am satisfied that the respondent's (the then Commissioner)understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision.

In carrying out a review of a decision to claim a section 10(1)(a) exemption, this office must have regard to the evidence available to the decision maker and to the reasoning used by him or her in arriving at the decision. The evidence in such cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body.

The Department has outlined the following procedures which it followed in its efforts to locate all relevant records:-

The hardcopy files for both ...............Limited and................Ltd. were comprehensively searched for any document referring to you by name or inference.

All computerised files in relation to the above groups were also checked using searches for key words such as "..................."".............."and "............"

The Department contends that all the relevant files are kept within the relevant Voluntary and Community Services Section, that no files have been archived or destroyed and that files are stored alphabetically and, as they are in constant use, any misfiling would be detected.

I note that the issue of the legal advice obtained by ..................has been a factor in your belief that that there are additional records being withheld. You cite the letter from Minister of State, Noel Ahern T.D. to Deputy Brian O' Shea T.D., dated 14 November, 2003 in support of your contention that the Department must have a copy of that legal advice. However, having studied this letter and the subsequent clarification from the Minister of State to you dated 16 December, 2003, I do not find anything in this correspondence inconsistent with the Department's claim that they do not now and never have had possession of a copy of that legal advice. In addition, regardless of the reporting relationship between the Department and .............., I am satisfied that the Department would not have untrammelled right of access to the legal advice received by the ..................on the grounds that such advice would be protected by legal professional privilege.

In view of the foregoing, I am satisfied that the efforts made by the Department were sufficiently comprehensive to justify its contention that additional records do not exist and that section 10(1)(a) therefore applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the Department's decision that the records sought do not exist or cannot be located.

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

Senior Investigator