Case 050166. Request for access to records - whether the public interest favours release of records that disclose positions taken for the purpose of negotiations - section 21(2) - whether an exception to the legal professional privilege rule may apply - section 22(1)(a) - whether release of relevant records would constitute contempt of court - section 22(1)(b) - whether access could reasonably be expected to prejudice or impair the fairness of civil proceedings in a court or other tribunal - section 23(1)(a)(iv) - whether the public interest favours release of a record that would disclose personal information about a third party - section 28(5)(a)

Case Summary

The applicant sought the release of all records, from 1 July 2003 to 14 January 2005, relating to a proposed exchange of lands and construction of a replacement house for his late relatives and an investigation referred to in a letter he received from the IDA in 2002. The IDA refused access to the vast majority of relevant records.

This case deals with a number of important aspects of the contempt of court exemption [section 22(1)(b)] that had not previously been addressed by the Commissioner. She found that an implied undertaking is not given or received by a party to litigation at the time that a Order of Discovery is made by a Court. However, as it did not arise in the circumstances of this case, the Commissioner stated that she would not make any findings in relation to the wider question of whether such an undertaking is given when a list of documents to be discovered is served or when such documents are in fact produced on discovery.

The Commissioner also clarified that the implied undertaking is given only by the party receiving documents (or possibly a list of documents) under discovery and not by the party making discovery. However, only documents received under discovery are covered by the undertaking given and therefore cannot be released under FOI to any applicant. Accordingly, identical documents to those received under discovery which are held by the body in any event can be released under FOI to any applicant (subject of course to other exemptions that may be applicable). Critically, documents discovered by a public body, to the other party to the litigation, can be released under FOI to a third party as the public body that discovered the documents would not have given any undertaking in relation to its own documents and cannot therefore be cited for contempt.

In relation to whether an exception to the legal professional privilege (LPP) rule applies to certain records, the Commissioner decided that the circumstances that must exist, for the protection of LPP to be withdrawn, have not been found in the records at issue and she rejected the applicant's claim that the records in question cannot attract an LPP exemption.

In relation to records that would disclose positions taken for the purpose of negotiations, the Commissioner found that the public interest does not favour release as the applicant's dispute with the IDA is not historic and ultimately is only likely to be brought to a conclusion by way of litigation or agreement following further negotiations. She also decided not to release an investigation report, which followed a complaint that the applicant had made about an IDA official, because there were not adequate grounds for finding that the public interest would be better served by disclosure than by protecting the right to privacy of the individual about whom the complaint was made.

In relation to records withheld by the IDA under section 23(1)(a)(iv), the Commissioner found that the damage likely to occur as a result of disclosure of the relevant information had not been shown to the extent that would be required for this exemption to be upheld.

Date of Decision: 03.07.2006

Our Reference: 050166

03.07.2006

Mr. Eamonn Murphy

Dear Mr. Murphy

I refer to your application for a review of the decision taken by the Industrial Development Agency (IDA) following your FOI request of 14 January 2005. I have now completed my review of the IDA's decision. This review has been carried out in accordance with the provisions of the FOI Acts, 1997 and 2003 and therefore all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.

Background

In your FOI request to the IDA you sought the release of all records, from 1 July 2003 to 14 January 2005, relating to the proposed exchange of lands and construction of a replacement house for your late relatives and a proposed investigation that was referred to in a letter you received from an IDA official in December 2002. The IDA issued its decision letter on 23 February 2005 and enclosed a schedule itemising the 491 relevant records located (including numbers 232 and 232A), of which, the vast majority were refused on the basis of various exemptions claimed.

You subsequently made an internal review request to the IDA on 8 March 2005. A decision on your appeal was made by the IDA on 31 March 2005 and this resulted in a part of record number 402 being released to you. Some additional relevant records were also located and accordingly you were also provided with an updated schedule covering a total of 500 records, numbered from 1 to 499 (which included numbers 232 and 232A).

On 24 May 2005 you appealed the IDA's decision to my Office and your review application was accepted on 21 June 2005 following receipt of the appropriate fee of €150.

A submission was subsequently received from the IDA on 12 July 2005 which identified the existence of a further relevant record, number 500, which is a copy of record number 489 but contains some additional information in the form of a manuscript annotation. Furthermore, the IDA located three additional pages that form part of record number 488, which now comprises four pages in total. It should be noted that it also emerged that record number 490 comprises four pages rather than one, as had been indicated in the schedule of records provided. In addition, it has emerged that record number 104 actually comprises of six pages and not one, as indicated in the IDA's schedule. The additional five pages comprise of attachments that were appended to the first page letter.

An Investigator from my Office, Mr. Cathal Duffy, was subsequently assigned this review and he has been in regular correspondence with both you and the IDA since then.

Scope of Review

When Mr. Duffy commenced work on this review, there were a total of 494 records which had been withheld, in full or in part, on the basis of one or more of the following exemptions: section 20(1) [deliberative process], section 21(1)(c) [positions taken for the purpose of negotiations], section 22(1)(a) [legal professional privilege], section 22(1)(b) [contempt of court], section 23(1)(a)(iv) [fairness of proceedings in a court or tribunal] and section 28(1) [personal information].

Having examined each record carefully, Mr. Duffy arrived a preliminary view in relation to the exemption(s) claimed by the IDA in respect of each of the 494 records. Mr Duffy subsequently wrote preliminary views letter to both you and the IDA. He wrote to you on 14 December 2005, 9 January 2006 and 11 January 2006 and invited a response in relation to any aspect that you disagreed with. You responded with a very detailed submission on 23 January 2006 which dealt with the three exemptions which Mr. Duffy believed to be applicable in respect of certain records withheld by the IDA; namely sections 21(1)(c), 22(1)(b) and 28(1).

In relation to the records, or parts of records, that Mr. Duffy was satisfied had been properly withheld under the section 22(1)(a) exemption, you stated that whilst you accept the basis for the exemption as set out by Mr. Duffy, you do not believe that it should apply to certain records which you specifically referred to. It is clear from your submission that you do not dispute Mr. Duffy's preliminary view that an exemption under section 22(1)(a) is applicable in respect of the balance of the records, or parts of records, withheld by the IDA under section 22(1)(a) and which were listed in his preliminary views letter.

In his preliminary views letters, Mr. Duffy also expressed the view that various records, or parts of records, have been properly withheld under the section 21(1)(c) exemption claimed. Mr. Duffy went on to explain why, in his view, the public interest would not favour release of such records. In your response to this aspect of Mr. Duffy's preliminary view, you expressed the view that the public interest should, in light of circumstances that you brought to my attention, favour release of certain records which you specifically referred to. In relation to four of the records that you specifically referred to, numbers 353, 367, 377 and 445, I note that they have not in fact been withheld under a section 21(1)(c) exemption.

It is clear from your submission that you do not dispute Mr. Duffy's view that an exemption under section 21(1)(c) is applicable in respect of the balance of the records, or parts of records, not referred to in your response but which were listed in his preliminary views letter on the basis that he believes that they have been properly withheld by the IDA in accordance with this exemption.

In relation to record number 490, I note that you disputed Mr. Duffy's preliminary view that an exemption under section 28(1) is applicable in respect of the second, third and fourth pages of this record i.e. the three page attachment to this record.

In these circumstances, the scope of this review is now confined to considering the applicability of any exemptions still claimed in respect of the various records, or parts of records, withheld by the IDA which, in Mr. Duffy's view, have not been properly withheld, and also those records referred to in your submission that you believe should be released notwithstanding Mr. Duffy's preliminary view to the contrary. Each of these records will be dealt with below in the context of the relevant exemption(s) claimed.

Findings

Section 22(1)(b)

This exemption is claimed in respect of every record still withheld by the IDA, as listed in the schedule of records which accompanied their internal review decision of 31 March 2005. It is also claimed in respect of the additional record, number 500, which was located following the commencement of this review.

Section 22(1)(b) of the 1997 Act (as amended) provides that a head (of a public body) shall refuse to grant a request if the record concerned:

"is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court ...".

In its internal review decision, the IDA stated:

"Under a decision of the High Court in April 2001 records held by a public body that have been the subject of an Order of Discovery must be refused under Section 22(1)(b) if access is sought by means of a request under the Act. As you are aware, we are currently in the course of legal action regarding the property that is the subject of your request......"

The Order of Discovery referred to by the IDA was made by the Master of the High Court on 18 May 2004 in relation to proceedings which the IDA initiated against a third party. Whilst the Order required that discovery be made within four weeks of that date, it emerged in the early stages of this review that no Affidavit of Discovery has in fact been sworn by either party pursuant to that Order. Nevertheless, the IDA contends that access to records which come within the scope of the Order must be refused on the basis of section 22(1)(b). The IDA's position in this regard is based on its understanding of certain comments made in the judgment of O'Neill J. in the High Court case of EH and EPH v. the Information Commissioner (96 MCA/1999 & 107 MCA/1999). On the basis of that judgment, the IDA's position is that records held by a public body which have been the subject of an Order of Discovery must be refused under this exemption if access is sought by means of a request under the FOI Act as the wilful release of such records would constitute contempt of court.

On 11 October 2005 Mr. Duffy issued a preliminary views letter to the IDA in respect of the section 22(1)(b) exemption only. In his letter, Mr. Duffy contended that the exemption cannot apply, for a number of reasons, and he invited a response from the IDA. In his letter, Mr. Duffy pointed out that no records, or list of records, have been discovered and therefore no undertaking has been given and, in any event, even if an implied undertaking has been given, there cannot be a contempt of court in circumstances where you, as a third party, had not given any such undertaking.

Mr. Duffy pointed out that the undertaking is given by the person to whom discovery is made, and not by the party making discovery. Accordingly, the IDA has given no undertaking to the Court or to any other party and may disclose to the world the documents concerned without being in contempt. Mr. Duffy stressed however that this situation is entirely different from that which arises where the public body receives records from a party to litigation on foot of discovery. In such a situation, disclosure by the public body of those records would be a contempt of court and the records would be exempt pursuant to section 22(1)(b).

Reference was also made by Mr. Duffy to impracticalities in the IDA's understanding of the High Court ruling of O'Neill J. and he noted that my Office, in a separate matter, had arrived at a view that disclosure by a person who is unconnected with the party to whom discovery was made (and, in particular, a person who is not such party's solicitor) would not amount to contempt of court. This is because such a person would not have given any undertaking and, accordingly, cannot be in breach of any undertaking such that he or she might be cited for contempt. As you had not given any undertaking, and cannot therefore be cited for contempt, it was Mr. Duffy's preliminary view that the exemption under section 22(1)(b) could not apply to the records withheld by the IDA.

In its response to Mr. Duffy's letter, the IDA maintained its position that section 22(1)(b) is applicable. It stated:

"when a person is seeking discovery from the Court, it is a condition precedent to the Order being made that the person discovering the documents undertakes to use those documents only for the purpose of litigation. Therefore, the undertaking operates from the point at which discovery is ordered. In this instance an order for discovery has been made and, therefore, the records which are covered by the order - albeit not yet specifically determined - carry with them the benefit of the undertaking which was given by the defendant in seeking discovery against the IDA. Another issue you raised concerned the fact that Mr Murphy is a third party and not the person who has given this undertaking. However, the undertaking in question is given to the Court, even though the benefit of the undertaking is to the person making discovery."

The IDA elaborated on this latter point in a further submission when it added that any person having notice of the Order of Discovery is liable for contempt of court in disclosing records the subject of that order without the person making the discovery waiving the undertaking. In this instance, IDA has notice of the Order of Discovery and maintains that the usual implied undertaking has been given to the Court. As neither the Court nor the IDA has waived the undertaking, the IDA believes that release of the documents would constitute contempt of court.

Furthermore, the IDA referred to the fact that some of the records that it holds comprise correspondence between it and the defendant in the High Court action which it has initiated. As such correspondence is likely to form part of the defendant's discovery to the IDA, it believes that the records in question therefore carry the benefit of the undertaking that the IDA maintains it has given. The IDA is concerned that due to the overlap in discovery, it would be a contempt of court for it to disclose documents which it has undertaken not to use for any other purposes other than the current litigation.

I have carefully considered this issue and I note that none of the records withheld by the IDA have been obtained from the defendant pursuant to the Order of Discovery made by the Master of the High Court, or any other discovery order. Accordingly, any of the records which the IDA might release to you under FOI, which were obtained from the defendant, were received outside of discovery and are therefore unattended by any implied undertaking given on discovery. The purpose of requiring an implied undertaking was alluded to by Keane, J. in Greencore plc v Murphy [(1995) 3 IR 520, 528] when he said:

"The order requiring the production of the documents is an invasion of the right of the person against whom the order is made to keep his documents to himself and it is for that reason that the court will ensure that documents are not used for any purposes other than the purpose of the particular legal proceedings in which they are produced by making the order for production subject to that implied undertaking."

Similarly, the purpose of an implied undertaking was expressed in the following terms by Matthews & Malek [Discovery (London, 1992) at para. 12.04]:

"The purpose of the undertaking is to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party's documents. It is in general wrong that one who is compelled by law to produce documents for the purpose of particular proceedings should be in peril of having those documents used by the other party for some purpose other than the purpose of the particular legal proceedings ...."

Clearly, the rationale for the undertaking is, in effect, that the quid pro quo for obtaining disclosure of confidential records and the information contained in them is that they may be used in only a very circumscribed way by the party to whom they are disclosed. However, if a party has, without having been compelled to do so by means of a discovery order, freely exchanged documents with another, the very rationale of the implied undertaking ought to indicate that the other party's use of the records concerned is not fettered by the terms of the undertaking.

Having established these principles, the next issue that I wish to address is whether an implied undertaking has in fact been given by either party in the IDA's High Court case. In this regard, I note that Matthews & Malek suggest that the implied undertaking only comes into being when "a list of documents is served" or when "documents are produced on discovery" [Discovery (London, 1992) at para. 12.01]. Furthermore, it seems from Delany & McGrath

"It is generally accepted that documents, having been disclosed on foot of a discovery order, are subject to an implied undertaking ..."

This assertion appears to be supported by the dicta of Finlay, C.J. in Ambiorix Limited v Minister for the Environment (No. 1) [(1992) 1 IR 277, 286] where he stated that:

"[a] party obtaining the production of documents by discovery in an action is prohibited by law from making any use of any description of such documents or the information contained in them otherwise than for the purpose of the action. To go outside that prohibition is to commit contempt of court."

In the absence of any reference in the IDA's submissions on this matter to any legal authority which supports the stance it has taken, I find that it is not the case, as claimed by the IDA, that an implied undertaking is given and/or received when an Order of Discovery is made by the Court. As it does not arise in the circumstances of this particular review, I am not making any findings in relation to the wider question of whether such an undertaking is given when a list of documents to be discovered is served or when such documents are in fact produced on discovery.

Moreover, even if I were to accept that an implied undertaking has been given at this stage, I am satisfied that records possessed by the IDA which were not obtained as a result of the Order of Discovery are separate and distinct from documents subsequently produced on foot of such an order. As the word "document", in discovery law, has a wide meaning, it seems clear to me that, when a person is under an obligation pursuant to a discovery order to produce documents falling within a particular description, the documents include, not only original, or copy original documents, but also any copies of those documents notwithstanding the fact that they are in effect, identical and contain the same information. This technical distinction is of importance in this case as it serves to show, from a different angle, that a copy, copy original and an original document are all separate "documents". Accordingly, if the IDA holds certain records at this point in time which are also "documents" which the defendant has been ordered to produce on discovery to the IDA, the fact is that these documents or records are not the same "documents" that the defendant might, in due course, produce to the IDA on discovery and, therefore, are not subject to the implied undertaking. Any implied undertaking given by the IDA would only apply to the copy or counterpart document listed and produced on discovery by the defendant and not to the original or counterpart document held by the IDA (or vice versa, as the case may be). Accordingly, if the IDA had given an implied undertaking and received documents from the defendant under discovery, it would be precluded from releasing such documents to you under FOI but would be free to release documents that it already held in the ordinary course that contain identical information.

In this regard, the decision of the English High Court in Dubai Bank Limited & Anor. v Galadari and Others [(1992) 1 WLR 106] would appear to support my conclusion with regard to originals, copy originals and copies being different "documents" which are technically to be separately disclosed on discovery. In that case, the parties were ordered to make discovery by 13 May 1991 of all documents then present in the United Kingdom relating to any matter in question in the action. It was agreed that discovery of all documents, then overseas, would be made by the later date of 30 November, 1991. Lists of documents present in the United Kingdom were exchanged in or around 13 May 1991 but the defendants did not include in their list photocopies of the overseas documents that were, on 13 May 1991, present in the United Kingdom. The plaintiffs, who had not taken this approach in preparing their list, asked to see the defendants photocopies but the defendants refused on the grounds, inter alia, that photocopies were not covered by the discovery order. It was held by Morritt, J., in ordering immediate discovery of relevant photocopies, that photocopies were generally discoverable as a matter of principle, whilst noting, as a matter of general practice, that there would usually be no point in ordering their separate disclosure.

In relation to the remaining records that may be discovered to the defendant in compliance with the Order of Discovery i.e. records held by the IDA of which the defendant would not have copies or originals, I am satisfied that these can also be released to a third party, whether before or after production on discovery. Release of such records would not amount to a breach of any implied undertaking given to the defendant or the Court by the IDA, nor would it be a breach of any undertaking given to the IDA or the Court by the defendant. Thus, release would not result in any contempt of court. The authority for this finding is contained in the decision of O'Neill J., in the EH and EPH v. the Information Commissioner case. The principles enunciated in that case provide that release under the FOI Act to the defendant, as opposed to a third party, would result in a contempt of court arising. This is because release under the FOI Act, which places no restrictions on the future use of records disclosed, would constitute a breach of the defendant's implied undertaking to the IDA and the Court not to disclose the documents or information contained therein to any third party. No such breach, or contempt of court, can arise if records held in the ordinary course by the IDA are released to a third party who has not given any undertaking. Examples of instances in which a contempt of court might arise include the following: (a) where public body A obtains documents on discovery from B and discloses them under FOI to C; and (b) where B obtains documents on discovery from public body A and public body A grants B's request for access to the same documents pursuant to an FOI request.

In summary, I find that the exemption claimed under section 22(1)(b) is not applicable to any of the records that fall within the scope of this review as a contempt of court cannot arise in circumstances where you, as a third party, have given no undertaking and where none of the records at issue have come into the possession of the IDA pursuant to a discovery order. In any event, I find that no undertaking has been given or received by the IDA, or received by the Court, and accordingly the question of a contempt of court would not arise regardless of whether a requester under the FOI Act is the defendant or a third party.

Section 22(1)(a)

This exemption provides that a request shall be refused ".... if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege, ...".

In previous cases (Refs. 98058 and 020281 - see 'www.oic.gov.ie'), I have found that legal professional privilege (LPP) enables the client to maintain the confidentiality of two types of communication:

• communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
• communications made between the client and a professional legal adviser or the professional 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.

Before dealing with the applicability of this exemption to the records at issue, I wish to clarify the position in relation to a number of records insofar as this exemption is concerned.

In your submission dated 23 January 2006 in response to Mr. Duffy's letters of 14 December 2005, 9 January 2006 and 11 January 2006, you referred to record number 254 in the context of this exemption. I should clarify that this exemption was not claimed by the IDA and therefore this record has been withheld solely on the basis of a section 22(1)(b) exemption. Furthermore, as regards your reference to record number 162, I should clarify that the IDA had claimed that a section 22(1)(a) exemption is applicable in respect of the first four pages only whilst the remainder of the record is withheld on the basis of section 22(1)(b) only. Similarly, in relation to record number 411, the IDA withheld pages 1, 4, 5 and 6 on the basis of a section 22(1)(a) exemption with the remainder of the record being withheld solely on the basis of a section 22(1)(b) exemption.

As regards the second and twelfth points of your submission of 23 January 2006 concerning record numbers 102 and 458, I have examined the content of these records carefully and I am satisfied that this exemption is applicable notwithstanding the fact that the records refer, amongst other things, to FOI requests that you had made. The first page of record number 102 comprises a one page internal IDA memo which was created in the context of an attached letter from their lawyers. Similarly, record number 458 comprises a two page document that was in fact drawn up by their lawyers.

In relation to record numbers 28, 178, 229, 255, 256, 296, 386, 389 and 394 it is clear from your submission that you do not dispute the applicability of the exemption per se, rather, it is your contention that an exception to the exemption should apply for reasons set out in your submission. Accordingly, the only issue that I am required to consider is whether an exception to the exemption applies in respect of these nine records in light of the various circumstances that you referred to in your submission of 23 January 2006.

The basis for your contention that the exemptions claimed cannot apply, in respect of the records referred to above, is that there is prima facie evidence of malpractice/conspiracy on the part of the IDA and its servants to defraud the estate of your late uncle, of which you are now a beneficiary. In support of this, you referred to various records which you maintain provide prima facie evidence of such malpractice/conspiracy. Mr. Duffy subsequently wrote to the IDA in this regard and, in response, it vigorously denies your allegations which it maintains are unfounded.

As you are aware, the LPP exemption contains no public interest balancing test and therefore there are no public interest considerations that I can take into consideration. However, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds. For instance, I am aware that it is a well established legal principle that privilege may not attach to communications in furtherance of a criminal offence. In this regard, I have noted that Maeve McDonagh [Freedom of Information Law in Ireland (Dublin, 1998) at page 174] points out that Finlay C.J., in the Supreme Court case of Murphy v. Kirwan [(1993) 3 I.R. 501], extended the circumstances in which a refusal of privilege would be justified when he said:

"the essence of the matter is that professional privilege cannot and must not be applied so as to be injurious to the interests of justice and to those in the administration of justice where persons have been guilty of conduct of moral turpitude or of dishonest conduct even though it may not be fraud."

However, I am also aware that in the case of Bula Limited (in receivership) & Ors v. Crowley & Ors [(1994) 2 I.R. 54], the Supreme Court held that the exceptions:

"are restricted to cases where the allegation against a defendant is an allegation of fraud, criminal conduct or conduct constituting a direct interference with the administration of justice, such as malicious prosecution or abuse of the processes of the court - all charges containing a clear element of moral turpitude."

Furthermore, I note that in the recent judgment in the Supreme Court case of Fyffes Plc v. DCC Plc & Ors [(2005) IESC 3] Fennelly J. commented that:

"The law, therefore, attaches significant value and accords a high degree of protection to the principle of legal professional privilege. It can, of course, be lost if it is clear that it is being used as a cloak to cover fraud."

I have also considered the decision taken by the Queensland Information Commissioner in the case of Smith and Administrative Services Department (Decision No. 93003). Mr. Smith argued that the documents he was seeking had been brought into existence as a result of him challenging the course of action adopted by the Department, on the grounds that the Department's actions towards him were contrary to law and constituted an abuse of statutory power, and that the documents would necessarily relate to the allegations he had raised concerning illegality and abuse of statutory power on the Department's part. Mr. Smith was of the view that in those particular circumstances, the documents in question fell outside the scope of LPP and the Department was therefore not entitled to rely upon the exemption contained in the Queensland FOI Act to deny him access to those documents. Ultimately, Mr. Smith's allegations of illegality and abuse of statutory power were rejected and the decision to withhold the records on the basis that LPP applied was affirmed.

However, in a detailed review decision, the Queensland Information Commissioner noted that the nature and scope of LPP at common law has been the subject of consideration by the High Court of Australia in a number of cases. The Commissioner's decision refers to a concise summary of the general principles which can be extracted from those High Court judgments, as contained in the decision of Mr. K. Howie, Member of the Victorian Administrative Appeals Tribunal, in Re Clarkson and Attorney-General's Department, [(1990) 4 VAR 197]. Having considered the cases in which the Australian High Court had closely considered the nature of LPP, Mr. Howie noted that a number of principles emerge, including:

"To determine whether a document attracts legal professional privilege consideration must be given to the circumstances of its creation. It is necessary to look at the reason why it was brought into existence. The purpose why it was brought into existence is a question of fact..... [and]

Legal professional privilege does not attach to documents brought into existence for the purpose of guiding or helping in the commission of a crime or fraud, or for the furtherance of an illegal purpose, including an abuse of statutory power, or for the purpose of frustrating the process of the law itself....."

Reference is also made in the decision of the Queensland Information Commissioner to the case of Varawa v. Howard Smith & Co. Ltd. [(1910) 10 CLR 382] in which Griffith CJ, in commenting on the circumstances in which the exception can be found to apply, said:

"I am sure that it has never been held to apply to a case where all that is alleged is that the evidence will show that the plaintiff knew he had not a good cause of action."

I am satisfied on the basis of my research that, in order for me to find that LPP cannot apply, there must be sufficient evidence for me to believe that the records at issue were created in furtherance of some illegal or improper activity. Only records created in preparation for, or furtherance of, such activity can be denied the protection afforded by the LPP exemption. In essence, it is not enough for me to find that sufficient evidence exists of illegal or improper activity, rather, I must be satisfied that the records in question were created for that purpose. In this regard, I note that the majority opinion in the previously mentioned Supreme Court case of Murphy v. Kirwan did not use the term prima facie evidence but held that sufficient evidence is required to show that the relevant allegations are "viable and plausible".

In carrying out this review I acknowledge that I have the considerable advantage, necessarily denied to you, of having an opportunity to examine the records at issue. Whilst your submission regarding the content of those records is necessarily based on supposition, I am in a position to make findings of fact based upon my inspection of the records.

Having carefully examined all of the records specifically referred to in your submission to Mr. Duffy of 23 January last, and having regard to your allegations that there is prima facie evidence of malpractice/conspiracy on the part of the IDA and its servants to defraud the estate of your late uncle, I am satisfied that the character of those records does not demonstrate that the purpose for which they were brought into existence was in furtherance of illegal or improper activity on the part of the IDA, its staff, or agents. As you are aware, it is not within my remit to make any findings or to comment on the general or overall nature of your dispute with the IDA and therefore I can only confirm that I am satisfied that the circumstances which I believe must exist, for the protection of LPP to be withdrawn, is not found in these records. Accordingly, I must reject your claim that the records in question cannot attract an LPP exemption and therefore should not be exempt under section 22(1)(a) of the FOI Act.

Whilst I acknowledge that the provision of some detail as to the content of each record would be more satisfactory from your point of view as it may help to illustrate the basis for my findings, I must take cognisance of section 43(3) of the FOI Act which provides that I take reasonable precautions to prevent disclosure of information contained in an exempt record. Even if I were to find that the records in question should be released, I could not disclose information which the IDA contends is contained in an exempt record so as to preserve that party's right of appeal to the High Court.

Section 21(1)(c)

This exemption was claimed by the IDA in respect of a large number of the records withheld. However, I am only required to consider the applicability of this exemption in respect of records that are not already accepted or found to be exempt under section 22(1)(a).

In his preliminary views letter of 14 December 2005, Mr. Duffy listed the records that, in his opinion, have been properly withheld by the IDA under this exemption. He also explained the reasons why in his view the public interest does not favour release of such records. In your submission of 23 January last, you explained why you believe that the public interest, in light of circumstances that you referred to, favours release of the following record numbers: 10, 32 to 37, 54, 67, 69, 75, 85, 96, 224, 260, 283, 284, 286 to 288 and 314. As you do not dispute the applicability of the exemption per se, my role is to consider whether the public interest favours release, as claimed in your submission. I will address this issue later under Public Interest.

Mr. Duffy also wrote to the IDA in relation to records which, in his opinion, could not be withheld under this exemption. The IDA accepted his view in respect of all such records except numbers 104 and 491 to 499. The applicability of this exemption to these records, with the exception of a single sentence from record number 496 and part of a sentence in record number 495 (which is copied in the subsequent e-mails that comprise record numbers 492, 493 and 494), falls to be decided as part of this decision.

Section 21(1)(c) provides that a request may be refused if "access to the record concerned could ........ reasonably be expected to 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."

In case number 000257, my predecessor found that generally speaking section 21(1)(c) is designed to protect negotiation positions or plans etc. from being disclosed directly or indirectly to other parties. It was also accepted that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt. It was considered whether access to the material at issue in that case could accurately be described as disclosing positions taken, etc. for the purpose of any negotiations involving the public body concerned. The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise".

Whilst I am constrained by section 43(3) of the FOI Act from elaborating as to the content of record numbers 104 and 491 to 499, I cannot see how, for the most part, release would result in the disclosure of a negotiating position. Having examined the records and considered the case made by the IDA in support of its claim that the exemption is applicable, I find that there is very little in these records that discloses a negotiating position taken or to be taken. Accordingly, I find that the exemption claimed does not apply to record numbers 104 and 491 to 499, apart from the minor extracts referred to above, and with the exception of the final four bullet points on the second page of record number 104.

Public Interest

Section 21(2) of the Act provides that an exemption under section 21(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. I have now considered whether the records that are withheld on the basis that they are exempt under section 21(1)(c), but which you contend should be released in the public interest, and also the four bullet points on the second page of record number 104, should in fact be disclosed.

As pointed out by Mr. Duffy, in considering the public interest I must take account of the fact that section 21(1)(c) does not contain a harm test [unlike sections 21(1)(a) and 21(1)(b)] i.e. a record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations and even if such positions, plans etc. are of no conceivable relevance to any current or future negotiations. In this regard, I note that my predecessor, in case number 98166, stated the following:

"While section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm and disclosures which do not, it seems to me that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of negotiations. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclosepositions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test."

I am aware that it is your firm view that there is no prospect of any future negotiations being held and I note that, in your submission, you refer to a negotiated settlement that was reached with the IDA in November 2004 but which you claim was later "repudiated" by the IDA. In these circumstances, it would seem that the public interest would favour release.

However, I am in agreement with Mr. Duffy when he pointed, in his preliminary views letter, to the fact that your dispute with the IDA is certainly not historic and ultimately is only likely to be brought to a conclusion by way of litigation or agreement following further negotiations. In these circumstances, I cannot accept that the records will not have some bearing on the ultimate settlement of this matter, be that through negotiation or litigation. As the issues dealt with in the records are still current, I am satisfied that there is a substantial public interest in protecting them from disclosure.

However, this is not the end of the matter as, similar to the position in relation to section 22(1)(a), you maintain that the public interest favours release in order "to expose the malpractice/corruption within a state agency". In support of your claims, you refer to various documents which you maintain provide prima facie evidence of such malpractice/corruption.

I recognise that there is a public interest in members of the public exercising their rights under the Act, and being informed about matters that they have a substantial interest in, to the greatest extent possible. There is also a public interest in maintaining public confidence in public bodies and enabling proper scrutiny of their actions which would fully inform the public of the facts. Furthermore, I believe that there is a public interest in the accountability of administrators in relation their use of public funds and particularly in the need to disclose relevant information if a public body has failed to act in a lawful and accountable manner. In relation to the latter, the IDA vigorously denies your allegations which it maintains are unfounded.

Having considered the matter, I am satisfied that it is not within my power to make findings of fact or otherwise in relation to your specific allegations against the IDA. Accordingly, in the absence of any finding by a body that has such power, I am unable to accept that there are currently grounds for disclosing the records at issue in the public interest.

Section 20(1)

Whilst the IDA claimed this exemption in respect of a large volume of records, Mr. Duffy only dealt with this exemption in relation to the six records that, unlike all of the other records in respect of which this exemption was claimed, he was satisfied could not be withheld under section 21(1)(c). Following receipt of his preliminary views letter, the IDA accepted that this exemption is not applicable to record numbers 82, 84, 309, 311, 316 and 471.

Section 28(1)

The IDA initially claimed this exemption in respect of records numbers 488, 489, 490 and 500. Following receipt of Mr. Duffy's preliminary views letter, the IDA accepted that this exemption is not applicable to these records with the exception of the three page attachment to record number 490 which it maintains is exempt.

In his preliminary views letter to you dated 14 December 2005, Mr. Duffy explained the basis for his preliminary view that this exemption applies to the three page attachment to record number 490. As you are aware, this attachment comprises the report of an investigation carried out by a senior manager in the IDA's Personnel Department following a complaint that you had made about a certain staff member [identifiable reference deleted].

In relation to section 28(5)(a) of the Act, which requires consideration as to whether the public interest in release outweighs the right to privacy of the individual concerned, Mr. Duffy also expressed the view that the public interest would not favour release of the attachment and he listed various public interests factors that are relevant.

In your submission of 23 January last, you referred to various circumstances which, whilst they do not constitute grounds for finding that the information is not personal, do amount to a public interest argument in favour of release. Having examined the record, I am satisfied that the information in the attachment is personal for the reasons explained by Mr. Duffy, that is, the information is related to allegations of behaviour beyond what would be expected in the normal course of the working duties of the person concerned.

You refer in your submission to the fact that only one individual was investigated and, in light of various circumstances that you drew attention to, you contend that a far broader investigation should have been carried out. Be that as it may, the fact remains that the investigation report only concerns one staff member and, as you are aware from correspondence with the IDA, no evidence was found to support your complaint. If your complaint had been upheld, I could see that the public interest in release would be far stronger. However, as this was not the case, I find that it would not be in the public interest to release the investigation report. Having regard to section 43(3) of the Act, I am unable to elaborate further as to the particular reasons for reaching this finding but I am satisfied that the issues referred to in your submission in support of release of this record do not provide adequate grounds for finding that the public interest would not be better served by protecting the right to privacy of the individual about whom your complaint was made.

Section 23(1)(a)(iv)

This exemption is claimed by the IDA in respect of record numbers 488 to 490 and 500. In his preliminary views letter to the IDA, Mr. Duffy stated that, apart from the report appended to record number 490, he did not see how this exemption could be applicable to the remainder of these records.

This exemption provides that a record may be refused "if access ..... could ..... reasonably be expected to ... prejudice or impair .... the fairness of ... civil proceedings in a court or other tribunal." As I have found that the report appended to record number 490 is exempt on the basis of section 28(1), I have only considered this exemption in respect of the remainder of the records i.e. 488, 489, the first page of 490 and 500. Having done so, I am satisfied that this exemption is not applicable. In correspondence with this Office, the IDA has addressed this exemption in the context of the report appended to record number 490 only. As I have not been provided with any basis for disagreeing with Mr. Duffy's preliminary view, and having regard to the provisions of section 34(12)(b) of the Act which places the onus on the public body to show why an exemption claimed is applicable, I am satisfied that the damage likely to occur as a result of disclosure of the information in the remainder of the records has not been shown to the extent that would be required for this exemption to be upheld. Accordingly, I find that the exemption claimed under section 23(1)(a)(iv) does not apply to the records concerned.

Summary of Findings

Arising from my review of the exemptions claimed by the IDA, I find that the following records should be released: 1 to 9, 11 to 27, 29 to 31, 38, 47 to 53, 55 to 57, 60, 61, 64 (pages 2 and 5-10 only), 66, 68, 74, 76, 78, 79, 81 to 84, 86, 90, 93 to 95, 97, 102, 104 (except the last four bullet points on page 2), 108, 133, 148, 153, 162 (pages 5-23 only), 170, 171, 176, 182 to 194, 196 to 198, 200 to 206, 208, 209, 211, 213, 215 to 218, 223, 225 to 228, 231, 232, 234, 235, 237, 239, 241 to 247, 249, 250, 252 to 254, 258, 259, 262 to 267, 271 to 274, 276 to 279, 281, 282, 285, 286 (page 1 only), 287 (page 1 only), 295, 301, 302, 306, 308 to 313, 315 to 322, 327, 329, 331, 332, 338, 339, 342, 344 to 346, 347 (pages 4, 6 and 7 only), 349, 350, 356, 358, 371, 388, 390 to 392, 395 to 400, 406, 409, 411 (pages 2, 3 and 7 to 15 only), 415, 417, 419 to 422, 425, 426, 428, 430, 434, 439, 446, 452 to 454, 460, 464, 471, 474, 479, 488, 489, 490 (page 1 only), 491, 492 (except the figure at point number 3 in the e-mail received by the IDA on 2 November 2004), 493 (except the figure referred to in 492), 494 (except the figure referred to in 492), 495 (except the figure referred to in 492), 496 (except the first sentence in the second paragraph of the letter on page 2), 497, 498, 499 (except point numbers 1 and 3 which are not relevant as they relate to third parties) and 500.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Acts, 1997 and 2003 I hereby vary the decision taken by the IDA, and direct that the records listed above be released.

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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this eight week time limit.

Yours sincerely

Emily O'Reilly
Information Commissioner