Case 020179. Freedom of Information and Discovery in Legal Proceedings

Case Summary

Background

In this case a request had been made to the Department of Arts, Sport and Tourism for records relating to the award of the tender for the construction and operation of the National Aquatic Centre at Abbotstown. The tender competition was run by Campus Stadium Ireland Development Ltd. (CSID - now the National Sports Campus Development Authority). The records requested consisted mainly of correspondence between the Department and CSID regarding the manner in which the tender process was carried out.

Summary

The Department had refused access to a number of the records under a number of exemptions in the FOI Act, including section 22(1)(a) which protects records which attract legal professional privilege. Following an examination of the records I found that some of them, which contained legal advice from the Office of the Attorney General or CSID’s legal advisors, or which repeated or paraphrased legal advice received, attracted legal professional privilege and were exempt from release. With regard to the remainder, I found that sections 20(1) (deliberations of public bodies) and 21(1)(c) (disclose negotiating positions) did not apply. The Department had also claimed that the records were confidential and commercially sensitive. However, having regard to the fact that the records were by then over six years old, combined with the strong public interest in showing how two public bodies, the CSID and the Department, fulfilled their functions in relation to a tender process involving an exchequer investment of over €62m, I found that the public interest favoured release of the records.

At the time of the application to my Office, Dublin International Arena Ltd., on whose behalf the request had been made, had taken judicial review proceedings against the State, CSID, and the Minister for Arts, Sport and Tourism in relation to the award of the contract. The Department claimed that the records were exempt from disclosure as their release could, as provided for at section 23(1)(a)(iv), Òreasonably be expected to (a) prejudice or impair ... (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunalÓ. The Department argued that the records were relevant to the judicial review proceedings and that their release, in advance of an order for discovery, would prejudice the fairness of those proceedings. I did not accept that argument. In my decision I stated that I was aware of no restriction 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. On this point I noted that in his judgment of 4th April 2001 in the case of E.H. v. the Information Commissioner, Mr Justice O’Neill commented: ÒI 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.

I stated my view that the principal 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; for example, if the disclosure of information were to result in the manufacture or destruction of evidence, or interference with a potential witness. I found that section 23(1)(a)(iv) did not apply in this case.

Whereas this case was appealed to the High Court by CSID, the appeal was subsequently withdrawn and a settlement reached whereby the requester was granted access to the majority of the records in respect of which I had directed that access be given.

Date of Decision: 07.06.2007

Our Reference: 020179

07.06.2007

Organisation A

Dear Mr. X

I refer to the application to the Information Commissioner by Organisation A on behalf of Company B for review of the decision of the Department of Arts, Sport and Tourism ("the Department") to refuse access to certain records held by it. This followed your request to the Department under the Freedom of Information Act ("the FOI Act"), for access to records relating to the award of the tender for the construction and operation of the National Aquatic Centre at Abbotstown. As you are aware, the tender competition was run by Campus Stadium Ireland Development Limited (CSID) (now the National Sports Campus Development Authority) with the Department's role seemingly confined to an examination of the draft project agreement reached with the successful tenderer.

At the outset I wish to apologise for the long delay in dealing with your application. Due to initial staff shortages when this Office was set up an arrears of cases on hand built up. While this staff shortage has now been resolved there has been a delay in dealing with a number of cases including yours.

I have now concluded my review which was carried out in accordance with the provisions of the FOI Act. In carrying out my review I have had regard to the decision of the Department and its subsequent submissions, which include the views of CSID. I have also examined the records which were the subject of your request.

Summary of Decision

In summary, I have decided to vary the decision of the Department. I am satisfied that certain records are exempt from disclosure on the ground that they are legally professionally privileged. I have also found that access should be granted to seven records which consist mainly of correspondence between the Department and CSID regarding the tender process.

Background

In your application to this Office of 28 March 2002 you suggest that the Department incorrectly interpreted your request, namely, that it examined records created since 1 January 2001 only and not 1 January 2000, and that your request was for records relating to the selection process and the award process. I note from my examination of the Department's file that your initial request of 5 October 2001 was for "all records relating to the [then] proposed development of the National Aquatic Centre at Abbotstown." In a telephone discussion with you, the Department suggested that you confine your request to records "created since 1 January 2001 which relate to the selection and appointment of the designer, constructor and operator for the development of the National Aquatic and Leisure Centre at Abbotstown." This wording was issued to you by the Department in a fax dated 11 October 2001. In an e mail dated 12 October 2001 you agreed to this wording. According to a note on the Department's file, Ms Eugenie Deegan of the Department telephoned you on 12 October to further clarify your request as being a request for "records relating to the selection process and the selection of the actual preferred bidder, particularly the operator - how the preferred bidder including the operator was arrived at - and that records relating to the subsequent negotiations with the preferred bidder were not required" (my emphasis).

This wording was also set out in the Department's initial decision to you of 9 November 2001 and its decision following 'internal review' on 19 December 2001. I note that you did not dispute the wording in your request for internal review of 23 November 2001. I also note that in the first paragraph on page 5 of your application to this Office you state :

"It is reiterated that confidential and commercially sensitive information which is bidder specific is not sought. However, what is sought are records pertaining to the process employed, the devising of scoring systems the application of those scoring systems and other matters which would support the drawing up and application of selection criteria and award criteria."

I make this point as the Department's schedule of records lists a number of documents which relate to the negotiations with the preferred bidder. However, I have proceeded on the basis of the Department's wording of your request as set out in its decision letter and decision following internal review. The effect of this approach is that records solely concerned with the negotiations with the preferred bidder are excluded from my review.

In your initial request and request for internal review you contended that records held by CSID are under the control of the Department by virtue of section 6(9) of the FOI Act. However, you may recall that Mr Liam Kelly of this Office informed you on 25 October 2002 that the FOI Act now applied to CSID and suggested that you make a separate request under the FOI Act to that public body. As a consequence, you agreed to withdraw the 'section 6(9)' element of this review and, accordingly, my decision is concerned only with those records 'physically' held by the Department (which would include correspondence sent from CSID and other third parties to the Department).

In its internal review decision of 19 December 2001 the Department scheduled twenty-six records which fell within the scope of your request. For the purposes of my decision I have adopted the numbering system used by the Department. The Department granted you access to records numbered 1, 8 and 9, and refused access to the remaining records. I have carefully examined the contents of the records. A number of records refer to other records which were not forwarded to my Office by the Department. During the course of my review I requested copies of these records which the Department duly furnished to my Office. Having examined their contents I am satisfied that the records are concerned with the negotiation of the project agreement with the successful bidder and, therefore, are not within the scope of your request. Furthermore, records 10 (attachment dated 19/7/01 from CSID to the Department only), 11, 12, 13, 14, 19 and 20 are also concerned with these negotiations and are also outside the scope of your request.

Scope of Review

My review is concerned solely with the question of whether the Department has justified its decision to refuse access to the remaining records, i.e. records numbered by the Department on its schedule of records as 2 - 7 inclusive, 10 (other than the attachment dated 19/7/01 from CSID to the Department), 15-18 inclusive, and 21-26 inclusive. It should be noted that record 16 appears to be a draft of record 7, while record 2 is a copy of record 3.

Findings

Before I set out my findings I wish to make two points. Firstly, section 34(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant a request ... shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified". This places the onus on the Department of showing, to my satisfaction, that the decision to refuse access was justified. I have also taken into account the view of CSID as communicated through the Department. Secondly, any review by me under section 34(2) of the FOI Acts involves a "de novo" decision. This means that my decision is based on the circumstances and the law as they pertain at the time of my decision. This view of my role was endorsed by the High Court judgment in the case of Minister for Education and Science v Information Commissioner, where Mr. Justice O'Caoimh, commenting on the nature of a review by my predecessor under section 34 of the FOI Act, said that, "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision".

The Department refused access to the records, in varying combinations, under sections 20(1), 21(1)(c), 22(1)(a), 23(1)(a)(iv), 26(1)(a), and 27(1)(b) and (c) of the FOI Act.

Section 22(1)(a)

The Department refused access to all records under section 22(1)(a).

Section 22(1) 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".

In considering whether the records in question would be exempt from production in a court on the ground of legal professional privilege, I have to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the client, would succeed in withholding the document on the ground of legal professional privilege in court proceedings.

Legal professional privilege enables the client, in this case, the Department or CSID, to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between the client and a professional 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 carefully examined the records. Records 4, 5, 6, 10, 15, 21, 22, 23, 24 and 26 consist of (i) correspondence with the Office of the Attorney General or Office of Public Works, (ii) internal notes, or (iii) correspondence from CSID, all of which contain legal advice from the Office of the Attorney General or CSID's legal advisers. I am satisfied that these records are exempt from disclosure under section 22(1)(a) of the FOI Act.

Parts of records 2, 3, 7, 16, 17, 18 and 25 also repeat or paraphrase legal advice received on various matters. Therefore, I am also satisfied that section 22(1)(a) applies to parts of these records. The relevant parts are described in detail in the Appendix to this decision. Having regard to the comments in your submission I am also satisfied that the relevant parts of these records contain legal advice and not legal assistance.

As I am not satisfied that section 22(1)(a) applies to the remaining parts of these records. I will consider the other exemptions under which the Department claims these records are exempt from disclosure.

Sections 20(1) and 21(1)(c)

The Department claims that records 2, 3, 7, 16, 17 and 18 are exempt from release by virtue of sections 20(1) and 21(1)(c). These sections provide protection for records relating to the deliberative processes and negotiations of public bodies. I have already found that section 22(1)(a) applies to parts of records 2, 3, 7, 16, 17 and 18. Therefore, I will consider whether sections 20(1) and 21(1)(c) apply to the remaining parts of these records.

Section 20(1) provides that a public body "may refuse to grant a request ...

(a) if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes),".

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 section 21(1)(c) is designed to protect negotiation positions or plans etc. 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).

However, neither section applies where the public interest would, on balance, be better served by granting than by refusing to grant the request.

The Department contends that the records relate to the negotiating position of CSID, acting on behalf of the Government, in relation to the tender process and subsequent contract negotiations. The Department points out that, at the time the FOI request was made, the process relating to the finalisation of the project agreement was ongoing, and that the final contract with the successful tenderer was only concluded in February 2002. The Department also contends that disclosure would have a bearing on future tender processes relating to other aspects of the Sports Campus Project.

I have examined the contents of the records. I accept that the records can be described as containing matter relating to the deliberative processes of the Department and CSID. However, while I accept that CSID was acting on behalf of the Government, I do not accept that access to the records would result in disclosure of CSID's negotiating position at the time or any future negotiating position. The records disclose the nature of enquiries made by the Department in relation to the particular tender process used by CSID, and the responses from CSID. They do not disclose any positions, plans etc. used for the purposes of negotiations. Even if I were to accept that this was the case I would need to consider the public interest in granting access which is considered in respect of the application of section 20 below.

Public Interest

As mentioned above section 20(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. In this case I must balance the possible harm that may occur to the Department's deliberations with the benefit in release of the records. While the Department states that its deliberations were ongoing at the time, my review is de novo which means I must have regard to the circumstances as they pertain at the time of my decision. It is clear that the Department's and CSID's deliberations on this matter have concluded. Therefore, no harm can occur to its deliberations. On the other hand, I believe that there is a considerable public interest in granting access to these records which show how two public bodies fulfilled their functions in relation to a tender process which involved a considerable amount of public funds.

Similarly, the Department's and CSID's negotiations have concluded and the Department has not explained how details of how a tender process conducted in 2001/2002 could adversely affect its future negotiations. Accordingly, I find that the public interest favours release in this case and that sections 20(1) and 21(1)(c) do not apply.

Section 23(1)(a)(iv)

In its submissions to my Office the Department claims that the records are also exempt from disclosure under section 23(1)(a)(iv). That section provides for the refusal of a request where the public body considers that access to the record:

"could reasonably be expected to (a) prejudice or impair ... (iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal."

I note that Company B, on whose behalf you made this FOI request, has taken judicial review proceedings against the State (including CSID and the Minister for Arts, Sport and Tourism) in relation to the award of the contract for the development of the National Aquatic Centre. The Department states that the records are relevant to those proceedings. The Department argues that release of the records to you, in advance of an Order for Discovery, would prejudice the fairness of those proceedings.

I do not accept that obtaining these documents in advance of an Order for Discovery could affect the fairness of these proceedings. 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. 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 my view the principal 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 the manufacture or destruction of evidence, interference with potential witnesses, etc. then clearly the fairness of the court proceedings would be prejudiced or impaired. 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 or CSID 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.

The Department also argues that release would undermine its position and adversely affect its ability to reach a settlement as you may be in a position to put additional pressure on the State by using the records to generate adverse publicity, etc. I accept that it is possible that release of the records might make it more difficult but not impossible, for the Department to effect a settlement. In any event, I do not accept that this would prejudice or impair the fairness of civil/criminal proceedings in a court.

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.

Section 26(1)(a), 27(1)(b) and (c)

The Department claims that the records are also exempt from disclosure under section 26(1)(a), and 27(1)(b) and (c).

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

• the record contains information given to it 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.

Section 27(1) provides that a head shall refuse to grant the request if the record contains:

"(b) financial, commercial, scientific or other information whose disclosure could reasonably be expected to result in a material financial loss to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates".

However, information to which section 26(1)(a) or 27(1)(b) or (c) applies must be released if the public interest would, on balance, be better served by granting the request.

I am satisfied find that there is an overwhelming public interest in release of the records. Therefore, it is not necessary for me to make a specific finding as to whether the records meet the criteria set out in sections 26(1)(a), or 27(1)(b) or (c) As I have already mentioned, the records consist of queries from the Department to CSID, and CSID's response in relation to the tender process for the National Aquatic Centre. The records were created between January and October 2001, and are therefore, six years old. Given the passage of time and the fact that much of the key information relating to the award of the tender has entered the public domain, either through statements from the successful tenderers or through the Attorney General's Report into the Award of the Operator contract for the Aquatic and Leisure Centre Campus Stadium Ireland Ltd. (March 2002), I am satisfied that any commercial damage that may occur would be minimal at most. Given the strong public interest in showing how these two public bodies fulfilled their function in relation to a tender process involving an exchequer investment of over €62m, I am satisfied that, on balance, the public interest is better served by release of these records at this stage.

Decision

Having carried out a review under section 34(2) of the FOI Act I have decided to vary the decision of the Department and decide that access should be granted to parts of records numbered 2, 3, 7, 16, 17, 18 and 25. I am satisfied that the remaining parts of these records (as identified in the attached appendix) and records numbered 4, 5, 6, 10, 15, 21, 22, 23, 24, and 26 are exempt from disclosure under section 22(1)(a) of the FOI Act. Records numbered 11, 12, 13, 14, 19 and 20 are outside the scope of your request.

Right of Appeal

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. Any such appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner