Case 040312. Request for access to records concerning an investigation by the Environmental Protection Agency (EPA) - whether records held by the EPA that are copies of records held by the Director of Public Prosecutions (the DPP) are outside the scope of the FOI Act - section 46(1)(b) - whether the records are subject to legal professional privilege - section 22(1)(a) - whether their disclosure would be in contempt of court - section 22(1)(b) - whether their disclosure could prejudice the fairness of pending court proceedings - section 23(1)(a)(iv) - whether their disclosure could prejudice or impair the investigation of offences, the prosecution of offenders or the effectiveness of lawful methods employed for such purposes - section 23(1)(a)(i) - whether their disclosure could prejudice or impair the enforcement of, compliance with or administration of any law - section 23(1)(a)(ii ) - whether the records contain commercially sensitive information - section 27 - whether public interest warrants their release - section 27(3).

Case Summary

Facts

The applicant sought records held by the EPA regarding a company, ABC, which encompassed records relating to an EPA investigation into an incident involving ABC in 2002. While criminal charges have been preferred in relation to the 2002 incident, a date had not been set for the hearing at the time of the Commissioner's decision. The EPA released certain records during the review but withheld others largely on the grounds that their release would prejudice the fairness of the pending criminal proceedings and would be in contempt of court. While the EPA did not object, in principle, to the release of certain other records at issue, ABC (from which views were sought in the course of the review) argued that their release would also prejudice the fairness of the pending criminal proceedings. Sections 46(1)(b), 23(1)(a)(i), 23(1)(a)(ii) and 27 were also considered by the Commissioner (the exemptions having been cited by the EPA, ABC, the Gardai and the DPP).

Findings

The Commissioner did not accept that records held by the EPA that were copies of records held by the DPP were outside the scope of the FOI Act by virtue of section 46(1)(b). Given that the EPA's legal advisor had said that "records prepared by the Agency are not privileged", the Commissioner took it that any legal professional privilege that might have applied to the records had been waived by the EPA, in which case section 22(1)(a) was not applicable. In so far as the records might have been created with the dominant purpose of preparation for litigation, the Commissioner noted that the EPA had not clarified the date at which litigation could have been said to have been contemplated. Thus, the Commissioner did not accept the views of the DPP and the Gardai that the records were privileged.

The Commissioner refused to accept any argument that the applicant should be required to obtain the records at issue under an Order for Discovery. She noted that Discovery may only be pursued by the parties to litigation and an argument that this is the only way in which records relating to litigation may be sought seeks to deprive any other party of their ability to exercise their rights under FOI. She also noted that the scope of the parties to litigation to seek access to records is much narrower under discovery than under FOI.

In claiming that section 22(1)(b) was applicable to the records, the EPA argued that, at the very least, a technical contempt of court would arise from the release of the records at issue (which the Commissioner took as a claim that their release would be a breach of the sub judice rule). The EPA also argued that the Commissioner could not "attempt to determine the seriousness" of the release of the records, which it claimed that "would be encroaching on an area which under the Constitution is vested exclusively in the courts".  The Commissioner did not accept that she could not consider the likely effect of the release of the records and said there would have to be more than a merely remote possibility of prejudice to the administration of justice in the proceedings at issue in order to for her to accept that contempt of court would arise by the release of the records at issue.

However, the Commissioner said that if she were satisfied that there was a "real risk" to due administration in the proceedings at issue, she would be likely to find section 23(1)(a)(iv) of the FOI Act to apply. The Commissioner then noted a number of factors that appear to have been considered relevant by the Courts in determining whether or not material is prejudicial to the fairness of a court hearing. Having considered the relevant factors and the content of the records at issue, she accepted that two records contained material that, if released, could prejudice or impair the fairness of the pending court hearings. Only in limited circumstances is the public interest required to be considered in respect of records to which section 23(1)(a)(iv) applies. The Commissioner was satisfied that none of the circumstances applied in the case at hand and directed that the two records be withheld.

The EPA had also argued that prejudice to the fairness of the criminal proceedings could lead to the striking out by the court of the proceedings, as a result of which nobody would be prosecuted or convicted, thus prejudicing or impairing the prosecution of offenders and enforcement of the law (sections 23(1)(a)(i) and (ii) being relevant). Given that the Commissioner did not accept that release of the remaining records could prejudice the fairness of the criminal proceedings, she found that the other outcomes envisaged by the EPA could not reasonably be expected to arise from the release of those records, in which case sections 23(1)(a)(i) and (ii) were not applicable.

The Commissioner accepted that section 27(1)(b) was applicable to the remaining records in that they contained commercially sensitive information, but only because of the low threshold required to be met in order for section 27(1)(b) to apply and because the records were created in the context of an EPA investigation into a particular incident involving ABC. In finding this, she noted that the records were more to do with EPA's administrative arrangements or how the EPA had conducted its 2002 investigation than to do with ABC. The Commissioner noted the EPA's comment that it "has no objection to the disclosure of the records requested as soon as the proceedings and any appeals are concluded". The Commissioner concluded, that in circumstances where litigation was not an issue, it was evident that the EPA would not consider the information in these records to be exempt under section 27 in the first place, or if it did, that the public interest would warrant its release.

In finding that the public interest warranted the release of the remaining records, the Commissioner took the view that the commercial damage that might be caused to ABC by their release was at the lower end of the scale of such damage, and was outbalanced by the very strong public interest in openness and transparency in respect of any apparent contamination of the food chain, whether inside or outside of Ireland, and in respect of how the EPA conducted its investigation into the 2002  incident, and how it dealt with the queries and concerns of any of the parties under investigation.

Date of Decision: 10.06.2009

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Background:

The applicant, in its FOI request to the EPA of 22 April 2004, referred to certain records concerning ABC that had previously been provided to it. It contended that there were a number of documents not contained therein and thus sought:

" (a) All correspondence issued and received in relation to approvals given by the EPA to ABC;."

(b) All correspondence between ABC and the EPA in relation to the performance and operation of their licences and in relation to Plants operated by ABC;

(c) All other documentation including internal Company documentation, file notes and memos in the possession of the EPA. And specifically

(d) all correspondence between the EPA and ABC in the period June 2002 to date.

(e) All/any other documentation relating to the Company ...

The EPA's undated decision outlined that any information it holds concerning activities for which it has received an application for an IPC licence, or for which it has granted an IPC licence, is made available for public inspection and thus is not subject to the FOI Act. It refused access to certain unspecified documentation, further to sections 20(1) and 23 of the FOI Act, on the basis that the records "relate to an ongoing investigation and may be subject to legal proceedings". The applicant's internal review application, dated 7 July 2004, reiterated the terms of the original request.

The EPA's internal review decision, dated 29 July 2004, said that some of the requested records are available on certain enforcement files that are available for public inspection, and invited the applicant to inspect these files. It also withheld "a portion of the above documentation and correspondence as they relate to an ongoing investigation and planned legal proceedings by the Office of the Director of Public Prosecutions" to which it was refusing access under sections 20, "23(a)(i)" (sic) and "23(a)(ii)" (sic) of the FOI Act, pending the outcome of these legal proceedings.

The applicant applied to this Office, on 15 September 2004, for a review of the EPA's decision.

In conducting this review, I have had regard to the relevant portions of the submissions made by the EPA since attempts were begun to focus the scope of the request. As well as an email dated 16 November 2007, the EPA has made submissions, dated 8 May and 28 October 2008, regarding the searches it conducted in this case. A further submission, dated 5 September 2008, outlined its position on the records relevant to the revised scope of the request that were withheld at that point. The EPA's legal advisors made two further submissions in relation to these records. The first was dated 26 September 2008 but was attached to a letter dated 2 October 2008; for avoidance of confusion, I will refer to this as the submission of 2 October 2008. The second was dated both 3 and 4 November 2008, and was attached to a letter dated 6 November 2008. Again, to avoid confusion, I will refer to this as the submission of 6 November 2008.

I have also had regard to the relevant portions of the submissions made by the applicant to date in relation to this case. I have also had regard to relevant portions of the submissions made by Arthur Cox, Solicitors, on behalf of ABC, dated 19 January and 6 February 2009 (in my decision, any references to ABC includes reference to its legal advisors); by the Office of the Director of Public Prosecutions (the DPP), dated 24 December 2008; and by the National Bureau of Criminal Investigation (the Gardai), dated 22 January 2009. These parties were contacted in the course of my review on the grounds that they might be affected by my decision and thus should be given an opportunity to make submissions that I would take into account in such a decision. I have also had regard to various correspondence sent by Ms Anne Moran, Investigator, to the above parties.

In the course of the review, the EPA expressed concerns that if it were to disclose the documents, neither the prosecutor nor ABC would have the right to make submissions on a matter which may be of great concern to them "and the court would not be able to control the litigation." It later clarified that these comments pertained to the ability of the prosecutor and ABC to make submissions to me that I could take into account in arriving at my decision, rather than their ability to make submissions to the Court at a later stage in relation to any records that had been released under the FOI Act. I consider that this concern has been addressed by the fact that the DPP and the Gardai, as well as ABC, were consulted with by Ms Moran.

I have also had regard to the contents of the records at issue (copies of which have been provided to this Office by the EPA for the purposes of this review). While the FOI Act requires me to provide reasons for my decisions, section 43(3) of the FOI Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This is in order to preserve any party's right of appeal to the High Court on a decision I might make that particular records are not exempt. Thus, I can only give a limited description of the records at issue in this case.

Finally, it should be noted that section 34(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Thus, the onus is on the EPA (and to a lesser extent, the third parties) to justify the refusal of the records. It should also be noted that my review is conducted de novo, which means that I can take account of all relevant facts and circumstances as at the date of my decision.

Narrowing the Focus of the Request

As at the time of the application to my Office, the applicant had not been provided with a schedule listing either the records of relevance to the request or those records being withheld. Following discussions with Mr Sean Garvey, Senior Investigator in my Office, in November 2007 the EPA provided my Office with a list of all documents not already disclosed by it to the parties to the criminal proceedings at that time. This schedule also highlighted a number of such documents that the EPA claimed to be unable to locate.

With the consent of the EPA, Mr Garvey provided the applicant with a copy of this schedule on 5 December 2007. He asked it to confirm whether or not it wished to confine the scope of my review to those records listed therein, and if so, whether the applicant could specify which particular records it wished to obtain, if it was the case that it did not wish to get access to all of the scheduled records.

By way of letters dated 25 January and 22 April 2008, the applicant confirmed that it wished to confine the scope of my review to 26 of the scheduled records, including some such records that the EPA had been unable to locate. The EPA provided 21 records to this Office, which I list below in accordance with the descriptions contained in the EPA's November 2007 schedule. I also list the numbering used by the EPA in subsequent correspondence with this Office, and for ease of reference, I also list the records numerically.

The EPA explained that it had listed record 5 twice on the schedule in error, which I accept.

It did not provide a copy of what I will refer to as record 22 (described on the schedule as being "Internal EPA Hand-written Notes", dated 17 December 2002), saying that this record is a further copy of record 20. However, I cannot accept that this can be the case when record 20 contains undated hand-written notes and a memorandum dated 18 July 2002. Despite the searches the EPA has conducted to date, it is unable to find any hand-written notes dated 17 December 2002. Furthermore, the EPA was unable to clarify why its current index of records (and, apparently, earlier versions of it) might incorrectly refer to record 22 as being dated 17 December 2002. It says that there is a letter of that date on the same file as the other hand-written notes, and suggests that this date might have been incorrectly recorded as applicable to a set of those notes.

The EPA also said that three further documents are missing, which for the purposes of this decision, I will refer to as records 23, 24 and 25. These records were described, respectively, on the EPA's schedule as "Internal EPA email re NK's report on Cara visit on 10/7/02", dated 12 July 2002; "Internal EPA email re NK's report on Cara visit on 15/7/02", dated 17 July 2002; and "Internal EPA email re recommendation to Board", dated 13 August 2002. I understand that the person with the initials "NK" that is referred to in records 23 and 24 is a former EPA employee and that the actual recommendation to the Board, as referred to in record 25, has been provided to the applicant.

Following correspondence with Ms Moran, the EPA released to the applicant copies of records 9 and 11-16 in full, and records 1 and 20 in part. I note that the applicant did not take issue with Ms Moran's view that I need not consider the remainder of records 1 and 20 (with which I agree). The applicant has also confirmed that record 2 may be excluded from my review, having regard to Ms Moran's view that it is outside the scope of the FOI Act by virtue of section 46(1)(b). Ms Moran also outlined to the applicant why I must rule record 18, and that element of record 4 to which it seeks access, outside of the scope of my review. The applicant did not take issue with this approach and I have proceeded accordingly. Thus, of the 26 records to which the scope of my review was narrowed in early 2008, there is no need for me to consider records 1, 2, 4, 9, 11-16, 18 or 20 further.

I note that record 11 suggests that attached to it at one stage were five documents, while records 12 and 13 indicate that at one stage they had attached to them one document each. The attachments concerned were not provided to this Office and I can only surmise that they were not released to the applicant along with records 11, 12 and 13. As this was not raised as an issue by the applicant, I consider it would have been appropriate for me not to probe the matter at all (or, indeed, to probe whether or not attachments to any other withheld records had been located). However, on foot of a query from Ms Moran, the EPA submitted that the documents attached to records 11, 12 and 13 were draft statements that were, by 2005, were deemed to be inadequate for judicial or evidential purposes, as a result of which they were deemed worthless and destroyed. Even if the lack of these attachments had been raised as an issue by the applicant, I would have no reason to dispute the EPA's statement that these records no longer exist.

Record 10 suggests that attached to it are three documents, again which had not been provided to my Office. The EPA has stated that they "do not exist within the body of records held by the EPA for this case." It contends that the records might have been provided to the parties to the criminal investigation by means of, presumably, the Book of Evidence or unused material. In this event, they would fall outside the scope of the applicant's revised request. The EPA also suggests that the attachments might have been destroyed following the conclusion of its 2005 investigation. Of course, a final possibility is that they might still exist and have not been located, in which case the adequacy of the general searches conducted by the EPA might be called into question. However, this latter issue is covered by my review in any event.

Scope of the Review

Thus, one element of my review is an assessment of the adequacy of the EPA's searches for further records of relevance to this review, in particular records 23, 24 and 25, as well as that document described as record 22. The EPA contends that it has taken reasonable steps to look for these records, which effectively is a claim that section 10(1)(a) of the FOI Act applies, which provides for the refusal of a request for a record where "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.".

It is not my role, in a case involving section 10(1)(a), to physically search for records. Instead, I review the steps taken by the public body to locate the records at issue, and decide whether those steps have been reasonable. The understanding of my predecessor's role in such cases (which I have adopted) was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) where he said:

" I am satisfied also that the respondent's 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 HSE 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."

The second element of my review is confined to assessing whether the EPA's position on the remaining withheld records (records 3, 5, 6, 7, 8, 10, 17, 19 and 21) is in accordance with the provisions of the FOI Act. The EPA considers that records 3, 5 and 8 should be withheld; while it considers that, in principle, records 6, 7, 10, 17, 19 and 21 should no longer be exempt from release, ABC considers that they should be withheld.

I feel that it is not in breach of section 43(3) to describe the records as follows:

Record 3 is the EPA report of its 2002 investigation, which contains certain factual information that is in the public domain as to the background to the investigation as well as details of the investigation proper. Certain information therein may be known to the applicant, while certain other information is of a general nature, or may be information that might be expected. However, the report also makes conclusions and findings in respect of the parties investigated. Certain other details in this record comprise the findings of the EPA's investigation into the Trans Frontier Shipment (TFS) system at a general level, which refers to no party to legal proceedings and which is couched in generalities. I note that appendix 2 to this report is an excerpt from a Statutory Instrument that is available to anyone.

Record 5 is a letter from the EPA's legal advisors, attached to which is a letter from Arthur Cox on behalf of ABC querying particular aspects of an EPA inspection of the ABC operation (record 5b). Record 6 is a series of emails, two of which are internal and the third of which was sent to the EPA's legal advisor, that would seem to have been created on receipt of records 5/5b. Record 7 is an internal email concerning arrangements for preparation of a report for the DPP, attached to which is a draft statement by an EPA employee, which I will refer to as record 7b. Record 8 is an internal email, attached to which is a minute of a meeting between the EPA, a representative of the DPP and representatives of the Gardai in relation to the EPA's overall investigation (record 8b), which refers to potential charges that may be laid against the parties under investigation. Record 10 is concerned with administrative arrangements for the compilation of information to be sent on to the EPA's solicitor, while record 17 contains brief details of a communication with the DPP. Record 19 comprises a list of steps the EPA decided to take in respect of the 2002 incident, on foot of an internal meeting. Record 21 comprises a letter from the EPA's legal advisor to the EPA, which refers to details of an attached letter from ABC's legal advisors (to which I will refer as record 21b). Record 21b, in turn, refers to record 5 and bears similarities to that record, in that it queries how the EPA carried out a particular element of an investigation.

Submissions

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Findings

Analysis and Findings - Searches for Records

Firstly, it seems that records 22, 23, 24 and 25 would have been created in the course of, or as a result of, a 2002 EPA investigation into a particular incident. The EPA submits that a dedicated unit within the EPA dealt with this investigation, and, while there have been staff changes in the unit, the same senior officer has been responsible for the oversight of the records from 2002 to date.

The EPA has stated that, while it has record storage practices for various types of record, it has no documented records management policy, no policy for dealing with electronic records, and no record destruction practices or policies in place. Ms Moran's letter to the applicant of 1 December 2008 (which I do not intend to repeat verbatim in this decision) set out the EPA's storage practices for records relating to its licensing function and for records relating to the enforcement of licences. The letter also set out the EPA's description of how it filed, indexed, and (on three occasions since November 2005) conducted various searches of records relating to the 2002 investigation. The EPA submits that, as a result of these searches, certain additional records were found not to have been listed on the index in the first place, and other records previously considered to be missing turned out to have been listed twice on the index in error, such as record 5 (including record 5b).

It appears that the EPA provided the Gardai with various original records for the purposes of a subsequent Garda investigation but did not retain copies of these records. While the EPA acknowledges that it should have retained copies of anything provided to the Gardai, it submits that it has confirmed with the Gardai that any records not retained by it for its investigation (including those records subsequently provided by the Gardai to the parties to the criminal proceedings as "unused material") were returned to the EPA in November 2005.

In my view, there are deficiencies in the EPA's management of records, both in general and in relation to its 2002 investigation. These include the provision of original records to the Gardai without copies or a listing thereof being retained; the lack of a documented records management policy and a policy for dealing with electronic records; as well as the lack of record destruction practices and policies. However, I can only examine the steps taken by a body to search for records, deficiencies in its record management practices notwithstanding. In order for section 10(1)(a) to apply, a public body need only conduct reasonable searches even where records are known to have existed at some point but which cannot now be found; the FOI Act does not require a body to search indefinitely for such records.

Having regard to the description of how the EPA has collated records concerning the 2002 investigation, I find its description of the three searches conducted of these records since November 2005 to be reasonable. Thus, I find that section 10(1)(a) is applicable to records 22, 23, 24 and 25, and indeed to any other records of relevance to the request that may still exist but which have not been found.

If it were necessary for me to do so, I would also find that section 10(1)(c) is applicable, for reasons set out in Ms Moran's letter to the applicant of 1 December 2008 and 16 February 2009. Section 10(1)(c) provides for the refusal of a request on the grounds that granting it would by reason of the number of the records concerned, require the retrieval and examination of such number if records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the public body concerned. As I would not be confident that a further search of the EPA's records would result in the records 23, 24 or 25 being found (or clarification of the position regarding record 22), and having regard to the EPA's contention as to the impact that further searches would have on its work, I consider further manual or computer-based searches would be likely to cause a substantial and unreasonable interference with or disruption of the work of the EPA, in which case section 10(1)(c) would be applicable.

Analysis and Findings - Withheld Records

Provisions of the FOI Act at issue

The exemption provisions under consideration in this case are sections 22(1)(a) and (b); sections 23(1)(a)(i), (ii) and (iv); section 27(1)(b) and (c); and section 46(1)(b).

Section 22

Section 22(1)(a) provides for the refusal of a record that 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, one must 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 documents on the ground of legal professional privilege in court proceedings. I accept that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• communications made between a client and professional legal adviser for the purpose of obtaining and/or giving legal advice, and
• communications made between a client and 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 ("litigation privilege").

Section 22(1)(b) provides for the refusal of a request where disclosure "would constitute contempt of court".

Neither section 22(1)(a) nor section 22(1)(b) require the consideration of the public interest.

Section 23

Section 23(1)(a) is designed to protect information that, if released, could reasonably be expected to :

(i) prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans, procedures employed for the purposes of the matters aforesaid;

(ii) the enforcement of, compliance with or administration of any law;

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

Only if certain conditions are met is the public interest required to be considered in respect of a record to which section 23(1) applies.

Section 27

Section 27(1) of the FOI Act provides that, subject to subsection (2), a head shall refuse to grant a request for a record if the record concerned contains

(a) trade secrets of a person other than the requester concerned,

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain 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.

The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The provision protects information whose disclosure:

• could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or
• could prejudice the competitive position of the person in the conduct of his or her profession or otherwise in his or her occupation.

The word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. However, in invoking the phrase "prejudice", the damage likely to occur as a result of disclosure of the information sought must be specified with a reasonable degree of clarity.

Section 27(2)(c) of the FOI Act provides that access to a record to which section 27(1) relates shall be granted if "the record relates only to the requester". Finally, section 27(3) provides that a record found to be exempt under section 27(1) may be released if the public interest "would, on balance, be better served by granting than by refusing to grant the request...".

Section 46

Section 46(1)(b) provides that the FOI Act does not apply to "a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices)". There is no public interest test in this particular provision of the FOI Act.

Consideration of the records that the EPA considers should be withheld (records 3, 5, 5b, 8 and 8b)

Section 46(1)(b)

The EPA argued, in referring to records 3, 5, 5b, 8 and 8b on 2 October 2008, that "[these records] are held by the Director [of Public Prosecutions]" as well as by the EPA, and thus that section 46(1)(b) applies to them. It would seem from material before me that a copy of record 3 was indeed provided to the DPP at some stage. While it is not evident why the EPA might have needed to send copies of records 5, 5b, 8 and in particular record 8b to the DPP to enable the latter's consideration of whether charges should be initiated, I will accept the EPA's argument that it did so.

The EPA claims that it would circumvent the protection afforded by the Act to the DPP's processes if the applicant, being unable to get a copy of records from the DPP or without even seeking to do so, could seek to obtain a copy of such documents from the EPA. It claims that where a document is held by the DPP and therefore exempted from the application of the FOI Act, the copy of that document as held by the EPA should be equally exempt, as otherwise "it would undermine the confidence which must exist between the investigating authorities" such as the Gardai, the EPA and the DPP. I have refused in other cases to accept this argument, which the EPA says is wrong in law and negates the protection afforded by section 46, "since any proper administrative system must keep a copy of every document sent out".

I have no reason to deviate from my previous findings on such arguments. If I were considering a request to the DPP for copies of records he holds, they would indeed be outside the scope of the FOI Act by virtue of section 46(1)(b). However, regardless of the EPA's views on the matter, section 46(1)(b) does not exclude from the FOI Act the versions of such records that are held by a public body and I do not intend to accept its arguments to this effect. Neither would I accept any argument that might be made to the effect that the versions of the records actually held by the EPA are somehow simultaneously held by the DPP.

I find records 3, 5, 5b, 8 and 8b to be subject to the FOI Act, and they will fall to be released unless the EPA can demonstrate that they are exempt under one of the Act's provisions.

Although irrelevant to my consideration of the present case, the EPA appears to contend that the different statutory functions of the Attorney General and the DPP should be taken into account when considering the application of section 46(1)(b), as should the facts of a particular case. However, this provision does not require me to distinguish between records containing legal advice given by the Attorney General and records relating to the prosecution by the DPP of a particular case, nor does it require the consideration of the particular facts of a case. It is clear that if a record can be described as a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions, and so long as the content does not concern the general administration of either of those Offices, it is outside the scope of the FOI Act.

Section 22(1)(a)

It may seem contradictory that where a record held by the DPP (a government body) is outside the scope of the FOI Act, an identical copy of that record as held by another government body is accessible under the Act. However, the fact that the latter record is accessible does not mean that it will be released; it is open to the particular body to demonstrate to me that the record is exempt from release under one of the exclusion provisions of the FOI Act. Thus, in many cases where I have rejected a public body's argument that section 46(1)(b) is applicable to records held by it that are copies of a request it made to the DPP for legal advice, I have found the records to be exempt under section 22(1)(a) of the FOI Act.

Of the records created by the EPA, records 3 and 8 contain no legal advice. Record 5 neither contains advice nor is it a request for advice. In so far as record 8b might be said to contain legal advice, I am satisfied that such "advice" is only in the context of contemplated litigation. The central issues in considering litigation privilege are (i) whether or not litigation could reasonably be contemplated at the time of creation of the records at issue and (ii) whether the dominant purpose for the creation of the records was preparation for contemplated litigation. Both tests must be met in respect of any record to which section 22(1)(a) is considered to apply, and the communication must also be confidential.

Ms Moran's letter of 18 August 2008 invited the EPA to make a case for my consideration that section 22(1)(a) applies to the records, on the grounds of "litigation privilege", and in particular, tried to clarify the date at which it could have been said that litigation in this case could reasonably have been contemplated. The EPA, via its legal advisor, replied that documents "prepared by the Agency are not privileged". I have no reason to presume that this comment was not intended to apply to record 5, which was created by the EPA's legal advisor, acting as the EPA's agent, and I am also satisfied that the EPA and its legal advisors had ample opportunity to argue that the records, whether in full or in part, should be exempt under either limb of legal professional privilege. Accordingly, even if legal professional privilege applied to records 3, 5, 8 or 8b, whether in full or in part, it seems that the EPA has chosen to waive any such privilege that might have applied to them.

The Gardai, having been consulted about record 8b, argue that it attracts legal professional privilege, while the DPP (which was consulted about record 3), argues that this particular record is also exempt under section 22(1)(a). The DPP says that the communications of the sort in record 3 in particular "are protected both on the basis of legal professional privilege and on the basis of the public interest: Breathnach v Ireland (No3) [1993] 2 IR 458 and section 22(1)(a) of the FOI Act"). For one matter, legal professional privilege rests with the client, and it seems to me that the DPP is not in any position to claim such privilege given that it is not the client. Secondly, while the DPP refers to the Breathnach judgment, I note that the judgement finds inter alia that the principle of public policy that protects from discovery communications between lawyer and client made in contemplation of litigation had no application to documents submitted by an investigating Garda to the notice party for the purposes of obtaining his decision as to whether or not a prosecution should be instituted. The DPP's submission did not attempt to distinguish record 3 in the case at hand from the Garda records referred to in Breathnach (in which case the arguments would have been relevant to the Gardai's contention regarding the application of section 22(1)(a) to record 8b).

I would also add that while the Breathnach judgment appears to accept that there might be documents of such a nature that the courts could hold should not be disclosed, even without inspection, the DPP has not sought to explain why record 3, in particular, might fall into such a category. Taking these points into account, as well as the fact that the EPA has said that records it created are not privileged, and importantly, has not clarified the date at which litigation could have been said to have contemplated, I have no grounds to accept that legal professional privilege applies to record 3, or indeed to records 5, 8, or 8b.

As regards the "public interest privilege" argument made by the DPP, none of the provisions in the FOI Act refer to such a privilege, and the Act does not enable me to find that the public interest warrants the withholding of a record that has not been found to be exempt under one of its provisions in the first instance. In any event, the DPP did not explain why the grounds cited in the Breathnach case, that result in "public interest privilege", might apply in the present case.

Finally, while record 5b issued from the solicitors for ABC, and while ABC considers that this record should not be released, I note that it has not argued that it should be withheld on the basis that it would attract legal professional privilege in a court (Ms Moran advised ABC that the EPA was not relying on this provision of the FOI Act). I am taking this as a waiver by ABC of any such privilege that may have applied to this record. Furthermore, while record 5b does refer to possible legal proceedings, I am of the view that the record is more concerned with ABC's concerns as to how the EPA conducted a particular investigation, in which case I am not satisfied that the "dominant purpose test" would be met by this record.

Section 22(1)(b)

The EPA contends that section 22(1)(b) applies to records 3, 5 (including 5b) and 8 (including record 8b), in that it claims their release would prejudice the fairness of court hearings, which would be a contempt of court.

I understand that contempt can arise by directing the release of records under FOI to a person to whom those records have already been provided under discovery (which would be governed by an undertaking given to court) or to a person to whom discovery of such records has been prohibited by a ruling of court. No such factors apply in this case. It follows that contempt of court cannot arise for these reasons in the case at hand. The EPA does not seek to argue this, in any event.

The EPA claims that a technical contempt of court will arise from the release of the records at issue in this case under FOI. In the submission of 2 October 2008, the EPA's legal advisor contended that the contempt concerned arises because the release of these records under FOI is akin to "the making public by an investigating authority of matter tending to indicate the guilt or otherwise of the Defendants to criminal proceedings". The legal advisor's submission of 6 November 2008 argues that the seriousness of it putting the documents at issue into the public domain "would depend on the impact it had, but it would always constitute, at least technically, a contempt of court", and that neither the EPA, nor I, can "attempt to determine the seriousness of the publication" (the phrase it uses for release) of the records. It also contends that I cannot "rule on whether the contempt would be sufficiently serious to prejudice the prosecution" and that to do so "would be encroaching on an area which under the Constitution is vested exclusively in the courts", thus acting unconstitutionally and outside of my powers.

I presume that the EPA's argument was an intention to refer to the matter as being sub judice. According to Murdoch's Online, when a matter is before a court and is sub judice (which it defines as "[not] yet decided; under judicial consideration"), a contempt of court may arise from "any words or action which have a tendency to interfere with the fair administration of justice". Murdoch's goes on to say that the courts may act to prevent the publication in the media of anything which may prejudice the fair trial of an action.

However, in his decision in case 99001 (Ms ACF and the North Eastern Health Board), the previous Commissioner, Mr Kevin Murphy, found the mere fact that proceedings had been issued not to be sufficient, of itself, to make out the case that a breach of the sub judice rule would arise by release of the records in that case, or that their disclosure would constitute a contempt of court. In arriving at this view, Mr Murphy had regard to the comments of O'Hanlon J. in the High Court case of Desmond v Glackin (No. 1) [1993] 3 IR 1, including that "[i]t has been stated in other decided cases that there is a need to show a real risk as opposed to a merely remote possibility of prejudice."

I intend to proceed similarly in this case, and thus I do not accept that section 22(1)(b) can apply where a "technical" contempt might arise by the release of the records at issue. It must be shown to me that there is more than a merely remote possibility of prejudice to the administration of justice in the proceedings at issue - which I understand have yet to be held - in order for me to accept that contempt of court would arise and, thus, that section 22(1)(b) applies.

Thus, despite the EPA's views to the contrary, I must "attempt to determine the seriousness" of the release of the records, having regard to their contents and to the arguments made by the parties to the review. If insufficient argument is made, then the FOI Act provides that the records should be released. One must assume that the provisions of the FOI Act are in accordance with the Constitution, and that a direction based on my analysis of withheld records and the arguments made in relation to them, or indeed a direction to release the records under FOI in circumstances where a public body fails to make a proper argument, could not be said to be a breach of any article of the Constitution.

Although the EPA considers that I should find section 22(1)(b) to be applicable if I am satisfied that there is a "real risk" to due administration in the proceedings at issue, it seems to me that in such an event I am also likely to find section 23(1)(a)(iv) of the FOI Act to apply.

Section 23(1)(a)(iv)

As noted earlier, three submissions were made by the EPA in relation to the withheld records, the latter two of which (drawn up by its legal advisor) were quite lengthy. I do not intend to go into each and every aspect of the arguments made or case law cited therein, and instead will outline the general form of the arguments made and my findings in respect of them.

Preliminary Matters

Before I go into the arguments made as to the impact that release of the records might have on the court proceedings, I note that the submissions made by the EPA's legal advisor of 2 October and 6 November 2008 contend that an appeal to my Office "cannot be a substitute for the functions of the Court", and that the "procedures of the Act cannot be used to obtain documents which could not be obtained on discovery, or without the restrictions which apply to discovery, or without making an application for discovery".

The EPA supports its view that the records at issue in this case can only be obtained by an order for discovery (which appears to be reflected in the Gardai's submission of 22 January 2009) by referring to the comments of O'Neill J. in the case of EH and EPH v the Information Commissioner where he stated that "[i]f it were the case that one could under the provisions of the Act of 1997 obtain documents disclosure of which was prohibited by the ruling of a court or by an undertaking given to a court, I have no doubt that this would amount to a gross and unconstitutionally impermissible interference in the administration of justice" and that "notwithstanding the entirely laudable and separate philosophy of disclosure which underpins the Act of 1997, that the Act construed in a matter consistent with the Constitution would not be used, so that access to documents under the Act would have be result of robbing an order or a court or an undertaking given to a court of the force and effect which the court in question intended these to have".

Ms Moran, by way of letter dated 22 October 2008, made a number of points in relation to these arguments, and referred the EPA to further comments made by O'Neill J. in the above judgement, as follows:

"... 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. ... Therefore it is easy to foresee that there will be a rational and harmonious co-existence between the two regimes of disclosure."

The EPA's submission of 6 November 2008 argued that the core issue in the EH case is the same as in the case at hand - the protection of the court's procedures. It contends that while O'Neill J. accepted that the FOI Act might be used in lieu of discovery, this was not "where there was a reason for keeping the documents confidential in order to protect the processes of the court."  The EPA contends that while a person "may seek documents in general from it, and may use those documents in court proceedings", "when the documents relate to an investigation by the Agency into the issue of whether a crime has been committed and by whom, and to statements and advice provided to the DPP for the purposes of a prosecution, and where the prosecution is still pending, the court must have full control over the release of the documents in order to protect its own procedures."  It claims that it would be "different if the pending proceedings were civil proceedings, or if the trial was over, or if the documents did not relate directly to the guilt or innocence of the parties" but that, as "all these factors are present", this is "a situation where the court needs to have the ability to control the publication of the documents."

I have already dealt with the argument that I have no jurisdiction to consider the release of records under FOI that pertain to a pending court case.

Secondly, if it were the case that discovery was the only means by which records of the sort at issue (and records relating to civil matters) could and should be obtained, I consider that the FOI Act would contain an appropriate form of words that excluded such records from the scope of the Act. Furthermore, discovery is an avenue that may only be pursued by the parties to the litigation, and any argument that this is the only way in which records relating to litigation may be sought seeks to deprive any other party of their ability to exercise their rights under the FOI Act. Indeed, the scope of any of the parties to the litigation to seek access to the records is much narrower under discovery than it is under FOI.

Thirdly, the EH case was clearly concerned with records that were covered by an undertaking to the court, which is not the case in the review at hand. Thus, O'Neill J.'s comments, regarding records the disclosure of which was "prohibited by the ruling of a court or by an undertaking given to a court" and the release under FOI of which would "amount to a gross and unconstitutionally impermissible interference in the administration of justice", should be read with this in mind.

In short, I consider that O'Neill J.'s comments regarding records that relate to "litigation[that] may be contemplated or ... [that] has even occurred", contemplated a situation such as that at issue here, where litigation is pending and the case has to be heard. In my view, O'Neill J. did not consider that the only way in which a person may obtain access to records that might be relevant to contemplated or pending litigation was by means of discovery, and I disagree with the EPA's arguments in this regard. Thus, I intend to proceed on the basis of the comments made by my predecessor in his decision in case 99175 (Ms ACM and the Midland Health Board, available on my website www.oic.ie). Mr Murphy said that "[t]he mere fact that at some future date a court may make an order or give directions regarding the production or release of a record does not, in my view, mean that such a record is exempt under section 22(1)(b). The fact that there may be another procedure through which [the applicant in that case] may seek access to the records (other than pursuant to an FOI request) does not mean that his right of access to the record under the FOI Act no longer applies."

However, I accept that Mr Murphy's comments (and those of O'Neill J.) do not guarantee the actual release under FOI of records relating to "litigation[that] may be contemplated or ... [that] has even occurred". For instance, if I were satisfied that such release would be in contempt of court, or would prejudice the fairness of the pending court hearing, I would not direct the release of the records. Again, this returns me to my earlier point that I must make an assessment of the likeliness of those or other outcomes occurring.

As an aside, it may be that there is no judicial authority to support the argument that discovery can be ordered in a criminal case, which would be a further reason to find the EPA's arguments concerning the use of discovery in this case to be ill-founded and irrelevant. Subsequent to the EPA's submissions, I have noted that Murdoch's Online states that the Supreme Court, in the case of "People (DPP) v Sweeney" [2002 SC] 1ILRM 532 and [2001SC] 4IR 102, "has ruled that there is no jurisdiction for making an order of discovery in criminal proceedings". I have not sought comment from the EPA in relation to this, however, and I will assume that the EPA's legal advisor is correct in its apparent view that, in criminal matters, access may be obtained to records by discovery. Furthermore, I have no reason to believe that, in drawing up the above submissions, in which it consistently refers to the obtaining of records by discovery, the EPA's legal advisor actually intended to refer to any other legal avenue that a party to criminal proceedings might pursue to gain access to records.

Factors Impacting on the Fairness of Court Proceedings

In Case No. 020481 - Mr X and the Department of Justice, Equality & Law Reform - Mr Murphy found that while section 23(1)(a)(iv) could apply to records that contain legal strategy, or that contain details of how the public body concerned proposed to conduct its case before the Court, the lack of reciprocity of details as to how a party to litigation proposed to conduct its case before the Court, does not, of itself, provide a sufficient basis on which to claim exemption pursuant to the provisions of section 23(1)(a)(iv). I note that Ms Moran referred the EPA to this decision. Also in that decision, Mr Murphy said that 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.

The EPA's first submission briefly expressed concerns about the impact on the pending proceedings resulting from the release of record 3. I note that the submission did not appear to consider record 5 as potentially impacting on the fairness of the pending proceedings (although other concerns were expressed) and suggested that record 8 should be withheld only for the reason that it considered the working relationships that had developed between "law officers (in this case the EPA and the Gardai) and between law officers and the DPP's office" could be undermined by its release. Although no specific provision was cited, I have taken this as an argument in support of its reliance on section 23(1)(a)(i) of the FOI Act, rather than on section 23(1)(a)(iv), however.

In the submissions of 2 October and 6 November 2008, the EPA's legal advisor contended that the release under FOI of the records at issue without the safeguards provided for by a court order, "would undermine the administration of justice by the courts" (the administration of justice being confined to the courts by Article 34 of the Constitution) as well as being a breach of the right to a fair trial conferred by Article 38 of the Constitution. I have already dealt with this argument.

The main argument made by the EPA is that the release of the documents is akin to "the making public by an investigating authority of matter tending to indicate the guilt or otherwise of the Defendants to criminal proceedings", which would prejudice the fairness of the hearings. However, I am not satisfied that the EPA's submissions were sufficiently detailed to demonstrate the link between the contents of the records and the outcome that it considers would result from such release. It seems to me that the EPA's arguments amount to no more than a blanket assertion that the records should be withheld as a class due to their relationship to pending hearings, which does not meet the requirements of section 34(12)(b) of the FOI Act.

Furthermore, while the onus rests largely with the EPA in demonstrating to me that the refusal of a document is in accordance with the terms of the FOI Act, I also consider that there is at least some onus on the third parties such as the DPP and the Gardai to support any argument they may make that particular records should not be released. I am not satisfied that the arguments made by the DPP or the Gardai were sufficiently detailed to enable me to accept that section 23(1)(a)(iv) is applicable in this case.

ABC, which has not been provided with a copy of records 3, 5, 8 or 8b (record 5 had been issued by its legal advisors and I am satisfied that Ms Moran gave sufficient detail of the record to enable ABC to locate it from its own records) contends that none of the information in any of the records under review should be released. While ABC is a third party to the review, it was making its arguments without the benefit of the records. Therefore, I have conducted some research into what appears to be accepted by the Courts as amounting to material that is prejudicial to the fairness of a court hearing. In relation to the FOI Act itself, the EPA argues that I must make my decision in the context of release of records under FOI being akin to release of those records to the world at large; I concur with this view.

1. The timing of release of the records must be considered. Charges have been issued and preferred in this case, and accordingly seems to be one of the categories of case described by Dunne J in the judgment in Director of Public Prosecutions v Independent Newspapers (Ireland) Limited [2005] IEHC 353, where publication of material adverse to an accused may create a real or serious risk of prejudice.

I have also noted the comments of Denham J. in the case of Kelly v O'Neill [2000] 1 IR that "the time of the publication in question is of great importance. The time immediately prior to the jury trial is very sensitive". Furthermore, Judge Dunne, in her judgement in the case of The Director of Public Prosecutions v Independent Newspapers (Ireland) Limited, Gerard O'Regan and Anne Marie Walsh [2005] IEHC 128 indicated that consideration must be given to the "temporal link between the date of publication and the date of the proceedings claimed to be interfered with". In that judgement, Dunne J commented that a publication made immediately after proceedings have commenced in respect of a matter not likely to come to trial for three or four years may not be of significance, whereas a publication in respect of proceedings which have a shorter timeframe may carry with it such a risk. Neither did she consider it necessary that the DPP must indicate to the court either when a trial is likely to be heard or the a precise date of a trial, however and said that "I think it is clear ... that the premature publication of evidence in a criminal trial may constitute contempt.....".

In the case at hand, I understand that no date has yet been set for the criminal proceedings, in that they cannot proceed until the Supreme Court has issued judgement on a Judicial Review taken in respect of some of the charges issued in this case. ABC considers that the Supreme Court appeal will take place in this calendar year, assuming all legal submissions have been filed in a timely fashion; presumably the criminal proceedings will take place reasonably soon after this appeal has been held.

It seems to me that the fact that the criminal trial has a reasonable prospect of being held within the next year or 18 months is a factor that would weigh against release of the records at issue; on the other hand, and having regard to the comments of Dunne J. above, the fact that the date of the hearing cannot be stated with any degree of certainty does not, in my view, reduce such weight. Furthermore, it seems to me that the "fade factor" (as referred to in Zoe Developments Ltd v Director of Public Prosecutions, Unreported, High Court, Geoghegan J. 3rd March 1999) is unlikely to have significant application in the circumstances.

2. The content of the records is clearly relevant, particularly whether or not the material at issue "prejudges issues arising for determination by the court in pending proceedings or which pillories one of the parties involved in the case" (as referred to by O'Hanlon J in Desmond v Glackin [1993] 3IR 1, who said that it was "considered improper and unlawful to publish [such] material ...)". O'Hanlon J said it was held by the House of Lords "that it was contempt of court to publish material which pre-judged the issue of pending litigation or was likely to cause public pre-judgment of that issue, and accordingly the publication of this article, which in effect charged the company with negligence, would constitute a contempt, since negligence was one of the issues in the litigation."

3. The Courts also appear to consider whether particular published material comprises evidence that would be put before the Court in an ensuing hearing. In considering whether the jury in the Joe O'Reilly murder trial might have been prejudiced because the Book of Evidence had been left in the jury room, Judge White is reported as having said that this document was not intended for the jury's use as it could often contain matters which would not be legally admissible in the trial. ABC has submitted that "documentation contained in the Book of Evidence is not publicly available, may never come to light and can only do so when evidenced in a court of law. Disclosure therefore of this information will adversely affect [the fairness of the pending criminal case]".

ABC considers that the material at issue would not be contained in the Book of Evidence. This is a reasonable contention to make given the fact that the relevance of the records to the narrowed scope of the request would suggest that they should not be contained in the Book of Evidence. On the other hand, it is a reasonable proposition that the details in the records at issue are reflected in, or have some bearing on, the material that might be presented as evidence in the criminal charges. Thus, even if the material at issue in this case is not contained in the Book of Evidence, I think it reasonable to consider that disclosure thereof could have at least some likelihood of impacting on the evidence intended to be presented in Court, and that this is of relevance to the decision I must make.

4. Dunne J in [2005] IEHC 128, said that "... it is not relevant ... to determine what the actual effect of the publication upon the proceedings had been, or what it will probably be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so removed or theoretical that the de minimis principle should be applied".

5. While the Courts, in considering whether the fairness of court hearings has been prejudiced, seem to require that it be demonstrated that there is a "real or serious risk that an accused does not have a fair trial", it must be borne in mind that a lower standard is required to be met when seeking to demonstrate that section 23(1)(a)(iv) of the FOI Act applies to particular records. All that is required to be demonstrated is that there is a reasonable expectation of the fairness of the hearings being "prejudice[d] or impair[ed]".

Release of the records and the impact on the fairness of the pending Court hearing

As set out earlier, I consider that it must be demonstrated to me that release of the records at issue could reasonably be expected (that is, that there is not a mere possibility) to prejudice or impair (that is, not to merely affect in a minor way) the fairness of the pending court hearings.

Given that release of records under FOI to the world at large includes potential witnesses and jurors, the issue of whether information in the records might be already known to the applicant, or might somehow be in its possession, or might be of a factual nature, is irrelevant to the consideration of section 23(1)(a)(iv). Having said this, any motive that the requester might have for seeking access to the records (whether stated or suspected) cannot be taken into account.

Record 3 does not contain any details of how the DPP, the EPA or the Gardai intend to conduct the actual hearing of the criminal case in court. Even if it did, the comments of my predecessor, Mr Murphy, in Case No. 020481 to the effect that the lack of reciprocity of details as to how a party to litigation proposed to conduct its case before the Court, does not, of itself, provide a sufficient basis on which to claim exemption pursuant to the provisions of section 23(1)(a)(iv) of the FOI Act, would be relevant.

As noted earlier, the main argument made by the EPA is that the release of the documents is akin to "the making public by an investigating authority of matter tending to indicate the guilt or otherwise of the Defendants to criminal proceedings", which would prejudice the fairness of the hearings. I am aware that the EPA is mindful of advice from the DPP that "no final report should be made on the incident until all litigation had concluded" (as contained in the released record 16). Furthermore, the fact that record 3 contains particular conclusions and findings in respect of the parties investigated is an issue of which I must take account.

The details in record 8 were purely administrative in nature and have been overtaken by the passage of time, and I see no reason to accept that they could have any bearing on the prosecution process, if released. Record 8b refers to potential charges that may be laid against the parties under investigation.

Although asked to, the EPA has not clarified the nature of the charges against the two defendants in the criminal case. However, I accept that the comments in record 8b, attributed to a member of staff of the Office of the DPP and to an EPA official, could be said to state a view on the "guilt or otherwise of the defendants".

Taking account of the lower standard of proof required in order for section 23(1)(a)(iv) to apply, and the comments of O'Hanlon J in the case of Desmond v Glackin [1993] 3IR, I am now inclined to accept the EPA's view that records 3 and 8b could be said to prejudge issues arising for determination by the court in pending proceedings, given that they comprise views and comments made by the EPA and DPP in respect of the parties under investigation. I thus consider that these records are of a nature the release of which "might have an effect upon the proceedings" and that the possibility of interference is not so removed or theoretical that the de minimis principle should be applied. With the exception of section 5 of record 3 and Appendix 2 to record 3 (the findings of the EPA's investigation into the TFS system at a general level and an excerpt from a Statutory Instrument, respectively), I accept that the release of the remainder of record 3, and record 8b in full, could result in the harm described in section 23(1)(a)(iv).

In respect of record 5, Ms Moran's letter of 18 August 2008 put it to the EPA she saw no reason for it to have any impact on the fairness of the pending hearing. The EPA's submission of 5 September 2008 had "no objection with [her] reasoning". I concur, and do not find section 23(1)(a)(iv) to apply to record 5. It follows that I have no reason to accept that section 22(1)(b) applies to this record.

Ms Moran's letter also said that it had not been explained how record 5b, if released, could impact on the fairness of the proceedings. The EPA's reply of 5 September 2008 said that it "would also at this time not wish to exempt ..." record 5b. However, the EPA's exact position on record 5b was unclear from subsequent comments in that letter, which expressed concerns about disclosing to a third party a communication between legal representatives of two other parties. When Ms Moran sought further clarification, the EPA's submission of 2 October 2008 said that as the record relates to a party to the proceedings, its release was a matter for the trial court, a view it reiterated in its submission of 6 November 2008.

I have already outlined why I do not accept that the issue of access to records in this case is a matter for the trial court. Seeing as how it is a letter that originated from ABC in the first place, it is difficult to see how record 5b could be seen to be a pronouncement by the EPA on the guilt or otherwise of any party. I note that it contains no details of how ABC might deal in court with the pending litigation, not that this, by itself would warrant the withholding of the record. The EPA has given no further explanation as to why a communication between parties to litigation should be withheld, nor any explanation given as to why its release would have an impact on the fairness of the hearings, nor any estimate as to the magnitude of such an impact. ABC, for its part, appears to have concerns over the impact of the release of the records at issue on the pending court case and on High Court directed negotiations that it says are in train; however, it has not drawn any link between the content of this (and other) records and the impact that it says such release will have. On balance, I find that neither section 23(1)(a)(iv) nor section 22(1)(a) applies to record 5b.

Section 23(1)(a)(iv) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of a record, rather than by it being withheld, in the event that one of three conditions is fulfilled.

The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law...is not authorised by law or contravenes any law". I do not consider this to be the case. The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law"" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The records concerned do not contain any information that satisfies these conditions. Accordingly, I am of the view that section 23(3) does not apply to records 3 and 8b, and that those records should remain exempt from release (in which case I do not intend to make any finding regarding the application of section 22(1)(a) to these records, and in which case there is no need for me to seek further comment from the Gardai in respect of the implications of the Breathnach judgement on the case at hand). I also note that the applicant did not comment on Ms Moran's views to this effect.

Sections 23(1)(a)(i) and (ii)

The EPA would appear to argue that the working relationships that had developed between "law officers (in this case the EPA and the Gardai) and between law officers and the DPP's office" could be undermined by the release of records 5, 5b and 8 (as well as records 3 and 8b, which I have found to be exempt in any event).

Ms Moran subsequently asked for details of the exemption that the EPA considered relevant to this argument, and said that she did not see why the information in the records would impact on the relationship between the EPA and the Gardai. She also said she found it difficult to accept that, even if relations were to deteriorate as a result of the release of the records the subject of this review, the Gardai or DPP would be prepared to act towards the EPA in any way that would result in crimes going uninvestigated or unpunished.

Although no exemption was explicitly claimed, I have taken these comments as an argument in support of the EPA's reliance on section 23(1)(a)(i) of the FOI Act. I have no reason to accept that any details in the records at issue, if released, could impact on either the relationship between the EPA and the Gardai, or between these bodies and the DPP. All are State organisations, and one must assume that they would not let any impact on their relationship, that might arise from the release of the records at issue, impact on the investigation or prosecution of a particular case.

The EPA's submission of 2 October 2008 also said that release of the records at issue would prejudice the fairness of the criminal proceedings, and thus could lead to the striking out by the court of the proceedings, as a result of which nobody would be prosecuted or convicted, thus prejudicing or impairing the prosecution of offenders and enforcement of the law (sections 23(1)(a)(i) and (ii) being relevant).

For one matter, the courts may find the defendants innocent of the various charges, in which case there would be no convictions. Even if it does not, given my view that the release of records 5, 5b and 8 could not be reasonably expected to prejudice the fairness of the court proceedings, it follows that I do not accept that the other outcomes envisaged by the EPA could reasonably be expected to arise from the release of these records. I do not accept that sections 23(1)(a)(i) and (ii) apply to these records, accordingly.

Consideration of the remaining records (records 6, 7, 7b, 10, 17, 19, 21 and 21b)

As noted earlier, the EPA considers that it has no grounds to withhold these records, while ABC considers that sections 23(1)(a)(iv) and 27 are applicable.

Section 23(1)(a)(iv)

In the first place, given that the EPA considers the records should be released, it follows that it has no concerns that their release could impact on the fairness of the pending proceedings. In the light of ABC's concerns, however, I intend to consider whether release of these records to the world at large could be expected to prejudice the fairness of the pending hearings.

Although the EPA considers that records 5 and 5b should be withheld under section 23(1)(a)(iv), it does not consider that records 6, 21 or 21b should be withheld under the same provision, notwithstanding that the records are closely related to records 5 and 5b.

Given that record 21b originated from ABC, it cannot comprise any views by any prosecuting party as to the guilt or innocence of any party involved in the 2002 incident. I find the same in respect of record 21, in so far as it refers to the content of record 21b. Record 6 is comprised of preliminary observations by the EPA which in my view, seek to clarify the basis on which the EPA was conducting the interviews/investigations of the sort complained of in record 5. ABC, for its part, has not elaborated on how the contents of these records might impact on the fairness of the pending hearings but it is reasonable to assume that it considers the mere relationship of these records to the EPA's investigation and the resultant prosecution to be sufficient to prejudice the fairness of the ensuing hearing should the records be released. This, of itself, is not sufficient to qualify records 6, 21 and 21b for exemption under section 23(1)(a)(iv) and I find accordingly.

Record 7 is concerned with purely administrative arrangements for the preparation of the attached statement (record 7b); it does not contain details of that statement, nor does it make any judgements on the parties to the investigation. Record 7b is a statement of fact as to when the EPA received notice of the 2002 incident, and does not contain any criticisms of any party to the investigation. While record 10 specifies, in general terms, the information that is being compiled for the EPA solicitor, it does not make any views on what the information so gathered might suggest in terms of the guilt or otherwise of the parties to the investigation. Although record 17 refers to a communication with the DPP, that communication does not comprise the views of the DPP or any other party on the potential prosecution, or comment on the guilt or innocence of any of the parties to the investigation. Again, record 19 does not make any judgement on any parties under investigation and does not contain any specific details that might be aired in the court hearing.

Having regard to the court precedents referred to earlier, along with the content of records 7, 7b,10, 17 and 19, I find that section 23(1)(a)(iv) is not applicable to these records.

Sections 23(1)(a)(i) and (ii)

For reasons set out earlier, I do not accept that sections 23(1)(a)(i) and (ii) apply to any of the above records.

Section 27

Given that I have found records 5, 5b and 8 not to be exempt under sections 22, 23 and 46 of the FOI Act, I will consider whether or not these records should be withheld under section 27, along with records 6, 7, 7b, 10, 17, 19, 21 and 21b.

As mentioned earlier, ABC contends that sections 27(1)(b) and (c) are applicable to these records. All bar two (records 7b and 19) refer to ABC alone, thus rendering section 27(2)(c) irrelevant. Records 7b and 19 refer to both ABC and the applicant, but I find the references to be so intertwined with each other as to render them impracticable to separate (sections 13(1) and (2) of the FOI Act refer, thus also rendering section 27(2)(c) irrelevant).

Firstly, ABC's submission of 19 January 2009 claims that section 27(4), which is concerned with the non-disclosure of the existence of records to which section 27 applies, is relevant. Given that the EPA had never considered this a relevant provision, and that the applicant had been made aware of the existence of the records prior to January 2009, this is an argument that I do not intend to consider. I would comment that of itself, I do not see how the confirmation of the existence of particular records, where it is public knowledge that an incident took place in 2002 that ultimately led to an investigation by the EPA and to charges being preferred against ABC, could have any impact on its commercial position or negotiations (or the various court actions or related matters in which it is involved).

As set out in Ms Moran's letter to the applicant of 1 December 2008, I consider that these records contain details that have been largely overtaken by the passage of time, or are more to do with the EPA's administrative arrangements (whether for its 2002 investigation or the subsequent prosecution) than with the actual investigation's findings or the actual details of the potential prosecution. I can go no further in my description of these records due to the requirements of section 43(3) of the FOI Act.

In terms of those records of correspondence that issued from ABC or discussed the contents of such correspondence, (records 5b, 6, 21 and 21b) one could argue that they divulge no information about ABC that would do the company commercial damage, given that they concern how the EPA has conducted its business. Records 7, 7b, 10, 17 and 19 also pertain to the EPA's administrative work. One could therefore argue that section 27 should not apply to these records, particularly in the light of the passage of time since the records were created (legal proceedings notwithstanding). While ABC disputes the view that the "... passage of time can somehow render a document which should not be disclosed to be capable of disclosure ...", I have found in many previous decisions that passage of time is indeed a factor in determining if section 27(1)(b) applies to particular records and I see no reason to deviate from such an approach.

However, given that the records were created in the context of an EPA investigation into a particular incident involving ABC, and given the low threshold required to be met in order for section 27(1)(b) to apply, I consider it appropriate to find that section 27(1)(b) does apply to these records.

It is not necessary, therefore, for me to consider section 27(1)(c) in relation to the records. As an aside, ABC has argued that ongoing High Court directed negotiations in which it is currently involved would be affected by the release of the records. However, it has not set out in any detail how the records at issue (particularly those records copied to it) would actually affect those negotiations. Accordingly, if I had to consider section 27(1)(c), I would not accept that it applies to records 5, 5b, 6, 7, 7b, 8, 10, 17, 19, 21 and 21b.

Public Interest

Section 27(3) provides that I must consider the public interest in the release of records to which section 27(1) has been found to apply. The applicant has not made any particular arguments in relation to either the application of section 27 to information concerning ABC, or to the public interest in its release.

However, the onus is on the EPA (and to a lesser extent ABC) to justify the withholding of the records on such grounds.

ABC has referred to the "acceptance by the EPA from the outset of the commercial sensitivity of [its] client's process and product related information" which it contends (in referring to section 27(4) which may or may not be an error on its part) "[negates] any purported public interest ground for disclosure."  However, in its submission of 6 November 2008, the EPA submitted that it "has no objection to the disclosure of the records requested as soon as the proceedings and any appeals are concluded". In circumstances where litigation is not an issue, it is evident that the EPA does not consider the information in these records to be exempt under section 27 in the first place, or if it does, that the public interest warrants the release of the details therein.

ABC appears to contend that the public interest in protecting the "High Court directed mediation of the [ongoing] civil proceedings" warrants the withholding of the records concerned. However, it has not sufficiently explained to me how these negotiations might be damaged by the release of, at least, those records copied to it.

I accept that there is a public interest in favour of withholding the records - that of protecting the commercial interests and viability of ABC, whose responsibility, if any, for the 2002 incident has yet to be determined by the Courts, and which is a private company not subject to the FOI Act. However, in my view, such an impact on ABC is minimal, given the extent of information in the public domain, the passage of time and the fact that these records divulge more information about the EPA and how it conducts its business than it does about ABC. Given that it has not been sufficiently demonstrated to me how the ongoing High Court negotiations (or indeed the fairness of any prospective court hearings that involve ABC, as per my findings under section 23(1)(a)(iv) of the FOI Act) might be affected by the release of these records, it seems to me that the commercial damage that might be caused to ABC by the release of these records is at the lower end of the scale of such damage.

On the other hand, there is a very strong public interest in openness and transparency in respect of any apparent contamination of the food chain, whether inside or outside of Ireland, and as to how the EPA conducted its investigation into the 2002 incident, and how it dealt with queries and concerns of any of the parties under investigation. Accordingly, despite ABC's arguments, I consider that the public interest warrants the release of any of details in the records concerning it that is, on the face of it, exempt under section 27(1) of the FOI Act. Accordingly, I consider that the public interest weighs more in favour of the release of records 5, 5b, 6, 7, 7b, 8, 10, 17, 19, 21 and 21b than it does in favour of withholding them and I find accordingly.

Section 22

If legal professional privilege were under consideration, again it would be more appropriate to consider the second limb of such privilege in relation to the remaining records (I have already considered records 5, 5b, 8 and 8b under this exemption).

The EPA has stated that it does not consider records created by itself to be privileged. Furthermore, none of the records created by the EPA contain legal advice, with the possible exception of record 17. However, in so far as record 17 can be said to contain legal advice, I am satisfied that this "advice" is only in the context of contemplated litigation. I have already outlined why I do not consider it appropriate to consider the application of section 22(1)(a) to records where there is uncertainty over the date at which litigation could be said to have been contemplated by the EPA. Accordingly, I see no reason to find that section 22(1)(a) applies to records 6, 7, 7b, 10, 17, 19 and 21. In any event, similar to records 3, 5, 8 and 8b, I am taking it that even if legal professional privilege applied to these records, whether in full or in part, the EPA would choose to waive any such privilege.

While record 21b issued from the solicitors for ABC, and while ABC considers that it should not be released, I again note that it has not argued that the records should be withheld on the basis that it would attract legal professional privilege in a court. Similar to record 5b, I am taking this as a waiver of any such privilege that may have applied to the record. Furthermore, I note no reference to any prospective litigation therein in which case, I would not be satisfied that the dominant purpose test would be met by this record.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the EPA in this case. I affirm its position that records 6, 7, 7b, 10, 17, 19 and 21 should be released, and that records 3 and 8b should be withheld. I direct that records 5, 5b and 8 be released.

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. Such a review must be initiated not later than eight weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

10 June 2009