The Senior Investigator varied the decision of the Department. He found that the Department was justified in its decision that additional records either do not exist or cannot be found and that section 10(1)(a) of the FOI Act applies. He also found that section 46(1)(b) was applicable to the record created by the member of staff of the Attorney General's Office, and that section 22(1)(a) applies to the record concerning the seeking of legal advice.

Case Summary

Whether the Department was justified in its decision to refuse a request for access to records made under section 7 of the FOI Act.

Date of Decision: 22.12.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The FOI request in question was made on 15 February 2007. The Applicant sought access to records relating to the following:

"(a) any reports submitted to the European Commission as set out under Article 1 of the European Decision, 27/1997,

(b) copies of reports/guidelines/audits which outlined plans to compensate fishermen and owners of vessels under same decision as mentioned above, and

(c) any documentation which is addressed to the European Commission showing a member state's intention to comply with the above named decision.

If the above information is not available could you please provide information regarding any other compensation/state aid which the fishermen or owners of vessels received as an alternative to the criteria set down in the above-mentioned decisions."

The Department of Communications, Energy and Natural Resources (the Department of Communications) failed to give an original decision or an internal review decision in this case. The Applicant applied for a review of the matter to the Information Commissioner on 27 September 2007. After responsibility for such functions transferred over to the Department of Agriculture, Fisheries and Food (the Department), the Department issued its "effective decision" to the Applicant in a letter dated 1 November 2007. It is noted that a substantial amount of records were released as part of this decision.

In conducting this review, I have had regard to the submissions of the Department as well as those of the Applicant (including those made to the Department); the provisions of the FOI Act, and the contents of the preliminary views letters dated 29 June, 4 August and 24 August 2009, sent to the Applicant by Mr. Ciaran O'Donohoe, Investigator, of this Office. In addition, I note that the Applicant agreed with this Office to confine the scope of this review to the issues which he raised in his letter of 23 June 2008 to this Office. I note that the Applicant responded to these preliminary views letters on 6 August and 3 September 2009 indicating that he was dissatisfied with the investigator's preliminary conclusions. I consider that this case should now be brought to a close by means of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Mr. Sean Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of Review

As outlined above, the applicant agreed to confine the scope of his requests to the issues to which he referred in his letter of 23 June 2008. Therefore, there are two issues to be considered in this review - (a) whether or not the Department is justified, within the terms of the FOI Act, in refusing access to additional records on the grounds that section 10(1)(a) of the FOI Act applies; and (b) whether the Department is justified in withholding two records which it claims are exempt under section 22(1)(a) of the FOI Act. In addition, the applicability of section 46(1)(b) to one of the records in question withheld by the Department under section 22(1)(a), has been examined as part of this review.

The Department has informed this Office that it has administratively released the spreadsheets relating to the Irish Tuna Fleet for the period 1993-1997. Previously, the Department had contended that these spreadsheets were commercially sensitive and therefore exempt under section 27(1) of the FOI Act. In view of this, I am also satisfied that the spreadsheets are outside the scope of this review and therefore will not be considered further.

Mr. O'Donohoe consulted with the parties identifiable from the spreadsheets and informed them of his view that the details therein are neither commercially sensitive nor personal and should be released. As none of the parties with whom Mr. O'Donohoe consulted objected to the proposed release of the spreadsheets, I am satisfied that release of the details contained therein is in order.

Submissions

.

Findings

Whether Further Records Exist: Section 10(1)(a)

The Department contends that all existing records relevant to the request have been identified and released, with the exception of the two records dealt with separately below. This is essentially a claim that section 10(1)(a) of the FOI Act applies to the question of whether additional relevant records exist. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

In his preliminary view's letter, dated 29 June 2009, Mr. O'Donohoe explained that the Information Commissioner's role in cases such as this, is one of reviewing the decision of the public body together with the evidence available and deciding whether that decision was justified. This position has been approved by the High Court in Matthew Ryan & Kathleen Ryan and the Information Commissioner[2002 No. 18 MCA].

In his letter of 23 June 2008, the Applicant outlined that he believed that additional records should exist and he also sought copies of relevant documentation on the three files on the Department's register, which the Department has drawn the Applicant's attention to, but which it says cannot be located. He also sought copies of any plans which were prepared by the Irish Government for a compensation package to the Irish tuna fishermen.

With regard to the existence of additional records the Department has informed this Office that it has undertaken "several extensive trawls of the files to locate documents that would be relevant to the subject of this FOI request". It has further stated that "copies of all documents that could be found - except for those withheld for reasons of commercial sensitivity or legal privilege - have been provided to the requester". It further refers to a "substantial investment of staff time and resources has been made in trying to satisfy this request". The Department has also informed this Office that it invited the Applicant to inspect the material for himself at the Department's offices (I am taking it that this offer would apply to all documentation except that which the Department is claiming is exempt and which are dealt separately with in this decision).

With regard to the "missing" files which are referred to, it is noted that it was the Department that brought the Applicant's attention to this issue. While the Commissioner has always been concerned about record management practices in Departments in which files could potentially be missing, this Office notes that responsibility for the area has moved from the Department of Communications to the Department of Agriculture and that the area has also undergone a process of decentralisation. It also put forward by way of a possible explanation that "these files may have been amalgamated into the files we have examined and released already".

While obviously the position is not fully satisfactory, I am however satisfied with the assurances of the Department that it has undertaken comprehensive searches, has dealt with this case in an open and transparent manner and has released all records which it could locate, with the exception of the two records dealt with separately in this decision.

Following the Applicant's response to the aforementioned preliminary views letter, further enquiries were made by this Office concerning relevant records which may be held in the offices of the Permanent Representation in Brussels but no further records were located. In this regard the Department has advised this Office that it has contacted the Permanent Representation in Brussels and having conducted a search they have recently advised this Office that "they do not have any papers relating to this issue (i.e. the proposal to ban driftnets)".

The Information Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. I must point out that the Act does not provide for a right of access to records which ought to exist. It is clearly unsatisfactory to the Applicant that records held by a public body cannot be found. On the other hand, it is clear from the information set out above and in the preliminary views letters that the Department has gone to some considerable lengths to search for the records in question. I am satisfied that the Department has responded thoroughly and reasonably to the queries posed about its searches.

Having carefully considered the matter, I consider that all reasonable steps have been taken to ascertain the whereabouts of any additional records. Accordingly, I am satisfied that it is reasonable to conclude that no further records exist or can be found. I find, therefore, that the Department's decision was made in accordance with section 10(1)(a) of the Act.

Section 22(1)(a) and 46(1)(b)

Two records which have been identified by the Department as being relevant have been withheld on the basis of legal professional privilege. As part of his examination, Mr. O'Donohoe sought and received copies of the two records concerned so as to form a view as to whether they are rightfully either exempt or excluded under the FOI Act.

The first record, a memorandum from a Mr. Grace, Fisheries Attaché to the Department in Brussels, to a Ms. O'Brien, Legal Attache to the Permanent Representation of Ireland in Brussels, dated 15 September 1998, seeks advice legal advice on the wording of the draft Council Decision relating, inter alia, to flanking measures in connection with a ban on the use of drift nets. The reply from Ms. O'Brien to Mr. Grace, dated 17 September 1998, provides the requested legal advice on the issues raised by Mr. Grace.

It is noted that Ms. O'Brien was acting in her capacity as a member of staff of the Office of the Attorney General while based in the Permanent Representation in Brussels at the time of the correspondence in 1998. One of the functions of the post of legal attache is to provide legal advice to the various departmental officials on issues arising at meetings and on documents drafted by European Institutions.

It has previously been held by the Courts that the reviews of this Office are de novo and therefore additional sections can be considered by the Commissioner as part of a review. As Ms. O'Brien was acting in her capacity as a member of staff of the Attorney General's Office when the legal advice was sought and given by her, I am satisfied in the circumstances of this case that section 46(1)(b) should be considered by this Office as part of this review. Section 46(1)(b) provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record concerning the general administration of that Office. I am satisfied that the record described above, created by Ms. O'Brien and dated 17 September 1998, was created by the Office of the Attorney General and relates to matters other than the general administration of that Office and therefore I find that it is excluded from the scope of the FOI Act under section 46(1)(b).

In its effective decision, the Department contended that the two records were exempt in accordance with section 22(1)(a) of the FOI Act. Even though I have found that the letter from Ms. Grace is excluded from the Act, in the interest of completeness, I will consider the applicability of section 22(1)(a) to both of the records. Section 22(1)(a) provides that a request for access to a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her 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 preparation for contemplated or pending litigation.

In considering whether particular records would be exempt from production in a court, the Commissioner will bear in mind that legal professional privilege resides with the client and ignore the likelihood or otherwise of court proceedings taking place. The question comes down to whether the client would succeed in withholding the document on the ground of legal professional privilege in court proceedings. The Department has made no argument that the dominant purpose in preparing these records was the preparation for litigation and I do not find that the second limb of legal professional privilege would apply to the records at issue, having regard to their content and the circumstances of their creation.

I will now consider whether the two records satisfy the first limb referred to above. As outlined above, it is not necessary for legal proceedings to be contemplated in order for legal advice to be privileged. Having examined the records, I am satisfied that they constitute a request for legal advice and the provision of legal advice and not legal assistance as suggested by the Applicant. I am satisfied that Ms. O'Brien was an appropriately qualified legal professional at the time of her giving this advice. In view of this and her role as legal adviser to various government departments, including the Department of Communications, I believe, the records involved can be considered as confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. Accordingly, in my view, the Department is justified in its decision to claim that the records are exempt under section 22(1)(a) of the FOI Act. I find accordingly.

It should be noted that the FOI Act does not provide for a public interest override where records are found to be exempt under section 22 of the FOI Act.

The Department is aware that legal professional privilege resides with the client and that the Department has the right to waive this privilege if it so wishes. Thus, it would be open to the Department to release these records outside of the FOI Act. Nonetheless, it has confirmed to my Office that it has chosen not to waive privilege in this particular case.

It is the case, therefore, that even if section 46(1)(b) did not apply to the record created by Ms. O'Brien, I would have upheld the Department's argument that section 22(1)(a) would apply to it in any event.

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 Department in this case as set out above.

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 an appeal must be initiated not later than eight weeks from the date of this decision.

Seán Garvey

Senior Investigator

22 December 2009