The Commissioner's authorised official affirmed the Council's position that sections 10(1)(a) and 22(1)(a) of the FOI Act were applicable in this case.

Case Summary

Whether the Council is justified in refusing to release further records to the Applicant on the grounds that it has taken reasonable steps to look for such records and that section 10(1)(a) of the FOI Act applies accordingly; whether particular records attract legal professional privilege and are thus exempt under section 22(1)(a).

Date of Decision: 20.05.2010

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

Background:

The Applicant's original request, dated 20 April 2009, sought "all records associated with Waste Management Act Section 39 and Section 55 issued to [him]", between 2006 and 2009, as held by the Environment and Law Sections of the Council. In its decision of 28 May 2009, the Council released 51 records in full and another in part (on the grounds that it contained the personal information of a third party). On 2 June 2009, the Applicant sought an internal review of the Council's decision to withhold that third party personal information, and also said that two particular records were missing from those released. In its internal review decision of 30 June 2009, the Council upheld its original decision regarding the third party personal information. It also said it had conducted a further search for relevant records, on foot of which 85 additional records had been located in its Environment Section (including the two records referred to in the internal review application). The applicant sought a review by this Office of the Council's decision on 20 August 2009, particularly noting the lack of records he contended should exist having regard to record 64 of those released to him.

During the course of this Office's review, it transpired that a number of records were held by the Council's Legal Section that had not been considered for release to the Applicant. The Council claimed it had understood that records attracting legal professional privilege were automatically rendered outside the scope of the FOI Act. It would appear that, thus, it did not consider that it should tell the applicant that such records existed and were not being released to him.

Ms Anne Moran, Investigator on this Office, advised the Council that it was mistaken in its belief, and that records attracting legal professional privilege are subject to the terms of the FOI Act. She also advised that the fact that particular records are held by the Council's Legal Section did not automatically render them privileged. The Council subsequently examined the records concerned and released the majority of the records to the applicant. However, it withheld 15 records on the grounds that they attract legal professional privilege.

Further to comments received from the Applicant on foot of Ms Moran's preliminary views letter of 30 March 2010, the Council has agreed to release a copy of a summons and Statutory Declaration of Service, a recommendation to prosecute and copies of 18 photographs (all of which the Council had said were already provided to the Applicant's solicitor at a court hearing) as well as a copy of a CD recording of a discussion on a local radio station programme (a written transcript of which I understand has already been released to the applicant). Accordingly, I need not consider these records further.

In carrying out my review, I have had regard to the correspondence between the Applicant and the Council of 20 April 2009, 28 May 2009, 2 June 2009 and 30 June 2009; to records 14, 63 and 64 of those released by the Council at internal review and to copies of the records held by the Legal Section, including the 15 that have been withheld from the Applicant (all of which were provided to this Office for the purposes of this review); to details of various contacts between Ms Moran and the Council in relation to this case; to the letter sent to the applicant by Ms Anne Moran, Investigator in this Office, dated 30 March 2010; and to the applicant's response of 1 April 2010. I have also had regard to the provisions of the FOI Act.

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

Scope of the Review

In seeking a review by the Commissioner, the Applicant asked that the Commissioner, in particular, "... [pay] particular attention to page 64 where there is no follow up letter from [Council Official A] when she said she would double check with council workers". The Council responded that the only relevant document had been released (record 63), and effectively refused further such records on the grounds that they do not exist and that section 10(1)(a) of the FOI Act applied accordingly. Ms Moran's letter of 30 March 2010 explained that this review would consider whether the Council's position in this regard was reasonable, and furthermore whether it had taken all reasonable steps to locate any further records of relevance to the request, section 10(1)(a) being potentially relevant in both cases.

Ms Moran explained the provisions of section 10(1)(a) and outlined the nature of a review by this Office in a case involving that provision. She explained that it is not normally the Commissioner's function to search for records (as accepted by the High Court) and that the review would consider details of the steps taken by the Council to search for further records of relevance to the request, along with miscellaneous other evidence about the Council's record management practices on the basis of which it contends that those searches were reasonable. She also explained that it is open to the Commissioner to find a public body to have conducted reasonable searches even where records known to exist cannot be found, and that it would be unlikely that the Commissioner would require the Council to search indefinitely for further records of relevance to the request.

Ms Moran also confirmed that the review would consider of whether the Applicant was entitled to access to any further records, located on foot of the various searches, that the Council might refuse to release.

Finally, she also explained that this Office could not review any decision by the Council to withhold personal information of a third party, because the applicant had not paid the required statutory fee. I concur with Ms Moran's view in this regard and have proceeded on this basis. I also note that the applicant did not take issue with this approach.  

Submissions

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Findings

Section 10(1)(a)

Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist have been reasonable.

Further Records of Follow-up with [Council Official A]?

In Ms Moran's letter to the Applicant of 30 March 2010, she said it seemed to her that record 64 recorded a telephone conversation between [Council Official B] and [Council Official A] on 15 January 2007, in which [Council Official A] agreed to "doublecheck" with the Council foreman that afternoon regarding allegations that Council waste was being deposited on the Applicant's lands. Ms Moran said she considered record 63 - a memo from [Council Official A] to [Council Official B], dated 15 January 2007, in which [Council Official A] outlined the outcome of enquiries made of the foreman and the "GSS" (an abbreviation used in the record itself ) - to be the follow up to that telephone conversation. I agree with Ms Moran's view in this regard. As I note that the record has been released to the applicant, I consider that there is nothing further for me to review in respect of this aspect of the application.

Ms Moran also noted that record 64 detailed a telephone conversation between [Council Official B] and [Council Official C] on 19 January 2007, in which [Council Official C] undertook to contact [Council Official A], who was apparently not in the office that day. Ms Moran noted that record 64 did not refer to [Council Official C] having ever called [Council Official B] about the outcome of any conversation he had with [Council Official A] after 19 January 2007.

In so far as the application to this Office might have intended to refer to the lack of records of follow up with [Council Official A] after 19 January 2007, I would accept that record 63 cannot be the record concerned. However, I note that Ms Moran explained to the Applicant that it was the Council's position that there existed no records of any further follow up by [Council Official B] or [Council Official C]with [Council Official A] after 19 January 2007, as [Council Official B] had confirmed to Ms Moran that [Council Official C] had never called him back and that he had not taken the matter further. Ms Moran said that she had no reason to dispute the Council's statement in this regard. I agree with Ms Moran's views. It follows that I accept that there exists no records of further follow up with [Council Official A] after 19 January 2007; that I would accept that section 10(1)(a) applies to such further records; and that I would find accordingly in so far as this might have been contended in the application for review.

Searches for Further Records

In order to assess the adequacy of the Council's searches for records of relevance to the request, Ms Moran sought details of the searches that the Council had said were conducted by its Complaints Desk, Environmental Enforcement Unit and Prosecutions Sections (all in the Environment Directorate), and by its Law Section. She noted that the fact that, at this stage, there is no evidence to suggest that particular records were missing is relevant to that assessment.

Complaints Desk

The Council explained that it cannot process any complaints without inputting details of the alleged polluter and location into the Complaints Desk database, which allocates a reference number to the complaint under which the relevant paper records are stored. Thus, the database must be examined to identify the reference number appropriate to a particular complaint. The Council provided this Office with a spreadsheet showing the results of various searches it conducted of the database for the years 2006-2009, using variations of the forenames and surnames of the Applicant and his sister, and address details. Ms Moran noted that the spreadsheet identified two complaints registered against the Applicant's address that referred to his sister as polluter rather than himself, the relevant records of which she understood had been released to the Applicant.

I agree with Ms Moran's view that, in order to establish if further records relating to complaints made regarding the Applicant were inadvertently placed on the wrong file, it would be necessary for the Council to examine all Complaints Desk files for the years 2006-2009. However, I do not consider this to be a reasonable step to require the Council to take, particularly where no missing records can at this stage be identified. I also agree with Ms Moran's view that the Complaints Desk searches as conducted to date would be sufficient to locate any electronic or complaint file relating to any individual and thus, have been reasonable. I note that no argument was made to the contrary by the applicant. Under the circumstances, I find that section 10(1)(a) applies.

Enforcement Unit

Ms Moran explained to the Applicant that, according to the Council, any complaint that cannot be resolved by the Complaints Desk is assigned to the Environmental Enforcement Unit, which opens its own file under the name of the alleged polluter, which is then stored in alphabetical order. She said that, while the Council's initial searches of the Environment Unit records found a file concerning the Applicant where it should have been stored, it was discovered at internal review stage that a second volume of relevant records had subsequently been placed alongside the file originally located. I understand that the second file contained additional records and copies of some records on the file originally found, and has now been fully released to the applicant. The Council submits that while it then examined the names of all files held in the Enforcement Unit and made enquiries of its staff as to whether they hold further files or records relating to the Applicant, no further relevant files or records were found.

The Council is not able to explain where the second volume of files was held before it was placed alongside the file originally found. I can appreciate why the Applicant would be dissatisfied with this and with the Council's initial failure to find all relevant records as held by the Enforcement Unit. For its part, the Council acknowledges that the discovery of the second volume highlighted weaknesses in its current system of filing records, which it says it has taken steps to rectify. However, such matters are not relevant to the review at hand, which is concerned with the issue of access to records rather than the procedures applied by the Council when dealing with FOI matters in general.

Returning to the issue of searches for additional records that might have been misfiled, I agree with Ms Moran's view that the only further steps the Council could take is to search through all records held by the Enforcement Unit. Again, where there is no evidence to suggest that particular records exist and have not been found, I would not consider it reasonable to expect the Council to take such steps. It follows that I concur with Ms Moran's view that the searches conducted to date in the Enforcement Unit are reasonable, with which I note that the Applicant has not taken issue. I find that section 10(1)(a) applies, accordingly.

Prosecutions Section

The Council submits that any case that cannot be resolved without legal action is referred to the Prosecutions Section, which instructs the Council's Legal Department to take proceedings and supplies any necessary support.

Ms Moran advised the applicant of the Council's submission that it records details of prosecutions taken place on foot of section 55 notices on a database under a unique number. She outlined that the Council had said it had searched the database concerned using forenames, surnames and address details, which led to the identification of an entry concerning the Applicant under the number assigned to the section 55 notice issued to him in 2006. The Council submits that the relevant paper files were stored in accordance with the reference number concerned, and located accordingly.

Ms Moran also advised the Applicant that the Council had said it holds a separate database and files relating to prosecutions under section 39 of the Waste Management Acts. She outlined the Council's submission that its searches of this database (again using forenames, surnames and address details) located an entry relating to the Council's section 39 prosecution of the Applicant. She also outlined that a search of the associated files (which, according to the Council, are stored alphabetically) located records in relation to the prosecution concerned.

I concur with Ms Moran's view that the only further searches that could be conducted for additional such records would be searches of all section 55 files held in the Prosecutions Sections for the years 2006-2009, or of all section 39 files of persons with names similar to that of the Applicant. I do not consider this to be a reasonable step to expect the Council to take particularly when no such records are contended to be missing. Thus, I concur with Ms Moran's view that the searches conducted by the Council of the records held in its Prosecutions Section have been reasonable and that section 10(1)(a) applies. Again, I note that the Applicant has not disputed this view. I find accordingly.

Law Section

Ms Moran explained to the Applicant her understanding that this Section tracks its files on an Excel-based filing system, which assigns a new reference number to each file when opened. She outlined that the Council's searches of this database had identified two files concerning the Applicant, which it then retrieved from its offsite storage.

As noted earlier, the Council ultimately decided to release all of these records, bar 15 which it contends attract legal professional privilege. I will deal with these records separately.

In response to Ms Moran's preliminary views, the Applicant stated that the Council Solicitor had "withheld a report from [his] solicitor and the judge on day of court where [a named Council Official ] on Aug 31st visited site and found all sections 'substantially complied with'." The Council responded that "the Solicitor who attended court at the hearing did not withheld (sic) any documents in court ... "[emphasis added by the Council]. It provided this Office with a copy of the only record on its files that refers to a site visit by the named official on 31 August (2007, which is submitted to be the only year in which the Council conducted a visit on 31 August). The record concerned is record 14 (described in the schedule as "Site Visit Notes"), which has been released to the Applicant.

Ms Moran suggested to the Council that it would be reasonable to expect that a memo or report of some sort would have been compiled on foot of said "Site Visit Notes", which she noted did not seem to be the case. The Council says that, if necessary, the Courts require contemporaneous notes rather than subsequently prepared reports, and for this reason it does not generally draw up reports based on notes, nor did it do so in this case. I have no reason to doubt the Council's statement in this regard.

Ms Moran also noted that the records showing the Council's costs as incurred in its prosecution of the cases taken against the Applicant did not refer to a visit on 31 August 2007 (or 31 August of any year). The Council states that it generally does not seek costs for all visits to sites, some of which may have been conducted on the same day as other inspections and in which case it would be difficult to quantify the costs for any such specific visit. Again, I have no reason to doubt this statement.

In summary, it seems that the only record that the Council holds pertaining to a site visit of 31 August 2007 has been released. Notwithstanding the apparent dispute between the Council and the Applicant as to subsequent events in court, it seems that it holds no further records of the site inspection concerned. I have no reason to question the Council further in relation to this issue and thus, I find section 10(1)(a) to be applicable.

Legal Professional Privilege

Section 22(1)(a) of the FOI Act provides for the withholding of a record under the FOI Act where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Information Commissioner accepts that 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/pending litigation.

Ms Moran outlined to the applicant that the 15 withheld records concern the various enforcement proceedings taken against him by the Council. I concur with Ms Moran's view the Applicant's non-payment of the statutory application fee does not preclude me from reviewing whether or not he is entitled to access to these records.

Ms Moran explained that 13 of the records concerned the Council's 2007 prosecution of the Applicant, of which nine were created by the Council with the dominant purpose of preparation for that litigation, and of which the remaining four were communications between the Council and its internal professional legal adviser for the purpose of seeking and giving legal advice. She also explained that two records had been withheld by the Council in relation to its 2006 prosecution of the Applicant, of which one was a request by the Council to its legal advisor for legal advice. She said that the other record was an undated handwritten note that, having regard to various details therein, she was satisfied had been created by the Council with the dominant purpose of preparation for the litigation concerned. She said she thus considered the records to have been properly withheld by the Council in accordance with section 22(1)(a) of the FOI Act. I concur with her views in this regard and find accordingly. As explained by Ms Moran to the Applicant, the FOI Act does not require that the public interest in the release of records to which section 22(1)(a) applies be considered.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's position that it has conducted reasonable searches for records of relevance to the request, in which case section 10(1)(a) applies, and that 15 records as held by its Legal Section should be withheld under section 22(1)(a) of the FOI Act.

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Seán Garvey

Senior Investigator

20 May 2010