The Senior Investigator annulled the Council's decision and found that the records should be released.

Case Summary

Whether the Council is justified in its decision to withhold certain records on various grounds including sections 22, 23 and 26 of the FOI Act.

Date of Decision: 31.03.2010

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

Background:

On 21 April 2009, the Applicant made an FOI request to the Council seeking copies of records relating to him and to his applications for housing. In its decision of 18 May 2009, the Council agreed to release all records with the exception of three which they contend were exempt from release in accordance section 23(1)(a)(i)(ii) and (iii) and section 26 of the FOI Act, and also by section 15 of the Housing (Miscellaneous Provisions) Act, 1997. The Council identified the three records to the applicant as "Garda Reports obtained under Housing (Miscellaneous Provisions Act) 1997 S.15".

On 18 June 2009, the Applicant requested an internal review of the Council's decision. On 22 June 2009, the Council, in that internal review decision, upheld its original decision. On 23 September 2009, the Applicant sought a review by the Commissioner of the Council's decisions. In correspondence with this Office the Council also invoked section 23(1)(iv) in withholding the relevant records. During this review it emerged that an additional record had been withheld in accordance with section 22 of the Act and this will also be considered in this review.

On 23 February 2010, Mr. Colin Stokes, Investigator in this Office, wrote to both parties and also to the Commissioner of the Gardai Síochána outlining his preliminary view of the issues in this case. Both the Gardai and the Council responded to this preliminary view. In their submission the Gardai expressed agreement with the preliminary view while the Council accepted our view in relation to section 26 but reiterated its view that section 23, and in particular section 23 (1)(a)(iv) applied. I have therefore decided that it is now appropriate to make a formal binding decision on the issue.

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

Scope

This decision is confined to the question as to whether the Council is correct in withholding the four records described above. I would like to make the point that while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where there is disagreement with a decision I might make. Having said that, I do not see any difficulty in stating that the three records consist of Garda reports provided to the Council containing details of the applicant's past, and Garda opinion on matters relevant to the Council's consideration of the Applicant's housing application.

In arriving at my decision I have taken account of the submissions made by both parties. I will, for the sake of completeness, revisit some of the facts and issues as laid out by Mr. Stokes in his preliminary view.

Submissions

.

Findings

Sections 23(1)(a)(i) - (iv)

The Council in withholding three of the records at issue quoted the exemptions provided for by section 23(1)(a)(i) - (iv). These sections provide that:-

"(1) A head may refuse to grant a request under section 7 if access to the record concerned could...reasonably be expected to -

(a) prejudice or impair

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

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

(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property,

and

(iv) the fairness of criminal proceedings in a court, or

I feel it opportune at this stage to quote section 34(12)(b) of the FOI Act, which provides that-

"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."

As Mr. Stokes pointed out in his preliminary view, in its original decision and its subsequent internal review the Council did not give any reasons to support its decision to withhold the relevant records. However, when invited to do so by this Office, it made a submission on 12 November 2009, in which it stated that any breach of the confidentiality it claims for these records -

• could prejudice and impair its ability to exercise its responsibility to ensure the health and safety of its tenants and other persons, and
• might be prejudicial to an anticipated High Court case.

In its most recent submission the Council cited the fact that there are High Court proceedings pending between the Gardai and the Applicant as justification for invoking section 23(1)(a)(iv).

Taken together, section 23(1)(a)(i) - (iv) provide for exemption of records the release of which could reasonably be expected to negatively effect law enforcement, the methods used to ensure such law enforcement, the fairness of criminal proceedings, or to endanger a person's life or safety. However, section 23 is not a blanket exemption and it is necessary to show the harms that might result from disclosure of these records. Having examined the records involved, I am satisfied that they would not reveal anything to the Applicant that he does not already know nor does it reveal anything of the Council's duties, methods and responsibilities that is not already common knowledge or that might be of assistance to any potential future lawbreakers. Therefore I do not see how release of the reports to the person to whom they relate could, in the circumstances of this case, negatively impact on the Council's responsibilities to its tenants and others. In relation to the Court proceedings, the relevant test is "prejudice to the fairness" of Court proceedings and the Council has not provided any evidence as to how release of the report in this case could have this effect. I am therefore satisfied that it has not been demonstrated that release of the records in this case would lead to the consequences provided for in sections 23(1)(a)(i) - (iv).

Accordingly, I do not accept that a case has been made to justify exemption of the records under these sections and I find that the exemptions do not apply.

Section 26

The Council initially contended that the records are exempt under section 26 because of an understanding of confidence between it and An Garda Síochána and also because the Garda are not subject to the FOI Acts. The Council's contention was that the records are exempt under section 26(1)(a) and it also quoted 26(1)(b). As both the Council and the Gardaí accepted Mr. Stokes's preliminary view that this provision does not apply, I do not consider it necessary to consider that section further in this review.

However, I believe it is significant that the Gardaí accepted Mr. Stokes's preliminary views on this issue. This Office has dealt with many cases where public bodies have argued that any information received from An Garda Síochána is confidential and therefore exempt from release under FOI. In my view, the fact that the Gardaí accepted in this case that the records it provided were not confidential reinforces previous decisions of the Information Commissioner in this area (for example case reference number 99449 on this Office's website www.oic.gov.ie). These decisions found that the confidentiality or otherwise of Garda records depends on their content and not on the fact they were sourced from An Garda Síochána.

Section 22

Section 22(1)(a) provides for the exemption of records that:-

"(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,

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

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

• communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
• communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

Having examined the record, I am satisfied that it is a request for legal advice relevant to a possible court case. Accordingly, I am satisfied that it attracts the first strand of legal privilege and I find that it is exempt from release under section 22(1)(a) of the FOI Act.

Section 15 of the Housing (Miscellaneous Provisions) Act, 1997

The Council, in seeking to withhold the records, also quoted section 15 of the Housing (Miscellaneous Provisions) Act, 1997. I am taking it that in doing so the Council was invoking section 32 of the FOI Act.

Section 32

Section 32(1) provides for the withholding of records where-

(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or

(b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

Therefore, section 32 provides that any non-disclosure provision in legislation shall supersede the FOI Act unless such a provision is listed in column (3) of the Third Schedule that Act. As section 15 of the Housing (Miscellaneous Provisions) Act, 1997, is not listed in that Schedule, I accept that any provisions in section 15 preventing release of records would supersede the provisions of the FOI Act. I have examined section 15 and am satisfied that it authorises the Council to make relevant enquiries of various named public bodies in relation to persons seeking housing. However, I am also satisfied that there is nothing in its provisions preventing release of records requested under FOI that are relevant to such enquiries. Accordingly, I find that the records are not exempt under 32 of the FOI Act by way of section 15 of the Housing (Miscellaneous Provisions) Act, 1997.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Council and I find that the records should 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 an appeal must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

31 March 2010