The Commissioner's authorised official affirmed the OPW's position that it has taken all reasonable steps to look for further such records, and found section 10(1)(a) of the FOI Act to apply accordingly.

Case Summary

Whether the OPW is justified in refusing further records relevant to the applicant's request for various paper and electronic records concerning the transfer of Altamont Garden to State ownership (which will be referred to in this decision as "the transaction") from 1996 to the date of the request, 21 October 2008.

Date of Decision: 15.04.2011

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

Background:

Further to the request as set out above, the OPW's decision of 11 December 2008 released a number of records to the applicant. The applicant wrote to the OPW on 31 December 2008, submitting that certain specified records had not been provided to him. Although the letter clearly referred to the earlier FOI request, and included the relevant fee, the OPW did not consider this to be a request for an internal review of its earlier decision. I disagree with its view and consider the letter to be an application for an internal review. As the OPW did not respond to the application of 31 December 2008, it effectively upheld its earlier decision. On 11 February 2009, the applicant sought a review by the Commissioner.

In the course of this Office's review, the OPW located, and released to the applicant, a number of further records relevant to the original request, including a number of emails (it also released a small number of records that had previously been withheld). Its position is that, despite having searched, it cannot locate those records specified in the applicant's internal review application (or indeed, any further records of relevance to the request).

In carrying out my review, I have had regard to various correspondence between Ms Anne Moran, Investigator in this Office and the applicant; to various correspondence between Ms Moran and the OPW, and to copies of the records considered by the OPW to be relevant to the request (which were provided to this Office for the purposes of the Commissioner's review); and 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

Ms Moran's letter to the applicant of 2 February 2011 told him that the scope of this Office's review cannot go beyond those elements of an initial decision of which an internal review had been sought. She told him that, thus, this Office could only review the OPW's position on those records the withholding of which had been disputed in the internal review application. The records stated by the applicant not to have been included were records of meetings held on 15 August 1996, 15 April 1998 and 20 January 1999; records of contacts between two specified OPW staff members; records of meetings between the OPW & a named person (not an OPW staff member); correspondence with that named person and/or his solicitors; further internal OPW correspondence; and further correspondence between OPW and any other third party. The internal review application also stated that a particular firm of solicitors had consented to the release of all correspondence it sent to the Chief State Solicitors Office (the CSSO), including the withheld record 128 (page no 30).

As advised by Ms Moran to the applicant, the first element of the review will consider whether it is reasonable for the OPW to contend that the listed records cannot be located, that it has taken adequate steps to look for such records, and that section 10(1)(a) applies, accordingly. Ms Moran advised the applicant that, however, should the OPW refuse to release any such records that it might find in the course of the review, this Office will consider whether or not the OPW is in accordance with the FOI Act in doing so. Ms Moran's correspondence with the applicant also outlined the nature of the Commissioner's review in a case involving section 10(1)(a). I see no reason to repeat the details in this decision. However, I note that the applicant has been made aware that it is open to the Commissioner to find a public body has conducted reasonable searches, even if records that are known to exist cannot be found, and that the Commissioner is unlikely to require the OPW to continue searching indefinitely for further records of relevance to the request.

Ms Moran also explained that the second element of the Commissioner's review would be confined to assessing whether or not the OPW is in accordance with the provisions of the FOI Act in refusing to release those records over which legal professional privilege had, according to the applicant, been waived.

Submissions

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Findings

Searches for Records

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 (but cannot be found) have been reasonable.

As noted earlier, this review must be confined to the reasonableness of the OPW's searches for the records specified by the internal review application. However, aside from records of specific meetings, a wide range of records is encompassed by that application. Thus, I consider it appropriate for Ms Moran to have examined the OPW's searches for records of relevance to the request in a broad sense.

I note that Ms Moran's letters to the applicant of 8 and 22 March and 11 April 2011 set out the searches the OPW has said it conducted. For the sake of brevity, I do not intend to outline the details concerned, or to refer Ms Moran's responses to the queries raised by the applicant in the course of the review. However, I note that Ms Moran identified comments in a number of records located to date, which lent support to the argument that at least some of records specified in the internal review application should or could exist (and indeed, other records concerning the transaction).

The OPW submits that it has searched all files it holds relating to the transaction. (In this regard, I understand that a "Properties General" file that had previously been found to contain one record of relevance to the request has been mislaid by the OPW, during the move of Historic Properties Division from Ely Lane to Dublin Castle at the end of 2009. In fact, I note that it is still unable to locate the missing file, and other files that also went missing during this move.) The OPW states that it also requested all staff involved in the transaction to confirm whether or not they hold relevant records. It is, thus, the OPW's position that it cannot locate additional records, whether those identified by the applicant or by Ms Moran.

While the OPW has suggested that some records may not have been retained in the first place or otherwise do not exist at this point, as noted above there is evidence that at least some of the records should or could exist. However, Ms Moran put her view to the applicant that it was not possible for the OPW to definitively state whether or not further records of relevance to the request exist and that, under such circumstances, this Office could only look at whether or not the OPW's searches for records that might be relevant to the request have been reasonable. She told the applicant that she considered the steps taken by the OPW to have been reasonable, and thus that section 10(1)(a) would apply.

I can appreciate the applicant's disappointment that additional records as specified in his internal review application cannot be found. However, I concur with Ms Moran's view as set out in the previous paragraph and find that section 10(1)(a) applies accordingly. In finding this, I am conscious of the fact that the "Properties General" remains missing. However, I note Ms Moran's view that the amount of resources that would be required to search for the file must be balanced against the likelihood of it being found to hold additional records of relevance to the request. Ms Moran noted that the initial search of the Properties General file had located only one record relating to the transaction, a copy of which was already located on File P78/2 in any event, indicating to her that the file would be unlikely to hold any further records of relevance to the request. I concur with her view that accordingly it would not be reasonable to expect the OPW to conduct exhaustive searches for this file. I wish to make clear, however, that this Office expects the OPW to attempt to locate all the files that were mislaid in the office move, as and when resources allow.

It must be borne in mind that current standards of record keeping would not have been in place in the early to mid-1990s, and that this may be a factor in the OPW's inability to find at least some of the records specified by the internal review application. Be that as it may, I note that certain records that had been located by the OPW and stated by it to be irrelevant to the request were considered by Ms Moran to actually be relevant. It is not clear to me if this arose from the poor scheduling of the records, or from the OPW's misunderstanding of the request, or for some other reason. I also note that, even in 2011, the OPW has been stated to have no formal policy for the retention of email contact on relevant files. However, I am satisfied that Ms Moran has taken reasonable steps to ensure that all records of relevance to the request that have been located have been considered for release by the OPW.

Other Withheld Records

In her letter to the applicant of 11 April 2011, Ms Moran outlined why she considered the final two paragraphs of record 52 of the emails released in the course of this Office's review (referred to by Ms Moran as the "electronic records") to be exempt under section 21(1)(c) of the FOI Act.

Section 21(1)(c) of the FOI Act provides for the refusal of a record where its release could "reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body". If a record is found to be exempt under section 21(1)(c), consideration must then be given to the question of whether the public interest in its release outweighs the public interest in the record being withheld (section 21(2) refers). 

Ms Moran said that she considered that this record could outline plans, criteria and instructions that might be used or followed by the OPW in negotiations it may directly enter into with the applicant. While there is a public interest in the applicant knowing the details concerned, there is also a public interest in the OPW being able to protect its negotiating position until such negotiations have concluded. She thus considered the withheld details to be exempt under section 21(1)(c) of the FOI Act. I note that the applicant did not take issue with Ms Moran's view, which I have no reason to dispute. I find accordingly.

Section 22(1)(a) and Waiver

I note that, although not required to further to the scope of this review but in an effort to clarify matters for the applicant, Ms Moran's correspondence with him has listed those records that the OPW considered to attract legal professional privilege (such records being exempt from release under section 22(1)(a) of the FOI Act, which 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"). Her letters also listed those records that she considered to be outside the scope of the FOI Act further to section 46 (further to which records of the Chief State Solicitor's Office - an Office of the Attorney General - are outside the scope of the FOI Act).

I do not intend to refer further to such records. As pointed out to the applicant by Ms Moran, the applicant had himself indicated to this Office on 27 May 2009 that such records could be excluded from the review and, in any event, his internal review application did not dispute the OPW's application of legal professional privilege to any of the records at issue, with the exception of the correspondence issued to the CSSO by the named firm of solicitors.

On said issue of waiver, Ms Moran advised the applicant that the OPW had stated it had sought consent from the firm to release only certain correspondence, as set out in its schedule to the decision on his request. She said that thus it was the OPW's position that privilege had been waived by the named solicitor only in relation to such records. The OPW has stated that all such records had subsequently been released.

Ms Moran's correspondence with the applicant described the contents of a letter received by the OPW from the named firm, dated 18 November 2008, which she did not consider to give any general or wide-ranging waiver of privilege in respect of all correspondence it issued (or received) in relation to the transaction. It was Ms Moran's view that the Commissioner's review must proceed accordingly, and that it must accept that legal professional privilege still applies to the remaining correspondence issued by that firm to the CSSO (including the record specified by the internal review application).

In response to a query from the applicant, Ms Moran reiterated that she had described the nature of the only waiver on file and that she did not consider it to be open to the OPW, or this Office, to take a broader interpretation thereof. She also said that she did not consider it to be the OPW's responsibility to press the firm of solicitors on this issue, for the reason that legal professional privilege rests with the person claiming it. She suggested that if the firm was willing to waive privilege over further records it issued to the OPW or CSSO, then the applicant could request it to provide such a written waiver. The applicant later confirmed that he would not be submitting any such documentation.

I concur with Ms Moran's view that this Office has no reason to take a broader view of the waiver given in this case, and I note that all records covered by it have been released. I concur with Ms Moran's view as to the retention of privilege in relation to the remaining correspondence issued by the firm, as held on file. As there is no public interest to be considered in relation to such records, I thus find them to be exempt under section 22(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the OPW's refusal to release further records of relevance to the request.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. 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

15 April 2011