Whether the Council was justified in its decision to refuse access to certain records relating to the Jackie Clarke Archive on the basis that the records are exempt from release under various sections of the FOI Act.

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

Background

On 25 December 2008, the applicants wrote to the Council seeking access to records relating to the Jackie Clarke Archive, itemised under 39 separate categories. The Council granted access to a total of 263 records but refused access to certain other records on the basis of sections 10(1)(a), 22, 23, 26 and 28 of the FOI Act in its decision of 28 January 2009. An additional 23 records were released by the Council in its internal review decision of 26 February 2009. The applicants wrote to this Office on 28 February 2009 seeking a review of the Council's decision.

Both the applicants and the Council provided a number of submissions during the course of this review which I consider should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the Council as well as those of the applicants (including those made to the Council) and to the contents of the records provided for the purposes of this review. I have also had regard to additional information and clarification provided by the Council at the request of this Office and to the provisions of the FOI Acts.

Scope of Review

The Council refused access to a number of the 39 itemised categories of records sought on the ground that no relevant records exist. During the course of the review, the applicants claimed that the Council released records in response to a subsequent FOI request which should have been released on foot of the request which is the subject of this review. They argued that this demonstrated the Council's selective approach to the original request and led them to question what other records might have been withheld. At the request of this Office, the applicants identified specific records which they felt should have been released in the first instance.

This Office sought to clarify the Council's position with regard to the records in question. The Council outlined its views as to why it did not consider the records to come within the scope of the original request. Having examined the records at issue, and having regard to the efforts which the Council took to respond to a quite detailed and comprehensive request, I have no reason to believe that the Council acted other than in good faith when processing the request and that I accept the Council's explanation as to why it did not include the records in question in the original request. In any event, as the records were subsequently released, they do not come within the scope of this review.

During the course of the review, the Council provided a schedule of all records it identified as coming within the scope of the request. For convenience, I have adopted the numbering system used by the Council in that schedule in referring to the records at issue. The Council initially refused access to records numbered 264 to 309. It subsequently confirmed that records 304 to 309 were refused in error as they had already been released on foot of a separate request. Furthermore, the applicants confirmed, by letter dated 18 March 2010, that they do not require access to records numbered 269 - 271 or records numbered 281 - 286. Therefore, this review is concerned with the question of whether the Council was justified in its decision to refuse access to records numbered 264 to 268, 272 to 280, and 287 to 303 and whether it was justified in deciding that no further relevant records exist.

Analysis and Findings

Section 22(1)(a) - Legal Professional Privilege
The Council refused access to records numbered 264 to 266, 272 to 280, and 287 to 303 on the ground that section 22(1)(a) of the FOI Act applies. That section provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the grounds of legal professional privilege. This provision does not require the consideration of the public interest.

As Ms McCulloch, Investigator, explained to the applicants in her letter dated 1 March 2010, the Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between a client and 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 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 or pending litigation.

The Commissioner, in considering whether a record would be exempt from production in a court on the grounds of legal professional privilege, must ignore whether or not proceedings took place and bear in mind that legal professional privilege resides with the client. She must simply consider whether the public body, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege.

Legal professional privilege also attaches to records where they are part of a continuum of correspondence arising from the original request for advice or preparation for litigation. Therefore, where records in and of themselves may not appear to be confidential, or do not specifically seek or provide legal advice, if this is part of ongoing communication which has occurred as a result of the client-lawyer exchange or in contemplation of litigation, those records will also be privileged.

The applicants have argued that there are ''numerous examples" of the Commissioner releasing legal documents. It is not the case that the Commissioner has directed release of records where she is satisfied that a claim of legal professional privilege would be upheld.

The applicants have also argued that legal professional privilege is not an "absolute exemption" and that this Office has discretion in the matter. They cited a decision of the UK Information Tribunal in support of their argument, namely Burgess v The Information Commissioner and Stafford Borough Council (Case No. EA/2006/0091). With respect, I believe that the applicants have misinterpreted the Tribunal's findings in that case. In any event, the Commissioner considered the concept of legal professional privilege in some detail in Case Number 050166 (available on this Office's website at www.oic.gov.ie). In that case, she noted the following:

... the LPP exemption contains no public interest balancing test and therefore there are no public interest considerations that I can take into consideration. However, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds...

The Commissioner concluded as follows:

I am satisfied on the basis of my research that, in order for me to find that LPP cannot apply, there must be sufficient evidence for me to believe that that the records at issue were created in furtherance of some illegal or improper activity. Only records created in preparation for, or furtherance of, such activity can be denied the protection afforded by the LPP exemption. In essence, it is not enough for me to find that sufficient evidence exists of illegal or improper activity, rather, I must be satisfied that the records in question were created for that purpose.

Having examined the records withheld by the Council pursuant to the provisions of section 22(1)(a) of the FOI Act, I am satisfied that they all fall into one or other of the two types of communication protected by legal professional privilege. I am also satisfied that the exceptions outlined by the Commissioner in Case No. 051066 as referred to above do not apply to the records at issue. I find, therefore, that the Council's decision to refuse access to certain records under section 22(1)(a) of the FOI Act was justified.

Section 28 - Personal Information
The Council refused access to record number 267 and 268 on the basis of section 28(1) of the FOI Act. Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information relating to a third party. Personal information is defined in section 2 of the FOI Act as including (a) information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) information held by the public body on the understanding that it would be treated as confidential. The FOI Act goes on to list a non-exhaustive list of 12 categories of information that is personal information. This list includes information relating to an individual's property, financial affairs, medical history, employment or employment history, age, sex, tax affairs, as well as the views or opinions of another person about the individual.

The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2), 28(5) or 28(6).

Section 28(2) provides that Section 28(1) does not apply in certain circumstances. Having examined the records in question I am satisfied that Section 28(2) is not relevant to the circumstances of this case. Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual. I do not consider that release of the information contained in the records at issue would benefit the individual(s) to whom it relates as envisaged by section 28(5)(b) of the FOI Act. This leaves the consideration of the public interest balancing test in section 28(5)(a).

Record 267
This record is a letter from a third party to the Council expressing their views and opinions about another individual. The letter does not refer to any of the applicants and therefore contains only personal information of third parties, persons other than the applicants. I note that Ms Dolan, Senior Investigator, wrote to the applicants on 1 March 2010 outlining her view that she saw no public interest in releasing the record and that the applicants made no further comment on this record in subsequent submissions. I am aware of no public interest in releasing this record which would, on balance, outweigh the right to privacy of the individuals to whom the information in the records relates. Accordingly, I find that the Council was justified in deciding to refuse access to record 267.

Record 268
Record 268 is an appendix to the agreement of 4 April 2007 and contains a list of property. The Council refused access to this record on the basis that it contains personal information of the widow of the late Jackie Clarke. Having regard to the definition of personal information as set out above, I am satisfied that record 268 contains personal information relating to the individual in question, in so far as it contains details of property which remains in her ownership. On the question of where the balance of the public interest lies, there are a number of public interest factors which favour the release of record 268, including

• the public interest in individuals being able to understand the reasons for courses of action taken by a public body;
• the public interest in ensuring the accountability for the use of public funds, and
• the public interest in members of the public being able to exercise their access rights under the FOI Act

Weighing against release in the consideration of the public interest test in section 28(5)(a), on the other hand, is the very strong public interest in protecting privacy rights, which is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

Having examined the record, it is not clear to me how its release would serve, to any significant extent, to enhance the public interest factors favouring release to the extent that the strong public interest in protecting the privacy rights of the individual to whom the information relates would be outweighed. Accordingly, I find that the Council was justified in refusing access to record number 268.

Section 10(1)(a)
The Council claimed that all relevant records coming within the scope of the FOI request were considered for release and it relied on section 10(1)(a) of the FOI Act to refuse access to any futher records. 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."

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases 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.).

I should also explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to existing records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist.

The Council has provided details of the searches it says it carried out in an effort to locate the records. According to the Council, searches were carried out by its staff including the finance staff, library staff including the County Librarian, the County Manager's Office and the Council's legal adviser. Handwritten notes of the meetings referred to were either not made or, if made, were not retained by those present. Additional records were located in the course of the internal review and these are dealt with in that decision.

The Council contends that no further records exist and it has informed this Office that "it was a very small core group of Council staff who had any knowledge or dealings with the Jackie Clarke archive project." It went on to say that when it refused access to these records "it did so after full consultation with the person or persons dealing with the item involved, and in the sure and certain knowledge that no such records existed." The Council also said that no record in respect the Jackie Clarke library has ever been destroyed by the Council. In summation the Council contends that it has released all records in its possession which were requested by the applicants, with the exception of records that were exempt from release under the terms of the FOI Act.

With one exception which I will address below, the applicants, while claiming that the Council's response to many of the 39 items included in the original FOI request was incomplete, did not provide further evidence to support their view that certain records should exist. I note, for example, that the applicants drew attention to the absence of notes of certain meetings. However, it is the Council's position that no such notes were retained, and I have no reason to question the Council's assertion on this point.

One of the records released under this request was an escrow document dated 19 June 2007 which made reference to an agreement of the same date. The applicants enquired as to why the agreement referred to was not released. When queried, the Council explained that the agreement referenced was the final agreement of 4 April 2007 and that the date of 19 June 2007 was simply an error. I accept the Council's explanation on this point.

Based on the searches undertaken by the Council as outlined, I am satisfied that the Council was justified in deciding that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I find, therefore, that the Council was justified in relying on section 10(1)(a) to refuse access to any further records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

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. Any such 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.

Stephen Rafferty
Senior Investigator
28 December 2012