Whether the Department was justified in its decision to refuse access to records relating to the applicant on the basis that the records are exempt from release under several sections of the FOI Act including sections 21, 22, 23, 24, 26 and 28.

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

Background

The applicant made an FOI request on 5 February 2009 seeking access to the following records (1) communications by the Ambassador, in or around November or December 2008 making accusations against and/or calling for disciplinary action to be taken against the applicant and (2) communications from March 2006 originating in Ankara or Dublin that make accusations or call for disciplinary action of any kind against the applicant. The applicant also requested the full circulation list of these communications.

The Department issued its decision on 6 March 2009 refusing access to the records on the basis of sections 22(1)(a), 23(1)(a)(iv) and 21(1) of the FOI Act. In its internal review decision the Department released two records numbered 20 and 28 and provided a schedule citing additional exemptions (sections 21(1)(b), 21(1)(c), 24(2)(c) and 26(1)(a)) which it said applied to refuse access to the remaining records. The applicant wrote to this Office on 13 April 2009 seeking a review of the Department's decision.

During the course of this review, the Department released portions of records following a request from the applicant under the Data Protection Acts. I note that Ms Alison McCulloch, Investigator in this Office outlined her preliminary views to the Department and to the applicant, that a response was received from the Department and that no response was received from the applicant. I consider that the review should now be brought to a close by the issue of a formal binding decision.

For the purposes of this review, I will use the record numbering system adopted by the Department.

In carrying out my review, I have had regard to the application from the applicant, the various submissions of the Department, the correspondence between the applicant and the Department and the provisions of the FOI Acts. I have also had regard to the contents of the records at issue.

Scope of the Review

A number of the records identified on the schedule prepared by the Department do not make allegations about the applicant or call for disciplinary action to be taken against her. Neither do they contain "circulation lists" relating to communications of any such allegations or calls for disciplinary action and therefore do not come within the scope of this review. These records are numbered 1 (pages 1 -15 & 18 - 24), 2, 7, 9, 10, 13, 20, 21, 22, 23, 24, 30, 32, 33 (page 1), 34 and 35. Several records and parts of records were released to the applicant by the Department on foot of a separate request under the Data Protection Act. Therefore, this review is concerned solely with the question of whether the Department is justified in its decision to refuse access to the remaining withheld records on the basis of the various exemptions claimed.

Analysis and Findings

Preliminary Matters
While I am required by section 34(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  It is necessary to take care not to disclose information which a public body contends is contained in an exempt record so as to preserve that party's right of appeal to the High Court on a point of law.  These constraints mean that, in the present case, the extent of the description that I can give of the records is limited. Furthermore, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the public body shows to the Commissioner's satisfaction that its decision is justified.

Section 22(1)(a) - Legal Professional Privilege
The Department refused access to certain records on the basis of section 22(1)(a) of the FOI Act which provides:

"A head shall refuse to grant a request under section 7 if the record concerned -
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

The issue here is whether the records in question would be exempt from production in a court on the ground of legal professional privilege. In considering this matter, I have to ignore the likelihood or otherwise of court proceedings taking place. The question comes down simply to whether or not the Department would succeed in withholding the documents 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 being "advice privilege" and "litigation privilege":

• confidential communications between a professional legal adviser and a client in the course of a professional legal relationship, made for the purpose of giving or receiving legal advice; and
• confidential communications between a professional legal adviser and either a third party or the client; or between the client and a third party; or between the client and professional legal adviser, the dominant purpose of which is the preparation for contemplated or pending litigation.

I have examined each of the records that the Department claim are exempt from release under section 22(1)(a) in order to decide whether this exemption is justified on the basis of the understanding of legal professional privilege set out above. I have also had regard to Irish case law on "litigation privilege" i.e. Silver Hill Duckling Ltd -v- the Minister for Agriculture [1987] 1 IR 289 and Gallagher -v- Stanley and the National Maternity Hospital [1998] 2 IR 267. In the latter case the Supreme Court considered the dominant purpose test and found that the matron of a hospital in requesting statements from staff involved in an incident had in consideration the proper running of the hospital and the desire for a factual account as well as the possibility of litigation. The claim for legal professional privilege was not upheld.

I consider that it is clear from the content of the records identified below and the circumstances of their creation that the dominant purpose of their creation was the preparation for pending litigation, namely the proceedings which the applicant was taking in the Turkish courts. Therefore, I consider that numbered 3, 5, 6, 8, 11, 12, 15 -19 are exempt from release on the basis of section 22(1)(a) of the FOI Act.

In the application for review, the applicant contended that her client received written assurances that disciplinary action had been taken against a person complained of and that an FOI enquiry revealed that the matter had not been reported and no disciplinary action had been taken. She claimed that the public interest would be best served by releasing these records. Section 22(1)(a) of the Act is a mandatory exemption and unlike several other of the exemptions in the Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. Accordingly, I find that section 22(1)(a) applies to the records identified above.

Section 28(1) - Personal Information
Records numbered 1 (pages 16-17), 4, 14, 25 -27, 29, 31, 33(pages 2-4) are within the scope of the review which have not been found to be exempt under section 22(1)(a) above now fall to be examined.

The Department refused access to some records on the basis of section 28(1) of the FOI Act which provides:

" Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

Section 28(5B) of the FOI Act provides:

... a head shall........refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the applicant, also involve the disclosure of personal information relating to an individual or individuals other than the requester.

Section 28 of the Act provides that a public body should refuse to grant a request where access to the record would involve the disclosure of personal information about someone other than the requester. Having examined the withheld records, I note that some contain the views and opinions of other staff members about the applicant, which information is inextricably linked to personal information of other parties. 'Joint' personal information about two or more individuals can be released to any one of them, only with the consent of the other(s). Record number 14 contains personal information of the applicant which has been previously released on foot of the application under the Data Protection Acts. Ms Mc Culloch, in her preliminary observations to the applicant, stated that in her view the records released under the Data Protection Acts should not be considered in this review. The applicant did not respond to these observations and I do not think it is necessary to consider that part of record 14 containing personal information relating to the applicant only.

I note that some third party personal information refers to one person in particular who has refused her consent to the release of the information and I do not consider it appropriate to seek consent from the other third parties involved. As it is not feasible to separate the personal information of the applicant from that relating to other third parties, I find that the records numbered 1 (page 16-17), 4 (part), 14(part) , 25, 26, 27, 29, 31 and 33 (page 2 - 4) are exempt under either section 28(1) or section 28(5B) of the FOI Act.

The Public Interest
Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the public interest in respecting the right to privacy of the individual(s) to whom the information relates. To apply section 28(5)(a), it is necessary to identify the public interest served by the release of the records and weigh that public interest against the public interest in preserving the right to privacy of the individual(s) concerned. The public interest in the right to privacy is a very strong public interest; it is a right with a Constitutional dimension as well as being adverted to explicitly in the Long Title to the Act.

The FOI Act also recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. However, section 6 of the FOI Act, which confers a right of access on every person to records held by public bodies, provides at subsection 7 that "Nothing in this section shall be construed as applying the right of access to an exempt record". The records withheld on the basis of section 28 are minutes of meetings, copies of statements and responses to investigations arising from complaints of behaviour in the workplace. I consider that the requirements of natural justice were fulfilled by the Department's provision of copies of witness statements to the complainer and the person complained about and by its copying of the Investigation Team's report to both parties. It seems to me that there is no public interest to be served by the invasion of the privacy of the third parties through release to the applicant of their personal information as it appears in the records.

On balance, I consider that the public interest would be better served by withholding those records and parts of records listed above and that they are exempt from release on the basis of section 28; I find accordingly.

Record Number 4
The part of record 4 that I have found to be exempt under section 28 as containing personal information relating to an identifiable individual other than the applicant comprises a very small element of the record overall. The exempt material which should not be released is the 7th bullet point on page 2 of record 4.

As regards the remainder of record 4, the Department listed it amongst the records to which a number of exemptions applied. This Office initially took the view that it might qualify for the legal professional privilege exemption as discussed under section 22(1)(a) above. However, having examined the content and the circumstances of the record's creation, I am not satisfied when record 4 was created, it had as its dominant purpose preparation for contemplated or pending litigation. I identified to the Department what, on the face of it, would appear to be an alternative purpose which I believe was the dominant or primary purpose of the record's creation. In response, the Department argued that the record was created after staff of the Department became aware that the applicant had initiated court proceedings and that it should be considered in conjunction with records 3 and 5 which were created during the same period. I have considered those arguments and I accept that litigation privilege can extend to internal Departmental communications; however, I take the view that this particular record fails to meet the test in relation to legal professional privilege in that, on the face of it, the dominant purpose for which the communication came into being was not the Department's preparation for contemplated or pending litigation.

Thus, it is necessary to examine other exemptions cited by the Department in relation to the remaining part of record 4. The Department asserts that a number of exemptions apply and that in each case, the public interest would be better served by refusing than by granting the request. I will look at each of these in the context of record 4.

Section 21(1)
The relevant provisions of Section 21(1) which the Department cites in support of its refusal of the request for access to record 4 are:

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

...

(b ) have a significant, adverse effect on the performance by a public of any of its functions relating to management (including industrial relations and management of its staff), or

( c ) 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.

(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

In arriving at a decision to claim a section 21(b) exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the decision maker's expectation is reasonable.

It is appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35, in which Mr. Justice Kearns stated, in relation to section 21(1), that "A mere assertion of an expectation [of prejudice] could never constitute sufficient evidence in this regard". I consider that while the Department's arguments about the significant adverse effects on its functions in relation to investigation and management of staff complaints may have substance if what was being disclosed was a confidential process involving individuals other than the applicant, record 4 contains personal information primarily relating to the applicant. I accept that record 4 discloses information concerning the Department's staff management functions but it has not been shown that significant adverse effect would be expected to flow from the release of that information (much of which the applicant appears to be aware of or would have to be put on notice of in any event). In the case of section 21(1)(b), a stronger showing of harm is required than under the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).

The Department mentions section 21(1)(c) but has not identified any negotiations being carried on for the purposes of which its position would reasonably be expected to be disclosed in record 4. Neither have any proposals for settlement or compromise or any "fall back" position been identified in the record which would suggest that negotiation was at issue.

Accordingly, I find that neither section 21(1)(b) nor section 21(1)(c) apply to the remainder of record 4.

Both sections 21(1)(b) and (c) are subject to a public interest test; it is not necessary to consider this given my finding that the exemptions do not apply.

Section 23(1)(a)(iv)
Section 23(1)(a) protects information that, if released, could reasonably be expected to prejudice or impair :

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

The Department says that the court ruled on the legal action involving it and the applicant at the end of 2011 and that an appeal has been lodged by both parties. However, the Department has not identified the basis for its expectation that the fairness of those proceedings would be prejudiced or impaired as a result of the release of record 4. It seems to me that its claim has not had regard to the harm test required under the exemption provisions of section 23(1)(a)(iv). In his decision in Case Number 99108, Mr. X and the Department of Agriculture, Food and Rural Development (20 December 2001), the former Commissioner stated: "It seems to me that the mere fact that disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings." I can find nothing in the submissions or in the content of record 4 to indicate that the fairness of any proceedings would be adversely affected if it were to be released under FOI.

Accordingly, I find that section 23(1)(a)(iv) does not apply to the remainder of record 4.

Section 24(2)(c)
Section 24(2)(c) is a class based exemption which requires a head to refuse a request if the record concerned -

"(c) contains a communication between a Minister of the Government and a diplomatic mission or consular post of the State,"

The Department argues that the Supreme Court has made it clear that the "Carltona Doctrine" has a constitutional basis and that a reference in a statute to a Minister must always be taken as a reference to the Minister and his or her civil servants unless it is incapable of being construed in that way. The Carltona Doctrine allows officials to exercise the powers vested in a Minister in certain circumstances without an express act of delegation. Therefore, it says that record 4 which is an internal communication between an embassy and other officials of the Department qualifies for exemption under section 24 of the FOI Act.

I have examined the judgments in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 endorsed in Tang v Minister for Justice [1996 SC] 2 ILRM 46 and Devanney v Shields [1998 SC] 1 ILRM 81 and [1998 SC] 1 IR 230. I agree with Ms McCulloch's view that there is nothing in the Carltona doctrine that confers on the Department's staff a status equivalent to Minister in the context of section 24 of the FOI Act. I support the view that the section must be read literally. "Minister of the Government" means a member of the Government having charge of a Department of State (section 21 of the Interpretation Act 2005). As David Dodd explains in his Statutory Interpretation in Ireland (Tottel Publishing, 2008), which has been repeatedly cited by the Irish courts with approval:

"Starting from the point that the text of the enactment is the pre-eminent indicator of the legislature's intention, two principle rules follow: the ordinary (or literal) meaning rule and the plain meaning rule. The former rule provides that words and phrases should be given their ordinary and natural meaning. The latter rule provides that where that meaning results in a provision being entirely plain and unambiguous, then the interpreter's job is at an end, and effect must be given to that plain meaning."

In relation to section 24(2)(c), the plain and ordinary meaning of its provisions require that the communication concerned must be between a "Minister of the Government" and a diplomatic mission or consular post of the State. As the communications in record 4 concerned are not at a ministerial level and comprise internal exchanges concerning a Human Resources issue, I consider that section 24(2)(c) does not apply in this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Department's decision in relation to part of record 4 (all of the record except the 7th bullet point on page 2) and direct that it be released. I affirm the decision of the Department to refuse access to the remaining records on the basis of sections 22(1)(a), and 28 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.

Elizabeth Dolan
Senior Investigator