Whether the Department was justified in refusing to release all personal records relating to the applicant.

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

Background

On 17 November 2008, the applicant made an FOI request to the Department for all personal records it held relating to her. The Department's decision of 3 March 2009 identified 449 relevant records, some of which it released and the remainder of which it refused under various provisions of the FOI Act. The applicant sought an internal review of this decision on 16 March 2009. The Department's internal review decision of 9 April 2009 released one further record and upheld the refusal of the remainder. On 15 June 2009, the applicant sought a review by this Office of the Department's refusal to release all the relevant records. The Department released further records to the applicant in the course of this Office's review but maintained its position regarding the remainder.

In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Department and the applicant as set out above; to details of various contacts between this Office and the Department; and to details of various contacts between this Office and the applicant, particularly the letters sent to her by Ms Anne Lyons, Investigator, dated 1 November 2012 and 29 January 2013. I have also had regard to the applicant's replies to those letters, which merely noted the contents of the letters concerned, and did not dispute or comment on any reasoning or arguments therein. I have also had regard to the provisions of the FOI Act.

Findings

The records at Issue

I see no reason to list the released records in this decision, which have already been set out in this Office's letters to the Department and the applicant of 1 November 2012. Those letters also said that record 169 includes a copy of record 163, which I note has been released. I see no reason to further consider the relevant excerpt of record 169, accordingly. Neither do I intend to consider those elements of record 269 that I am satisfied comprise copies of the released records 263 and 267.

Section 34(9)(a)(iii) provides that a review may be discontinued a review if the matter to which the application relates is, has been or will be, the subject of another review under section 34 of the FOI Act. I hereby discontinue this review in respect of records 65 and 268, which are included in records 58 and 269, respectively. I also discontinue this Office's review in respect of an element of record 218, which I am satisfied is a copy of a speaking note contained in record 190.

I note that neither the Department nor the applicant have taken issue with this Office's listing of the records covered by the scope of the review, as follows:

Records 5; 10; 13; 17; 28; 34; 36; 40; 49; 51; 53; 54; 56-58; 63 (i.e. the first four pages); 67; 71; 73-74; 77; 114; 115; 116; 124-125; 134-135; 154-155; 161; 165-166; 169 (i.e. cover letter only); 173; 182 (i.e. final two paragraphs only, the Department having agreed to release the remainder subsequent to the letter of 1 November 2012); 183-191; 196-199; 202-203; 205-208; 212; 218; 219; 224; 226 (i.e. annotations only); 228; 231-234; 237; 243; 251; 254 (i.e. the draft letter to the Ombudsman); 264-266; 269 (i.e. a letter and internal memorandum); 271-276; 280-282; 285-286; 289-290; 295 (i.e. handwritten comments); 296 (i.e. the fax transmission details/numbers at top of document); 297-306; 307 (i.e. the cover letter and annotations etc on the now released statement of claim); 308-313; 315-316; 318-331; 333 (i.e. letter from the Chief State Solicitor's Office (CSSO)); 334; 335; 337-339; 341-352; 355; 357; 361; 362; 363 (cover note only); 364; 365-409; 410 (i.e. cover note only); 411-444; 445 (i.e. cover note from CSSO); and 446-449.

It is important to note that section 43(3) of the FOI Act requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Section 22(1)(a)

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. It does not require the consideration of the public interest.

Previous decisions from this Office have accepted 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.

Decisions have also found that legal professional privilege also attaches to records where they are part of a continuum of correspondence arising from an original request for legal advice (see that in Case Number 020281 - Mr. X and the Department of Education and Science - available on www.oic.ie).

The applicant has not taken issue with this Office's understanding of legal professional privilege.

I have examined the withheld records, and accept that records 5, 10, 13, 17, 36, 71, 73 (second paragraph, and, although not specified in the letter of 1 November 2012, the last 13 words of the first paragraph), 74, 165, 166, 173, 182, 183, 184, 185, 186, 187, 188, 189, 196, 198, 199, 203, 206, 212, 219, 224, 226, 231, 232, 233, 234, 243, 264, 265, 266, 269, 280, 282, 286, 289 and 290 comprise confidential communications made between the Department and its professional legal adviser for the purpose of obtaining and/or giving legal advice, or comprise a continuum of such communications.

I also accept that records 281, 295, 296, 297, 299, 300, 302, 303, 305, 308, 309, 310, 311, 312, 313, 315, 316, 318, 319, 320, 322, 323, 324, 325, 326, 327, 328, 330, 331, 334, 335, 338, 339, 341, 342, 344, 345, 346, 347, 348, 349, 350, 351, 352, 355, 357, 361, 362, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 385, 386, 387, 389, 390, 391, 392, 393, 394 (cover page), 395 (cover page), 396, 397, 398, 399 (cover page), 400, 401, 402, 403, 404, 405, 406, 407, 409, 411, 412, 413, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 427, 428, 429, 430, 431, 432, 434, 437, 438, 440, 441, 443, 444, 446, 447 and 448 comprise confidential communications made between the Department and its professional legal adviser, or the legal adviser and a third party, or between the client and a third party, the dominant purpose of which was preparation for contemplated/pending litigation.

I find the above records to be exempt under section 22(1)(a) of the FOI Act accordingly.

The Department had initially relied on section 22(1)(a) in respect of records 63 and 207, both of which were created by its legal advisor. It did not dispute this Office's view that section 22(1)(a) was not applicable to record 63, which was a response to queries raised by the then Department of Social Welfare (rather than advice given by the legal advisor to his client, the Department). Furthermore, record 207 is a "file note" of communications between various Department staff (including the legal advisor) and the U.S. State Department in Washington. It gives an account of the communications concerned, and does not purport to give any advice on any issues arising. Accordingly, I do not consider that legal professional privilege can be claimed over the contents of records 63 or 207.

Section 22(1)(b)

Section 22(1)(b) of the FOI Act requires a record to be withheld where the public body knows, or ought reasonably to have known, that disclosure of the record concerned would constitute contempt of court. Again, it does not require the consideration of the public interest.

As explained to the applicant in this Office's letter of 29 January 2013, it is the Department's position that the withheld records 40, 49, 51, 53, 54, 56, 57, 67, 161, and 237 were provided to the applicant further to an Order for Discovery. The Department subsequently confirmed that it had also provided records 34, 190 (speaking note only), 197, 205 and 275 to the applicant under Discovery procedures.

It is a clearly accepted rule of law that a party obtaining the production of documents by discovery in an action gives an implicit undertaking to the Court that they will not make any use of the documents or the information contained therein otherwise than for the purpose of the action, without the leave of the Court or consent of the party providing such discovery. Furthermore, the High Court judgment in EH and EPH v. the Information Commissioner [2001] 2 IR 463 (also available on www.oic.ie), said that where the head of a body, or the Commissioner, "is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b)." I note that the applicant has not provided with any evidence that leave of Court, or consent of the party providing Discovery, has been given to release any such "discovered" records under FOI. I therefore find the above-mentioned records to be exempt from release under section 22(1)(b) of the FOI Act.

However, I note that a version of record 205 is contained in record 218. Record 218 is not amongst the list of records stated by the Department to have been provided to the applicant under Discovery and I see no reason to consider that release of any element of that record would be in contempt of court. Thus, I do not consider to find the version of record 205, which is contained in record 218, to be exempt from release under section 22(1)(b).

Section 46(1)(b)

Section 46(1)(b) provides that the FOI Act does not apply to "a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices)." The provision does not require consideration of the public interest.

Having examined the records, I note that records 285, 298, 301, 304, 306, 307, 321, 329, 333, 337, 343, 363, 384, 388, 394 (remainder), 395 (remainder), 399 (remainder), 408, 410, 414, 426, 433, 435, 436, 439, 442, 445 and 449 comprise of communications sent to the Department by the CSSO, which is an Office of the Attorney General. The records arise from a court action taken by the applicant against the Department. They do not concern the general administration of those Offices, and are thus outside of the scope of the FOI Act by virtue of section 46(1)(b) thereof. (Even if subject to the FOI Act, the records would exempt from release under section 22(1)(a) in any event, in that they comprise confidential communications with the Department's legal advisor with the dominant purpose of preparation for legal proceedings.)

Section 46(1)(c)(iii)

Section 46(1)(c)(iii) of the FOI Act provides that the FOI Act does not apply to a record relating to an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980, other than a record created before such an investigation or examination or a record pertaining to the general administration of the Office of the Ombudsman.

Having examined records 251 and 254, I am satisfied that they arise from the Ombudsman's examination of a complaint made by the applicant to that Office under the Ombudsman Act, 1980. I am satisfied that the records were not created before that examination, nor do they relate to that Office's general administration, and I find them to be outside the scope of the FOI Act under section 46(1)(c)(iii) thereof.

Section 24

The Department has relied on sections 24(1)(c), 24(2)(b), (c) and (d) of the FOI Act in relation to the remaining records. None of the provisions require consideration of the public interest.

Section 24(1)(c) of the FOI Act provides that the head of a body may refuse to grant a request for a record if, in the head's opinion, "access to it could reasonably be expected to affect adversely the international relations of the State".

Sections 24(2)(b), (c) and (d) of the FOI Act are class based exemptions that require the mandatory refusal of a record if it meets certain criteria. Section 24(2)(b) requires the refusal of a record that "contains a communication between a Minister of the Government and a diplomatic mission or consular post in the State or a communication between the Government or a person acting on behalf of the Government and another government or a person acting on behalf of another government". Section 24(2)(c) requires the refusal of a record that "contains a communication between a Minister of the Government and a diplomatic mission or consular post of the State", while section 24(2)(d) requires the refusal of a record that "contains information communicated in confidence to any person in or outside the State from any person in or outside the State and relating to a matter referred to in subsection (1) or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence".

Section 24(1)(c)

The Department says that it understands the US authorities to "take the confidentiality of its communications with the Department and Government very seriously". Thus, the Department believes that the release of the above mentioned documents would adversely effect its effectiveness in conducting relations with the US. In addition, it argues that release of the records at issue will result in other countries fearing the release of confidential information they might otherwise provide to the Department, whether in Ireland or abroad, which will adversely affect its relationships with the governments of those states. Thus, it is the Department's position that release of the records at issue could adversely affect Ireland's relations with the US and other governments, and thus, adversely affect the State's international relations.

Previous decisions from this Office have accepted that the expectations of the international community are relevant to the consideration of section 24(1)(c). In the case at hand, certain of the remaining records comprise communications between the Department and the US Department of State, or the Embassy of the United States in Ireland, or the Irish Ambassador to the United States. However, the key fact is that the subject matter of the communications is the applicant's dispute with her employer. The fact that the employer concerned was the US Embassy in Ireland does not mean that I should consider the details of the communications to be on a par with, for example, records concerning attempts by two countries to reach trade or other agreements, or to resolve territorial or other conflicts or international disputes. Furthermore, considerable details about the dispute concerned have been aired in Court in Ireland and in the United States. The remaining documents concern general administrative matters, or the Department's consideration of certain courses of action open to it in respect of its own dealings with the applicant.

It is not the case that section 24(1)(c) is applicable merely because there is a possibility of some effect on the State's international relations arising from the release of records. The provision requires a reasonable expectation of an adverse effect. Under the circumstances of this case as set out above, I do not accept the Department's contentions that release of the remaining records at issue will have an adverse effect on Ireland's relationship with the United States or, as it must follow, with other countries. Thus, I do not accept that such release could reasonably be expected to affect adversely the international relations of the State. I find that section 24(1)(c) does not apply to the remaining records at issue.

Sections 24(2)(b) and (c)

Although the Department has applied different sections of the Act to the individual records, for simplicity I have considered the general application of the provisions concerned in the circumstances of this case.

I understand that the Carltona Doctrine allows officials to exercise the powers vested in a Minister in certain circumstances without an express act of delegation. It it is the Department's position that, further to this Doctrine, the references to the "Minister" in sections 24(2)(b) and (c) should be interpreted as encompassing references to his civil servants. It contends that "the Supreme Court has made it clear that the Doctrine in Ireland has a constitutional basis in that it reflects the constitutional responsibility of a Minister and his or her relationship with civil servants. So rather than a statute over-riding the Carltona Doctrine, it should be read in accordance with it; a reference to the Minister should always be taken as a reference to the Minister and his or her individual civil servants unless this is impossible."

However, this Office's decision in case 090097 found that section 24(2)(c) must be read literally, and that there is nothing in the Carltona Doctrine that confers on the Department's staff a status equivalent to Minister for the purposes of section 24 of the FOI Act. The decision concerned said that:

""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. "

I concur with this finding, which has equal application to section 24(2)(b). Thus, I find that sections 24(2)(b) and (c) cannot provide for the exemption of records of communications with any person acting "on behalf of a Minister". These provisions cannot apply to records of communications involving staff of the Department, whether they are said to be acting on behalf of the Minister or acting in a departmental or administrative capacity. Having examined the remaining records at issue, only record 218 is a communication that issued from or to a Minister of the Government (as described on the Department's schedule of records, it is a memo from the then Minister for Foreign Affairs). However, the other party to the communication was an opposition T.D., rather than a diplomatic mission or consular post inside or outside of the State, or a person acting on behalf of another Government.

Furthermore, in considering section 24(2)(b), I note that section 21 of the Interpretation Act 2005 defines "Government" as the Government mentioned in Article 28 of the Constitution. Article 28 provides, inter alia, that the Government: shall consist of "not less than seven and not more than fifteen members who shall be appointed by the President .....", the head of which shall be called the Taoiseach; "shall exercise the executive power of the State"; "shall be responsible to Dail Éireann"; and "shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the Government".

Certain of the remaining records at issue comprise communications between the Department and the Embassy of the United States of America or the U.S State Department. However, there is no argued basis, or evidence in the records, that would enable me to find that the Department was acting on behalf of "the Government" as defined. Whilst there are also some records of contacts between the Department and Ireland's Ambassador to the United States and his Embassy, I see these as no different to other internal Departmental communications that are amongst the remaining records.

Having regard to the plain and ordinary meaning of sections 24(2)(b) and (c) of the FOI Act, I find neither provision to apply to the remaining records at issue.

Section 24(2)(d)

This provision of the FOI Act, unlike sections 24(2)(b) and (c), is not concerned with communications at Ministerial or Government level. It has potential application to information communicated in confidence to any person in or outside the State from any person in or outside the State. However, the information must relate to a matter referred to in section 24(1) and be expressed by the person communicating the information to be confidential or to be communicated in confidence.

I have already found that section 24(1)(c) does not apply to the records at issue. Aside from the fact that only two of the records appear to contain any express reference to the confidentiality of the communication therein, I have no basis in any event to find that any of the records at issue relate to international relations (rather, they relate to an employment dispute). Thus, I see no basis to find any of the records at issue to be exempt under section 24(2)(d).

Sections 21(1)(a), 21(1)(c) and 23(1)(a)(iv)

Section 21(1)(a) provides that a head of a public body may refuse to grant a request for a record if he or she forms the opinion that release of the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof. A record found to be exempt under section 21(1)(a) may be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).

Section 21(1)(c) of the FOI Act provides that a head may refuse to release a record if, in the opinion of the head, granting the request concerned 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. It is also subject to section 21(2).

Section 23(1)(a)(iv) provides for the refusal of a record where, in the opinion of the head, its release could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. This provision requires the consideration of the public interest only in limited circumstances.

Although these provisions are clearly intended to apply to different sorts of information, I am dealing with them under one heading because the Department appears to consider them to be applicable in the case at hand for the same reasons. Nonetheless, section 34(12)(b) of the FOI Act places the onus on the Department to justify its application of these provisions of the Act to the records at issue, having specific regard to their contents.

The Department's decision and internal review decision referred to the application of sections 21(1)(a) and (c) in general terms, saying that release of certain records would prejudice its effectiveness to conduct negotiations, or would disclose instructions used or followed for the purpose of negotiations it had carried out. This suggested that the Department considered that release of the records at issue would impact on its future ability to engage in similar contacts with the US or other authorities should a case similar to the applicant's again arise.

However, its submission to this Office of 6 November 2009 said, in reference to sections 21(1)(a) and (c), that "[p]ositions taken by this Department are of particular relevance where these records are sought by an applicant who has a legal action against the Department and part of the applicant's claim is that the Department may not have taken a sufficiently strong position on her behalf. It is anomalous that in an case where the Department is being accused in a legal action of taking a certain position it might be obliged to reveal what position it did take to the person making the complaint." It then quoted section 23(1)(a)(iv) and said it "believe[d] that this exemption would also apply."

Having regard to the above, the Department's basis for applying sections 21(1)(a) and (c) was not, in my view, particularly clear or well reasoned. Accordingly, this Office's letter to the Department of 1 November 2012 questioned how the Department's follow up of cases such as the applicant's could be prejudiced by the release of the records at issue (if indeed the contacts made by the Department on the applicant's behalf amounted to tests, examinations, investigations, inquiries, or audits for the purposes of section 21(1)(a) in the first place). It also noted that in so far as the Department took positions in its dealings with the US authorities, those dealings did not appear to amount to negotiations; and even if they were, it was not apparent how those "negotiations" could be impacted upon now by the release of the records.

Furthermore, the letter said it was not appropriate to apply the provisions of section 21 in cases where a public body has concerns over the release over the impact of documents on a court case. It invited arguments as to the application of section 23(1)(a)(iv). In particular, it asked how the Department considered the fairness of legal proceedings could be prejudiced or impaired simply because the applicant may obtain documents that the Department would prefer not be released, or because the Department may have to defend its position, as outlined in such records, before the Court.

The Department's reply of 23 January 2013 merely said, in relation to sections 21(1)(a) and (c), that the applicant had "made an application to the Supreme Court to hear her civil claim that the Department did not adopt a sufficiently strong position on her behalf" and that it "would continue to claim exemption of records which disclose the position taken by the Department for the purposes of negotiation in this matter". The submission did not refer to section 23(1)(a)(iv) or explain why it considered the provision to be applicable.

A further letter from this Office to the Department (on 29 January 2013) reiterated the views of 1 November 2012. It said also that preparation for a court case could not appropriately be categorised as a test, examination, investigation, inquiry or audit for the purposes of section 21(1)(a), nor could the hearing by the Supreme Court amount to a negotiation for the purposes of section 21(1)(c). It again invited arguments as to the application of section 23(1)(a)(iv).

The Department responded that it did "not agree" with this Office's views. No argument was given beyond the statement "that impending proceedings in the Supreme Court are relevant here."

The Department is well aware of the onus placed on it by section 34(12)(b) to justify its application of sections 21(1)(a) and (c) and 23(1)(a)(iv) in the case at hand. It is not sufficient for the Department to merely claim that an outcome will arise by release of records without explaining how this might happen and giving an assessment of how realistic its expectations are in this regard. 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 find that the Department has not provided sufficient evidence to enable me to accept its assertions as to the impact of release of the remaining documents. Under such circumstances, I find that none of the remaining records at issue are exempt under sections 21(1)(a), 21(1)(c) or 23(1)(a)(iv) of the FOI Act. Thus, it is not necessary to consider any public interest tests that may apply.

Other Provisions

The Department's decision relied on section 21(1)(b) in respect of some of the records, whilst its internal review decision cited section 26(1)(a) in respect of others. However, its submissions to this Office have not expanded on its reasons for relying on the provisions concerned. Having regard to section 34(12)(b), I do not consider the Department to have justified its application of these provisions of the FOI Act to the remaining records at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Department's refusal of the withheld records. I direct that records 28; 58; 63; 73 (bar those elements that I have found to be exempt under section 22(1)(a)); 77; 114; 115; 116; 124; 125; 134; 135; 154; 155; 169; 190 (bar the speaking note that I have found to be exempt under section 22(1)(b)); 191; 202; 207; 208; 218; 228; 271; 272; 273; 274; and 276 be released. I affirm its refusal of the other records considered in the course of this review.

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.

Sean Garvey
Senior Investigator