Whether the Department was justified in refusing the applicant's request for additional records relating to pilotage in Killybegs.

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

Background

In a request dated 11 January 2011, the applicant sought access to three categories of records relating to pilotage in Killybegs: (1) details of all vessels piloted in the port of Killybegs by an Acting Harbour, including names, tonnages, particulars of vessels (Pilotage Certificates), tug assistance and ships agents since 2004; (2) copies of all correspondence (including instructions) regarding pilotage in Killybegs between the Acting Harbour and Harbours Division, including transcripts of telephone conversations, memos, letters, minutes of meetings, emails, oral and all other communications to and from the Acting Harbour Master; and (3) all other correspondence regarding pilotage in Killybegs, especially with the Marine Survey Office, Harbour Masters in the Department and all external communication with all parties contacted re pilotage. In its decision dated 1 February 2011, the Department granted the request in part, but refused access to a large number of records under section 28 of the FOI Act, the exemption provision relating to personal information. Access to certain other records was refused under section 20 (deliberations of public bodies) and section 22(1)(a) (legal professional privilege) of the FOI Act.

On 4 February 2011, the applicant applied for an internal review of the Department's decision. He claimed that there were significantly more vessels piloted by the Acting Harbour Master than were documented by the pilotage certificates supplied to him. In a decision dated 25 February 2011, the Department refused the applicant's request for additional records under section 10(1)(a) of the FOI Act on the basis that the records sought could not be located. On 3 March 2011, the applicant applied to this Office for a review of the Department's decision. He maintained that additional records relating to the pilotage of vessels in Killybegs should exist.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have had regard to the application for review, a note of the verbal submission made by the applicant by telephone on 18 June 2013, and the submissions made by the Department. I have also examined the file of records forwarded to this Office for the purposes of this review. I note that Ms. Melanie Campbell, Investigator, wrote to the applicant on 3 October 2013 explaining her preliminary view on the matter. The applicant was given a period of three weeks in which to reply. As no reply to Ms. Campbell's preliminary view letter has been made by the applicant to date, I have decided to conclude the matter by way of a formal, binding decision.

Scope of the Review

Adopting the numbering system used by the Department in its schedule of records, a copy of which was made available to the applicant, I note that the Department agreed to release additional records to the applicant during the course of the review as follows:

in full: records 60, 150, 159, 161, 174, 207; 207A, 208, 209, 210
with redactions: records 58, 176, 177, 197, 205.

Moreover, a further search for records revealed one additional pilotage certificate relevant to the applicant's request relating to a ship named "Dorneda" that arrived in Killybegs on 7 February 2007. The Department has also agreed to release this record to the applicant. The records which the Department has agreed to release do not form part of this review.

As noted by Ms. Campbell in her preliminary view letter to the applicant, the parts of record 205 which have been redacted do not relate to pilotage and therefore also do not fall within the scope of this review. In addition, I accept that the omission in the schedule of any reference to records 100 to 102 is due to an error in the numbering and that no documents exist for these record numbers.

The Department has claimed legal professional privilege under section 22(1)(a) of the FOI Act with respect to the following in full or in part:

records 132, 139, 140, 143, 151, 152, 156, 158, 160, 162, 166, 167, 175, 197, 198, 199, 202, 206.

Access to the remaining records listed in the schedule of records which have been withheld, including the redactions made from records 58, 176, and 177, has been refused under section 28 of the FOI Act. Apart from records 58, 176, and 177, these records are as follows:

records 59, 61-93, 95-96, 98-99, 103-131, 133-138, 141-142, 144-148, 153-155, 157, 159, 163-165, 171-172.

This review is concerned with the question of whether the Department was justified in refusing the applicant's request for access to additional records relating to pilotage in Killybegs, including the records to which access has been refused under sections 22(1)(a) and 28 of the FOI Act.

Analysis and Findings

Section 10(1)(a)
Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".

Accordingly, upon acceptance of the review application, the Department was asked by this Office to outline the steps taken to search for any further records relevant to the applicant's request. The Department made a detailed submission dated 21 June 2011 in which it described its searches of the relevant physical and electronic files at the Clonakilty and Killybegs offices. The Department also described its records management practices with respect to its fisheries functions, which had previously been the responsibility of the Department of Communications and Natural Resources. Moreover, the Department explained that, when the fisheries function moved offices in March 2009 from the Technology Park in Clonakilty to its current offices in Clogheen, Clonakilty, all live files at the time were recorded and accounted for before being stored to ensure that the filing system was complete. A detailed description of the filing system in Killybegs was also provided.

During the course of the review, Ms. Campbell raised concerns with the Department regarding the searches it had carried out. She was particularly concerned that the searches may not have focused sufficiently on vessels piloted by the Acting Harbour Master. The Department made a further submission on 15 August 2013 in which it explained that, subsequent to its submission in June 2011, the boxes with all pilotage certificates for the period 2005-2011 were taken from Killybegs Fishery Harbour Centre to Clonakilty, where they were examined for instances where the Acting Harbour Master was the pilot. The relevant certificates were then compared to the pilotage certificates which had previously been supplied to the applicant pursuant to his FOI request. It was through this search that that the pilotage certificate relating to the ship named "Dorneda" was located. In light of the Department's submissions, I am satisfied that section 10(1)(a) applies to any further pilotage certificates relevant to the applicant's request.

In relation to the correspondence and other documents that the applicant requested, the Department has explained:

"[A]ll records were examined from the files held electronically (and by e-mail) and on physical files (both in Clonakilty and Killybegs Offices). All relevant officers in SFAD [Sea Fisheries Administration Division] (Clonakilty) were requested to provide correspondence/documents relating to the FOI subject matter that may not have been included in the general filing system and all relevant documentation was received. In relation to these records the fact that the search was done in both Clonakilty and Killybegs, I feel that the adequacy of the search was ensured because any correspondence [would have] been between Clonakilty and Killybegs."

In response to Ms. Campbell's queries, the Department has also explained that a copy of the pre-arrival information provided to the Marine Survey Office (MSO) would not be held by the Department. (The MSO is within the Department of Transport.) Moreover, according to the Department, the information provided to the MSO would not include details of the pilot:

"The agent hires the pilot and this is of no relevance and the MSO has no involvement".

In addition, the Department has stated:

"The Department does not engage the services of pilots. The Department has a panel of approved pilots and these are employed by the Shipping Agent/Ship owner directly. The pilot certificates are given into reception at Killybegs Fishery Harbour Centre and are used to verify the appropriate charge due in respect of harbour dues, harbour entry charges, waste disposal and water usage. Harbour dues records would not include information relating to pilotage."

In the circumstances, I am satisfied that the Department has taken all reasonable steps to search for records relating to pilotage in Killybegs, including records relating to vessels piloted by the Acting Harbour Master. I therefore find that section 10(1)(a) applies to any further records relevant to the applicant's request.

Section 22(1)(a)
Section 22(1)(a) states that access shall be refused to records which would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
confidential 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.

Unlike several other of the exemptions in the FOI 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.

In the circumtances of this case, it is relevant to note that the second limb of the legal professional privilege rule, commonly referred to as the dominant purpose test, was adopted by High Court in Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289. In rendering his judgement, O'Hanlon J. held that "once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege." The Silver Hill Duckling Limited v. Minister for Agriculture case involved a claim for compensation under the Diseases of Animals Act, 1966. O'Hanlon found that litigation was apprehended or threatened from the date of receipt of a letter from the plaintiffs' solicitors in which a claim was advanced that was so far in excess of the amount that the Department was willing to pay that it must have become apparent that the claim would ultimately have to be resolved by means of litigation. He further found that "the Defendants are entitled to claim privilege from that time forward in respect of communications passing between the Minister for Agriculture and his legal advisers relating to the claim, and also in respect of documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the Plaintiffs."

As noted by Ms. Campbell, parts of record 158, 160, and 162 were created by the Office of the Attorney General and are therefore outside the remit of the FOI Act by virtue of section 46(1)(b). Section 46(1)(b) states, in pertinent part, that the Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General (other than a record concerning the general administration of the Office).

Records 132, 139, 140, 143, 151, 152, 156, 158, 160, 162, and 166 contain communications with legal advisors relating to proceedings involving certain third parties. Record 167 contains related communications between staff members of the Department that were carried out at the request of the legal advisors. I accept that the communications are privileged under one or both limbs of the legal professional privilege rule and find that section 22(1)(a) therefore applies. (As Ms. Campbell noted, access to these records would also involve the disclosure of personal information about the third parties concerned; thus, they would also fall to be considered under section 28 of the FOI Act (see below).)

Record 175 is a note providing legal advice on pilotage in Fishery Harbour Centres from the Head of Law Division of the Department of Communications, Marine and Natural Resources. The redacted part of record 197 likewise contains legal advice. I find these records are also exempt under section 22(1)(a).

Records 198, 199, and 202 contain communications, or consist of a continuum of communications, for the purpose of obtaining legal advice relating to the applicant. According to the Department, the communications relate to the judicial review proceedings that had recently been initiated by the applicant, though it seems that records 198 and 199 also relate to the applicant's request to have his name included on the list of approved pilots for Killybegs. In any event, I am satisfied that section 22(1)(a) applies.

Record 206 is a draft of record 207 which the Department has agreed to release to the applicant. The draft was prepared by the Legal Services Division for review by counsel. In the circumstances, I am satisfied that record 206 is also exempt under section 22(1)(a) applies.

Section 28
Section 28(1) of the FOI Act provides that a public body shall refuse a request where access would involve the disclosure of personal information relating to an individual other than the requester. As a general rule, personal information about an individual can be released to a third party without the individual's consent only where 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. Although the Act provides for certain exceptions to this rule where, for instance, "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual", I am satisfied that none of the exceptions is applicable in this case.

For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual, . . . (iii) information relating to the employment or employment history of the individual, . . . (vi) information relating to the religion, age, sexual orientation or marital status of the individual", . . . (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, . . . [and] (xii) the views or opinion of another person about the individual".

Having examined the records concerned, I find that granting the applicant's request would involve the disclosure of personal information relating to third party individuals and that section 28(1) therefore applies. On the matter of where the balance of the public interest lies, I note that the FOI Act recognises a very strong public interest in protecting privacy rights and this 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. In this case, I am aware of no public interest in granting the request that would outweigh the public interest in protecting the privacy rights of the third parties concerned. Accordingly, I am satisfied that the Department was justified in refusing access to the records concerned under section 28(1) of the Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department 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. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Sean Garvey
Senior Investigator