Whether the Council was justified in its decision to refuse a request for access to certain records relating to Greencastle Harbour on the basis that sections 22(1)(a), 22(1)(c)(i), 28 and 10(1)(a) of the FOI Act apply.

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

Background

On 15 September 2011, the applicant wrote to Donegal County Council ("the Council") seeking access to correspondence to/from Donegal County Council in relation to Greencastle Harbour. On 10 October 2011, the Council's decision maker wrote to the applicant granting the request. The applicant requested an internal review of this decision on 13 October 2011 as he was not satisfied that he had been supplied with all records relevant to his request. On 18 November 2011 the Council issued its decision to uphold the initial decision and on 7 February 2012 the Information Commissioner received the applicant's request for a review of the Council's decision.

In May 2012, the Council retrieved additional records in its Lifford office, most of which related to Greencastle Breakwater Development adjacent to Greencastle Harbour (and therefore probably outside the scope of the request). These records were released to the applicant in early June 2012 with the appropriate redaction of the personal information of third parties. Mr Sean Garvey, Senior Investigator, informed the applicant of his view that this information was justifiably redacted in accordance with the FOI Act as it was personal information relating to individuals other than the applicant. Three further records were released in February 2013 which had the personal information of third parties redacted. The applicant was given several opportunities to indicate if he required access to the redacted personal information but he did not do so. Subsequently, on 12 April 2013, Ms Rachel Dunn, Investigator, informed the applicant that as he had not indicated that he didn't accept the position in relation to these redactions, the review would proceed on the basis that this particular aspect had been settled. Ms Dunn offered the applicant an option to revert to her if he did not accept this position but he did not do so.

In March 2013, the Council indicated that it had retrieved an additional 46 records following a search of archived email through mail meter. This electronic search yielded a more comprehensive result than the previous search of deleted email. I note that Ms Dunn asked the Council to forward to the applicant a schedule of the records with the exemptions claimed during the course of the review. For convenience, I have adopted the numbering system used by the Council in the schedule for the purpose of referring to the records at issue. The Council decided to grant access, either in whole or in part, to the majority of the 46 records. It refused access to records 1 to 4, 39, and 42 to 45 in their entirety and it granted partial access to records 7, 14 to 17, 22, 26, 27, 29, 30, 36 to 38, 40, 41 and 46.

I note that Ms Dunn wrote to the applicant on 11 June 2013 informing him of her preliminary view that the decision of the Council in relation to the records refused in whole or in part was justified and inviting him to submit any further comments that he considered relevant to the review. The applicant responded on 1 July 2013 with further queries regarding the preliminary view and Ms Dunn responded to the queries later that day. The applicant subsequently wrote to this Office and asked that the review 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 applicant (including those made to both the Council and this Office), and to those of the Council. I have also had regard to the provisions of the FOI Acts and to the contents of the records at issue.

Scope of the Review

This review is concerned with whether the Council was justified in refusing access to records 1 to 4, 39, and 42 to 45 in their entirety, in granting partial access only to records 7, 14 to 17, 22, 26, 27, 29, 30, 36 to 38, 40, 41 and 46, and in deciding that no other relevant records exist or can be found.

Analysis and Findings

Records 1 to 4
Records nos. 1 to 4 comprise private email correspondence of elected members of the local authority. Apparently, the records were contained in individual Councillor email accounts which are hosted by the Council on one of its servers. The Council's position is that while it hosts the Council email accounts, it does not "hold" the records contained in those email accounts, nor does it consider such records to be under its control. The Council refused access to these records on the ground that the records are not held by it for the purposes of the FOI Act. It further argued that even if the Commissioner were to find that the records were held by the Council, it considered that the records were exempt from release under section 22(1)(c)(i) of the FOI Act.

While section 6(1) of the FOI Act confers a general right of access to records held by a public body, the word "held" is not defined in the FOI Act. According to the Oxford English Dictionary, the word "hold" means "The action or fact of having in charge, keeping, guarding, possessing, etc.; keeping, occupation, possession; defence, protection, rule". Having regard to the ordinary meaning of the word "hold", I find that the relevant records are held by the Department in this case because it has physical possession of the records in question. Nevertheless, I have also considered the applicability of section 22(1)(c)(i) of the FOI Act to the records. That section provides that a public body shall refuse to grant a request if the record concerned consists of the private papers of a representative in the European Parliament or a member of a local authority or a health board.

I am satisfied from the description of these records that they relate to communications made by members of the public to elected members of the local authority acting in their roles as elected representatives. Insofar as these records can be deemed to be "held" by the Council under section 6 of the FOI Act, I am satisfied that they do not fall for release as they are the private papers of elected members of the Council. Therefore, I find that records nos. 1 to 4 are exempt from release under section 22(1)(c)(i) of the FOI Act as they constitute the private papers of a member of a local authority and that the Council is justified in refusing their release.

Records 7, 14 to 17, 22, 26, 27, 29, 30, 36 to 38, 39 (in full) 40, 41 and 46,
The Council has granted only partial access to these records, apart from record 39 which was refused in full, on the basis that they contain the personal information of third parties and that section 28 of the FOI Act applies. Access was refused to record 39 in full on the ground that to release the record with redactions would be misleading. Section 13(2) of the FOI Act provides that a public body is not required to grant partial access to a record where doing so would be misleading.

Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information relating to parties other than the requester. I have examined the records at issue in this case. The information withheld contains the personal details of third parties such as their names, addresses, phone numbers, salaries, details of their personal property (e.g. boat names) and educational qualifications. I am satisfied that the withhjeld information comprises personal information relating to parties other than the applicant. 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) or 28(5). I am satisfied that section 28(2) is not relevant in 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 would "benefit the individual" to whom it relates (i.e. the third parties) as envisaged by section 28(5)(b) of the FOI Act.

Turning to section 28(5)(a), there is a public interest in transparency and in requesters being able to exercise their rights under the Freedom of Information Act. However, weighing against release of personal information of third parties, 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. Section 28 expressly provides for the protection of personal information relating to third parties. Having examined the records in question, I am satisfied that they contain material of an inherently private nature. Accordingly, I am satisfied that the public interest in upholding the right to privacy of the third parties outweighs, on balance, the public interest in granting the request in this case and therefore I am of the view that section 28(5)(a) does not apply.

Accordingly, I find that section 28(1) applies to the records, or parts thereof, and that the Council is justified in refusing release of this personal information.

Records 42 to 45
The Council refused access to records nos. 42 to 45 on the basis that they contain legally privileged information about a lease. Section 22(1)(a) of the FOI Act, which is the provision supporting the Council's claim of legal professional privilege for the correspondence concerned, provides that:

"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,"

Legal professional privilege enables a client to maintain the confidentiality of two types of communications:

• confidential communications made between a client and his/her professional legal advisors for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between a client and a professional legal advisor or the legal advisor and a third party or between a client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

Legal professional privilege is a fundamental feature of the administration of justice which protects confidential communications and exists to ensure that a client may fully instruct their lawyer freely and openly, safe in the knowledge that what is said to the lawyer in confidence will never be revealed without specific consent.

In considering whether the correspondence in question would be exempt from production in a court on the ground of legal professional privilege, the Information Commissioner has to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides only with the client. The question comes down to whether the client, in this case the Council, would, in the event of court proceedings, succeed in withholding the correspondence on the grounds of legal professional privilege. It is relevant in this context that the Commissioner has found that legal professional privilege also attaches to records where they are part of a continuum of correspondence arising from an original request for advice (Case Number 020281 - Mr. X and the Department of Education and Science - available on our website www.oic.ie). Having examined the withheld records, I am satisfied that records 42-45 can be said to comprise confidential communications made between the Council and its professional legal adviser for the purpose of obtaining and/or giving legal advice regarding a lease, and records forming part of a continuum of correspondence arising from the original request for advice. I find that section 22(1)(a) applies to records nos. 42-45 which have been withheld and that the Council is justified in refusing their release.

Existence of Further Records
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". 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 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 records was 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. available on this Office's website at www.oic.ie) where he said :

" I am satisfied also that the respondent's 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."

In her letter dated 11 June 2013, Ms Dunn provided the applicant with details of the comprehensive searches which were conducted by the Council to locate relevant records and while I do not intend to repeat those details here, they are relevant for the purposes of this decision. I am satisfied at this stage that the Council has now carried out a comprehensive search, both manually and electronically, of all Council offices for records relating to the request. The Council has also searched the email accounts of all relevant staff (current and retired) and retrieved any emails which had been archived or deleted without being filed. The Council has confirmed that, apart from the records which have already been released to the applicant and those (or parts thereof) which have been withheld in accordance with the various provisions of the FOI Act, it holds no further records relating to his FOI request. This amounts to a refusal of the request by reference to section 10(1)(a) of the FOI Act. Accordingly, having reviewed the steps taken by the Council to locate all relevant records, I am satisfied that the Council has taken all reasonable steps to locate all relevant records coming within the scope of the applicant's request. I find, therefore, that the Council was justified in deciding that section 10(1)(a) of the FOI Act applies in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Donegal County 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. 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.

Stephen Rafferty,
Senior Investigator
9 August 2013