Whether the Department was justified in refusing the applicant's request for records concerning the School Transport Scheme. The request, consisting of six separate and detailed parts, included material relating to documents provided to the applicant under court discovery procedures.

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

Background

On 10 April 2012, the applicant made the following FOI request to the Department:

"Part 1
On the 3rd April 2012 Patricia O'Connor swore an affidavit of discovery and delivered two folders of documents. Please furnish us with the same documents under the Freedom of Information Act.

Part 2
On the 3rd April 2012 Patricia O'Connor swore an affidavit of discovery and delivered two folders of documents. Please furnish us with the same documents under the Freedom of Information Act without any information being redacted.

Part 3
By letter of the 28th May 1969 and perhaps under later agreements the DES has the right to demand all documents related to the School Transport Scheme and services carried out by Bus Eireann. Please furnish us with the same information agreed to be discovered by [the Minister for Education and Skills] but this time include the Bus Eireann documents.

Part 4
Please furnish us with all documents generated in the DES relating to the request for discovery of the applicant and the delivery of the discovery.
Please note the public interest aspect and the obligations as regards transparency.

Part 5
Please give a copy of any documents relating to the departments policy or consideration of putting school transport out to public tender.

Part 6
Please give a copy of any file of the department relating to the preparation of the school transport scheme going to public tender.
Account should be taken of your obligation with regard to European Communities (Financial Transparency) Regulations 2004 [S.I.No. 693 of 2004]

Regulation 3
(1) A public authority and a public undertaking shall ensure that the following are open and transparent;

(a) public funds that a public authority makes available directly to a public undertaking;
(b) public funds that a public authority makes available through the intermediary of a public undertaking or or a financial institution;
(c) the use to which public funds referred to in subparagraphs (a) or (b) are actually put.

(2) Without prejudice to the generality of paragraph (1), the following aspects of financial relations between a public authority and a public undertaking shall be open and transparent:

(a) the setting-off of operating losses;
(b) the provision of capital;
(c) non-refundable grants, or loans on privileged terms;
(d) the granting of financial advantages by forgoing profits or the recovery of sums due;
(e) the forgoing of a normal return due;
(f) compensation for a financial burden imposed by a public authority.

It should be remembered that all the documents requested relate to the service provided by Bus Eireann to the Department."

The Department's decision of 9 May 2012 refused the request in its entirety. In the case of Parts 1 to 4 of the request, the Department relied on section 22(1)(b) of the FOI Act; in the case of Parts 5 and 6 it relied on section 10(1)(a) saying that no such documents or file exist.

The applicant made an internal review application on 21 May 2012. The Department's internal review decision of 18 June 2012 upheld its application of section 22(1)(b) of the FOI Act to Parts 1, 2 and 4, as well as some of Part 3 ["as it relates to information to be discovered by (the Minister for Education and Skills)]"; and it upheld the refusal of Parts 5 and 6 under section 10(1)(a) of the FOI Act, having "confirm[ed] that no such file exists". In relation to the remainder of Part 3 of the request, the Department decided that, due to the application of section 6(11)(b) of the FOI Act, the information sought in relation to Bus Éireann is excluded from the operation of the FOI Act.

On 19 June 2012, the applicant sought a review by this Office of the Department's decision on his request.

In carrying out this review, I have had regard to correspondence between the Department and the applicant as set out above and also to the provisions of the FOI Act.

Scope of the Review

The only issue in this review is whether or not the Department has justified its refusal of the applicant's FOI request.

Findings

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 relevant public body shows to the Commissioner's satisfaction that its decision was justified.

Certain of the records covered by the request are of a kind that a refusal of access is very clearly required under the FOI Act. In the case of these records, the Department's decision to refuse access is, therefore, justified. However, I do not consider the Department to have justified its refusal of certain other records encompassed by the request. In the case of the records, whose refusal in my view has not been justified, it is open to me to direct their release. However, such records are likely to refer to Bus Éireann and their release might adversely affect its interests. It is not appropriate to make a decision affecting the interests of a third party solely on the basis that the relevant public body has not properly justified its decision to refuse access to records under the FOI Act.

Parts 1 and 2 of the Request

Records Provided to the Applicant Under Discovery on 3 April 2012

Section 22(1)(b) of the FOI Act is a mandatory exemption that applies where the public body knows or ought reasonably to have known that disclosure of the record concerned would constitute contempt of court. The provision does not require any consideration of the public interest.

It is an 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 he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action. This rule of law does not apply in circumstances where the Court has given leave for further use of the documents or where the consent of the party, providing such discovery, has been obtained. In EH and EPH v. the Information Commissioner [2001] 2 IR 463 (available on www.oic.ie), Mr. Justice O'Neill in the High Court stated 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)."

It seems to me that without the leave of the Court, or the consent of the party providing discovery, any breach of an expressed or implied undertaking regarding discovered records would be in contempt of Court. I am not aware that in this case the Court has given leave for further use or that the Department, which provided the records under discovery, has consented to any further use of the documents. On this basis, I am satisfied that the Department was correct in its decision to refuse access to those records which it had already made available under discovery and I find accordingly.

Details "Redacted" from Records Provided to the Applicant Under Discovery on 3 April 2012

Under Part 2 of the request, the Department has refused access to those details redacted from the records provided under discovery and it has claimed that their release would be in contempt of court. It has relied on section 22(1)(b) of the FOI Act to refuse access to these portions of the records in question.

However, in its decisions the Department does not explain why release of these details would be in contempt of court. On the face of it, the details in these portions of records are not subject to any undertaking to the Court and I cannot see how their release would give rise to a contempt of court. I do not consider the Department to have justified its reliance on section 22(1)(b) of the FOI Act. In these circumstances, I find that the Department has not justified the refusal of these portions of the records as required by section 34(12)(b).

Part 3 of the Request

It is not clear to me which specific records are encompassed by this element of the request. It appears that it concerns records which were agreed to be provided under discovery but which may, or may not, have been provided under discovery. It appears also that Part 3 may cover records, not agreed to be provided under discovery, and which concern Bus Éireann. The Department has cited section 6(11)(b) in support of its position that records held by Bus Éireann, and which relate to the School Transport Scheme, are not to be deemed as being records held by the Department. This provision displaces the usual rule - provided for at section 6(9) - that a record in the possession of a person, "who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body". This reliance by the Department on section 6(11)(b) is quite confusing in that the provision relates to a situation in which there is a contract for services between a public body and some "person" (in this case, Bus Éireann); yet the Department asserts that there is no contractual relationship between itself and Bus Éireann. In October 2012, subsequent to the Department's FOI decisions in this case, the High Court ruled that there was no contractual relationship between the Department and Bus Éireann in relation to the School Transport Scheme.

In so far as Part 3 covers records (whether held by the Department or by Bus Éireann) which were provided to the applicant by the Minister under discovery procedures, for the reasons set out earlier, I consider such records to be exempt from release under section 22(1)(b) of the FOI Act. However, because of the lack of clarity as to which records are being sought under Part 3, this is not something on which I feel I may make a finding. In fact, given the lack of clarity regarding the records covered by Part 3, and given the confusion created by the Department's reliance on section section 6(11)(b), it cannot be said that the Department has justified its decision to refuse access to the records covered by Part 3 of the applicant's request. I find accordingly.

Part 4 of the Request

The Department has refused records covered by Part 4 on the basis of section 22(1)(b) of the FOI Act but it has failed to explain why this exemption applies. There is no obvious reason why release of these records - which are the internal records of the Department relating to the request for discovery and the provision of discovery - would give rise to a contempt of court. On this basis, it would be fair to conclude that the Department has not justified its refusal of the records as required by section 34(12)(b) of the FOI Act.

However, there is a mandatory exemption provided for at section 22(1)(a) of the FOI Act which, on the face of it, is applicable to these records. Section 22(1)(a) of the FOI Act requires 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 any consideration of the public interest.

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.

It would seem to me that the dominant purpose for the Department's preparation of records relating to the applicant's request for discovery, and further to its provision of discovery, was preparation for the ongoing litigation of which discovery is a part. Therefore, I consider those records covered by Part 4 of the request to be exempt under section 22(1)(a) of the FOI Act and I find accordingly.

Parts 5 and 6 of the Request

The Department has stated unequivocally that it does not hold any records or files of relevance to these parts of the request and that section 10(1)(a) is applicable. Section 10(1)(a) provides that a request for access to a record may be refused if the record does not exist. It applies also where searches for a record that is known to exist, but cannot be found, have been reasonable; however, this is not a relevant consideration in the present case.

In this course of this review, the Department replied to detailed enquiries regarding its record management practices and its record retention policy. However, in essence, it is the Department's position that it has not considered the option to put the School Transport Scheme out to public tender and that, therefore, no records or files exist on the matter.

I note also information provided by Minister Ciarán Cannon (Minister of State at the Department) in 2011 in reply to Parliamentary Questions (PQs) regarding the School Transport Scheme. One PQ concerned whether the Department was in breach of EU laws if its arrangement with Bus Éireann was not subject to a public tendering process, to which Minister Cannon responded, on 14 September 2011, that the "current administrative arrangements with Bus Éireann do not contravene EU Regulations." Another PQ asked whether the Minister had plans to put the School Transport Scheme out to public tender for the year 2012/2013. Minister Cannon replied, on 2 November 2011, that the scheme had since its inception been operated by Bus Éireann on behalf of the Department and that "currently, [he had] no plans to change this". The information in the PQ replies tends to support the Department's position that it has not considered the option to put the School Transport Scheme out to public tender and that, therefore, no records or files exist on the matter.

Having considered the matter carefully, I am satisfied that the Department's decision to refuse records sought under Parts 5 and 6 of the request was justified by reference to section 10(1)(a) and I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby decide as follows:

• in relation to Part 1 of the request, I affirm the decision of the Department;
• in relation to Part 2 of the request, I affirm the decision of the Department to the extent that it concerns the same records as are already covered by Part 1; in relation to those portions of records covered by Part 2, which are not covered by Part 1, I annul the decision of the Department (at issue here are those details redacted from the records provided under discovery);
• in relation to Part 3 of the request, I annul the decision of the Department;
• in relation to Part 4 of the request, I vary the decision of the Department and decide that the records in question are exempt from release on the basis of section 22(1)(a) - rather than on the basis of section 22(1)(b), as decided by the Department;
• in relation to Part 5 and 6 of the request, I affirm the decision of the Department.

In those instances in which I have annulled the decision of the Department, I direct that that it undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements of the FOI Act. Furthermore, the further decision of the Department will be subject to the usual rights of internal review as well as external review by the Information Commissioner.

Finally, in its further decision on the annulled parts of the original decision, the Department should ensure that it has regard to section 2(5)(a) which provides that a "reference to records held by a public body includes a reference to records under the control of the body".

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.

Fintan Butler
Senior Investigator
31 July 2013