Whether the Department was justified in its decision to refuse access to records relating to the selection process for an overseas election monitoring roster under sections 22(1)(a), 26(1) and 28(1) of the FOI Act, and to grant only partial access to records subject to redactions under section 28(1) of the FOI Act, on the grounds that the records contain information that is subject to legal professional privilege, information submitted to the Department in confidence and personal information relating to third parties

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

Background

On 9 August 2013, the applicant submitted a Freedom of Information request to the Department for access to records broadly relating to the selection of an overseas election monitoring roster (the "Roster") by the Department and to a review of the said process. By way of letter dated 16 September 2013, the Department identified nine categories of records coming under the applicant's request. Access was granted to the first category of records, being records which directly related to the applicant's personal application for inclusion on the Roster. Access was refused to records coming within categories 2, 7 and 9 under section 28(1) of the FOI Act, while access to records coming under category 5 was refused under sections 22(1)(a) and 28(1) of the FOI Act. Access was granted to records coming within categories 3, 4, 6 and 8, subject to redactions under section 28(1) of the FOI Act.

The applicant sought an internal review of this decision by way of letter dated 16 October 2013. The internal reviewer varied the original decision, granting access to further elements of records coming under categories 3, 4, 6, and 7. She further indicated that in her view, the refusal to release records coming under categories 2, 4, 6, 7 and 8, in whole or in part, was justified additionally under section 26(1) of the FOI Act. The outcome of the internal review was communicated to the applicant by way of letter dated 11 November 2013. On 10 February 2014, the applicant sought a review by this Office of the Department's decision.

I note that Mr. Niall Mulligan of this Office indicated to the applicant that the decision of the Department was justified in his view. The applicant did not accept Mr Mulligan's analysis and offered further submissions to this Office. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Department's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Department. I have also had regard to the provisions of the FOI Act and to the records in question, a copy of which have been provided to this office for the purpose of this review.

Preliminary Matters

The applicant, in his submissions, complained that the Schedule furnished "contained scant information", and requested that a more detailed schedule be furnished. This Office has no powers to compel a public body to create a record in a specified form, or at all, but may only consider requests for access to records that were in existence at the time the request was made. Nevertheless, this Office considers that in keeping with good administrative practice, a public body should generally provide a schedule of records which contains sufficient particulars to allow the requester to fully understand the public body's decision to refuse access to each record, whether or whole or in part. However, it seems to me that there may be occasions where a detailed schedule describing each and every record coming within the scope of the FOI request is not necessary and that this is one such instance. For example, the Department grouped the records at issue in this case into nine categories and category two comprises all applications submitted by individuals for inclusion on the roster. It would serve no purpose, in my view, to require the Department to provide a detailed schedule listing each application separately. Similar considerations arise in relation to a number of the other groups of records identified.

I find it difficult to see how the applicant can argue that he had a "really [sic] problem with the one page schedule of records provided by DFA in terms of making an effective submission". It is apparent that the applicant was well aware of the generality of the contents of the records and of the clear reasons why the Department had decided to refuse access. Indeed, he went on to furnish submissions which adequately addressed the issues of principle arising in this application. I am therefore of the view that there was no want of fair procedures in proceeding based on the Schedule furnished to the applicant by the Department.

Scope of the Review

This review is concerned solely with the questions of whether the Department was justified in its decisions:-

(a) To refuse access to records coming within categories 2, 7 and 9 of the Schedule of Records (the "Schedule") under sections 26(1) and 28(1) of the FOI Act, on the basis that they contain information submitted in confidence to the Department and personal information relating to third parties;
(b) To refuse access to records coming within category 5 of the Schedule under sections 22(1)(a), 26(1) and 28(1) of the FOI Act, on the basis that they contain information that is subject to legal professional privilege, information submitted in confidence to the Department and personal information relating to third parties;
(c) To withhold parts of records coming within categories 3, 4, 6 and 8 under sections 28(1) and 26(1) of the FOI Act, on the basis that they contain information submitted in confidence to the Department and personal information relating to third parties; and
(d) To refuse access to any further records coming within the applicant's request under section 10(1)(a) of the FOI Act, on the basis that no other relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Analysis and Findings

The applicant's original request was for access to records relating to his participation in a roster maintained by the Department, the selection by the Department of a new roster, as well as records relating to a review of the process around the selection of the said roster. The applicant's request was particularly detailed, extending to matters including any draft parliamentary questions or Ministerial briefing materials.

The Department identified nine categories of records falling within the scope of the applicant's request, namely:-

Category 1 - The applicant's personal application for inclusion on the Roster and related documents;
Category 2 - 293 applications by third parties for inclusion on the Roster;
Category 3 - Scoring cards and master score sheet relating to the selection process;
Category 4 - Correspondence and a review report relating to a third party;
Category 5 - Correspondence with a third party relating to eligibility criteria;
Category 6 - Internal correspondence relating to a review of the selection process;
Category 7 - Correspondence with third parties relating to feedback on their participation in the selection process;
Category 8 - Correspondence with and regarding appraisers in the selection process;
Category 9 - Spreadsheet containing contact details of third parties.

Categories 2 and 9
Access to records coming within these categories was refused under sections 26(1)(a) and 28(1) of the FOI Act. Having regard to the nature of the records at issue, it seems to me that section 28 is of most relevance. Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information of an individual other than the requester. Section 2 of the FOI Act generally defines "personal information" as as information relating to an identifiable individual that:-

"(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential,"

Section 2 of the FOI Act goes on to specifically deem information in the following categories to be "personal information":-

"(i) information relating to the educational ... history of the individual...

(iii) information relating to the employment or employment history 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...

(xii) the views or opinions of another person about the individual."

In his submissions, the applicant maintained that the material contained in the applications and the applicants' contact details do not constitute personal information. The applicant claims that such matters as the education and employment history of an individual do not consist of personal information, as they would be known to individuals other than the individual or members of the family or friends of the individual. He states that "[h]aving regard to my own application form, there is nothing in it that other people would not know". In this regard, I take particular guidance from the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In that case, the Supreme Court held that the matters contained at section 2 (a) or 2(b) are not "overarching prior requirements", and that information falling into the categories set out at (i) to (xii) constitutes personal information, even if the requirements of neither sections 2(a) or 2(b) are satisfied.

Therefore, having carefully considered the contents of these records in light of the aforementioned provisions of sections 2 and 28(1) of the FOI Act, I am satisfied that in each instance that the information at issue in the relevant records comprises personal information relating to third parties for the purposes of the Act and I find that section 28(1)applies.

Section 28(2) provides that section 28(1) does not apply in certain circumstances. Having examined the records in question, I am satisfied that subsections (a) to (e) of section 28(2) are not relevant because the information contained in the records does not relate to the applicant; there is no evidence that any of the individuals referred to consented to the release of the records to the applicant; the information is not of a kind that is available to the general public; neither does it belong to a class of information that might be made publicly available. It has not been argued either that disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5) - Public Interest Test
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.

In the Rotunda Hospital case, the Supreme Court gave detailed consideration to the balancing of the public interest with the right to privacy of an individual, and drew a distinction between private interests and public interests. While the comments are obiter, Fennelly J noted that the request in that case was "by a private individual for a private purpose. It was not made in the public interest." Macken J also commented that "any "public interest" would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

In this case, the applicant seeks to invoke the public interest in the context of the propriety of appointments to a public roster, but in the particular context of his own dissatisfaction at not having been selected for this roster. In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request (section 8(4) of the FOI Act refers). However, this is not necessarily the case where the public interest becomes a consideration. As can be seen from the comments in the Supreme Court in the Rotunda case, there is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests may overlap, however. It seems to me that the applicant is primarily seeking information for his own private purposes. To the extent that the applicant's private interest overlaps with the public interest in this case, it appears that the public interest concerned is the public interest in openness, transparency and accountability.

I consider that there is a public interest in ensuring openness, transparency and accountability in the public service and in ensuring openness and transparency in how a public body performs its functions. The applicant referred, in particular, to Parliamentary Questions around the issue of the Roster, and to an entry in a document furnished to the Oireachtas Public Accounts Committee as evidencing the public interest in this issue. He further claims that the fact of his having had an application accepted by the Ombudsman for examination of his complaint in relation to the selection process demonstrates the public interest in the release of the records. While I find the latter submissions to be less than entirely convincing, overall I accept that there is a public interest in the disclosure of information which will allow for increased transparency and accountability in how the Department deals with appointments to panels or rosters.

I note that the applicant has received a quite significant volume of records from the Department in relation to the selection process for the Roster, including scoring sheets, a full list of the scores received by candidates, correspondence with appraisers, correspondence relating to a review of the Roster and extracts from requests for feedback and responses to such requests. I am satisfied that it is proper to have regard to the records that have already been released to the applicant as a relevant factor in considering whether the public interest in openness, transparency and accountability additionally requires that the personal information of third parties also be released to him.

The applicant is critical of the Department's selection process, going so far as to make a claim that a Dáil committee was "systematically" misled. It is beyond the scope of this review to make any finding on such matters. However, based on these complaints, the applicant claims that there is a public interest in "expos[ing] wrong doing", citing the Canadian case of Bland v. National Capital Commission [1991] 3 F.C. 325 and the decision of the Queensland Information Commissioner in Eccleston and Dept of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 as authority for this proposition. I am satisfied that these concepts are adequately encompassed in the recognised public interest in openness, transparency and accountability.

On the other hand, the FOI Act itself recognises a public interest in protecting privacy rights. Both the language of section 28 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY") recognise this public interest. The right to privacy also has a constitutional dimension. Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. 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 the right to privacy. In my view the public interest in protecting the right to privacy is a strong public interest.

The applicant refers, also, to the decision of Dunne J in Herrity v. Associated Newspapers[2009] IR 316 as authority for the proposition that the right to privacy is not absolute. This proposition cannot be in any real doubt, and indeed is acknowledged in the wording of section 28(5)(a) of the FOI Act, which explicitly refers to a balance between the public interest in disclosure and an individual's right to privacy. Having considered the matter very carefully, I am satisfied in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

Section 28(5)(b) provides that the personal information of a third party may be released if, "the grant of the request would benefit the individual" whose personal information is to be released. The applicant contends that a benefit will arise to the other unsuccessful applicants as they will be told, presumably by the applicant, of purported deficiencies in the selection process as identified by him, as well as be given what amounts to unsolicited legal advice by him. He submits that "honest" successful applicants will be vindicated by the release of material which shows that they were placed on the Roster "on objective merit rather than misrepresentation and/or fraud". The FOI Act requires that the benefit should arise from the release of the records. I do not accept that the release of the personal information contained in these records, which would essentially amount to release to the world at large, will benefit those third parties. The applicant, on his own submission, contends that any purported "benefit" will arise through his own agency rather than as a natural consequence of the release of the records. Therefore, I am satisfied that section 28(5)(b) does not apply in this case.

For the foregoing reasons, I am of the view that the Department was justified in refusing access to records coming under categories 2 and 9 of the Schedule of Records, pursuant to sections 26(1)(a) and 28(1) of the FOI Act. I find accordingly.

Having found that the records coming with categories 2 and 9 are exempt from release, it is not necessary for me to consider the applicability of section 26(1)(a) to those records.

Categories 3, 4, 6, 7 and 8
Records coming within these categories were released, but subject to redactions under sections 26(1)(a) and 28(1) of the FOI Act. I am satisfied, having regard to the definition of "personal information" contained at section 2 of the FOI Act, that the redactions to records coming under these categories relates to personal information for the purposes of the Act. In relation to category 3, this information includes names and email addresses; in relation to category 4, this information includes names, email addresses and employment history; in relation to category 6, this information includes names, telephone numbers, email addresses and employment history; in relation to category 7, this information includes names, email addresses, employment history and the opinions of third parties about the individuals; finally, the personal information in records coming under category 8 consisted of email addresses only.

Having considered the records coming under these categories, I am satisfied that subsections (a) to (e) of section 28(2), as set out above, are not relevant. Furthermore, for the reasons set out earlier in this decision, I am satisfied that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld, and that it would not be to the benefit of the relevant third parties for their personal information to be released. Therefore, I am satisfied that the redactions to the records coming under categories 3, 4, 6, 7 and 8 were justified under section 28(1) of the FOI Act. I find accordingly.

Category 5
Access to records coming within category 5 was refused under sections 22(1)(a), 26(1)(a) and 28(1) of the FOI Act. These records relate to a enquiry made by a third party regarding his/her eligibility to serve on the roster and the criteria for the selection process, as well as requests for legal advice in relation to same, involving both the Department's internal legal division and the Chief State Solicitor's Office. In so far as the records relate to the individual's enquiry concerning her eligibility, I am satisfied that they are exempt from release pursuant to section 28(1) of the FOI Act. In so far as a number of the records concern the selection process in so far as it might affect persons such as the individual who made the enquiry, I have considered the Department's claim for exemption under section 22(1)(a) of the FOI Act.

Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts 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 (advice privilege); and
confidential communications made between the client and a professional legal adviser or the professional 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 (litigation privilege).

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.

The applicant accepts that correspondence between the Chief State Solicitor's Office and the Department is subject to legal professional privilege. With regard to correspondence between officers of the Department and the Department's legal division, the applicant raised, in his submissions, the judgment of the European Court of Justice in Akzo Nobel Chemicals Limited and Akcros Chemicals Limited v. Commission of the European Communities (Joined Cases T-125/03 and T-253/03) in support of his contention that the withheld records were not privileged. The Akzo Nobel case was concerned with the powers of the European Commission to demand certain documents under provisions of European Union law relevant to its investigation of alleged anti-competitive practices, and the extent to which it is necessary to restrict legal professional privilege to enable the Commission exercise its specific powers of investigation in this regard. It seems to me, therefore, that the judgment has limited effect in that, in principle, it applies only to the exercise by the European Commission of specific powers under European Competition Law. Furthermore, I understand that the judgment recognises that information obtained at European level may only be used for the purpose it was obtained (i.e. the investigation of anti-competitive behaviour) and that the authorities concerned are prohibited from using or disseminating this information for any other purpose.

The Commissioner has recently considered the applicability of Akzo Nobel in Case 080216 AB & Co. Solicitors on behalf of Mr X & The Department of Agriculture, Case 090138 Mr. X, X & Co Solicitors & The Department of Finance and Case 140027 Mr. X and University College Cork (available from <www.oic.ie>), in each instance reaching the view that the Akzo Nobel judgment, given its very narrow scope, did not affect the position of in-house lawyers generally for the purposes of s.22(1)(a) of the FOI Act. I am satisfied that similar considerations arise in this case.

Previous decisions of the Commissioner 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, for example, Case Number 020281 - Mr. X and the Department of Education and Science).

Having closely scrutinised the relevant records, it seems to me that they comprise correspondence between officials of the Department, its legal advisors and the Office of the Chief State Solicitor that is subject to legal professional privilege under the advice privilege limb and I accordingly find that section 22(1)(a) applies. In summary, therefore, I am therefore satisfied that the Department was justified in refusing access to the records coming under category 5 pursuant to sections 22(1)(a) and 28(1) of the FOI Act. I find accordingly.

Any further records

In the course of this review, the applicant submitted that he "doubted that a proper search and retrieval process" had been carried out. Furthermore, as adverted to earlier in this decision, the applicant submitted that the "scant" nature of the Schedule of Records furnished to him meant that he "doubted that a proper search and retrieval process" had been adhered to. As previously outlined, any purported inadequacies in the schedule are beyond the scope of this review. The Department made submissions on the nature of the searches that were carried out on foot of the applicant's request. The Department submits that further records do not exist or cannot be found, all reasonable steps to ascertain their whereabouts having been taken. The applicant was apprised of the Department's position, but offered no further submissions. Under the circumstances, I consider it appropriate to address the adequacy of searches in the context of section 10(1)(a) of the FOI Act in this decision.

Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record 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 were reasonable. The Office's understanding of its 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, www.oic.ie).

In its submissions, the Department stated that, under its file management system, all relevant records would have been held by a particular "desk". Details were furnished of searches of paper and electronic files at that desk that may have been relevant to the applicant's request. Furthermore, the Department submitted that emails were sent to officials who were formerly employed at that desk so as ensure that no additional records existed. Having been invited to make submissions on the adequacy of search, the applicant declined to do so.

The position of the Department is that it cannot find any further records relevant to the applicant's FOI request. I have no reason to doubt these submissions. In the circumstances of this case, I am satisfied that the Department has taken reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies. I find accordingly.

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 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 from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator