Whether the Council was justified in its decision to refuse access to records relating to a decision by An Bord Pleanála to revoke the discharge license for a sewage treatment plant

Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 24 June 2014, the applicant submitted an FOI request to the Council, seeking access to records held by it relating to a decision by An Bord Pleanála to revoke the discharge license for a sewage treatment plant.

The Council's decision issued on 23 July 2014. The decision maker identified 97 records falling within the scope of the applicant's request and furnished a schedule of records to him. The Council refused access to records 27, 28, 52, 56, 59, 69 and 81 pursuant to section 20 of the FOI Act, refused access to records 18, 19, 20, 21, 22, 23, 24, 26, 55, 58, 61, 62, 63, 65, 66, 68, 70, 78, 79, 85, 87, 88, 89 and 97 pursuant to section 22 of the FOI Act, and refused access to records 76 and 77 pursuant to section 46(2) of the FOI Act. Records 31, 34, 40, 45, 47 were released to the applicant, subject to redactions of the personal information of third parties pursuant to section 28(1) of the FOI Act, while the balance of the records was released in full.

The applicant sought an internal review of the Council's decision by way of letter dated 5 August 2014. The internal reviewer upheld the decision. The outcome of the internal review was communicated to the applicant by way of letter dated 26 August 2014. On 27 August 2014, the applicant sought a review by this Office of the Council's decision.

I note that Mr. Niall Mulligan of this Office informed the applicant and the Council of his view in relation to this matter and indicated that a decision would issue in due course. I 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 Council's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Council. I have also had regard to the provisions of the FOI Act and to the contents of the records in question.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters

In correspondence with this Office, the Council indicated that records 28, 59 and 81 had been released to the applicant. Furthermore, the applicant confirmed that his application to this Office excluded records that are available for public viewing. Records 76 and 77 fall in to the latter category. Accordingly, it will not be necessary for me to consider the position as regards records 28, 59, 76, 77 and 81 in this decision.

I draw attention to the provisions of section 34(12)(b) of the FOI Act, which places the onus on the Council in this case of satisfying the Commissioner that its decision was justified.

Scope of the Review

This review is concerned solely with the questions of whether the Council was justified in its decisions to refuse access to records 27, 52, 56 and 69 under section 20 of the FOI Act, to refuse access to records 18, 19, 20, 21, 22, 23, 24, 26, 55, 58, 61, 62, 63, 65, 66, 68, 70, 78, 79, 85, 87, 88, 89 and 97 under section 22 of the FOI Act and to grant access to records 31, 34, 40, 45 and 47 subject to redactions of the personal information of third parties under section 28(1) of the FOI Act.

Analysis and Findings

The applicant's original request was for access to records relating to a decision by An Bord Pleanála to revoke a discharge license for a sewage treatment plant. The records identified as coming within scope of the applicant's request include internal memoranda and emails, correspondence between the Council and its legal advisors, engineers' reports and correspondence between the Council and third parties.

Section 20
Section 20(1) of the FOI Act provides that:-

"A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)."

Section 20(2) of the FOI provides that:-

"Subsection (1) does not apply to a record if and in so far as it contains --

... (b) factual information"

The deliberative process can be described as a "thinking process" that refers to the way a public body makes decisions. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice.

Record 27 is an internal email between officials of the Council, discussing matters arising from legal advice received from its external legal advisors. While section 20(1) may apply to this record, for the reasons set out later in this decision, I am satisfied that section 22(1)(a) is the more appropriate exemption. Therefore, it is not necessary for me to make a finding in regard to the application of section 20.

Record 52 again is an internal email between officials of the Council. The second paragraph of this email sets out a proposal as to a "long term solution" in relation to certain matters. I am satisfied that section 20(1) applies to this paragraph, but not to the remainder of the record. I find accordingly.

Having so found, it is now necessary for me to consider the application of the public interest test contained at section 20(3) of the FOI Act, which states that the exemption contained at section 20(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request.

There is a public interest in openness, transparency in accountability in the manner in which public bodies conduct their business. Conversely, there is a public interest in public bodies being able to fully explore and discuss proposals around particular courses of action. Having carefully considered the contents of the second paragraph of Record 52, I am satisfied that, on balance, that the public interest would not be better served by granting the request. I find accordingly.

Record 56 is a letter from the Council to an official at the Environmental Protection Agency (the EPA). It appears to me that this record sets out the Council's position in relation to certain issues for the benefit of the EPA. However, it does not relate, in my view, to the Council's thinking process. Furthermore, it appears that the record consists mainly of factual information, within the meaning of section 20(2) of the FOI Act. Accordingly, I find that section 20(1) does not apply to this record.

Record 69 is an internal email between officials of the Council, setting out a "draft update for the EPA" in relation to actions being taken by the Council. While the record includes an outline of investigations being undertaken, in my view it does not go to the thinking process of the Council and therefore section 20(1) does not apply. I find accordingly.

Section 22
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.

In the remainder of this decision, I will refer to these types of communications as records subject to, respectively, "legal advice privilege" and "litigation privilege".

Internal records can attract legal professional privilege. In Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289, O'Hanlon J. held that the defendants were entitled to claim privilege 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". Furthermore, previous decisions from this Office have accepted that legal professional privilege also attaches to records, including internal records, where they are part of a continuum of correspondence arising from an original request for legal advice (Case Number 020281 - Mr.  X and the Department of Education and Science - available on our website oic.ie).

In considering litigation privilege, I have had regard to the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v. the Electricity Supply Board [2014] IEHC 135. I will refer to this judgment as the "ESB judgment". The proceedings related to a claim for damages arising out of a flood that occurred in the River Lee in 2009. The plaintiff sought discovery of certain documents prepared by the ESB following the flood, as well as certain documents created following three earlier floods.

In granting the discovery sought, Finlay Geoghegan J made it clear that:-

the onus is on the applicant for discovery to "establish ... as a matter of probability that litigation ... was apprehended or threatened from [a particular date]";

the dominant purpose threshold is not met in a case where there are two equal purposes for a document's creation, even if one of those purposes is preparation for litigation; and

unlike legal advice privilege, litigation privilege does not "automatically continue beyond the final determination of either that litigation or ... closely related litigation."

Record 18 consists of a request for legal advice by the Council to its external professional legal advisors and records 20, 21, 22, 23, 24, 26, 58, 61, 62, 63, 70, 78, 79 and 89 each consist of correspondence between these parties for the purpose of obtaining legal advice, while record 88 is a draft affidavit which formed part of that correspondence. Accordingly, legal advice privilege applies to these records and they are thus exempt under section 22(1)(a) of the FOI Act. I find accordingly.

As set out above, record 27 contains consideration by the Council of legal advice. I am satisfied that section 22(1)(a) applies to that record; I find accordingly.

Record 55 is an internal email between officials of the Council. While the author refers to legal advice received, the record does not disclose the contents of such advice. It mainly refers to the text of a proposed response to correspondence received from the applicant. Having carefully considered the matter, I am satisfied that section 22(1)(a) of the FOI Act does not apply to this record. I find accordingly.

Records 87 and 97 consist respectively of handwritten notes of a meeting and an internal email discussing legal advice received by the Council. In each case I am satisfied that section 22(1)(a) of the FOI Act applies, as the records are subject to legal advice privilege. I find accordingly.

Records 19 and 85 are letters from the Council's legal advisors to An Bord Pleanála. It is plain from the content of the letters, as well as the surrounding correspondence between the Council and its advisors, as considered above, that litigation was in contemplation at the time that the letters were written. However, it is also clear that ultimately the contemplated proceedings were not instituted. Having regard to the ESB Judgment, it seems to me that litigation privilege cannot apply in circumstances where the apprehended litigation did not take place. Equally, the letters are not solicitor/client communications for the purpose of obtaining legal advice. I am therefore satisfied that section 22(1)(a) of the FOI Act does not apply in relation to these records. I find accordingly.

Records 65, 66 and 68 are emails between the Council and the EPA. Again, they are not solicitor/client communications for the purpose of obtaining legal advice, nor is it apparent that they were prepared for the dominant purpose of preparing for apprehended litigation. Thus, I am satisfied that section 22(1)(a) does not apply to these records. I find accordingly.

Section 28

Records 31, 34, 40, 45 and 47 were released to the applicant subject to redactions of the personal information of third parties under section 28(1) of the FOI Act. 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 specifically deems information in the following categories to be "personal information":-

(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.

However, section 2 goes on to state that "personal information" does not include:-

(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid...

These records refer to the health and work arrangements of individuals, including Council employees. In each instance relating to the latter, I am satisfied that the information is of a private nature and that section 2(I) does not apply. I am therefore satisfied that section 28(1) applies to the redacted information. I find accordingly.

Section 28(2) provides that Section 28(1) does not apply in certain circumstances. Having examined the records in question I am satisfied that Section 28(2) is not relevant to the circumstances of this case.

Section 28(5) of the FOI Act provides that personal information of a third party may be released if:-

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or

(b) the grant of the information would be to the benefit of the person to whom the information relates.

Having regard to section 28(5)(b), it does not appear to me that there can be any benefit to the third parties arising out of the release of the records at issue. I therefore find that section 28(5)(b) does not apply in this case.

Section 28(5)(a) provides that a record which has been found to be exempt under section 28(1) may be released if it can be demonstrated that "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. In considering the public interest, the Commissioner must take account of 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, which commented on the approach that the Commissioner should take when balancing the public interest in granting access to personal information, with the public interest in upholding of the right to privacy of the individuals to whom that information relates.

In this case, I am satisfied that, on balance, the public interest in openness, transparency in accountability does not outweigh the right to privacy of the individuals concerned, and that personal information of these third parties should not be released. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of Council in this case and direct the release in full of 19, 55, 56, 65, 66, 68, 69, and 85. I also direct that record 52 should be released, subject to the redaction of its second paragraph which is exempt under section 20 of the FOI Act.

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.

Elizabeth Dolan
Senior Investigator