Whether the Authority was justified, pursuant to the provisions of the FOI Act, in refusing to release further records to the applicant relating to the concerns he raised in connection with a recruitment competition run by the Public Appointments Service (PAS)

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

Background

By letter dated 3 June 2014, the applicant made a request to the Authority for copies of all records within its control relating to concerns he had raised with the Authority in connection with a recruitment competition run by PAS in 2013.

On 26 June 2014 the Authority refused his request on the basis that the records sought were subject to legal professional privilege (LPP) and were therefore exempt from release under section 22(1)(a) of the FOI Act. The applicant applied for an internal review of that decision on 7 July 2014. In its decision on internal review dated 28 July 2014, the Authority noted that the majority of the records coming within the scope of the request were already in the applicant's possession as they comprised correspondence between him and the Authority. Of the remaining six records, it released three and refused access to the remaining three under section 22(1)(a) (records numbered 4, 5, and 6 in a schedule of 27 records that the Authority forwarded to this Office during the course of the review).

On 29 July 2014 the applicant applied to the Commissioner for a review of the Authority's decision. He did not agree that records 4, 5 and 6 were exempt on the ground that LPP applies and was of the opinion that other records may exist relating to his request which had not been identified or released by the Authority.

Having regard to the contents of the applications submission to this Office, I have decided to conclude this review by way of a formal binding decision.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Authority's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Authority, to the contents of the records at issue, and to the provisions of the FOI Act.

Scope of Review

This review is solely concerned with whether the Authority was justified in withholding records 4, 5 and 6 under section 22(1)(a) and in refusing access to any further relevant records on the ground that no such records exist or can be found. I have not considered any of the 21 records which the Authority has noted are already in the applicant's possession as it is clear from the description of those records in the schedule provided that they comprise letters or emails sent by, or issued to, the applicant. However, if the applicant has any doubt as to the precise nature of any such records, I expect the Authority will make a copy of the schedule of records available to the applicant for ease of reference.

Analysis and Findings

Section 22(1)(a)
The Authority has identified Records No. 4, 5 and 6 as being exempt from release pursuant to section 22(1)(a) of the FOI Act. That section provides for the withholding of a record where it would be exempt from production in proceedings in a court on the ground of LPP. I accept that LPP 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.

Record 4
Record 4 is a note prepared by a solicitor within the Authority to whom the applicant's correspondence had been referred for review and consideration. Having examined the contents of the record, I am satisfied that it contains details of the advice of the Authority's Head of Legal Services concerning how the matter should proceed. This Office accepts that LPP can attach to communications by or to in-house professional legal advisers, as set out in Case 080216 (AB & Co. Solicitors on behalf of Mr X & The Department of Agriculture - this, and other cases referred to below are available on this Office's website, www.oic.gov.ie). In my view, record 4 reflects legal advice furnished by a professional legal adviser acting in such capacity, the client being the Authority. Accordingly, I consider it to be subject to the first limb of LPP, i.e. advice privilege, and I am satisfied that the Authority was justified in refusing to release this record under section 22(1)(a). I find accordingly.

Records Nos 5 & 6
Record 6 is a copy of a letter that the Authority issued to PAS and the Department of Public Expenditure and Reform (the Department) relating to the concerns raised by the applicant, while record 5 is an earlier draft of that letter. The Authority argued that both letters, that were prepared by a solicitor employed in the Authority and then reviewed and approved by the Head of Legal Services, would be exempt from production in court. The Authority contended that Records 5 and 6 are exempt from release on the grounds of both advice and litigation privilege.

Advice Privilege
In its decision on the applicant's request, the Authority argued that the records attract privilege as documents prepared in contemplation of litigation. However, it its submission of 15 December 2014 to this Office, it further argued that Record 5 attracts advice privilege as there is a material difference between the draft letter (Record 5)and the final issued letter (Record 6) and that this reflects the legal advice provided by the in-house legal adviser. It also argued that Record 6 is protected by advice privilege but did not explain why it considered the record to be so protected.

In my view, there is no basis for arguing that Record 6 is protected by advice privilege. Even if it had attracted advice privilege, such privilege would have been waived when the letter was issued to the parties concerned. I am also of the view that Record 5 is not protected by advice privilege. The fact that the Head of Legal suggested amendments to the letter does not, of itself, suggest that the record contains legal advice which attracts advice privilege. There is nothing in the letter, in my view, which discloses legal advice given or received. Accordingly, I am of the view that legal advice privilege does not attach to either record. I find accordingly.

Litigation Privilege
The purpose of litigation privilege is to give a party the opportunity to prepare its case without interference from the opposing party. The Authority has argued that both versions of the letter were prepared in contemplation of litigation. However, it appears that the intended recipients of the letters, i.e. PAS and the Department, are the very parties against whom litigation might be taken. In such circumstances, I fail to see how the Authority can argue that the letters attract litigation privilege.

Furthermore, while I do not accept that the letters concerned attract litigation privilege, the recent case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 clarified that litigation privilege does not "automatically continue beyond the final determination of either that litigation or .... closely related litigation". In its submission, the Authority has clearly stated that the threatened litigation under section 85 of the Employment Equality Acts is no longer contemplated or pending. It also stated that there are no other related proceedings in being or contemplated at present. Therefore, even if I had accepted that these letters would be exempt from production in court on the basis of the second limb of LPP, I am of the view that such privilege would no longer apply as litigation is no longer contemplated or pending. Accordingly, I find that Records 5 and 6 are not exempt under section 22(1)(a).

Section 10(1)(a)
The Authority's position is that, other than the 27 records identified in the schedule supplied to this Office, no further records can be located in relation to the applicant's FOI request. Accordingly, section 10(1)(a) of the FOI Act is relevant, which provides that a request for 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 were reasonable. The Office's understanding of its role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002] No. 18 M.C.A..

I note that Ms Sandra Murdiff, Investigating Officer contacted the Authority and requested details of the steps taken to locate records relating to the applicant's request. The Authority has provided comprehensive details of its record management practices and of the searches undertake in this case to locate all relevant records, including the following:

• All records relating to the applicant's concerns and subsequent proceedings are kept in the Legal Section, where all files are retained and nothing is destroyed.
• A searchable index of all case files in the Legal Section is in place, which facilitates easy retrieval of records.
• All case files are highly confidential and only sectional staff have access to them.
• The hard copy file was searched following the applicant's request and an electronic search using keywords was also completed following Ms Murdiff's queries.

I note that the applicant questioned whether an effective search and retrieval exercise was conducted by the Authority. I also note that, while he suggested that further records might be held by the Authority, he provided no supporting evidence to suggest that other relevant records should, indeed, exist. Having considered the submissions of both parties and the measures taken to locate the records, I am satisfied that the Authority has taken all reasonable steps to locate any further records and that its decision was correctly made in accordance with section 10(1)(a) of the FOI Act. 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 Authority's decision and direct the release of Records 5 and 6 to the applicant. I affirm the Authority's decision to refuse to release Record 4 under section 22(1)(a) of the FOI Act. I also affirm the Authority's decision to refuse to release further records to the applicant, pursuant to section 10(1)(a) 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.

Stephen Rafferty
Senior Investigator