Whether the NSCDA was justified in refusing a request for access to records of certain correspondence between the NSCDA and its advisers about the National Aquatic Centre and a VAT dispute under sections 10(1)(a), 22(1)(a), 22(1)(b) and 23(1)(a)(iv) of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by the Information Commissioner

Background

The FOI request which gave rise to this review was first made to the NSCDA in late 2012. The applicant originally sought access to all records held concerning VAT on the lease of the National Aquatic Centre between 15 May 2003 and 20 February 2012, all advices on that matter and on the dispute with the applicant's company in the same period. This application for review came about as a result of a public body failing to appreciate its statutory obligations under the FOI Act and failing to comply with the directions I gave in a previous decision on the same issue (Case Reference 130027 and 130058 on www.oic.ie). That previous decision sets out the background to the parties' dispute, including litigation, which I will not repeat here.

Almost three years after the original FOI request, I have to make another decision on a matter that could and should have been concluded within a much shorter timeframe, had the NSCDA properly complied with the requirements of the FOI Act. Its handling of both the previous request and of the process which gave rise to this latest review has been most unsatisfactory. In fact, as will become clear later in this decision, a significant premise of the NSCDA's argument against release of the records would not have been an issue at all had the requests been properly decided upon from the outset.

In the course of this review, I had to serve notice on the Chief Executive of the NSCDA under the provisions of section 37(1)(a) of the FOI Act, formally requiring him to attend before me for the purpose of furnishing information necessary to conduct my review. While attendance of the Chief Executive at my Office was ultimately not required, since the necessary decision was eventually communicated to the applicant, the necessity to resort to this rarely used power is indicative of the difficulty my Office encountered in conducting the review.

Previous Direction and requirements of a new decision
In November 2012, the applicant sought access to records held by the NSCDA. Following my review, I found that the NSCDA had not justified its finding that the applicant's request formed part of a pattern of manifestly unreasonable requests for information. In October 2014, I annulled the decision and directed that the NSCDA undertake a fresh decision making process in accordance with the requirements of section 8 of the FOI Act. That new decision making process should have involved a consideration by the NSCDA of the applicant's original request, a fresh decision and internal review decision if necessary. The time for beginning a new decision making process should have commenced no more than eight weeks after 3 October 2014. However, a new decision making process was not initiated by the NSCDA until three months after that decision.

Deemed Refusal
On 12 January 2015, the NSCDA wrote to the applicant and explained that it was considering his original request as a result of my October 2014 decision and that a new decision would issue to him within three weeks. On 11 February 2015, having received no decision from the NSCDA, the applicant requested an internal review on the basis of a deemed refusal of his original request. However, the NSCDA failed to issue an internal review decision within the three weeks provided for at section 14(4) of the FOI Act. Consequently, the applicant applied to this Office on 4 March 2015 for a review, on the basis of a deemed refusal.

Further, on 6 March 2015, the NSCDA advised the applicant that it was considering refusing his request on the basis of section 10(1)(c) of the FOI Act. Section 10(1)(c) provides that a request for a record may be refused if granting the request would cause substantial and unreasonable interference with, or disruption of, the work of the public body. However, section 10(2) requires that a request shall not be refused under section 10(1)(c) unless the body has assisted, or offered to assist, the requester concerned in an endeavour to amend the request that it no longer falls within the parameters of section 10(1)(c). The NSCDA advised the applicant that under the provisions of section 10(2), it was inviting him to narrow or refine the scope of his request such that it no longer fell within section 10(1)(c).

Narrowed Scope
My Office subsequently advised the NSCDA that it did not accept that its letter of 6 March was an internal review decision, as provided for at section 14(4) of the FOI Act. It seems to me that the Act requires that, if a public body believes that section 10(1)(c) might apply, this must be invoked within the statutory time periods. Otherwise, the deemed refusal provisions of section 41 apply when decisions are not given within the statutory periods. The Office further advised the NSCDA that the applicant's application for review had been accepted on the basis of a deemed refusal. Following communications between this Office, the applicant and the NSCDA, in an effort to bring the matter to a satisfactory conclusion and to avoid my Office having to annul the refusal and remit it to the public body for a second time, the applicant wrote to the NSCDA on 18 March 2015 and narrowed the scope of his request to:

" All emails received by Mr. David Conway, Mr. Sean Benton, Mr. Donagh Morgan and Ms. Laura Magahy from the following [professional services firm] personnel... [four named individuals]...between 1st May 2003 and 20 February 2011."

Section 37
Having accepted the applicant's narrowed request of the 18 March, 2015, the NSCDA stated that it would make a decision by 17 April. However, on 16 April, the NSCDA said that it would not be in a position to issue a decision until 24 April. I considered that this further delay was unacceptable. While the result of the NSCDA's consideration of the narrowed scope request is referred to here as a "decision" or "internal review decision", it was well outside of the statutory time limits in the FOI Act and its status was, I believe, closer to that of an "effective position" statement. This arose because the Act did not envisage that a direction from my Office would not be complied with in a timely manner; neither was it envisaged that I would have to consider annulling a decision for a second time. Thus, my Office attempted to ensure that the applicant secured some response from the public body together with the independent review to which he was entitled. On 24 April 2015, my Office wrote to the Chief Executive of the NSCDA, under the provisions of section 37(1)(a) of the FOI Act, requiring him to attend before me for the purpose of providing information on the following:

"(a) the NSCDA's decision as issued to the applicant on the matter, or (b) an explanation as to why the NSCDA has not made a decision on [the applicant's] request, despite a direction from the Commissioner in his decision of 3 October 2014 and (c) in the event that a decision has been made and that certain records are being withheld, copies of those records and a statement of the reasons for that decision with reference to the exemptions relied upon and the public interest balancing tests applied where relevant."

The section 37 letter overlapped with an internal review decision of the NSCDA being forwarded to the applicant. While an electronic version of that letter was received in my Office after office hours on 24 April (effectively received on 27 April), the hard copy letter to the applicant was undated. On foot of that decision letter to the applicant, I decided to suspend the requirement that the Chief Executive attend.

I note here that had the NSCDA complied with the directions I gave in my decision of 3 October 2014, it would have been reasonable for the applicant to anticipate receiving an internal review decision by the third week in January 2015. However, as can be seen from the events described above, a purported decision was not issued to the applicant for a further three months beyond that anticipated deadline and then only as a result of my Office's intervention.

NSCDA's position on the records identified
In its internal review decision, the NSCDA identified a total of 77 records relating to the applicant's request. The NSCDA refused access to 54 records on the basis of section 22(1)(a); those 54 records and one other were also withheld on the basis of section 22(1)(b); 19 records were withheld on the basis that they were "not relevant" to the applicant's request. The NSCDA also referred to the discretionary exemption at section 23(1)(a)(iv) but did not provide details about the records to which it had applied that exemption. Three records were released to the applicant. The NSCDA did not at this stage provide the applicant with a schedule identifying the records and the related exemptions. Consequently, the applicant was not in a position to know which exemption had been applied to which record.

I am mindful of the responsibilities and obligations that public bodies have under the FOI Act. However, I do not accept that the NSCDA's staff and legal advisers can have been unaware of the requirements of a proper decision, the necessity to give reasons for withholding records under the various exemptions and my Office's requirements on review. I would remind public bodies generally that the Department of Public Expenditure and Reform's Central Policy Unit (CPU) website is a useful resource in relation to the Act's operation. Staff from my Office were in contact with both the applicant and the NSCDA in an effort to clarify, in particular, the statutory timescales and the requirements of my previous decision.

Submissions of the applicant
In a letter dated 5 June 2015, the applicant noted that he had not received a detailed schedule of the records at issue until one month after the NSCDA had made its decision. Consequently, he was not in a position to comment on the NSCDA's decision on all 77 records until a schedule was provided to him. I note that on 30 April, my Office asked the NSCDA to forward a schedule to the applicant. However, when the applicant confirmed to this Office on 27 May that a detailed schedule had not been made available, my Office forwarded a copy of the schedule it had received from the NSCDA. Subsequently, the NSCDA took issue with my Office having given a copy of the schedule to the applicant on the basis that it had not been intended for him.

The applicant made a number of submissions regarding the status and the NSCDA's handling, of his request. The applicant expressed frustration at the length of time it had taken and criticised what he regarded as the NSCDA's failure to provide an explanation about why it had not made its decisions with the timeframes provided for in the FOI Act. He stated that he did not understand how the records to which he sought access, and which were communications between the NSCDA and its tax advisers, could be held to attract legal professional privilege, given that the NSCDA had not claimed a privilege over what he regarded as similar documents which were released to him in November 2012. He also questioned whether litigation could reasonably be apprehended by the NSCDA in 2015, in relation to records which were created as early as 2003. The applicant also commented on what he regarded as "the coincidence of the timing" of the decision of the NSCDA to issue a decision about records to which he sought access but which, by the time of the decision, were said to be covered by an Order for Discovery.

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 position of the NSCDA in its processing of the request. I have also had regard to correspondence between this Office and the NSCDA, between the applicant and the NSCDA, to correspondence between the applicant and this Office, to the records within the narrowed scope and to the provisions of the FOI Act.

Scope of the Review

This review is solely concerned with whether the NSCDA has justified its refusal of the applicant's FOI request under sections 10(1)(a), 22(1)(a), 22(1)(b) and 23(1)(a)(iv) of the FOI Act. I deal further below with the identification of the records within scope.

Preliminary Matters

Restriction on disclosure
Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent to which I can describe the records' content and of the reasons that I can give, is limited.

It should also be noted that any review conducted by this Office under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office.

Section 34(12)(b) and the burden of proof
Section 34(12)(b) places the onus on the public body to justify to the Commissioner's satisfaction that its decision is justified.

My Office conducted an organisational review of its handling of cases in mid 2014. That process included a revision of this Office's engagement with public bodies in relation, in particular, to the significance of a request for focussed submissions. A focussed submission provides a public body with an opportunity to explain in more detail the exemptions it has relied on to refuse access to records. In this regard, I publicised the process changes of my Office by issuing an email on 10 April 2014 to each FOI Liaison Officer (including the FOI Liaison Officer at the NSCDA). I advised public bodies that requests by the Office for submissions would be "case focussed and may require specific questions to be answered by the public body to support its decision". I also advised that "Generally, the public body's submission will represent the body's third and final chance to state its case" (the first and second being the original and internal review decisions). I further advised that "If no submission is made, the OIC may make a decision on the information before it without further contact with the public body."

On 18 May 2015, this Office invited the NSCDA to make a focussed submission and so provide additional supporting information about the exemption provisions on which it had relied. In its submission, dated 3 June 2015, the NSCDA stated that it was advised, "in the strongest possible terms", that it was prevented "from releasing any documents...". It stated that "Given the very clear prohibition on the production of those documents [on the basis of an Order for Discovery], the Authority [NSCDA] does not believe it is necessary to address each of the other points made in the letter of 18 May...". It said that answering the questions posed by my Office would involve "significant cost and expense" but that if the Office "still considers it necessary [that] the Authority should address the balance of the queries posed...", the Office should advise the NSCDA.

Following receipt of that submission, my Office wrote to the NSCDA on three further occasions in an attempt to clarify a number of issues. On two of those occasions, my Office asked the NSCDA to provide supporting information arising from a query from the applicant on the possible existence of additional records. In other correspondence, my Office asked the NSCDA to provide further information on its decision to refuse access to a number of records without applying an exemption under the FOI Act. The NSCDA replied that a number of records were withheld as "not relevant". Finally, on 5 October and 19 October 2015, my Office wrote to the NSCDA and advised it that I would now finalise the review by means of a formal binding decision. My Office set out for the NSCDA its position on the records and on section 22(1)(b) and discovery and explained that I must make a decision on individual records as opposed to categories of records. The NSCDA's legal advisers responded on 8 and 27 October 2015 disagreeing with my Office's position and reiterating their previously expressed view.

It seems to me from the content of those responses that the NSCDA was attempting to put the onus on my Office to justify the rationale for its position, rather than engaging with my Office in consideration of the obligations of the NSCDA under section 34(12)(b) of the FOI Act. Nonetheless, given the nature of the records and the history of litigation between the parties, it is clear that the NSCDA and its advisers are very familiar with the nature and content of the records the subject of the review and I am satisfied that the NSCDA had adequate opportunity to justify its decision.

Analysis and Findings

Records within scope of the review
Section 8(2)(d)(ii) of the FOI Act provides that a notice of a decision of a public body (to a requester) shall specify-

"...any provision of this Act pursuant to which the request is refused and the findings on any material issues relevant to the decision..."

In the schedule which accompanied its internal review decision to the applicant in April 2015, the NSCDA decision maker referred only to the 3 records which were released and made no reference to the records which it had refused. The released records are numbers 75, 76 and 77. Also, in its decision letter to the applicant, the NSCDA failed to give reasons for its refusal of 19 records to which it referred as "not relevant" although it had included these in a list of the records identified as coming within the narrowed scope of the request. My Office sought clarification from the NSCDA, in accordance with the provisions of section 8(2)(d)(ii).

In its submission of 3 June 2015, the NSCDA stated that "All of the potential 77 records identified (apart from those 18 [sic] records which are described in the schedule provided to you under separate cover as being not relevant or those which have been released) are covered by the broad scope of the discovery terms...". However, it seems that, somewhat confusingly, the NSCDA then amalgamated the original and refined requests of the applicant, and stated that the "77 records were identified as potentially falling within the broad scope of the refined request from [the applicant] (i.e. all emails that were received from 4 named [tax adviser] personnel between 1 May 2003 and 20 February 2011). However, ...the decision maker was of the view that a small number (18) did not fall within the remit of the wider, original request...".

The issue I must consider before going any further is whether the applicant's narrowed request of 18 March 2015 should be taken literally, i.e. whether all emails created within the time specified in the request are within scope of this review. I accept that the individuals specified in the request would be likely to receive a great many emails relating to diverse issues. I note that in his communications with this Office, the applicant refers to the "subject matter of this FOI request". I have taken the view that the subject matter to which the applicant refers is as described in an original FOI request he made to the NSCDA. The subject matter of that original request relates to a VAT dispute between the applicant and the NSCDA. As such, I am satisfied that it is reasonable to take the scope of the narrowed request to capture those emails which related to the specific subject matter of VAT and the applicant's dealings with the NSCDA.

Following examination of the records, I have concluded that some of the 19 records, originally identified as "not relevant" by the NSCDA, are within the scope of this review. I have identified the following records which I consider do not relate to the specific subject matter of the applicant's request either because they were not received by the persons listed from the named individuals or because of their subject matter and are outside the scope of this review: Records 2, 24, 25, 35, 36, 37, 46-52, 57 and 62.

Some of those records refer to Revenue contacts in the context of the transfer of operations from CSID to NSCDA and other issues which, on the face of it, do not involve the applicant's company.

For clarity, the following records are within the scope of this review: 1, 3-23, 26-34, 38-45, 53-56, 58-61 and 63-74, inclusive.

Description of records
The records at issue are emails sent by the NSCDA's tax advisers to Campus Stadium Ireland Development (CSID), as NSCDA was then known. Many of the records are email threads. Some of the emails contained attachments when they were originally sent; some attachments were deleted when being forwarded in a thread and others are included with the relevant record. In this regard, I have decided to consider all of the material included in the records provided to my Office and listed above as falling within the scope of the narrowed request.

Section 22(1)(b) - Contempt of Court
I have decided to consider the exemption at section 22(1)(b) before considering section 22(1)(a) because this mandatory exemption formed the main premise of the NSCDA's argument against release of the records.

I will begin by noting that had the NSCDA processed the applicant's request in a timely manner, following the directions in my decision of 3 October 2014 and as required by the FOI Act, it is unlikely that the issue of the records being the subject of a discovery order would have arisen. This is because the discovery applications culminating in the order for discovery did not, apparently, commence until March 2015.

Section 22(1)(b) of the FOI Act (as amended) provides that:-

"A head shall refuse to grant a request under section 7 if the record concerned -

....

(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."

The NSCDA emphasised its reliance primarily on the exemption at section 22(1)(b). It did this by stating in its focussed submission, and in subsequent communications, that it did not consider it necessary to provide supporting information to my Office about other exemptions on which it had relied to refuse access to the records at issue.

Simply put, the NSCDA stated that section 22(1)(b) applies to records that are the subject of an Order for Discovery in proceedings involving itself and the applicant's company and that the records at issue in this review are covered by such Order. According to the NSCDA, "This [mandatory effect of section 22(1)(b)] arises as the Authority [NSCDA] has already agreed to make discovery of any documents "relating to the charging of VAT on the lease of National Aquatic Centre..." or "relating to, recording or evidencing any correspondence between the [Authority] and the Revenue Commissioners in relation to the charging of VAT on the lease...in the context of the legal proceedings between the parties which are currently pending before the Commercial Court bearing record number 2013/4621P. The release by the Authority of any documents, or any part of them, which relate to the above discovery categories would constitute a contempt of court."

According to the applicant, an Order for Discovery involving the applicant and the NSCDA, was made in late March/early April 2015. The Order initially required that discovery be made before the end of September 2015 but the NSCDA said that this has been extended to mid-November 2015. The NSCDA's solicitors confirmed in a letter of 17 June 2015 that an affidavit of discovery had not been sworn at that time but that the affidavit would be sworn at the end of September. I am not aware at the time of this decision that the necessary affidavit has been sworn or the discovery actually made.

The issue I have to address is whether, in the course of litigation under an order for discovery, an undertaking is implied when documents are merely the subject of an order (where discovery of actual documents has not been made), or when those documents are obtained by the party to whom discovery is made.

The NSCDA stated that it was advised, "in the strongest possible terms", that it was prevented "from releasing any documents encompassed in the Discovery Order including the documents refused to the applicant...". The NSCDA referred to the decision by the High Court in the case of EH and EPH v. the Information Commissioner (96 MCA/1999 & 107 MCA/1999), in which O'Neill J. stated:

"I have come to the conclusion that where a head of a public body or the Commissioner is aware that there is an undertaking to a Court be it expressed or implied that disclosure must be refused on the basis of section 22(1)(b)."

The NSCDA further argued that, in his judgment, O'Neill J. stated that if a document could be obtained under the provisions of the FOI Act, where disclosure was prohibited by a ruling, or by an undertaking to a Court, "I have no doubt that this would amount to a gross and constitutionally impermissible interference in the administration of justice."

The NSCDA also referred to what it termed guidance notices issued in 2010 by my Office. In fact, the NSCDA was in error since those notices were issued by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform. They were replaced in 2015 by a new suite of notices. The current CPU guidance notice 14, on Contempt of Court states

"In EP and EPH v the Information Commissioner, it was established that a person who obtains [my emphasis] a record in the course of litigation under an order of discovery is subject to at least an implied undertaking that the record will not be used for any other purpose."

In its most recent submission, the NSCDA maintains that the decision of Keane J. in Greencore plc v Murphy [(1995) 3 IR 520, 528] supports its view that the implied undertaking arises on the making of the Order for discovery. I do not accept this interpretation and note that the judgment refers to a party "who in the course of discovery in that litigation obtains possession of copies of documents belonging to the other party to the litigation, impliedly undertakes to the court that he will not use them...2 and to "discovered documents".

I am advised that, since an order for discovery refers to general categories of documents only, it is difficult to appreciate how an undertaking could be said to be implied on a category of documents (or to put it in terms of FOI, a set of records) until such time as the documents within those categories have been specifically identified or listed, an affidavit of discovery sworn and the documents furnished to the other side so that the documents are, at least, available for inspection. In the EH case, I understand that discovery of the documents had already taken place and it was in this circumstance that the Court held that an undertaking as to how they would be treated would be breached if disclosure was made by the public body of the same records under the FOI Act.

Heffernan in Legal Professional Privilege (Bloomsbury, 2011), at p178, states:

"Where discovery has been agreed or ordered and documents have been disclosed [my emphasis], the party obtaining production is bound to limit her use of the documents to purposes connected with the underlying litigation. In Ambiorix Ltd v Minister for the Environment (No 1), Finlay CJ stated the principle in the following terms:

'As a matter of general principle, of course, a party obtaining the production of documents by discovery [my emphasis] in an action is prohibited by law from making any use of any description of such documents or the information contained in them otherwise than for the purpose of the action. To go outside that prohibition is to commit contempt of court.'"

In her decision on case number 050166, (Mr. Eamonn Murphy and the Industrial Development Agency, available at www.oic.ie), the former Commissioner noted that;

"Matthews & Malek suggest that the implied undertaking only comes into being when "a list of documents is served" or when "documents are produced on discovery" [Discovery (London, 1992) at para. 12.01]. Furthermore, it seems from Delany & McGrath [Civil Procedure in the Superior Courts (2nd. Ed., Dublin, 2005) at para. 10-65] that the implied undertaking only comes into effect on the actual disclosure of the documents:

"It is generally accepted that documents, having been disclosed on foot of a discovery order, are subject to an implied undertaking ..."

I am mindful that section 22(1)(b) applies where a decision maker knows or ought reasonably to have known that disclosure of a record would constitute contempt of court. Thus, my Office wrote to the NSCDA asking it to confirm my understanding that the records have not been the subject of previous discovery and implied undertaking (i.e. in proceedings other than those initiated in 2015). In response, the NSCDA stated:

"Neither can it be said that the Commissioner's second assumption [on the matter of previous discovery] is correct. Until the review process is complete we will not know the answer to that question".

I have noted the concerns of the NSCDA and its argument that it is prevented "from releasing any documents encompassed in the Discovery Order...". However, it seems to me that, if for any reason, the swearing of the affidavit of discovery or the handing over of the subject records did not take place, it could not have been envisaged by the legislature that any implied undertaking would exist indefinitely over a category of records and that release of the records to the applicant under FOI would be prohibited. In any event, I consider that it is not open to me to accept that a class of records is exempt under section 22(1)(b) in circumstances where there has been no identification of documents in an Affidavit of Discovery and where it is accepted by both parties that discovery has not been made.

As regards the implied undertaking, the applicant argued that any implied undertaking would be given by the applicant's company and that he (as an individual) is not a party to the current proceedings. While I make no finding on this matter, I would point out in relation to the identity of the applicant in this review that the applicant's application to my Office and the FOI requests which gave rise to this review were made on the headed paper of the applicant's company.

Having carefully considered the matter, I find that the NSCDA has not justified its decision that release of the records to the applicant, on foot of his FOI request, would constitute contempt of Court, and that section 22(1)(b) does not apply to the records identified above.

Section 22(1)(a)
Section 22(1)(a) of the FOI Act provides that a request for access to 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. Unlike several of the other exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for a public interest balancing test.

I have examined all of the remaining records to decide whether the exemption at section 22(1)(a) would apply since it is my view that where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right.

I accept that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between a client and 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 or pending litigation (litigation privilege).

 

In considering whether a record would be exempt from production in a court on the grounds of legal professional privilege, I must ignore whether or not proceedings took place and bear in mind that legal professional privilege resides with the client. I must consider whether the public body, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege. There are some situations in which privilege may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice; and, communications in furtherance of a criminal offence. In certain cases, documents which already exist may be attached to requests for legal advice or to legal advice provided. I am advised that the normal principle is that a document is not privileged if it is not brought into existence for the purpose of seeking or giving legal advice.

Individual Records in a Series of Communications
The former Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of legal professional privilege but which form part of a series of communications regarding the giving or receiving of legal advice. In Case 020281 (Mr. X and the Department of Education and Science, available at www.oic.ie), she referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

Consequently, I take the view that privilege can attach to records that form part of a continuum of correspondence that results from the original request for legal advice.

My Office addressed several queries to the NSCDA to assist it in assessing the status of the records including the question of whether they might form part of a continuum of correspondence resulting from a request to its professional legal advisers for confidential legal advice. NSCDA stated that it "does not believe it is necessary to address each of the other points made". It said that "Section 22(1)(a) is also mandatory in its operation".

Advice Privilege
In order for the first limb of legal professional privilege rule to apply, the communication must be made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice.

The applicant's narrowed request named four individuals employed by the NSCDA's tax advisers' professional services company at the time of the creation of the records. Each of the four named persons was associated with the 'Tax and Legal Services' section of that company. The records at issue include correspondence to and from the NSCDA, its legal advisers, its tax advisers, other public bodies and third parties. All except one of the records at issue were sent by the NSCDA's tax advisers to CSID, now the NSCDA. Some of the records contain communications written on behalf of the NSCDA by its tax advisers and copied to the NSCDA's legal advisers. It is fair to say that the content of some communications concern the issue of VAT in the context of the NSCDA and the applicant's company. However, some records refer only to administrative type arrangements such as the times of meetings etc. In an appendix to a draft letter of 10 December 2010 (record 75 released by the NSCDA to the applicant), the NSCDA's firm of tax advisers state, inter alia, that they were engaged "... to provide VAT advisory services and we did advise on the VAT treatment of the lease...". They also state that the firm "...was asked to provide VAT advice to [NSCDA] in terms of its liability to VAT ... and to provide advice, when requested, in relation to interaction with both the Revenue Commissioners and [a third party ]."

In considering whether the records amount to legal advice, I have had regard to the Supreme Court judgment in Smurfit Paribas Limited v A.A.B. Export Finance [1990] 1 I.R. 469 and to the principles set out by the High Court (Lavan J.) in Ochre Ridge Ltd. v Cork Bonded Warehouses Ltd. [2004] IEHC 160.

According to Heffernan in "Legal Professional Privilege",( Bloomsbury, 2011) at p.45

"Because legal advice privilege is grounded in the confidential exchange between client and lawyer, it does not extend to communications between either the client or the lawyer and a third party. For example, in Hurstridge Finance Ltd v Lismore Homes Ltd, Costello J. held that privilege did not attach to notes of meetings held between lawyers and third parties. This limitation, which applies even when the communication with the third party concerns a matter upon which the client has sought legal advice, is a characteristic that distinguishes legal advice privilege from litigation privilege."

Having regard to all the circumstances, I am satisfied that there is no indication in the records that any of the four named persons in the applicant's request were acting a professional capacity as legal advisers to the NSCDA. Further, I can see nothing on the face of the records (apart from record 43) that comprises confidential legal advice from professional legal advisers to their client.

I find that advice privilege does not apply to the records except for record 43, which discloses the content of legal advice given by solicitors for the NSCDA.

Litigation Privilege
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 from 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, Ms Justice Finlay Geoghegan made it clear that:

• the onus is on the party asserting privilege 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."

Before I consider the "dominant purpose" test in respect of the records at issue, I must be satisfied that the NSCDA has justified its contention that applicable litigation privilege continues in the circumstances of this case, and that the Courts would find legal professional privilege to apply to the records at issue accordingly.

As I understand it, the litigation between the parties which is referred to in the records involved High Court proceedings by CSID against the applicant for forfeiture of the lease as a result of which the High Court referred the VAT issue for arbitration. The applicant's company then appealed the arbitrator's award to the High Court and subsequently to the Supreme Court. On 30 April, 2010, the Supreme Court found that the arbitrator's decision was incorrect and referred the matter back for arbitration. Thus, that set of proceedings could be held to have concluded over five years ago. The NSCDA argued that "a current challenge to the bringing of VAT proceedings" is closely connected to the initial proceedings. The applicant stated that no proceedings issued until March 2005 and that these were finally concluded in 2010. I note that the bulk of the records were created after March 2005. While my examination of the records does not lead me to conclude that each and every one of them was prepared for contemplated or pending litigation, I accept that there is a possibility that some of the VAT material may be linked to the current litigation. However, the onus is on the NSCDA to establish, on the balance of probabilities, that the 2003-2011 records were prepared with the dominant purpose of preparing for closely related litigation that has either not concluded, or is contemplated, or pending.

In the ESB case , Finlay Geoghegan J. noted certain relevant principles applicable to a claim to litigation privilege, including, having regard to Gallagher v Stanley [1998] 2 I.R 267, that: "it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation"; and the dominant purpose of the document is a "matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created". She also noted, having regard to Woori Bank and Downey v Murray [1988] N.I. 600, that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action."

In the request from my Office for a focussed submission, the NSCDA was asked to provide the basis for its reliance on litigation privilege. In particular, the request to the NSCDA sought supporting information about the dominant purpose for the creation of each record, and on the matter of related proceedings, whether those proceedings had a substantive or close connection with the earlier proceedings and, if so, to explain the basis for that view. I note that many of the records relate to administrative matters, such as forwarding or receiving messages about meetings. Other records contain draft letters and other details relating to the NSCDA's dealings with the Valuation Office and the Revenue.

The applicant argued that the NSCDA waived privilege over certain of the records by deploying them in High Court proceedings. I have no evidence to substantiate that claim.

From the context and the content of each record, I have formed the view that, even where certain records might relate to the previous litigation and arbitration, at least an equal purpose in their creation was consideration and analysis, including contacts between taxation advisers and the Revenue, of technical issues relating to VAT implications for the NSCDA.

Accordingly, I find that the records are not exempt under the second limb of section 22(1)(a).

In summary, I find that only record 43 qualifies for legal professional privilege; the NSCDA has not justified its refusal of access to the remaining records under section 22(1)(a) of the Act.

Section 23(1)(a)(iv)
Section 23(1)(a)(iv) provides for the refusal of a record where, in the opinion of the head of the body, access to the record could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. Under section 23(1)(a)(iv), it is necessary for a public body first to identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue. Having identified the potential harm, the public body is then required to show that its expectation of such harm arising is reasonable.

In its decision letter to the applicant, the NSCDA stated that it was refusing "many of these records" under section 23(1)(a)(iv) of the FOI Act but it did not identify the particular records to which it had applied the exemption. In addition, in its schedule, the NSCDA did not cite that exemption for any of the records. Also, in its decision letter, the NSCDA did not provide an explanation for the basis of the exemption, other than to state that it was "...on the basis of the reasoning set out by the High Court concerning the Constitutional prohibition on interference with the administration of justice." My Office requested further information from the NSCDA in support of its reliance on the exemption but in subsequent communications to my Office, the NSCDA did not refer to the exemption at section 23(1)(a)(iv) in respect of any records.

Section 23(1)(a)(iv) is a discretionary exemption provision which requires a showing of a reasonable expectation of harm. However, no specific argument has been made by the NSCDA as to how such harm could occur. Consequently, I find that a case to support a reasonable expectation of harm has not been made in this case. In this respect, I again draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified".

I find that the NSCDA has not justified refusal of the request under section 23(1)(a)(iv) of the FOI Act.

Section 28 - Personal Information
Some of the records contain personal information relating to third parties, mainly in the form of names and mobile phone numbers of individuals who are not public servants or persons providing a service for a public body. I find that such information is exempt from release under section 28(1) of the FOI Act, as it comprises the personal information of individuals other than the applicant as defined in section 2 of the Act. While the FOI Act provides for the release of personal information in certain circumstances, I do not consider any such circumstances to arise in this case. Neither do I consider that there is any public interest in granting access to such personal information that outweighs the public interest that the right of privacy of those individuals should be upheld. For example, record 27 refers to a third party on page 1 at paragraph 2 and again in the last paragraph on page 3. The same third party is also referred to in records 33 and 34. I therefore direct that such information be redacted from any records to be released by the NSCDA on foot of my decision.

Section 10(1)(a) - Search issue
In his submissions, the applicant queried whether further records existed over and above those identified by the public body. Section 10(1)(a) of the Act provides that a request for access to records 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. In such cases, my role is to review the decision of the public body and to decide whether the decision that no further records exist is 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. My understanding of my role in such cases was approved by Quirke J. 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).

In an email dated 9 June 2015, my Office asked the NSCDA to address the applicant's contention that further records existed. The NSCDA, through its solicitors, stated that it did not believe it appropriate that it should proceed to address points other than its contention that release of the records would be in contempt of court. The investigator again contacted the NSCDA on 5 October 2015 with a view to clarifying a number of issues, one of which was the possible existence of other records. On that occasion, my Office put it to the NSCDA that

"This Office is proceeding on the basis that the position of NSCDA is that only the 77 records scheduled in the revised scope are held and that no further records within scope can be found."

Again, in its response of 8 October 2015, the NSCDA referred to the contempt of court argument and said that it did "not understand the basis of the suggestion [the Office's position]", and that "we do not believe that it is necessary, or appropriate, to address the queries, raised in circumstances where a mandatory exemption applies to the release of any documents encompassed by the request". The NSCDA also stated that "there can be no confusion that the NSCDA's position is not as posited by the Commissioner in the email of 5 October". Yet, it had previously indicated in a submission of 17 June 2015, that "it is incontrovertible that the categories of discovery as ordered in those proceedings encompass all documents comprised in the request." On 19 October 2015, my Office informed the NSCDA that it cannot rely on the fact that it is claiming an exemption to avoid providing details of any additional records that it holds. As recently as 27 October, 2015, the NSCDA stated that it cannot now say that the 77 records identified "are the only documents responsive to the request".

The NSCDA's response is most unhelpful. I consider that, if further records were held, the NSCDA and its solicitors would be aware of this and have had adequate opportunity to bring it to my attention in this review. In the circumstances, and with some reluctance, I conclude that I cannot make a finding that the NSCDA has taken all reasonable steps to locate records within the scope of the applicant's request and that no further records within the narrowed scope of the request can be found so that section 10(1)(a) applies.

While I am not satisfied with the response of the NSCDA, I am aware that the applicant wants this matter to be dealt with as soon as possible and that further consideration of the search issue in the context of this review would be likely to lead to more delays. I see no alternative but to annul that part of the effective refusal of access to records other than the 77 identified and which fall within the scope of the applicant's narrowed request, and the possibility of yet another annulment of the decision and remittal of the case for fresh consideration. I note also that, as the applicant has queried whether records exist relating to events on particular dates, it is open to him to make a fresh FOI request focussing on the specific additional records he believes are held.

 

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the NSCDA. I annul its decision in relation to records 1, 3-23, 26-34, 38-42, 44-45, 53-56, 58-61 and 63-74, inclusive and direct the release of those records subject to the redaction of the personal information identified in this decision under section 28(1) of the Act. I am not satisfied that a finding can be made that section 10(1)(a) applies to the public body's effective refusal of access to any records additional to the 77 identified as within the reduced scope of the request. I annul that part of the decision and direct the NSCDA to undertake a fresh decision making process in respect of any such records and to notify this to the applicant in accordance with section 8 of the FOI Act. I affirm the decision of the NSCDA to refuse access to record 43 on the basis that it is exempt under section 22(1)(a).

I should say here that if this matter comes back to me for yet another review due to the NSCDA's non-compliance with the requirements of the Act, I will have to consider using my powers under section 37(2) of the Act to enter its premises in order to require information to be furnished and to examine and take copies of records for the purposes of the review.

 

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.

Peter Tyndall
Information Commissioner