Whether the Council was justified in its decision to refuse access to certain records relating to a grievance case about the applicant, on the basis that the records contain information that is exempt under the provisions of sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 15 October 2014 the applicant made a request to the Council, under the FOI Act, for access to all correspondence between the Council and the applicant relating to a grievance case involving the applicant, from "September 2008 to current date".

In its original decision of 5 December 2014, the Council granted access to a number of records and refused and part granted access to others on the basis of sections 31(1)(a) and 37(1) of the FOI Act. Following an internal review, the Council affirmed the decision. The applicant then wrote to this Office on 6 March 2015 seeking a review of the Council's decision.

In her letter of application to this Office, the applicant identified a number of matters and stated that the file which the Council held about her grievance case was "incomplete", in that the Council had "omitted [a number of] facts". This Office also asked the Council to address the applicant's implied contention that further records existed but were refused under the provisions of section 15(1)(a) of the FOI Act. I consider this in my findings below.

The applicant requested access to records from "September 2008 to current date". In this regard, the "current date" is taken as 15 October 2014, which is the date on which she submitted her request to the Council. The applicant wrote to this Office on 23 July 2015 and referred to documentation that she had submitted to the Council's FOI Office on 6 March 2015. In a situation where records may have been placed in a requester's file after the date on which that person submitted an FOI request to a public body, those records would not be within scope of the applicant's request and subsequent decision of the public body concerned. Consequently, records which may have been included in the applicant's file after 15 October 2014 are not included in the scope of this review.

In conducting my review, I have had regard to the Council's decision in this matter, to correspondence between this Office and the Council, to correspondence between the applicant and the Council and to correspondence between the applicant and this Office. I have also had regard to the records in question and the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the records under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(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 of the reasons that I can give is limited. In addition, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the public body concerned shows to the satisfaction of the Commissioner that the decision was justified.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

The position of the Council is that there are no further records held that are in the scope of the applicant's FOI request. The Council stated that it is "of the view that the complete grievance file, minus the exclusions documented, has been released". In its submission to this Office, the Council stated that two of the matters identified by the applicant in her letter of application to this Office, dated 6 March 2015, related to records that had been released to her: one was in relation to record 41, which the Council had referenced with an incorrect date; the other was identified as record 99 which was released to the applicant on 12 January 2015. The Council said that other issues raised in that letter, such as revised management structure, business plan and organisational chart, did not relate to the grievance case the subject of the request. It stated that correspondence, such as correspondence with a mediator referred to by the applicant, was not held by it. The Council provided this Office with details of its filing practices as regards Personnel and Grievance records and of searches carried out both manually and on computer.
This Office is not required to search for records and its understanding of its role in this type of case was approved by the High Court in Matthew Ryan and Kathleen Ryan v. the Information Commissioner (2002 No. 18 M.C.A.), which is available on this Office's website www.oic.ie. Having considered the Council's responses and having regard to the circumstances of the case and the records already released, as well as those dealt with below, I accept that reasonable steps were taken to ascertain the whereabouts of any further records falling within the scope of the request.
Accordingly, I find that the Council's refusal of access is justified under section 15(1)(a), on the basis that additional records relating to the applicant's grievance case do not exist.

Section 31(1)(a)
The Council refused access to a group of records, which it described as 'records 1-75 withheld', and partially granted one other record (68) under section 31(1)(a) of the FOI Act. Rather confusingly, the Council attributed the same numbers to both the released group of records (1-99) and the refused groups of records (1-75). However, for the sake of clarity in this review, record 66 in the 'refused/withheld' category corresponds to record 68 in the record which was part granted to the applicant.
In a submission to this Office, the Council stated that both advice and litigation privilege applied to the records. Section 31(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 or 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 or pending litigation (litigation privilege).
Unlike other exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Advice Privilege
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."

I have adopted this approach and take the view that privilege applies to records that form part of a continuum of correspondence that results from the original request for advice. In this case, I accept that there were protracted dealings between the Council and its legal advisers and that communications passed between them regularly to keep both informed so that advice as to how to handle the grievance issue could be sought and given.

I have examined the records in the light of all of the above and consider that the records in the group 1-75 qualify for legal advice privilege with the exception of the records listed below which, for the most part, comprise communications to and from the applicant's solicitor or other third parties, which cannot be held to be confidential communication between the Council (the client) and its legal advisers:

Records 4, 6, 7, 8, 13(part)*, 28, 31, 33, 35, 37, 40, 41, 42, 44, 46, 49 and 55
* I deal separately with that part of record 13 which includes personal information of staff other than the applicant.

I find that the other records in this group are exempt under section 31(1)(a) on the basis set out above.
However, that is not the end of the matter, since the Council has claimed that this group of records also qualifies for litigation privilege. I should say here that while I accept that some of the records already held to be exempt where legal advice privilege applies may also attract litigation privilege, it is necessary to make a finding on litigation privilege only in relation to those listed above which would otherwise fall to be released.

Litigation Privilege
For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation. In the judgment of the High Court in University College Cork - National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) Finlay Geoghegan J. stated -

"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."

As such, a body claiming the exemption must satisfy the Commissioner, on balance, that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created .

The Council stated in its submission to this Office that the records were created in circumstances where the applicant had engaged her solicitors, "...who were raising ongoing complaints relating to her employment". The Council also argued that while it had not received notification of claims pending, "...the issues to date show a clear likelihood that [the applicant] is contemplating legal proceedings...". The Council also stated that its communications with its solicitors "were also for the purpose of addressing...the risk of legal proceedings...".

I am prepared to accept the Council's contention that litigation was apprehended. I am not satisfied however, that the "dominant purpose" requirement is met in relation to the particular records listed above, including communications with third parties. In my opinion, even if those records were created for the purpose of contemplated litigation, they had the equal purpose of responding to queries or facilitating the various attempts at mediation and investigation of the applicant's grievances and related arrangements, including the issue of her return to work. Accordingly, I find that the Council has not justified its reliance on litigation privilege in relation to those records. I find that the records listed above are not exempt under section 31(1)(a).

Section 37(1)
As mentioned earlier, the Council did not give a unique set of numbers to those records which were released and partially granted to the applicant. Consequently, this led to two sets of records being numbered between 1 and 75. A total of 99 records were partially granted or released to the applicant and the Council applied the provisions of section 37(1) to four of those records; namely, records 6, 7, 8 and 9. As indicated above in the context of legal professional privilege, I note that personal information of staff members other than the applicant appears in record 13 which is otherwise to be released and I deal with that here also.

Section 37(1) provides for the mandatory refusal of access where access to the record concerned would involve the disclosure of personal information relating to parties other than the requester.

Personal information is defined in section 2 of the Act as including information that would, in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual. The definition also contains a list of twelve specific types of information, including information relating to the employment or employment history of an identifiable individual. In considering whether this exemption is applicable, I note that information in the records identifies a number of Council staff members. Consequently, the records contain personal information of those individuals.

The Act provides that section 37(1) may not apply in certain circumstances, including where the body considers that the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the persons about whom the information relates. I am satisfied that no such circumstances arise in this case and that the public interest in releasing the information does not outweigh the public interest in protecting the relevant privacy rights.

Accordingly, I find that section 37(1) applies to records 6, 7, 8, 9 and part of 13 (redact names of staff).

Decision

Having carried out a review under Section 22(2) of the FOI Act, I hereby vary the decision of the Council to refuse access to records under section 31(1)(a) and I direct the release of records 4, 6, 7, 8, 13 (part), 28, 31, 33, 35, 37, 40, 41, 42, 44, 46, 49 and 55.
I affirm the decision of the Council to refuse access to the remaining records under sections 15(1)(a), 31(1)(a) and 37(1) of the 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator