Whether the Council was justified in its decision to refuse access to records between a local Community Group and the Council relating to the installation of a crash barrier at O'Briensbridge under section 30(1)(a) of the FOI Act on the basis that release of the records would prejudice an ongoing investigation and under section 31(1)(a) of the Act on the basis that the records relate to legal advice

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 9 January 2015 the applicant submitted an FOI request to the Council for any correspondence shared between the Council and O'Briensbridge Community Group relating to the installation of a crash safety barrier on the ramp leading up to the bridge at O'Briensbridge, Co. Clare during November and December 2014. On 6 February 2015 the Council refused the applicant's request under section 15(1)(a) of the FOI Act, on the basis that no records within the scope of the applicant's request existed or could be found after all reasonable steps to ascertain their whereabouts have been taken.

The applicant sought an internal review of the Council's decision on 18 February 2015, as he was of the opinion that correspondence was in fact exchanged by the Council and O'Briensbridge Community Group in the time period specified. On 10 March 2015 the Council issued its internal review decision. The internal review decision of the Council identified 6 records within the scope of the applicant's request. Records numbered 1 and 3 were released to the applicant. The applicant was refused access to records numbered 2, 4 and 5 under section 30(1)(a) of the Act, and record number 6 under section 31(1)(a) of the Act.

On 16 March 2015 the applicant sought a review by this Office of the Council's decision.

I note that Mr Art Foley of this Office wrote to the applicant on 11 June 2015 setting out his initial views on the Council's position and informing him that the Council had changed the basis under which it considered record number 5 to be exempt from release from section 30(1)(a) to section 31(1)(a) of the FOI Act. Mr Foley informed the applicant that in his view, the Council was justified in its decision to refuse access to the records, and invited the applicant to make further submissions if he wished. While the applicant, in a telephone call on 15 June 2015, indicated that he disagreed with Mr Foley's view, no further submission has been received from him to date. I therefore consider that this review should be brought to a close by the issue of a binding decision.

In conducting this review, I have had regard to communications between the Council and the applicant. I have also had regard to communications between this Office and the applicant, and to communications between this Office and the Council. Finally, I have had regard to the contents of the records identified by the Council and to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the Council was justified in refusing access to records numbered 2 and 4 under section 30(1)(a) of the FOI Act, and refusing access to records numbered 5 and 6 under section 31(1)(a) of the FOI Act.

Preliminary Matters

At the outset I should explain that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally. Furthermore, it should also be noted that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]". As this review is considered to be de novo, the Council is entitled to argue during the course of a review by this Office that exemptions not originally applied support its refusal of access to a record.

It is also relevant to note that the release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, although I am obliged to give reasons for my decision, Section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

I note that the Council's internal reviewer refers to a connection between the records identified by the Council in this case and the installation of the crash barrier. It appears to me, having reviewed the records, that their contents relate primarily to a complaint from an individual which may have originated in the Council's handling of matters concerning the crash barrier, although this is not entirely clear from the content of the records. While I believe there is a tenuous link at best to the applicant's FOI request, my decision in this case solely concerns any parts of the records which come within the scope of the applicant's original FOI request.

Analysis and Findings

Section 31(1)(a)
The Council refused access to records numbered 5 and 6 under section 31(1)(a) of the FOI Act.

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 several other of the 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.

Record number 5 consists of a request from the Council for legal advice sent to the Council's solicitor. Record number 6 is a response from the Council's solicitor containing legal advice. I therefore find that advice privilege applied to these records, and that section 31(1)(a) of the FOI Act thus applies to the records.

Section 30(1)(a)
Section 30(1)(a) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the body concerned or the procedures or methods employed for the conduct thereof. Section 30(2) provides that this exemption does not apply if the public body considers that the public interest would, on balance, be better served by granting than by refusing the request.

In arriving at a decision to claim a section 30 exemption, an FOI body must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.

Records 2 and 4 relate to a complaint made by a member of the public. The Council stated that an investigation into this complaint has commenced and is ongoing. The Council also said that it is concerned that the release of records 2 and 4 could reasonably be expected to prejudice the effectiveness of this investigation, or the procedures or methods employed for the conduct of such an investigation, in that release would harm the ability of the investigation to produce or lead to a result. The Council expressed the opinion that the release of these records could reasonably be expected to effect the trust and frank participation of the parties to this current investigation into the complaint made by a member of the public. The Council said that, in its view, the release of these records would reasonably effect the parties' expectation that the information they submit to the Council would be considered to be given in confidence.

The Council further argued that the results of this investigation would not be made public, rather, the parties to the investigation alone would be informed of the result of the investigation. The Council stated that for this reason, it considers the release of the records at this time could prejudice the method which it uses to conduct investigations. The Council said that it is of the view that the release of these records could effect the conduct of future investigations, as members of the public would be less inclined to submit a complaint to the Council if they believed that their complaint would be subject to comment in the local media.

I have considered the records in the context of the investigation to be carried out by the Council, and accept that, in the circumstances, the decision maker's expectation that these records, if released, could prejudice the effectiveness of the investigation is reasonable. The purpose of this exemption is to prevent premature disclosure of information in records covered by the scope of this request which it is reasonable to expect will jeopardise the outcome or process of the investigation in question. I accept that release of the records would effect the trust of the parties in the investigation, and could reasonably be expected to negatively effect the procedures the Council employs for investigations of this nature. I find that section 30(1)(a) was correctly applied to records numbered 2 and 4.

Section 30(2) of the FOI Act provides that subsection (1) shall not apply in relation to a case in which, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting rather than by refusing to grant the request. Therefore, I must now consider the public interest factors relevant to this review.

The Council has stated that it did not consider there to be any public interest in favour of the release of records numbered 2 and 4. The applicant, in his submission to this Office of 16 March 2015, highlighted the public interest in public bodies being open, transparent and accountable in their actions, and in the work of a public body being open to proper and fair scrutiny by the press as factors in favour of the release of the records numbered 2 and 4 in this review.

The Council has identified the following public interest factors as weighing against the release of records 2 and 4 in this case: the public interest that an investigation be carried out without any comment from third parties not involved in the investigation; and the public interest in an investigation not being prejudiced before its completion as a result of these comments.

On balance, having considered the matter, I consider that the public interest in protecting the integrity of the Council's investigation, and ensuring that the investigation is not prejudiced, outweighs the public interest in releasing records numbered 2 and 4 at this time. I have had particular regard to the fact that the Council's investigation has not been completed at this stage, as well as the fact that the applicant in this case is not in fact a party to this investigation. With reference to this aspect of the case, without making any finding on the issue, it would appear to me that the records numbered 2 and 4 in this case contain the personal information of third parties within the meaning of section 37 of the Act. This means that, even if I were to find that the section 30(1)(a) exemption discussed above did not apply, I would have to consider whether the mandatory refusal of personal information (other than that relating to the requester) was required in this case and whether the public interest in granting this request outweighed the very strong public interest in protecting privacy.

In conclusion, I am satisfied that section 30(1)(a) of the FOI Act applies to records numbered 2 and 4, and the public interest would not, on balance, be served by the release of these records. I find, therefore, that the Council was justified in its decision to refuse access to the records under section 30(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to records numbered 2 and 4 under section 30(1)(a) of the FOI Act and its decision to refuse access to records numbered 5 and 6 under section 31(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 four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan,
Senior Investigator