Whether the Council was justified in refusing to release records held by its legal advisors concerning Planning Enforcement Notices

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

Background

This review arises on foot of a previous application for review made to this Office by the applicant (Case Number 120210 refers). That case concerned the applicant's request to the Council, dated 8 May 2012. The applicant had requested records concerning Enforcement Notices issued to him in 2004 and 2009 (including records concerning legal costs arising from the 2004 notice) as held by the Council and its legal representative, Regan McEntee, Solicitors. The Council confirmed to this Office in the course of the previous review that it did not "request Regan McEntee's legal file in relation to these two enforcement files". Accordingly, the Commissioner's decision on that review, dated 9 October 2014, found that the Council had not justified its effective refusal of records relevant to the request as held by Regan McEntee. He annulled the Council's effective refusal of such records, and directed the Council to undertake a fresh decision making process regarding the records concerned.

The Council issued its decision in relation to the Regan McEntee records on 4 December 2014. According to the schedules of records, it refused to release some of them on the basis that they were exempt under section 22(1)(b) of the FOI Act. Although this exemption is concerned with records that, if released, would result in a contempt of court, the Council's schedules said it was refusing the records on the basis that they attracted "legal advice privilege" (one of the limbs of legal professional privilege, which is covered by section 22(1)(a) of the FOI Act). The Council refused to release other records on the basis that their release would disclose personal information, or disclose the identity of persons who had complained to the Council, in which regard it relied on sections 28(1) and 23(1)(b) of the FOI Act.

The applicant sought an internal review of this decision on 22 December 2014, and the Council affirmed its decision on 20 January 2015. That internal review decision referred to sections 22(1)(a) and (b), 23(1)(b) and 28(1) of the FOI Act.

On 22 May 2015, the applicant sought a review by this Office of the Council's decision on the relevant records, saying he had "very good reasons to believe that some records that were refused/part granted should have been granted, in particular, those refused/part granted on the basis of legal professional privilege."

In carrying out my review, I have had regard to the records considered by the Council in the above decision-making process (which were provided to this Office for the purposes of my review); to correspondence between the Council and the applicant as set out above; to contacts between Ms Anne Lyons, Investigator in this Office, and the Council and the applicant. I have had regard also to the provisions of the FOI Act.

This review is being 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.

Scope of the Review

This review is confined to the issue of whether the Council has justified its refusal of access to those records of relevance to the applicant's request of 8 May 2012 as held by its legal advisor, Regan McEntee.

It does not extend to whether or not the Council itself should hold additional records. In this regard, the applicant has argued that further records should exist relating to a document ("record 101") that the Commissioner directed be partially released in his decision on Case Number 120210.

The only document numbered 101 in Case Number 120210 that was directed for release (in part) concerned a Court Attendance on 19 October 2010 (Council file UD 09/*** refers). The applicant maintains that the record's contents should have "cancelled [the] Council's case against [him]" and that it is not "credible that [that] record did not generate other internal meetings and documents". As in any case where this Office directs the release of records, causing an applicant to question if further related records exist, it is open to him to make a fresh request to the Council. Such a request is subject to the usual rights of review. I also note that, although the applicant contends that the record in this case that corresponds to record 101 on Council file UD 09/*** has not been released to him, the record concerned (Record 26 on File M 4***) has been released in part.

Attached to this decision is an Appendix. Part One lists the relevant records which, according to the schedules of records provided by the Council to this Office, have not been released to the applicant.

Findings

Preliminary Matters
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. This provision is of particular significance in this review. While I am required to give reasons for my decisions, I am also required by section 43(3) not to disclose information that is claimed to be exempt.

The Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of my review, rather than by reference to the facts and circumstances that applied at an earlier date.

Records Created after the Request
The original request in this case was made on 8 May 2012. The following records were created in June 2012, and in 2013 and 2014:
File M 4***: Records 269; 272; 273; and 274; and
File M 3****: Records 2; 3; 4; and 5.

The above records post-date the applicant's original request and are not encompassed by it. While I note that the Council released certain records from the files which were created after the FOI request, I do not have jurisdiction to consider these.

Section 22

I am disappointed to note that the level of engagement by the Council with this Office was no better than it had been in the related review in Case Number 120210, which the Commissioner noted was "not ideal". Although invited to do so by this Office, the Council has not clarified its position on which sub-section of section 22 of the FOI Act it considers applicable, or why. Rather than delay the review further, I have decided to proceed on the basis of the information before me.

Section 22(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption is not subject to a public interest test. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

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

Section 22(1)(b) of the FOI Act is a mandatory exemption that must be applied to records that, if released, would result in a contempt of court. Again, it does not include a public interest test.

Section 22(1)(a): Litigation Privilege
Unlike in Case Number 120210, the Council's decisions did not specifically claim litigation privilege for any of the records at issue in this case. The Investigator invited it to make submissions on this and other issues but it did not do so. It is open to me, therefore, to proceed on the basis that the Council is not claiming that litigation privilege is relevant in this case, and not to consider further whether section 22(1)(a) applies on the basis of this limb of legal professional privilege.

However, for avoidance of doubt, I find that the Council has not justified its reliance on section 22(1)(a) in so far as it might contend that litigation privilege applies.

The Commissioner considered the Council's claim in respect of litigation privilege at length in his decision in Case Number 120210. I do not consider it necessary to repeat that analysis in detail in this decision other than to say that the Commissioner had particular regard to the High Court judgement of Finlay Geoghegan J. in University College Cork - National University of Ireland -v- Electricity Supply Board [2014] IEHC 135, and to the requirements of section 34(12)(b) of the FOI Act.

The Council has not made any specific claim that litigation privilege applies to the records at issue. Neither has it identified the relevant records nor explained why the dominant purpose for the creation of each such record (including those that may have more than one purpose for their creation) was for the preparation for litigation; nor has it explained why litigation privilege might continue to apply in the circumstances of this case.

Section 22(1)(a): Legal Advice Privilege

In Case Number 120210, the Council did not claim that this limb of privilege applied, nor did it make any relevant supporting argument.

Nonetheless, having regard to Ms Justice Finlay Geoghegan's comments in the ESB judgment that "[c]ommunications between a client and his/her lawyer in the course of, or in anticipation of litigation may for the most part benefit from legal advice privilege", the Commissioner felt it was appropriate to consider whether any of the records at issue in that case, created as they were for the purpose of legal proceedings, might attract legal advice privilege. Noting the mandatory nature of section 22(1)(a) in particular, he said that if it was apparent to him that any records attracted such privilege, he must direct the refusal of those records.

I intend to take the same approach in this case notwithstanding the Council's lack of submissions in support of its claim of "legal advice privilege". I see no need to repeat the Commissioner's detailed analysis of the extent to which he found that legal advice privilege applied in the previous decision but I will refer to that analysis in general terms.

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege. Thus, unless lost or waived, legal advice privilege lasts indefinitely. It can apply to records that at one point in time attracted litigation privilege in so far as those records can also be said to contain details of legal advice sought or received. It does not apply to records concerning legal assistance. In so far as such records once might have attracted litigation privilege, because they were created with the dominant purpose of preparing for an ongoing or anticipated court action, it cannot be assumed that they attract legal advice privilege.

Staff of this Office spent considerable time comparing the records at issue in this case to those in Case Number 120210 in particular (an exercise that should have been carried out by the Council in the first instance). I am satisfied that a number of the records in the present case contain the same content as those in the earlier decision. Other records contain less content. What I mean by this is that, for instance, some records in this case are originals of documents sent by the legal advisor to the Council. These documents were then annotated by Council staff. The decision in Case Number 120210 thus considered the entire content of the original document and the subsequent annotations. I have listed such records (and the corresponding record considered in Case Number 120210) at Part Two of the attached Appendix. I direct the Council to release the records that are listed in Part Two of the Appendix to the same extent that the Commissioner directed the same content to be released in Case Number 120210 (or indeed, where appropriate, Case Number 120209 - another decision of this Office involving the same parties). I expect the Council to now examine the records in the present case and ensure that all content, which the Council itself released from the records previously considered by it on initial receipt of the applicant's request, or which the Commissioner directed be released in Case Number 120210, be released.

Part Three of the Appendix lists those records that I have identified as containing content "not previously considered". It also includes some records that are largely identical to records considered in Case Number 120210 but which contain additional notes or comments.

Having examined the records, I am satisfied that some contain explicit requests for legal advice from the Council's legal advisor or Senior/Junior Counsel, or contain the responses to such requests. I also consider it relevant to consider the records in the wider context of the litigation that took place between the Council and the applicant. While not all of the records explicitly seek or give legal advice, it is relevant that, being the Council's contracted legal advisors, the legal advisors (and in turn, Counsel) were required not only to act for the client further to any litigation in which it is involved, but to provide it with all legal advice relevant to that litigation, including in relation to proposed settlements of the litigation. I consider other records to attract legal advice privilege in so far as they can be described as: draft letters for issue by the Council as prepared by the legal advisor in response to requests for advice on how best to respond to certain matters; and the legal advisor's own notes on certain issues necessary to the provision of legal advice to the Council ("work product"). Finally, I also consider certain other records pertaining to all of the foregoing to form part of a continuum of communications arising from requests for legal advice. I find that section 22(1)(a) applies to such records, which I have listed accordingly in Part Three of the Appendix.

In identifying those records I have found to attract legal advice privilege, I must make it clear that I see no basis to direct that a record be withheld, in the absence of argument from the Council, where it is not apparent to me from its content and the circumstances of its creation that it attracts, or even might attract, legal advice privilege.

Thus, I do not accept that the following attract legal advice privilege:

Records concerning contacts between the Council's legal advisor and the Council and/or a third party in relation to costs arising from the litigation;
Records containing details of telephone conversations or discussions, whether in Court or elsewhere, between the Council's legal team and that of the applicant in relation to the litigation generally. Notwithstanding that one such record is marked "off the record", it is not apparent to me why such open communications should be said to be confidential vis a vis the applicant;

Records concerning events that took place in open Court;
Records of an administrative nature concerning the solicitor's own costs; and
One record concerning the advisor's contacts with the Council that do not give legal advice, or appear to form part of a continuum of communications pertaining to the seeking or giving of legal advice (record 215 on File M4***).

I find that such records are not exempt under section 22(1)(a) and should be released. The relevant records are also listed in Part Three of the Appendix.

Finally, I consider that there is no basis to direct that a record be withheld under section 22(1)(a), in the absence of argument from the Council, where it has released some or all of the same content from those records it considered in its initial decisions on the applicant's request. By way of non-exhaustive example, record 36 on File M3**** has been fully withheld in the case at hand on the basis that it attracts "legal advice privilege". This record is an email thread, comprising internal Council emails, emails between the Council and its legal advisor, and emails between the Council and a third party or parties. It is a copy of record 85 on File UD 09/**, which the Council partially released in its initial decisions on the applicant's request. The only material it withheld from record 85 on File UD 09/*** were details that would identify the relevant third party or parties. With the exception of those third party identifying details, it seems to me that any legal professional privilege that might once have attached to record 36 on File M3**** has been waived by the Council's release of the relevant content of record 85 on File UD 09/***. I find that record 36 as described above is not exempt. I find the same in relation to records 41 and 76 on File M 3**** (identical to each other and to record 80 on File UD 09/***) and direct that the details in the records concerned be released, subject to consideration later in this decision of whether parts of those records should be withheld under section 28 of the FOI Act.

Section 22(1)(b) - Contempt of Court

Release of records under FOI is effectively release to the world at large.

In the course of the review in Case Number 120210, the Council confirmed that there had been Discovery of records to the applicant in the course of the litigation. The applicant would therefore have given an undertaking to the Court to use such Discovered documents only for the purpose of that litigation.

Breach of an undertaking given to the court (whether express or implied) is a contempt of court. Documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking, given to the Court and to the other party by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed.

In E.H. v The Information Commissioner [2001] 2 IR 463 (the "EH judgment), O'Neill J stated :

" Breach of the implied undertaking given in respect of discovered documents is a contempt of court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the court and like all undertakings given to a court, breach of it is a contempt of the court ...
... Undertakings given to a court can only be discharged either in the case of the usual undertaking in relation to discovery by waiver of the party making discovery or otherwise by the express permission of the court itself."

In the course of Case Number 120210, the applicant confirmed to this Office that he was not seeking the records previously provided to him under Discovery. As he did not agree to do the same in this case, I must therefore consider the relevance of section 22(1)(b).

The Council's decision on records considered at initial decision stage incorrectly cited "legal advice privilege" as a basis for withholding the relevant records under section 22(1)(b). Its internal review decision referred to both sections 22(1)(a) and 22(1)(b) of the FOI Act but did not elaborate on why it considered the latter provision to apply. Thus, the Investigator, in inviting submissions from the Council for the purposes of this particular review, told the Council that, if it was continuing to rely on section 22(1)(b), it should identify the specific records the release of which it considered would be in contempt of court. She asked it to provide a detailed explanation for its conclusion that disclosure of the records concerned would constitute such a contempt and said that if no such arguments were made, the Commissioner would presume that the Council did not seek to rely on section 22(1)(b) in this review. She made it clear that this invitation to make a submission was the Council's final opportunity to justify its decision.

I note the Council's reply - that it "will not be making any submissions at this stage". It has not explicitly stated that it does not seek to rely on section 22(1)(b). I regard the Council's attitude as unhelpful given this Office's obligation to carry out a further review in circumstances where the Council did not examine all the records when making its original decision. I accept that I have no evidence that Discovery has not been made in respect of some of the records under review.

Section 22(1)(b) is a mandatory exemption. Furthermore, the EH judgment makes it clear that I "must refuse" any records that have been provided to the applicant under Discovery procedures under the mandatory section 22(1)(b). However, I am not in a position to make any finding on any such records, because quite apart from not confirming its position on the "discovered" records, the Council has failed to identify the records concerned. This leaves me in an invidious position. Accordingly, in so far as any of the records to which I have found section 22(1)(a) not to apply have previously been provided to the applicant on foot of Discovery, it seems to me that the most practical thing to do is to direct the Council to identify any such records to the applicant (number, date, description, etc). I direct that any records so identified be withheld as exempt under section 22(1)(b) of the FOI Act.

Section 28

Sections 28(1) and (5B)
The applicant agreed to exclude any personal information from the review in Case Number 120210 but did not do so in the present review. Therefore, it is not open to me to direct, where appropriate, that certain of the records be released in accordance with the Commissioner's decision in Case Number 120210, simply because the Commissioner was not required to make any finding on the personal information in the records concerned.

The Council's schedules identified a number of records that it considered should be withheld under sections 23(1)(b) and 28 of the FOI Act. I consider section 28 to be the appropriate provision to consider in respect of all of the details concerned. As already explained, I also consider this to be an appropriate provision to consider in respect of the remaining details in records 36, 41 and 76 on File M 3****. I will also consider section 28 in respect of any details in the records the release of which I am directing, which I can identify in the absence of argument from the Council as containing personal information.

One of the records that the Council partially withheld under section 28 is record 53 on File M3****. I note that the first page of this record refers to the applicant's company which, although not strictly speaking his personal information, is not information that is required to be withheld under section 28 of the FOI Act either. Accordingly, I see no basis for that reference to be withheld.

Otherwise, however, I consider the following to contain personal information about parties other than the applicant, or to contain personal information about the applicant that is inextricably linked to personal information about other parties ("joint personal information"):

M 4***: Records 13 (i.e. 48th to 51st words inclusive, of final sentence of point number 4), 92 (i.e. second sentence of third paragraph, fourth to nineteenth words inclusive); 111; 173; 202; and 261.
M 3****: Records 21 (i.e. pages 6-10); 36 (i.e. those details that the Council did not release from the relevant record in case 120210); 41 (as 36); 53 (i.e. the remaining withheld details other than the reference to the applicant's company); and 76 (as 36).

I cannot go into detail about the nature of the information at issue, due to the requirements of section 43(3) of the FOI Act. However, I can say that much of the information comes within the definition of "personal information" as set out in section 2 of the FOI Act. I am also satisfied also that it is not possible to extract, and direct the release of, any further details from these records that relate solely to the applicant.

Personal information solely about parties other than the applicant is required to be withheld under the mandatory section 28(1) of the FOI Act, which, subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the personal information of a party other than the applicant. Joint personal information is required to be withheld under the mandatory section 28(5B) of the FOI Act, which is also subject to the other provisions of section 28.

I find that, subject to my examination of section 28(2) and section 28(5) below, the above records are, on the face of it, exempt under sections 28(1) and 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at sections 28(1) and 28(5B) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)
Section 28(5) of the Act provides that a record which is otherwise exempt from release under section 28 may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information sought would benefit the individual to whom it relates, as envisaged by section 28(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 28(5)(a) - The Public Interest
The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28 may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld".

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26), ("The Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Thus, in considering section 28(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The applicant maintains that the Council had no proper reason to continue its legal actions against him. This might be taken as an argument that the public interest requires the release of the records concerned. However, any such arguments are largely based on what I consider to be the applicant's own private interests, to which I cannot have regard in making my decision in this review. Nor has this Office any function in determining whether the Council acted appropriately in its dealings with the applicant.

In other words, it is not open to me to determine that the information I have found to be exempt under sections 28(1) and 28(5B) should be provided to the applicant now, in the public interest under section 28(5)(a) of the FOI Act, simply because the Council continued to pursue legal action against him. As the Commissioner has said in his composite decision in cases 090261/090262/090263 (Mr X and the Health Service Executive & Our Lady's Hospital for Sick Children - available on www.oic.ie) ), "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

As applied here, this means that there is a strong public interest in revealing how the Council made decisions in respect of litigation and related matters that affected the applicant, and whether it did so in a manner that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. While at least some of the details I have found to be exempt under sections 28(1) and (5B) would offer some further insight into the Council's decision making vis a vis the applicant, it is also the case that release of all the details at issue here, effectively to the world at large, would result in a significant breach of the Constitutional rights to privacy of the parties other than the applicant. Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest that the right to privacy of the third parties to whom the information relates should be upheld outweighs the public interest that the request should be granted.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Council's decision.
I direct the Council to release the records that are listed in Part Two of the Appendix to the same extent that the Commissioner directed the same content to be released from the specified records considered in Case Number 120210 (or, where appropriate, Case Number 120209).
I direct the Council to release the remaining records in accordance with Part Three of the Appendix, with the exception of (i) any details in those records which I have found to be personal information and exempt under section 28 and (ii) any records in that list that the Council can confirm to the applicant have been provided to him on foot of Discovery.

I consider it appropriate to specify, under section 34(13) of the FOI Act, the period of time within which effect shall be given to my decision. I specify that, subject to sections 42 and 44 of the Act, the relevant records shall be released to the applicant within 10 working days of the expiration of the time for the bringing of an appeal to the High Court.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator