Whether the Department was justified in its decision to part grant a request for access to records relating to the Primary Online Database

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

Background
On 27 May 2015, the applicant made a request to the Department for "any and all documents, including but not limited to observations, letters, emails and/or submissions whether held in paper, electronic or any format relating to the Primary Online Database between the Department and Minister for Education and Skills and the Data Protection Commissioner and/or her Office."

On 26 June 2015, the Department informed the applicant that it had decided to part grant his request. On 27 June 2015, the applicant sought an internal review of the decision. On 14 August 2015, the Department affirmed its original decision to part grant the request, but varied the exemptions relied upon. On 2 December 2015, the applicant sought a review of the Department's decision by this Office.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties and to the provisions of the FOI Act.

Scope of the Review

In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it forwarded to this Office for the purposes of the review. This review is concerned with whether the Department's decision to refuse access records 11, 12, 17, 18, 27 and 29 was justified.

Findings

The records at issue relate to engagement between the Department and the Office of the Data Protection Commissioner (the DPC) in connection with the establishment of the Primary Online Database (POD). This is an individualised database of primary school pupils that has been developed by the Department. The Department refused access to five records under section 30(1)(c) of the FOI Act, and to one record under section 31(1)(a).

Section 30(1)(c)
This is a discretionary exemption which allows an FOI body to refuse a request if access to the record could reasonably be expected to "disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body". It is subject to a public interest balancing test contained in subsection (2).

The records at issue relate to engagements between the Department and the Office of the DPC in connection with the data to be collected and retained on POD. In its submission to this Office, the Department stated that negotiations between the two bodies related, in particular, to the retention policy for information stored on POD and the question of whether identifiable information was necessary in order for POD to function. It stated that the discussions resulted in maintaining the use of identifiable information on POD and the revision of the age at which the information would be anonymised downwards from 30 to 19 years. The Department stated that at the time of the FOI request, it was in the process of communicating the changes to schools and, through the schools, to parents.

I accept that the records at issue can be described as relating to a negotiation between the Department and the Office of the DPC in so far as both bodies were involved in discussions with a view to reaching agreement on matters relating to the nature of the data to be captured and retained on POD. As such, I also accept that granting access to the records could reasonably be expected to disclose positions taken by the Department for the purpose of that negotiation and that section 30(1)(c) therefore applies.

However as I have outlined above, that is not the end of the matter as section 30(2) provides that section 30(1) shall not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request. On this point, the Department stated that "[I]t was felt that the release of these documents could generate confusion as to the Department's current position on these matters, and that on balance the public interest was best served by refusing to release the documents in question."

In Case No. 98166 (X & Department of Enterprise, Trade and Employment), the then Commissioner stated the following in respect of the corresponding provision of the FOI Act 1997 (section 21):

"While section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm and disclosures which do not, it seems to me that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of past negotiations. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test."

In this case, I understand that following its discussions with the Office of the DPC, the Department revised elements of POD, including the retention policy for identifiable data. This revised position was communicated to schools by means of circular number 0025/2015, which issued on 15 April 2015. I am not aware that the release of the records at issue could harm current or future negotiations or, indeed, give rise to any other specific harm, and the Department has not drawn my attention to any such potential harms. While the desire to avoid public confusion as to its position on the capture and retention of data on POD may have been a relevant consideration at the time the records were created, it seems to me that this concern is now moot.

On the other hand, section 11(3) of the FOI Act specifically requires bodies, in performing functions under the Act, to have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs. Accordingly, I find that, on balance, the public interest would be better served by the release of the records at issue.

Section 31(1)(a)
The Department relied upon section 31(1)(a) in refusing access to record 29. Section 31(1)(a) is a mandatory exemption that requires FOI bodies to refuse access to records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

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 professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

The record is a letter from the DPC to the Department relating to the nature of the data that the Department proposed for retention on POD. It recounts legal advice received by the DPC from her external legal advisers in respect of some of the proposed data fields in POD. In his request to the Department for an internal review, the applicant argued that if the Office of the DPC has outlined a legal position to the Department which was disclosed to it, privilege has been lost over same. I take this as an argument that the Office of the DPC has, in effect, waived privilege.

The Department argued that the legal advice contained in the letter was shared in confidence, and the letter was marked as confidential. It argued that the DPC never at any point waived her right to legal professional privilege. In considering this issue, I have had regard to the following comments of Finnegan J. in Redfern Ltd. v. O'Mahony [2009] IESC 18, [2009] 3 IR 583:

"It is accordingly clear that privilege may be waived by disclosure. If the document comes into the public domain privilege will be lost. It will not, however, be lost where there is limited disclosure for a particular purpose or to parties with a common interest."

It seems to me that the Office of the DPC disclosed the legal advice it had received on a limited basis and for a specific, limited purpose, namely with a view to reaching agreement with the Department on the nature of data to be captured on POD. I am satisfied that the disclosure was limited to a party with a common interest. Therefore, I am satisfied that legal professional privilege has not been waived, and I find that the Department was entitled to refuse access to the record under section 31(1)(a).

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. I find that record numbers 11, 12, 17, 18 and 27 are not exempt from disclosure and should be released. I find that record number 29 is exempt from release under section 31(1)(a).

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, 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.

Stephen Rafferty
Senior Investigator