Case Number: 160022

Whether the Department was justified in its decision to refuse access to records relating to any financial arrangements between the Department and James Elliot Construction Limited on the basis that sections 31, 35 and 36 of the FOI Act applied

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

In its FOI request of 16 June 2015, the applicant sought access to all records relating to any financial arrangements between the Department and entities controlled by it and James Elliot Construction Limited [in connection with any litigation, arbitration or other dispute resolution proceedings in which James Elliot Construction and/or Irish Asphalt Limited are or were a party to the proceedings]. On 10 August 2015, the Department issued a decision in which it identified 29 records as relevant to the request. It granted access to four records in full and refused access to part or all of the remaining 25 records on the basis that sections 31, 35 and 36 of the FOI Act applied. On 19 August 2016, the applicant submitted an internal review request. The Department's internal review decision of 8 September 2015 identified two further records to which access to the relevant parts was refused and affirmed its original decision in relation to the other records. The applicant submitted an application for review to this Office, which was received on 12 January 2016.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the content of the records, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Department to refuse access to the information sought was justified. The scope of any review is limited to records created before the request was made to the Department. As six of the records (records 19-24) were created after the original request of 16 June 2015, these are outside the scope of the review and will not be considered further. Records 5 and 29 are copies of the same letter with attachments. I accept the Department position that the attachments to records 5 and 29 and parts of record 30, which I have examined, are not covered by the request, and are therefore outside the scope of this review.

Preliminary Matters

Section 18

I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "a copy or part of any thing that falls within paragraph (a), (b), (c) or (d)" of the definition of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)

Although I am obliged to give reasons for my decision, Section 25(3) of the FOI Act requires the 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 content of the records or give detailed reasons for my decision is limited.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 42(f) - records of the Office of the Attorney General

Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General (AG) or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions, other than a record relating to general administration. The Chief State Solicitors Office (CSSO) is a constituent part of the Office of the Attorney General. Having examined the records, it is clear that records 13, 14 and 17 and parts of records 15 and 16 were created by the CSSO, and do not relate to general administration of that Office. I am satisfied that section 42(f) applies to these records and therefore, the FOI Act does not apply to them.

Section 15(1)(a)

While this exemption was not claimed by the Department, it is relevant as the applicant has questioned whether all relevant records have been identified by the Department. Section 15(1)(a) of the FOI 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. My role in such cases is to review the decision of the FOI body and to decide whether that decision was 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.]( available on www.oic.ie)

In its internal review decision, the Department addressed specific issues which had been put to it by the applicant regarding whether particular records were held by the Department. No additional specific issues were raised by the applicant with this Office, in this regard.

The Department provided details of the records management practices it says are in place for the relevant areas of the Department. It also provided details of the searches it says were undertaken of electronic and hard copy records in its efforts to identify information relevant to the request. The steps taken included contacting all business units asking them to identify all relevant records, as a result of which 31 records were identified, as set out above.

In the absence of any further particulars from the applicant, which might assist me in identifying further potential "search" issues to be raised with the Department, and given the steps the Department says were taken to search for records, it seems to me that reasonable steps have been taken by the Department to search for the records. I am satisfied, on the basis of the information available to me, that the further information does not exist or cannot be found after all reasonable steps have been taken to search for it and I find that section 15(1)(a) applies to any such information which in the applicant's view should exist.

Section 31(1)(a) - Legal Professional Privilege

The Department refused access to information in records 2, 3, 4, 6, 7, 10, 11 and parts of 5, 15, 16, 18, 25, 26, 27, 28, 29, 30 and 31 on the basis that section 31(1)(a) applies. Section 31(1)(a) provides that : "A head shall refuse to grant an FOI request if the record concerned - (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege". I accept that 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).

Unlike most other provisions of the Act, section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Records 2, 7, 10, 11 and 15 are communications from the Department, i.e. the client, to the CSSO, its legal adviser, seeking legal advice and providing additional information and clarification in this context. Having examined these records, I am satisfied that they are communications between a client and its legal adviser for the purpose of obtaining legal advice, or are internal documents which disclose legal advice received, and that, therefore, the first limb of legal professional privilege (advice privilege) is satisfied.

Record 16 is an email from the Department's internal legal adviser, to Departmental colleagues which includes an email from the CSSO. As set out above, section 42(f) applies to the part of this record from the CSSO. It could be argued that section 42(f) applies to the entire record, taking account of the provisions of section 18. However, I am satisfied that the internal email is such that it can be considered a communication between a legal adviser and its client for the purpose of giving legal advice and therefore the first limb of legal professional privilege (advice privilege) is satisfied.

Record 26 is an email with a note for the Minister's information attached. Having examined this record, I am satisfied that the withheld information in the second paragraph of the note discloses legal advice received, and that, therefore, the first limb of legal professional privilege (advice privilege) is satisfied.

The withheld parts of records 3, 4, 6 and 18 are internal communications which seek to establish information in order to forward it to the Department's legal advisers in response to records 1 and 8 (released). As the Department's legal advisers are not a party to the communications, they do not attract legal advice privilege. I must, therefore, consider whether the criteria for litigation privilege are met, i.e. whether litigation is contemplated and whether the records were prepared for the dominant purpose of such litigation. I am satisfied that it was reasonable for the Department to consider that the contents of records 1 and 8 to be such as to indicate a real threat of litigation, given the identity of the sender and the fact that there has been ongoing litigation, of which the Department was aware, involving this party and others. 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. 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."

 

I am satisfied that the establishment of facts and information addressed in these emails was necessary to prepare for any contemplated litigation. Given the timing of the emails, I am also satisfied that they were created in response to records 1 and 8 and as such the dominant purpose test is met. There is no information available to me to suggest that these records would have been created had records 1 and 8 not been received by the Department and it seems that record 8 serves to reinforce the earlier apprehension of litigation. The Department has provided details of related litigation which has not yet concluded. I am satisfied that the withheld parts of these records are such as to satisfy the second limb of legal professional privilege (litigation privilege).
I find that section 31(1)(a) applies to the withheld parts of records 2, 3, 4, 6, 7, 10, 11, 15, 16, 18 and 26 for which it has been claimed, as set out above.
Having considered the submission of the Department and examined the content of records 5, 25, 27, 28, 29, 30 and 31 for which section 31(1)(a) has been claimed, I find that section 31(1)(a) does not apply to them as it has not been demonstrated, nor is it apparent from their content and context, how either limb of legal professional privilege is satisfied in relation to these records.

Section 30(1)(c)

The Department has claimed that section 30(1)(c) applies to some of the withheld information in records 5, 25, 26, 27, 28, 29, 30 and 31. Section 30(1)(c) 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. In order for this exemption to apply, the relevant negotiations should be identified. As this exemption does not contain a harm test, it is sufficient that access to the record(s) concerned could reasonably be expected to disclose negotiating positions. Records relating to past, present and future negotiations may be protected. The wording of section 30(1)(c) extends to negotiations carried out by an FOI body, other than the body making the FOI decision.

The descriptions of these records provided in the schedule prepared by the Department identifies Dublin City Council and Ballymun Regeneration Limited as parties to the correspondence. Both of these are themselves FOI bodies. Having regard to the content of these records, it is clear that these FOI bodies were engaged in negotiations with the Department and other parties, some aspects of which are the subject matter of the correspondence in these records. I am satisfied that the release of the records would disclose the positions taken by both the Department and other FOI bodies for the purpose of negotiations. I find that section 30(1)(c) applies to the withheld information in the records to which access has been refused on this basis.

Section 30(2) requires me to consider whether, on balance, the public interest would be better served by granting than by refusing access to the records at issue. As stated above, there is no harm test in Section 30(1)(c). However, in considering whether the public interest would be better served by granting than by refusing the request, the question of whether a harm might arise from release may be taken into account.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act.

However, where, as in this case, positions taken for the purposes of 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.

The Department has set out detailed background to the issue in its submission, including reference to matters which remain before the courts. At the current time, a judgment of the Court of Justice of the European Union (CJEU) is awaited on questions referred to it by the Irish Supreme Court. Therefore, even though the records at issue date from 2011, the matters the subject of the correspondence have not yet been concluded.

Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how the Department and the other FOI bodies carry out their functions is served to some extent by the information already released, and also by the fact that the proceedings before the courts take place in public.

In the circumstances of this particular case and having examined the records at issue, I consider that the Department has demonstrated why the public interest would not be better served by the release of this information. I find that the public interest would not be better served by granting this request.

Section 36(1)(b)

The Department claimed that section 36(1)(b) applies to redactions of relatively small amounts of information in records 5, 26 and 29.

Section 36(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified.

The Department's position, as set out in its internal review decision, is that this information is of a financial and commercially sensitive nature relating to arrangements for the completion of works at Sillogue 4 and the parties involved in those works, and that its release could prejudice the competitive position of the relevant parties in the conduct of their business.
The justification provided by the Department for the application of section 36(1)(b) is weak and is such that I considered finding that refusal of the this information had not been justified as required under section 22(12)(b) of the Act. However, I must also be mindful of the position of the third parties to whom the information relates. The standard of proof required in the second part of the sub-section is relatively low in the sense that the test is not whether prejudice is certain to materialise but whether it could do so. Having examined the information at issue, I am satisfied that its release could prejudice the competitive position of that business by revealing information which would not otherwise be known to competitors. I find that section 36(1)(b) applies to the information for which it has been claimed in records 5, 26 and 29.

Section 36(2) provides for the release of information to which section 36(1)(b) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Having found that section 36(1)(b) applies to the information, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The Department has not addressed the public interest specifically in relation to this exemption in its decisions or in its submission to this Office. However, I must address it in this decision. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. However, section 36(1) itself reflects a public interest in the protection of commercially sensitive information. Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how the Department carries out its functions is served to some extent by the information already released. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, was not designed as a means by which the operation of private enterprise would be opened up to scrutiny. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the small amount of information to which I have found section 36(1)(b) applies.

As I have found that all of the withheld information in the records, which is within the scope of the review, is exempt from release on the basis of various exemptions as set out above, it is not necessary for me to deal with the other exemptions claimed by the Department.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I find the FOI Act does not apply to records 13, 14, 17 and parts of 15 and 16 on the basis of section 42(f). I further find that section 15(1)(a) applies to any further records relevant to the request on the basis that they do not exist or cannot be found after reasonable steps have been taken to look for them. I further find that section 31(1)(a) applies to the withheld parts of records 2, 3, 4, 6, 7, 10, 11, 15, 16 ,18 and 26 for which it has been claimed; and that section 30(1)(c) applies to the withheld information in records 5, 25, 26, 27, 28, 29, 30 and 31 for which it has been claimed. I find that section 36(1)(b) applies to the small amount of information in records 5, 26 and 29 for which it has been claimed. No additional information falls to be released.

 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Elizabeth Dolan
Senior Investigator