Case Number: 160103

Whether the NSCDA was justified in refusing a request for access to records of certain email correspondence between the NSCDA and its advisers, under sections 22(1)(a) and 22(1)(b) of the FOI Act

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 application for review came about as a result of the decision of the Information Commissioner on case 150068. In that decision, dated 2 November 2015, the Commissioner was not satisfied that a finding could be made that section 10(1)(a) of the FOI Act applied to the effective refusal of access to any further records held by the NSCDA within the scope of the applicant's FOI request of 18 March 2015. The Commissioner annulled that part of the NSCDA's decision and directed it to undertake a fresh decision making process on those records. This decision is the latest in a series of decisions made by the Commissioner (see 130027, 130058 and 150068, at www.oic.ie) on foot of the applicant's original FOI request, first made to the NSCDA in November 2012.

The applicant's request of 18 March 2015 was for access to records of

" All emails received by Mr. David Conway, Mr. Sean Benton, Mr. Donagh Morgan and Ms. Laura Magahy from the following [professional services firm] personnel... [four named individuals]...between 1st May 2003 and 20 February 2011."

Having undertaken a fresh decision making process, the NSCDA identified a further 24 records which, it stated, were relevant to the applicant's request. In its original decision, the NSCDA refused access to all the records so identified, on the basis of sections 22(1)(a) and 22(1)(b) of the FOI Act. An application for an internal review from the applicant was received by the NSCDA on 28 January 2016. In its internal review decision, the reviewer stated that he affirmed the original decision but in the internal review decision letter he referred only to the exemption provisions of section 22(1)(b). On 23 February 2016, the applicant made an application to this Office for a review of the decision of the NSCDA.

In conducting this review, I have had regard to correspondence between this Office and the NSCDA, between the applicant and the NSCDA, to correspondence between the applicant and this Office, to the records within the narrowed scope of the applicant's request of 18 March 2015, and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Preliminary Matters

In the interests of clarity, I should point out that this review was 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.

As of 1 October 2015, following a merger of the Irish Sports Council and the NSCDA, Sport Ireland is now the State Agency involved. Therefore, all references in this decision to NSCDA may be read as Sport Ireland where appropriate.

Section 8(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.
It should also be noted that any review conducted by this Office under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office. Section 34(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."

Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(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 to which I can describe the records' contents in my analysis, is limited.

Finally, I would note that records released under FOI carry no restriction as to how they may be used, and this, in effect, is regarded as release to the world at large.

Scope of the Review

This review is concerned with whether the NSCDA was justified in its decision to refuse access to the 24 records held on the basis of sections 22(1)(a) and 22(1)(b) of the FOI Act.

Analysis and Findings

Section 22(1)(b) - Contempt of Court
I have decided to consider the exemption at section 22(1)(b) before considering section 22(1)(a) because this mandatory exemption formed the main basis of the NSCDA's refusal to release the records numbered 1-23.

Section 22(1)(b) of the FOI Act (as amended) provides that:-

"A head shall refuse to grant a request under section 7 if the record concerned -
....
(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute 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. Breach of an undertaking given to the court (whether express or implied) is a contempt of court.

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."

The decision in case 150068 sets out in some detail the Commissioner's position on contempt of court as it was in relation to records as at 2 November 2015. It is important to note that, at that stage, neither the swearing of the affidavit of Discovery, nor the handing over of the subject records, had taken place.

Originally, it was not clear to this Office whether records 1-23 had, in fact, been "discovered", or handed over to the applicant's solicitors on foot of discovery in legal proceedings.

During the review, the NSCDA confirmed that there had indeed been discovery to the applicant of records 1-23, in the course of court proceedings (record number 4621P/2013) since the Commissioner's earlier decision. The NSCDA stated that the affidavit of discovery and schedule had been exchanged as part of those court proceedings. It confirmed that the affidavit was sworn on 13 November 2015 and documents exchanged on 2 December of that year.

The NSCDA also provided this Office with a copy of a letter, dated 1 December 2015, from its solicitors to the applicant's solicitors, in which the NSCDA stated that it had provided copies of records 1-23 inclusive, to the applicant's solicitors. The letter explained that two records (1 and 2) were listed in the First Schedule - First part of the Affidavit of Discovery, and that records 3-23 inclusive were listed in the First Schedule - Second part of the Affidavit and were pre-fixed with the letters 'CPD'.

The letter further said that

"Notwithstanding the fact that privilege attaches to the Privileged Documents, our client [NSCDA] has decided that it will solely for the purpose of these proceedings but without any waiver of its privilege provide the Plaintiff with a copy of certain of the Privileged Documents namely those listed in the First Schedule Second Part which have a document reference number commencing with the prefix CPD. Privileged Documents are provided subject to the usual implied undertaking in respect of documents discovered to a party in proceedings." [my emphasis]

The letter also stated that any collateral use of the discovered documents or information amounts to a contempt of court and requested the applicant's solicitors to acknowledge that they had advised their client of its obligation in relation to the implied undertaking.

The Commissioner has, over the years, made many decisions on the exemption at section 22(1)(b) involving documents over which privilege was not claimed and which were the subject of Discovery and an implied undertaking by the party to whom Discovery is made. These documents were normally separate to "Privileged" documents. However, the situation in this particular review, seems to be somewhat unusual in that the records at issue are listed in the First Schedule - Second Part of the Affidavit of Discovery as 'Privileged', even though they were, in fact, supplied to the Plaintiff (the applicant) on 2 December 2015.

Given the circumstances of the discovery of 'privileged' records, this Office asked the applicant's solicitors whether the applicant had been made aware of its obligations under implied undertaking concerning the discovery of those documents.

In response, the applicant's solicitors confirmed to this Office that they did inform their client of its obligations in respect of the implied undertakings as regards the documents provided to it in the context of the proceedings brought against the NSCDA, bearing the record number 2013/4621P.

However, the solicitors argued that the letter of 1 December 2015, providing a summary of the obligations, "reflects that implied undertaking is provided by the party to the proceedings to whom the documents are discovered". They said that their client is 'Company X' and not the applicant as an individual and that any implied undertakings provided are on behalf of the company and not the applicant personally. The solicitors also claimed that the FOI requests were made on behalf of the applicant personally and not on behalf of the company, "so the issue of an implied undertaking would not seem to apply".

A similar argument was made in the applicant's submission on review 150068. While a finding on the identity of the applicant was not required in that case, it was noted that the FOI requests which gave rise to this review and the subsequent applications to this Office were made on the headed paper of the applicant's company. Likewise, the applicant's correspondence with the NSCDA in this case and the application to this Office on 23 February 2016, are all under the heading "Company X" and signed by a director of the company.

In the application for review, the applicant referred to the 24 records being "concealed" by the NSCDA and argued that the claim of "contempt of court" had previously failed in other FOI cases in 2006 and 2013. However, the applicant made no reference to the implied undertakings in the particular set of proceedings referred to above.

Having carefully considered the matter and examined the records, I am satisfied that the implied undertaking applies to the applicant company, who made this application for review. I find that the NSCDA has justified its decision that release of the records to the applicant, on foot of his FOI request, would constitute contempt of Court, and that section 22(1)(b) applies to records 1-23 inclusive.

Section 22(1)(a) - Legal Professional Privilege
Section 22(1)(a) of the FOI Act provides for the withholding of a record where it 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 some other provisions of the Act, section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Record 24 is withheld by the NSCDA under section 22(1)(a). In its submission to this Office, the NSCDA stated that the record comprises legal communications between it and its legal adviser and concerns the giving or receiving of legal advice. It also said that the record is part of a continuum of legal advice.

Having carefully examined record 24, I am satisfied that it discloses confidential communications between the NSCDA and its own legal advisers and concerns requests for, or the giving/receiving of, legal advice. I find, therefore, that the record is exempt from release under section 22(1)(a) of the FOI Act.

Having found the mandatory exemption at section 22(1)(b) to apply to records 1-23 inclusive. I do not find it necessary to consider those records under section 22(1)(a).

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the NSCDA.

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