Case Number: 160150

Whether the Council was justified in refusing access to information relating to a settlement reached in connection with specified legal proceedings on the ground that it holds no relevant records

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

This review has its background in legal action taken by the applicant against the Council. The matter was handled by the Council's insurer and the case was settled out of court. It appears that the applicant has some concerns as to the precise nature and amount of the settlement that was reached outside of court. On 14 November 2015 he made a request to the Council for a record of the settlement and a detailed breakdown of the money paid to a named legal firm.

In its decision of 11 December 2015, while the Council did not grant access to any specific records, it provided details of the total sum for which the claim was settled. It refused access to a detailed breakdown on the basis that its insurer does not provide detailed breakdowns of settlements.

On 18 December 2015 the applicant sought an internal review of the Council's original decision. In its internal review decision of 18 January 2016, the Council affirmed the original decision. The applicant sought a review by this Office of the Council's decision on 5 April 2016.

I consider that this review should now be brought to a close by issue of a formal, binding decision. In conducting the review, I have had regard to correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council, and to the contents of the Council's insurance policy document.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing access to a record of the settlement between the applicant and the Council in relation to specified legal proceedings between those two parties, and to a detailed breakdown of the money paid to a named legal firm, on the ground that the records do not exist. It should be noted that this Office has no role in examining either the administrative actions of the Council or the manner in which the applicant's claim was processed by the insurer.

Analysis and Findings

The Council's position is that it has no formal record of the settlement reached and has no information relating to a breakdown of the monies paid as the claim was handled in its entirety by its insurer and the settlement was paid by its insurer. In its submission of 20 July 2016 to this Office, the Council stated that all claims against the Council relating to matters of its insurance cover are referred to its insurer and managed directly thereafter by its insurer. It stated that its Law Agent does not deal with such claims and that the insurer engages its own legal representatives.

The Council added that in the context of the FOI request and in order to be of assistance to the applicant, contact was made with its insurer in relation to the claim and it was informed of the settlement sum. It stated that the details of settlements/payments made on foot of claims are a matter for its insurer and such information is not available to it. Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable efforts have been taken to ascertain their whereabouts. I accept the Council's statements concerning the manner in which claims such as the applicant's are handled. Accordingly, I accept that the Council does not physically hold the records sought by the applicant.

I have also considered whether any relevant records that might be held by the Council's insurers might also be deemed to be held by the Council for the purposes of the FOI Act. Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. A service provider is defined, at section 2, as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.

The Council's insurance policy states that, subject to certain specified limits, the insurer will indemnify the Council against all sums which it is legally liable to pay as damages in respect of accidental bodily injury to any person or accidental loss of or damage to property. The insurer is responsible for all costs and expenses of litigation recovered by any claimant in connection with any accident to which the indemnity expressed in the policy applies, again subject to certain specified limits. The policy further provides that the insurer shall be entitled to take over and conduct in the name of the Council for its own benefit any claim and shall have full discretion in the conduct of any proceedings and in the settlement of any claim.

It seems to me that any records held by the insurer relating to the applicant's claim are held by it in its own right. The contract that the Council has entered into with its insurer involves the indemnification of the Council by the insurer against valid claims. It is entirely a matter for the insurer to determine how they process such claims. The Council has no role to play in such matters. For this reason, I do not accept that records relating to the processing of the applicant's claim that may be held by the insurer could reasonably be described, in the context of the FOI Act, as relating to a service that the insurer was providing for the Council as a service provider under a contract for services. I find, therefore, that section 11(9) does not apply in this case.

Accordingly, I find that the Council was justified, under section 15(1)(a) of the FOI Act, in deciding that it holds no relevant records relating to the applicant's FOI request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

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.

Stephen Rafferty
Senior Investigator