Case Number: 160409

Whether the Council was justified in its decision to refuse access to records relating to personal injury claims against the Council under sections 30(1)(c), 32(1)(a)(iv) and 37 of the FOI Act

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

By letter dated 11 April 2016, the applicant made an FOI request for four categories of records relating to Grafton Street, the fourth consisting of "all details and documents of previous claims/cases brought against Dublin City Council by pedestrians due to the alleged poor standard of design, construction and resurfacing of Grafton Street to include all Engineers' Reports in this regard for a period of time from January 2007 to January 2014".

By letter dated 12 May 2016, the Council refused access to the fourth category of records under sections 30(1)(a) and (c) (functions and negotiations) and 37 (personal information) of the FOI Act. On 7 June 2016 the applicant applied for an internal review of the Council's decision to withhold the records in Category 4. The Council issued an internal review decision by letter dated 1 July 2016. It affirmed its original decision, on the ground that the withheld records were exempt under sections 29, 30(1) and 31(1)(a) of the FOI Act. On 27 September 2016 the applicant applied to this Office for a review of the Council's decision.

In conducting my review, I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the content of the withheld records, provided to this Office by the Council for the purposes of this review and the provisions of the FOI Act.

Scope of this Review

The Council did not give adequate reasons for claiming exemptions in its original or internal review decision. During this review, the Investigator asked the Council for detailed reasons for the exemptions which it had claimed in its internal review decision. In response, the Council explained that a change of systems and personnel had caused issues in dealing with this FOI request. It promised to undertake a full review of the matter. It subsequently granted the applicant access to a number of additional records on two occasions during this review. This has significantly reduced the number of records within the scope of my review. Following correspondence between this Office and the applicant, the question for me is whether the Council was justified in refusing access to the records listed below, under sections 30(1)(c), 32(1)(a)(iv) or 37 of the FOI Act. The applicant seeks File 12: 1 (Form A); however, as this record does not contain a Form A, it is not listed below.

File 1: 10, 16
File 2: 1
File 3: 1, 4, 8, 15
File 4: 14
File 6: 10 (report), 21 (summons)
File 7: 1, 4, 12
File 8: 20
File 9: 1, 7 (sheet with incident details), 8
File 10: 9
File 11: 4 (Form A)
File 12: 5
File 13: 4, 5, 9
File 15: 1
File 16: 8 (Form A), 14
File 17: 1

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy me that its decision is justified.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach has been endorsed by the Courts.

Finally, as can be seen from the above, the Council's handling of this case was less than satisfactory. The staff who undertook a review of the matter were very helpful in their contacts with this Office. However, I do not understand why the Council failed to deal properly with the matter in the first place. The chronology of events clearly demonstrates that the Council did not give the necessary consideration to the applicant's FOI request when processing it. Its handling of the case made this review process much less straightforward and more protracted than it should have been. I appreciate that FOI bodies are under various pressures. Nonetheless, it is incumbent on them to ensure that the resources are in place to process FOI requests in accordance with the legislation. Moreover, I would encourage FOI bodies to make full use of the resources available to them on the website of the Central Policy Unit of the Department of Expenditure and Reform at www.foi.gov.ie and on our website at www.oic.ie.

Analysis and Findings

Section 37(1) - Personal Information

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of this definition. These include: (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual, (viii) information relating to the religion, age etc. of the individual and (x) information relating to the entitlements of the individual under the Social Welfare Acts etc.

The Council claims section 37 over File 1:10, 16; File 2:1; File 3:1, 15; File 6: 10 (report), 21 (summons); File 7: 1, 4, 12; File 8: 20; File 9: 7 (sheet with incident details), 8; File 10: 9; File 11: 4 (Form A); File 12: 5; File 13: 4, 9; File 15: 1; File 16: 8 (Form A); File 17: 1.

During this review, the Council granted access to certain information contained in the records listed immediately above. In this section of the decision, I will refer to the parts of the records listed immediately above which remain withheld as the "remaining records".

The remaining records relate to personal injury claimants. They disclose information such as individuals' names, addresses, telephone numbers, dates of birth, PPS numbers and information relating to their medical histories and employment. I believe that this qualifies as personal information under section 37(1) of the FOI Act, except for Record 9:7, which does not identify an individual. I therefore find that section 37(1) applies to the remaining records, except for Record 9:7, which I will consider under section 30(1)(c).

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in relation to the remaining records. That is to say, (a) the information does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) of the FOI Act provides that access to personal information may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would be to the benefit of the person to whom the information relates. I am satisfied that releasing the remaining records would not benefit the individuals to whom the information relates, so that section 37(5)(b) does not apply.

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the language of section 37 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, 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. In the circumstances, I do not believe that the public interest in openness and transparency outweighs the public interest in protecting the privacy of the individuals concerned.

I therefore find that the Council is justified in refusing access to the remaining records (except for Record 9:7), under section 37 of the FOI Act.

Section 30(1)(c) - Functions and Negotiations of FOI Bodies

Section 30(1)(c) of the FOI Act provides that an FOI body may refuse to grant an FOI request if access to the record concerned 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.

The Council claims section 30(1)(c) over File 3: 4, 8, 15; File 9: 1, 7 (sheet with incident details); File 12: 5; File 13: 4, 5; and File 16: 14. As I have found File 3:15, File 12:5 and File 13:4 to be exempt under section 37 above, I am not required to consider them further under section 30.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken or plans etc used or followed or to be used or followed for the purpose of any negotiations. Records relating to past, present or future negotiations may be protected under section 30(1)(c).

The Council says that it is dealing with around 2,600 personal injury claims and Personal Injuries Board applications/pre-Injuries Board claims collectively. It submits that releasing these records would publicise its internal procedures and strategies for defending personal injuries claims, including confidential quantum information. The Council submits that this would prejudice the manner in which it deals with such claims. It says that the public interest in avoiding litigation and encouraging early settlement of claims outweighs the general public interest in transparency in the manner in which public bodies undertake their activities.

I should add that in its submissions on section 30, the Council says: "in the normal course, such documents would attract legal professional privilege". However, it does not go on to state that the records are exempt under section 31(1)(a) or seek to demonstrate that the records meet the requirements of legal professional privilege, e.g. fulfil the requirements for litigation privilege in each case. I therefore do not propose to consider this point further.

It is clear that the Council deals with personal injury claims on an ongoing basis and enters into negotiations in respect of such claims. I accept that in the future, the Council will enter into negotiations in relation to personal injury claims and that it has thereby identified relevant negotiations for the purpose of section 30(1)(c).

These records relate to the Council's investigation into personal injury claims and its assessment of liability and quantum for, and settlement of, such claims. I believe that they disclose the Council's procedures and/or positions taken in dealing with personal injury claims, to be used or followed for the purpose of negotiations. Moreover, it seems to me that the positions taken and procedures followed could be used in other sets of negotiations. I find that section 30(1)(c) applies to them.

I am then required to apply the public interest balancing test under section 30(2) of the FOI Act. On the one hand, section 30(1)(c) itself reflects the public interest in protecting procedures followed and positions taken by FOI bodies for the purpose of negotiations. On the other hand, section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to strengthen their accountability and decision-making.

On balance, I consider that the public interest would be better served by refusing to grant access to these records. The Council defends personal injury claims on an ongoing basis. This involves the management and expenditure of public funds. In the circumstances, I believe that the public interest in protecting the Council's negotiating procedures, to enable it to settle personal injury claims as appropriate, outweighs the public interest in openness around its functions.

Accordingly, I find that the Council is justified in refusing access to these records under section 30(1)(c) of the FOI Act.

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

Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).

In its submissions on Record 4:14 under section 32(1)(a)(iv), the Council submits that "this record is also exempt under section 30(1)(a) (sic) of the 2014 Act in circumstances where it was prepared solely for the purpose of, and in the context of, threatened or actual litigation, following the receipt of the Injuries Board Form A from [the plaintiff]". Having regard both to this submission and the content of Record 4:14, I believe that it is appropriate for me to consider this record under section 31(1)(a) first.
In deciding whether section 31(1)(a) applies to this record, I must consider whether it would be withheld on the ground of LPP in court proceedings. LPP 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).

Record 4:14 is a Council report relating to liability in respect of a personal injury claim which is the subject of ongoing High Court proceedings. The report is stated on its face to have been passed to the Law Department of the Council on the date of its creation. I am satisfied that it is a confidential communication made between the Council and its legal adviser which was prepared for the dominant purpose of preparing for and dealing with contemplated/pending litigation. I therefore find that section 31(1)(a) applies to it.

I find that the Council is justified in withholding access to Record 4:14 under section 31(1)(a) of the FOI Act.

In view of this finding, I am not required to consider section 32 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Council's decision, under sections 30, 31 and 37 of the FOI Act.
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