Case Number: 160555

Whether the Agency was justified in its decision to refuse access to records concerning the investigation of a complaint under sections 15(1)(a) and 31(1)(a) 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

On 4 January 2016, the applicants made an FOI request for access to all correspondence and documents held by the Agency in relation to the investigation of a complaint. The applicants also requested documents concerning the procedure used by the Agency when investigating complaints. On 5 September 2016, the Agency issued its decision granting the applicant's request in part. On 14 September 2016, the applicants requested an internal review of the Agency's decision. The applicants argued that the Agency ought to hold additional relevant records and they argued that record 70, which was refused on the basis of legal privilege, ought to be released. The applicants also argued that records 82-86 (labelled court documents) which were refused on the basis that their release would constitute a contempt of court, ought to be released. On 12 October 2016, the Agency varied its original decision by releasing a number of additional records which were located following further searches. The Agency upheld its decision in relation to record 70 and records 82-86.

On 12 December 2016, the applicants applied to this Office for a review of the Agency's decision. Both the applicants and the Agency made submissions in the course of this review.

I have decided to conclude this review by issuing a formal binding decision. In conducting this review, I have had regard to correspondence between the applicants and the Agency, to correspondence between the Agency and this Office, to correspondence between the applicants and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

In their application to this Office, the applicants argue that further relevant records ought to exist and they argue that record 70 ought to be released. The applicants did not seek to have the Agency's decision in relation to records 82-86 (labelled court documents) reviewed. Accordingly, the scope of this review is confined to the following issues:

• Whether the Agency has justified its decision that section 15(1)(a) of the FOI Act applies to the applicants request as no further records exist or can be found after all reasonable steps to locate them have been taken;
• Whether the Agency has justified its decision to refuse access to the record 70 under 31(1)(a) of the Act on the basis that it qualifies for legal professional privilege.

Preliminary Matters

From an examination of the decision making records, it is clear that the Agency took the view that the applicant's request was worded in a manner which is inconsistent with FOI Act. Notwithstanding these reservations, the Agency decided to treat the request as a valid request. However, there was a considerable delay before the original decision issued. Despite the Agency's apparent difficulty in deciding whether the request was valid, a decision ought to have been made within the time frames specified within the FOI Act.

In its original decision, the Agency stated that it was clear from the wording of the FOI request that the applicants were unhappy with how their complaint was investigated. Parts nine, ten and eleven of the request contain complaints rather than requests for records. The original decision maker informed the applicants that it was not within the scope of her remit to make a decision on these complaints and she directed the applicants to the appropriate channels to have their complaints independently investigated. I wish to make it clear that it is not this Office's function to adjudicate on the merits of the issues in the records or to comment on the Agency's handling of these matters.

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Agency to satisfy the Commissioner that its decision to refuse access to the records was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is 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/her decision. The evidence in "search" cases consists of the steps actually taken to search for 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 records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office's website at (www.oic.ie).

In their internal review request, the applicants state that correspondence with the Investigator, correspondence with a Garda Inspector and correspondence from the DPP copied to the Investigator were not released. The applicants provided this Office with a copy of social work notes from February 2014, which refer to one of the applicants having a letter from a Hospital Consultant. They state that this letter was not released. The applicants state that part three of their request was for notes taken by the Investigator when meeting with people mentioned in her report and they state that these notes were not released. Finally, the applicants state that a letter sent by one of the applicants to a Social Work Department in January 2014, was not released.

Following the applicants' submissions, this Office wrote to the Agency and requested that it provide replies to detailed queries in relation to the searches undertaken to locate all relevant records and in relation to the records specifically mentioned by the applicants.

In its reply, the Agency states that it is standard practice for a complaint file to hold all records relevant to the complaint investigation. The Agency states that following the applicants' request, the complaint file was examined and relevant records were identified. According to the Agency, further additional searches were undertaken at internal review stage and additional records were located. The Agency states that six letters between the applicants and the Investigator were located and released. It states that these letters were created after the investigation of the complaint. The Agency states that it also located a letter sent by the applicants to a Garda Inspector which was copied to the Investigator. It says that this record was not identified earlier as it was created after the applicants made their FOI request. The Agency states that it did not locate a letter sent from the DPP's Office which was copied to the Investigator.

According to the Agency, the Investigator confirmed that she did not have a copy of the Hospital Consultant's letter referred to by the applicants. However, she states that at the time of the complaint, she requested a copy of the letter from the Hospital Consultant's Office, but was informed that they did not have a copy on their file. The Agency states that notes taken by the Investigator when meeting with people mentioned in her report were released to the applicants. Finally, the Agency states that following correspondence from this Office, it undertook a further electronic search for records. However, it says that it was unable to locate the letter sent by the applicants to a Social Work Department in January 2014, or any further records.

It appears that all of the correspondence between the applicants and the Investigator which was identified by the applicants in their internal review request, was located and released by the Agency. The letter from the applicants to the Garda Inspector was created after the date of the applicant's request and it therefore falls outside the scope of this review. In relation to correspondence from the DPP's Office, even if such a record was located it would fall outside of FOI by virtue of section 42(f) of the Act. I accept that the social work notes refer to one of the applicants having a copy of a letter from a Hospital Consultant. However, it is not clear from the notes that this record was actually held by the Agency. In any event, I accept that the Agency took reasonable steps to try and locate this letter. I also note that record 7 which is described on the schedule provided to the applicants as handwritten notes of Investigator re complaint, was released to the applicants.

Having regard to the replies provided by the Agency in response to detailed queries from this Office, I am satisfied that the Agency has taken reasonable steps to locate relevant records. I find, therefore, that section 15(1)(a) of the Act applies to the applicants' request insofar as it relates to any further records which in the applicants view the Agency ought to hold.

Section 31(1)(a) - Legal Professional Privilege
The Agency relied on section 31(1)(a) in refusing access to record 70. Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal advisor or the professional legal advisor 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)

There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications and legal assistance other than the giving of advice. The LPP exemption contains no public interest balancing test. However, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds. For instance, it is an established legal principle that privilege may not attach to communications in furtherance of a criminal or fraudulent offence.

In submissions to this Office, the applicants argue that the Investigator examined issues that were before the Courts. They argue that this was a wrongdoing as it denied the authority of the Courts. They say that communications in furtherance of conduct which is criminal, fraudulent or injurious to the interests of justice, should not receive the benefit of privilege. The applicants state that in the legal advice limb of legal professional privilege, it is necessary that the communication concerns the giving or seeking of legal advice and not something falling short of legal advice, often distinguished as 'legal assistance.' According to the applicants, this distinction is particularly important in the in-house solicitor context, where communications can become easily entangled with other, non-legal matters.

I am somewhat limited in the description of record 70 which I can give because of section 25(3) of the Act. I can say that record 70 contains an email from the Investigator to the Agency's Internal Legal Advisor. The email requests advice and provides background materials in attachments. Following queries from this Office, the Agency identified the attachments by reference to the schedule provided to the applicants and confirmed that these records were released to the applicants. The Agency also confirmed that the recipient of the email is a professional legal advisor who was attached to the Agency's Legal Services at the time of the request.

The Commissioner's understanding of the distinction between "legal advice" and "legal assistance" is based on the Supreme Court decision in Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] ILRM 58 where McCarthy J. held that legal assistance does not go beyond "communications of fact leading to the drafting of legal documents and requests for the preparation of such..." The Commissioner takes the view that correspondence which is of an administrative nature, and which does not involve the seeking or giving of legal advice, is not privileged. Record 70 is not a communication of fact for the purpose of drafting a legal document nor is it correspondence of an administrative nature. I accept that the purpose of record 70 is to request legal advice. I am not satisfied that record 70 comprises a communication in the furtherance of a criminal offence or fraud. I find, therefore, that record 70 would be exempt from production in proceedings in a court on the grounds of Legal Professional Privilege and is therefore exempt under section 31(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Agency's decision. I find that that section 15(1)(a) of the FOI Act applies to the applicant's request insofar as it relates to additional records. I find that section 31(1)(a) of the FOI Act applies to record 70.

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