Case Number: 170051

Whether the Department's refusal of access to records relating to the insurability of an employee of the applicant is justified 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

The applicant acted through its solicitors in this matter.

On 28 November 2016 the applicant made an FOI request to the Department for all communications between the Department and the Deciding Officer and between the Department and a certain employee of the applicant and internally within the Department in respect of the insurability of that employee. On 6 December 2016, the Department granted access to certain information and refused access to the remaining records, on the basis that they were exempt under sections 31(1)(a) of the FOI Act (legal professional privilege). On 22 December 2016, the applicant applied for an internal review. On 23 December 2016, the Department issued its internal review decision, in which it affirmed its original decision. On 31 January 2017 the applicant applied to my Office for a review of the Department's decision.

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

The Department provided this Office with two files of records. File A contains the records which it released to the applicant. File B contains the records which it refused under section 31(1)(a) of the FOI Act.

During the review, the applicant stated that it believes that the Department did not provide all records falling within the scope of its FOI request. Accordingly, the questions for this review are: (a) whether the Department is justified in withholding access to any further records under section 15(1)(a); and (b) whether the Department is justified in withholding access to the records in File B under section 31(1)(a) of the FOI Act. This is with the exception of one record in File B, which the applicant agreed could be taken out of the scope of this review, as the applicant already has a copy of it.

Preliminary Matters

Before I consider the exemptions, I should note the following. The applicant submits that the Department's procedure for dealing with the FOI request was inherently flawed by inappropriate conflicts of interest. It says that the members of staff who dealt with the original decision and internal review were involved in matters which the records concern. It further submits that the time-frame within which the Department issued its internal review decision evidences that it could not have given a complete reconsideration to the matter.

The internal reviewer was a more senior member of staff than the member of staff who made the original decision, as required under section 21(3) of the FOI Act. As regards the decision-maker's involvement in the subject matter of the records, it is often the case that staff familiar with the information at issue deal with FOI requests to FOI bodies. I see nothing inappropriate in this; in fact, it is often the most efficient procedure to use. However, the internal reviewer failed to specify all of the matters required under section 21(5) of the FOI Act in the internal review decision; e.g. he did not specify rights of review or expressly state that he was affirming the original decision (although this was clear from the content). I would urge FOI bodies to use the available resources when applying the FOI Act, such as the manuals of the Central Policy Unit of the Department of Public Expenditure and Reform at www.foi.gov.ie.

That said, under section 22 of the FOI Act, my remit in this case is confined to reviewing whether the Department was justified in refusing access to the records concerned.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

In circumstances where the applicant claims that further records exist, it is appropriate for me to consider section 15(1)(a) of the FOI Act. Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

The applicant submits that numerous discussions appear to have taken place between certain named members of staff, yet it has not been provided with any minute, notes or other record of such exchanges. It does not accept that a decision-maker in a public body would not document the interactions concerned. Furthermore, it submits that records transmitting legal advice onto a certain named member of staff must exist.

Accordingly, during this review, the Investigator made specific enquiries with the Department about whether further records existed and the steps which the Department took to locate any such records.

The Department submits that no further records exist which fall within the scope of this FOI request. It says that there were a number of telephone calls between certain named members of staff, but there are no notes or minutes in connection with those telephone calls. Furthermore, it says that no records exist concerning the onward transmission of legal advice as the emails concerned were not forwarded. It says that the relevant section of the office has a small number of staff who work in close proximity and legal advice was discussed in person.

The Department says that insurability applications have a dedicated file tracking system, while legal advice has a separate filing system. The Department reiterates that the section which deals with these matters is small and the number of people who created records in relation to this matter is very small.

In short, the Department submits that there is no reasonable possibility that there are records relating to this FOI request of which it is not aware. I accept the Department's position on this point and do not find a basis on which to dispute it. This Office is not required to search for records. Its understanding of its role in this type of case was approved by the High Court in Matthew Ryan and Kathleen Ryan v. the Information Commissioner(2002 No. 18 M.C.A.).

I find that the Department is justified in refusing access to any further records on the basis that they do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken, under section 15(1)(a).

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

In correspondence with this Office, the applicant says that it challenges the Department's decision under section 31(1)(a) and asks this Office to review the Department's application of this exemption. The Department claims legal advice and litigation privilege over the records and says that the relevant litigation is ongoing.
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 deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned 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).
I wish to highlight two points. First, the Commissioner accepts that litigation encompasses not alone court proceedings, but also proceedings before tribunals exercising judicial functions, such as the Appeals Commissioners. Secondly, in its internal review request, the applicant asked the Department to confirm the status of its legal adviser. The Department advised that the person concerned was a qualified lawyer on secondment to the Department from the Office of the Attorney General. The applicant has not queried this issue further. I accept that the person concerned was acting in a professional legal capacity in providing legal advice to the Department.

The records in File B consist of email correspondence between the Department and its legal adviser, including two attachments: a legal opinion and a note by the Department. In relation to the note, the Department submits that it prepared this for the purposes of eliciting legal advice in connection with ongoing litigation. Having reviewed the content of the note, I accept this submission.

I am satisfied that section 31(1)(a) applies to the records. This is on the basis that they are confidential communications between a legal adviser and client for the purpose of obtaining and/or giving legal advice (legal advice privilege). Furthermore, I consider that they were prepared for the dominant purpose of preparing for pending litigation (litigation privilege).

I therefore find that the Department is justified in withholding access to the records in File B under section 31(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department's decision to withhold access to the records, under section 15(1)(a) and section 31(1)(a) 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