Case Number: 170071

Whether the Council was justified in its decision to refuse access to records relating to the applicant's accommodation under sections 30(1)(c) 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 her solicitors throughout this process.

By letter dated 16 May 2016, the applicant made an FOI request for records regarding her social welfare file, in particular all records relating to her accommodation. By letter dated 10 June 2016, the Council granted access to some records and refused access to the remaining records under sections 30 and 31 of the FOI Act. The Council also referred to the "deliberative process", which is in fact covered by section 29 of the FOI Act. On 12 July 2016 the applicant applied for an internal review of the Council's decision to withhold two records: Record 18 and Record 23 ("the records"). The Council issued an internal review decision by letter dated 4 August 2016. It affirmed its original decision, on the ground that the records were exempt under sections 30(1)(c) and 31(1)(a) of the FOI Act. On 31 January 2017 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 scope of this review concerns Records 18 and 23. The question for me is whether the records are exempt under sections 30(1)(c) or 31(1)(a) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note that 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.

Analysis and Findings

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.

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).

In its internal review decision, the Council states that the records could reasonably be expected to disclose the position the Council may take in negotiations with the applicant. Accordingly, during the review, the Investigator invited the Council's submissions on section 30(1)(c) and asked questions by reference to each part of that provision.

However, in reply, the majority of the Council's submission describes its dealings with the applicant and her accommodation, rather than addressing the FOI Act. It concludes by saying that it is of the strong opinion that the Council acted reasonably in its dealings with the applicant. The Council appears to have misunderstood this Office's function. It is not the Information Commissioner's role to adjudicate upon whether the Council acted reasonably towards the applicant; solely to decide whether the Council was justified in refusing access to the records.

In response to the Investigator's request to identify the relevant negotiations, the Council says that it is not aware of any contact from the applicant since the installation of a ventilation system and that there is an ongoing Ombudsman's case.

In response to the Investigator's request to provide details of the positions etc. which the records would disclose, the Council says that the records state that they are for the sole use of the Council and that its law agent advised against releasing the records.

In response to the Investigator's request to explain why the disclosure of such positions could "reasonably be expected" to occur, the Council says that it would be reluctant to furnish the documentation at this stage, as the applicant may be in contemplation of legal proceedings. Its internal review decision refers to making information available which the Council will rely on during legal proceedings. If by this, the Council purports to say that future legal proceedings will involve negotiations with the applicant, it has still failed to identify the positions etc. which the records could reasonably be expected to disclose. Indeed the Council says itself that it has already disclosed the reports' conclusions to the applicant and I note that some of the records already released confirm this.

The Council's submissions fall far short of justifying its refusal under section 30 of the FOI Act. Having regard to section 22(12)(b) of the FOI Act, I have no basis on which to find that section 30(1)(c) applies to the records.

Accordingly, I find that the Council is not justified in refusing access to the 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 deciding whether section 31(1)(a) applies to the records, I must consider whether they 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).

During this review, the Investigator invited the Council's submissions on section 31(1)(a) of the FOI Act. However, in reply, the Council's submission does not refer to section 31(1)(a), simply stating that the law agent advised it against releasing the reports. This of itself does not demonstrate that section 31(1)(a) of the FOI Act applies to the records.
The records consist of two reports about the condition of the applicant's accommodation. They were prepared by a surveyor who received instructions from the Council to inspect the property and report on its condition.

On examination of the reports, I am not satisfied that they are confidential communications made between the Council and its legal adviser for the purpose of obtaining and/or giving legal advice. Neither am I satisfied that they are confidential communications between the Council and its legal adviser or the legal adviser and a third party or between the Council and a third party, prepared for the dominant purpose of preparing for contemplated/pending litigation. Moreover, the Council has provided no relevant submissions to demonstrate to me how section 31(1)(a) applies in the circumstances. In its submission on section 30(1)(c), it says that the applicant "may be in contemplation of legal proceedings" but it does not claim that the records were prepared for the dominant purpose of contemplated/pending litigation and neither is it evident to me on the face of the records that they were. I find that section 31(1)(a) does not apply to the records.

Accordingly, I find that the Council is not justified in withholding access to the records under section 31(1)(a) of the FOI Act.

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.

As the records include the applicant's address and photos of the accommodation concerned, I believe that the applicant could be identifiable from them. The records contain information about the applicant's family and living conditions. Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. As this information relates to the requester concerned, i.e. the applicant, I am satisfied that paragraph (a) of section 37(2) applies. I am therefore not required to consider section 37 further.

I find that section 37(2) disapplies section 37(1) of the FOI Act in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the Council's decision and direct the release of the records to the applicant.

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