Case Number: 170141

Whether the Agency was justified in its decision to refuse access in full or in part to certain records in the applicant's file under sections 15(1)(a), 31(1)(a), 31(1)(b) and 37(1) 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 23 November 2016, the Agency received a request from the applicant for access to all records held relating to the applicant and her son. In its original decision, the Agency granted access to certain records and withheld access in full or in part to others on the basis of sections 31(1)(a) and 37(1) of the FOI Act. Following a request for an internal review, the Agency affirmed its decision on 2 March 2017. On 27 March 2017, this Office received an application for review of the Agency's decision from the applicant.

During the course of the review, the Investigator raised a number of issues with the Agency. The majority of those issues are dealt with later in this decision. However, as a result of the queries, the Agency released a number of additional records in part and in full and relied on section 15(1)(a) of the FOI Act to refuse access to further records. Also, having examined the records the subject of the review, the Investigator queried whether the Agency had considered if any or all of the records may have been produced in Court proceedings that were subject to the in camera rule of the Court. The Agency subsequently identified a number of records to which it argued that the exemption at section 31(1)(b) applied. Both of these matters are dealt with in this decision. The Investigator invited the applicant to make a further submission on the basis of those new issues. She discussed the issues with the Investigator but did not make a further written submission.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the applicant and the Agency and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the Agency was justified in deciding to refuse access, in full and in part, to certain records on the basis of sections 15(1)(a), 31(1)(a), 31(1)(b) and 37(1) of the FOI Act.

Preliminary Matters

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of the public interest.

Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act 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. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the function of this Office to search for records that a requester believes are in existence.

During the course of the review, the applicant made a detailed submission outlining why she considered that other relevant records should exist. In particular, she referred to minutes of a case conference and missing pages from a letter and other documents. The applicant also sought any records that may exist concerning logged telephone calls and meetings about which she provided details of times and contacts.

Following the Investigator's raising of issues based on the applicant's submissions, the Agency located a number of additional records. In a submission, it stated that it could not locate records of logged telephone calls, or of a "creche meeting".

Following a request for further information from the Investigator, the Agency located further records, and stated that it had taken steps to address a number of issues associated with the queries of the applicant.
In particular, it said that with regard to:-

Minutes of Case Conferences: "The area manager and PSW are addressing this with the chair of the CPCC to ensure that a memo is circulated in the area to ensure that all minutes of [Child Protection Case Conference] CPCCs are maintained on the case file. A log is also held in the same location."

Telephone calls: "incoming calls are logged by the administrative team and passed on to the social worker if they are available. If not, the administrative team take a message which is passed on to the social worker for follow up. There is no national policy for logging calls by individual social workers. However, best practice is that the calls are logged on the file.
A memo will be issued by the Area Manager & Duty PSW with regards to logging all calls incoming and outgoing on a standardized telephone contact sheet to ensure that all conversations are logged and recorded appropriately."

Complaints Log: "there is a complaints log in the area and it is maintained by the PSW for Quality. Complaints are held separately to the child's file".

The Agency also said that there was no meeting in a crèche. It stated that the applicant may be referring to what the Agency described as a "supervision note" and that the note "may have been regarding a potential visit to the crèche".

The Agency also provided details of searches it had conducted for further records, and stated that "...for future reference, copies of reports minutes and child protection plans are also held in the Child Protection Hub in Dartmouth".

The position of the Agency is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Agency to carry out indefinite new searches. However, it is clear that both the records management practices in this case and the initial searches during the decision making process were poor and should be improved. In view of the information provided by it relating to the search undertaken, and the records which did come to light and which the Agency stated would be released to the applicant, I consider that the Agency has now taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 31(1)(a) - Record considered to attract legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege 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 (legal advice privilege), and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

The Agency has given me no information as to whether legal proceedings in this case are still ongoing, so I am not satisfied that litigation privilege can be relied on.

Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal advisor in a situation where the legal advisor is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. In case 020281 (Mr. X and the Department of Education and Science),the former Commissioner considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. She referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R.., 246, CA.] ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings... There will be a continuum of communications and meetings between the solicitor and client... Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

The Commissioner takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

The Agency claims that legal advice privilege applies to records 152-155, 159-161, 164, 196, 229-234 in File 1, and records 5-13 and 37-47 in File 2. Having examined them, I accept that all but 160, 161, 164, 229 and 230 of File 1 of these records comprise legal advice sought or received from the Agency's professional legal adviser. Accordingly, I uphold the Agency's refusal of the information in the records concerned under section 31(1)(a) of the FOI Act.

I cannot see how the remaining records in this group qualify for legal professional privilege since they mainly concern correspondence with the applicant's solicitor. I find that section 31(1)(a) does not apply to them.

Section 31(1)(b) - contempt of court
Section 31(1)(b) of the FOI Act provides that:-
"A head shall refuse to grant an FOI request if the record concerned -
...
is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."
During the course of this review, the Investigator queried with the Agency whether any or all of the records at issue had been the subject of family law proceedings, and whether the Agency had considered if any or all of the records are subject to the in camera rule of the Court and accordingly, are exempt under section 31(1)(b) of the FOI Act.

The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to certain Court proceeding. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. I consider that any such record is required to be withheld under the mandatory exemption at 31(1)(b) of the FOI Act, i.e. it does not allow the exercise of discretion on the part of the decision maker.

In her judgment in LK and the Information Commissioner [2013] IEHC 373, which addressed records created in the context of child care proceedings, O'Malley J. stated, referring to the judgment of O'Neill J. in EH v Information Commissioner [2001] 2 IR 463, that "The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the Constitutionally established structures for the administration of justice." O'Malley J. went on to find that:
"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of child care proceedings ...... Neither the status of the appellant as a party to District Court proceedings no[r] the purpose for which she wishes to use the report are relevant to his powers in this respect."
The Agency identified records 73, 124, 144, 157, 162 and 163 in File 1 as related to proceedings under the Guardianship of Infants Act 1964. It stated that according to the District Court (Children and Family Relationships Act 2015) Rules 2016 (SI No. 17 of 2016), proceedings under the Guardianship of Infants Act "shall be heard otherwise than in public and only the officers of the Court, the parties and their legal representatives, witnesses (subject to the provisions of Order 8) and such other persons as the Judge in his or her discretion shall allow, shall be permitted to be present at the hearing".

I accept that the records listed above emanate from family law proceedings.

I am satisfied that the position as set out in LK and the Information Commissioner applies here and as I am not aware of the existence of any prior judicial authority for their release, I consider that release of these records to the applicant on foot of her FOI request would constitute contempt of Court. Accordingly, I find that these records are exempt under section 31(1)(b) of the FOI Act.

There may be other records the subject of this review which would also be said to emanate or derive from family law proceedings. However, the Agency did not identify any further individual records and, given my findings on the other exemptions, I have not pursued this matter further.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. Section 37(7) provides that, notwithstanding subsection (2)(a) (which provides that section 37(1) does not apply where the information relates to the requester), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. This is often referred to as 'joint personal information'.

For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".

While I cannot discuss their content in any detail, I can state that the records contain information relating to the applicant's family and other individuals. Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that the withheld information is exempt under section 37(1) of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Section 37(7) is also subject to section 37(2(b) to (e). I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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 a request that would fall to be refused under section 37(1) may still be granted where, on balance:
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

Section 37(5)(a) - The Public Interest
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 ("the Rotunda case") (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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, when considering section 37(5)(a), 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 my view, the information in the records is inherently private. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.

Having reviewed the relevant records, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act applies to the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Agency.

I affirm the Agency's decision to refuse access to a number of records under section 31(1)(a) of the Act on the basis of legal professional privilege, with the exception of its refusal of access to five records. I direct the release of records 160 (except the mobile phone number), 161, 164, 229 and 230 from File 1.

I affirm the decision of the Agency that section 31(1)(b) applies to certain records relating to Court proceedings subject to the in camera rule.

I affirm its decision to refuse access to the remaining withheld records on the basis that section 37(1) of the FOI Act applies, since the withheld information concerns the personal information of third parties as well as the applicant. I find that the public interest in granting the request does not outweigh the public interest in upholding the privacy rights of individuals other than the applicant.

I affirm the decision of the Agency to refuse access to further records under section 15(1)(a) of the Act.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator