Whether the OPW was justified in refusing access to records relating to the sale of Garda barracks in Ardagh, Co. Longford, on the grounds that the records are exempt under sections 30(1)(c), 37 and 42(f) 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 email dated 5 October 2016, the applicant made an FOI request to the OPW for "all documentation on the process of the sale of the Garda Barracks, Ardagh Village, Co. Longford from the date that it was first announced that the OPW was intending on selling Garda Barracks across the country". On 2 November 2016 the OPW refused access to the information sought on the basis that the sale process was ongoing. On 3 February 2017, the applicant applied for an internal review of that decision and the OPW accepted the late application for an internal review. The OPW issued its internal review decision on 9 March 2017, in which it varied its original decision. It granted access to some information and refused access to the remaining records under sections 36, 37 and 42(f) of the FOI Act. On 21 June 2017 the applicant sought a review by this Office of the OPW's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the OPW as outlined above and to the correspondence between this Office and both parties, as well as the contents of the withheld records that were provided to this Office by the OPW for the purposes of this review.
Scope of the Review
During the review process, the OPW released further information to the applicant. It also stated that it now relies on section 30(1)(c) instead of section 36(1)(c) in respect of certain records. Both provisions relate to negotiations. Accordingly, this review is concerned solely with whether the OPW was justified in refusing access to the records which remain withheld, under sections 30(1)(c), 37 and 42(f) of the FOI Act.
Preliminary Matters
Before I consider 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, the onus is on the OPW in this case to satisfy me that its decision to refuse access to the records at issue was 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. The Courts have endorsed this approach.
Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, the OPW failed to give adequate reasons for its refusal of access in both its original and internal review decisions. I would remind FOI bodies that sections 13(2) and 21(5) of the FOI Act require them to give adequate reasons, including consideration of the public interest balancing test, where that arises. While I note that the OPW invited the applicant to come in and discuss the matter, this does not remove the obligation to comply with the requirements of the FOI Act at original decision and internal review stage.
Analysis and Findings
Section 42(f) - Records created or held by the Attorney General's Office
Section 42(f) provides that the FOI Act does not apply to records held or created by the Office of the Attorney General, other than records relating to general administration. The Chief State Solicitors' Office is a constituent part of the Office of the Attorney General.
Many of the records consist of correspondence between the OPW and the CSSO, some of which was created by the CSSO. Records created by the CSSO are contained in Pages 36-38, 42-43, 45, 50-51, 65-91, 113, 120, 121-122, 139-140, 153-154, 155-156, 157-159, 160, 162, 163-167, 168-199, 202-209, 219-241. I am satisfied that they do not relate to general administration.
I find that the OPW is justified in refusing access to the records created by the CSSO which are contained in the above-numbered records, under section 42(f) of the FOI Act.
Section 30(1)(c) - Functions and Negotiations
The OPW originally claimed section 36(1)(c) over Pages 100, 101, 106-107, 108-109, 110-111, 150 and 215-217. It withheld some of these records in whole and others in part. I will refer to the withheld information as "the records". As noted above, during this review, it stated that it now relies on section 30(1)(c) and both provisions relate to negotiations.
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).
The OPW says in its submissions to this Office that the previous sale of the property concerned did not complete and the property is soon to be returned to the market. It says that the records disclose the OPW's position on the sale of the property and its "bottom line" on the price it would accept for the property. It says that as the sale did not complete, the records would disclose the position for future negotiations when the property is returned to the market. It submits that releasing the records could affect the future negotiations on the sale and market price of the property. It makes no submissions on the public interest.
The records disclose details of a proposed sale of the property which fell through, including the proposed price. The OPW still intends to sell the property. I therefore accept that the OPW has identified relevant (future) negotiations for the purpose of section 30(1)(c). I further accept that releasing details of the previous proposed purchase price and the OPW's "bottom line" would disclose a position taken for the purpose of negotiations. I find that section 30(1)(c) applies to the records.
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 the records at this point in time. I believe that in the circumstances, before any sale has completed, the public interest in protecting the OPW's negotiating position, to enable it to negotiate a future sale of the property, outweighs the public interest in openness around its functions. Accordingly, I find that the OPW is 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, 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).
The former Commissioner has 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 confidential communications regarding the giving or receiving of legal advice. In Case 020281, 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; and 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."
I adopt this approach and take the view that privilege applies to records which form part of a continuum of correspondence which results from the original request for advice.
As noted above, many of the records contain correspondence between the OPW and the CSSO, some of which attaches advice from a barrister. I am satisfied that section 31(1)(a) applies to the following: Pages 42-43 (email from the OPW), 121-122 (emails from the OPW), 139-140 (email from the OPW), 163-164 (email from the OPW), 168-191 (emails from the OPW), 202-209 (emails from the OPW), 210-214, 218, 219-241 (emails from the OPW). This is on the basis that they are confidential communications between a client and their legal adviser for the purpose of seeking and obtaining legal advice, or which form part of a continuum of correspondence resulting from the original request for advice. I therefore find that the OPW is justified in withholding access to these records under section 31(1)(a) of the FOI Act.
Section 37 - Personal information
Section 37(1)
The OPW claims section 37 over Pages 54-55, 63-64, 92, 93-95, 96-99, 110-111, 117-119, 131, 144-147 and 161. It withheld some of these records in whole and others in part. I will refer to the withheld information as "the records". I have found certain information in Pages 110-111 to be exempt under section 30 above and therefore do not need to consider that part of Pages 110-111 further.
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 information about the individual that 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 the foregoing definition.
The records contain the names, email addresses and mobile telephone numbers of third parties who corresponded with the OPW about the property concerned, including the names and contact details of previous bidders and a proposed purchaser and their solicitor. I consider that this is personal information and therefore exempt from release under section 37(1) of the FOI Act. This is subject to the provisions of sections 37(2) and 37(5), which I examine below.
Section 37(2)
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 the circumstances in section 37(2) apply to these records. That is to say, (a) the information contained in them does not relate 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. I am then required to consider section 37(5) as it applies to the records.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party 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 benefit the person to whom the information relates.
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.
I do not consider that releasing the names and contact details of the third parties would assist the openness and transparency of public bodies. On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the OPW is justified in refusing access to the records, under section 37(1) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I affirm the OPW's decision, under sections 30(1)(c), 31(1)(a), 37 and 42(f) 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
