28 May 2018

Whether the Council was justified in refusing access to certain records  relating to an alleged unauthorised development under sections 15(1)(d), 15(1)(i), 31(1)(a), 32(1)(a)(iv), 35(1)(a), and 42(m) of the FOI Act.

Background

In a request dated 5 May 2017, the applicant through her solicitors sought access to planning files and enforcement records relating to gates at a property.  In a decision of 3 July 2017, the Council granted the request in part but refused it in larger part under sections 15(1)(d), 15(1)(i), 31(1)(a), and 35(1)(a) of the FOI Act.  In a decision dated 15 August 2017, following the applicant's request for internal review, the Council affirmed its original decision.  On 14 November 2017, the applicant applied to this Office for a review of the Council's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the Council and the applicant.  I have also had regard to the contents of the records at issue.  I note that, on 28 February 2018, this Office wrote to the person who made the complaint regarding the gates [hereinafter referred to as the complainant].  As the complainant corresponded with the Council by email, this Office used the relevant email address found in the records at issue.  The complainant was given period of two weeks, i.e. until 14 March 2018, in which to make submissions.  To date, however, no response from the complainant has been received.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the course of the review, the Council agreed to release additional records to the applicant following contacts with this Office.  The applicant, in turn, confirmed that she did not require access to records of correspondence between her solicitors and the Council.  Accordingly, adopting the numbering system used by the Council in its schedule of records, this review is concerned with the question of whether the Council was justified in refusing access to the following records:

• records 3, 9, 26, 28, 84, 95, 96, 98, 103, 119 (in part);
• records 4, 5, 6, 7, 8, 10, 11, 12, 13, 17, 21, 23, 24, 31, 33, 38, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77, 82, 83, 86, 87, 88, 89, 90, 91, 92, 93, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 120, 121, 122, 124, 130, 132 (in full).

For the sake of clarity, I note that record 24 is a draft of a letter to the applicant's solicitors.  Records 21 and 31 are annotated copies of correspondence from the applicant's solicitors.  I therefore consider that these records remain within the scope of this review.

Preliminary Matters

Before setting out my findings, there are some preliminary points I wish to make.
The first point to note is that 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 an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions.  I also note that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigating complaints against a public body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

In addition, I should point out that, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt.  This constraint means that, in the present case, the extent of the reasons that I can give is limited.

Lastly, I wish to explain the approach of this Office to the granting of access to parts of records.  Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed.  This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, this Office takes 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.  Before setting out my findings, there are some preliminary points I wish to make.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."  It should also be noted that a review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.

Section 15(1)(d)
Section 15(1)(d) provides that an FOI body may refuse to grant a request where the relevant information is already in the public domain.  The Council initially invoked section 15(1)(d) in relation to a number of records which it has since released, but it continues to claim that it applies to record 13.  Record 13 is a document from the Property Registration Authority relating to folio 6097.  The applicant does not dispute that the document is publicly available.  I accept that section 15(1)(d) applies.

Section 15(1)(i)
The Council refused access to copies of any records of correspondence with the applicant's solicitors on the basis of section 15(1)(i) of the FOI Act.  Section 15(1)(i) states that a head may refuse to grant a request where the request relates to records already released, either to the same or a previous requester where (i) the records are available to the requester concerned or (ii) it appears to the head concerned that the requester is acting in concert with a previous requester.  As noted above, most of the correspondence with the applicant's solicitors no longer falls within the scope of this review.  However, I note that, as section 15(1)(i) requires that the records have been "already released", it is not necessarily sufficient that the records originated as correspondence with or on behalf of an applicant for section 15(1)(i) to apply.  In any event, record 24 is a draft of a letter that differs, albeit in a small way, from the version that ultimately issued on 1 May 2012.  Records 21 and 31 include annotations that appear to be of a substantive nature.  I find that section 15(1)(i) does not apply.  I also find that section 15(1)(i) does not apply to record 114 as claimed; record 114 is a letter from An Bord Pleanála to the Council that encloses a letter from the applicant's solicitors.

Section 31(1)(a)
The Council has refused access to the majority of the records at issue under section 31(1)(a) of the FOI Act.  However, it has made its claim for privilege in a very general manner despite being given the opportunity to make detailed submissions.  Accordingly, this Office has not been given a full account of the background to the records, which means that I must make my findings in light of the facts that are apparent from the case file itself and having regard to the burden of proof under section 22(12)(b) of the FOI Act.    
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.  
Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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 
(b) 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).

Unlike several other exemptions in the FOI Act, section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Advice privilege
In previous decisions, the Commissioner has accepted that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  The Commissioner has adopted this approach having regard 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."

As the applicant would know from the records released by the Council, a request was made by the planning enforcement section on 28 March 2012 for the law agents to provide an opinion on the road issue related to the alleged unauthorised development.  On 1 May 2012, an enforcement notice was issued with a deadline for compliance set for 31 May 2012.  Subsequently, on 21 June 2012, the Council stated in a letter to the applicant's solicitors that the matter had been referred to its Law Department.  In this context, I accept that the following records contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice:  records 41, 42, 43, 46, 47, 50, 51, 58-61, 67, 71, 74, 75, 86, 87, 88, 89, 90, 91, 92, 93, 104, 105, 106, 108, 109, 110, 111, 112, 114, 116, 117, 120-121, 124, 132.

Litigation Privilege

For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation.  In the judgment of the High Court in University College Cork -“ National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) Finlay Geoghegan J. stated -

"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."

As such, a body claiming the exemption must satisfy the Commissioner, on balance, that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created.

In this case, it seems to be the Council's position that litigation was contemplated from the time that an alleged unauthorised development site report was prepared in 2010 (record 4).  However, while any inspection and investigation of an alleged unauthorised development may take place against the backdrop of the possibility of litigation, it is apparent that many of the records at issue primarily concern the Council's efforts to establish the status of the development concerned.  I do not believe that I would be revealing exempt information in violation of section 25(3) of the FOI Act by noting that, while an inspection of the site was initially carried out in 2010, it was not until 27 July 2012 that an order was issued instructing the County Solicitor to make an application under section 160 of the Planning and Development Act 2000 (record 34, now released).

I accept that the dominant purpose of the internal records created in connection with the order that was made to instruct the County Solicitor to make the section 160 application was the preparation for litigation that was contemplated during this period of time.  In a letter dated 30 May 2012, the applicant's solicitor raised the possibility of judicial review proceedings and also referred to the fact that counsel had been briefed.  In reply, the Council noted that the matter had been referred to the Law Department and asked that any further correspondence be directed to the Law Department.  Accordingly, I am satisfied that the following records are exempt under section 31(1)(a) on the basis of litigation privilege:  records 33, 38, 52, 57, 66, 68, 69, 70.

However, a decision was subsequently made to refer the matter to An Bord Pleanála (ABP) for a determination of the status of the development under section 5 of the Planning and Development Act.  Again, I accept that the possibility of eventual litigation may have been contemplated, but the referral itself was not a legal action taken against the applicant.  In the circumstances, I do not accept that the dominant purpose test has been met with respect to the records preceding the section 160 order or to the records directly relating to the section 5 referral proceedings, i.e. records 4, 5, 8, 9, 10, 11, 12, 17, 76, 77, 82, 83, 84, 103, 107, 113, 115, 118, 119, 122.  I also do not accept that the records of correspondence with the ABP qualify as "confidential communications" for the purposes of legal professional privilege.  I am therefore not satisfied that the records concerned are exempt under section 31(1)(a).

I also find no basis for concluding that either legal advice privilege or litigation privilege applies to correspondence directly with the complainant (records 23, 48, 49, 55, 56, 62, 64, 65) or other residents who wrote directly to the applicant's solicitors (records 53, 54).  The basis for the claim of privilege in relation to record 130 is also unclear; I am therefore not satisfied that section 31(1)(a) applies.

Section 32(1)(a)(iv)

Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.  Under section 32(1)(a)(iv), it is necessary for the Council first to identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue.  Having identified the potential harm, the Council is then required to show that its expectation of such harm arising is reasonable.

In this case, the Council first raised a claim for exemption under section 32(1)(a)(iv) in its submissions to this Office.  It states that it commenced section 160 enforcement proceedings against the applicant, though it is not clear whether this is a reference to the order dated 27 July 2012 that was superseded by the section 5 referral to ABP.  The Council then notes, however, that the enforcement proceedings are currently adjourned pending the outcome of judicial review proceedings in the High Court brought by the applicant against ABP's determination on the section 5 referral.  On this basis, the Council now claims that the release of any of the withheld records, whether created before or after the order dated 27 July 2012, could reasonably be expected to prejudice or impair the fairness of civil proceedings in court and that section section 32(1)(a)(iv) therefore applies.

However, the mere existence of related court proceedings is not sufficient to show that any harm could arise from the release of the records at issue.  The Council has not shown how it expects the release of the records to prejudice or impair the proceedings concerned, nor has it shown that any such expectation of harm is reasonable.  I am therefore not satisfied that section 32(1)(a)(iv) applies as claimed.

The complainant's identity and contact details
The Council has refused access to the complainant's identity and correspondence under sections 35(1)(a) and 42(m) of the FOI Act.  The relevant records are 6, 7, 26, 28, 44, 45, 48, 49, 55, 62, 64, 65, 95, 96, 98, 103, 115, 119, 122 and also 23, 56, 84 by implication.  Section 35(1)(a) has also been claimed in relation to record 5, though it consists entirely of internal correspondence.  
Section 35(1)(a) provides for the protection of information given to a public body in confidence.  For the exemption to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence, 
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

Under section 35(2), however, the confidentiality exemption does not apply to a record prepared by a staff member of an FOI body or a service provider "in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider".  Section 35(1)(a) also does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

Section 42(m) states that the Act does not apply any record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, (i) the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession, or (ii) any other source of such information provided in confidence to an FOI body or where such information is otherwise in its possession.

In this particular planning enforcement matter, nothing on the face of the records concerned indicates that the complainant made the complaints regarding the alleged unauthorised development in confidence.  On the contrary, there is some suggestion that the complainant's identity may be publicly known.  In contacts with this Office, the Council confirmed that it treats all such complaints as having been made on a confidential basis and that it has no evidence to show that this particular complaint was in fact made in confidence.  Accordingly, as stated above, this Office wrote directly to the complainant by email to give the complainant an opportunity to make submissions on the matter.  To date, no such submissions have been received, nor is there any indication that the email was not delivered.  In the circumstances, I am not satisfied that sections 35(1)(a) and 42(m) apply.  I also find that section 35(1)(a) does not apply to record 5 by virtue of section 35(2).  However, I find that the complainant's email and postal addresses should be redacted under section 37(1) of the FOI Act on the basis that they constitute personal information and there is no public interest in its release.  Other personal details of third party individuals, such as any vehicle registration numbers depicted in the photographs accompanying site reports or the name of the third party individual referred to in a complaint about the gates, should likewise be redacted (e.g., records 8, 53, 54, 113, 115).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision in this case as follows:

• I affirm its decision to refuse access to record 13 under section 15(1)(d);
• I affirm its decision to refuse access to the following records under section 31(1)(a):  records 33, 38, 41, 42, 43, 46, 47, 50, 51, 52, 57, 58-61, 66, 67, 68, 69, 70, 71, 74, 75, 86, 87, 88, 89, 90, 91, 92, 93, 104, 105, 106, 108, 109, 110, 111, 112, 116, 117, 120-121, 124, 132;
• I annul its decision with respect to the remaining records at issue and direct that access be granted subject to the redaction of the complainant's email and postal address and the personal details of other third party individuals as referenced above.

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 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