Mr X and the Department of Communications, Climate Action and Environment (FOI Act 2014) (Department of Communications, Climate Action and Environment) [2018] IEIC 180010 (22 August 2018)

Case number: 180010

Whether the Department was justified in its decision to refuse the applicant's request for all background papers from 1 January 2003, relevant to a submission to the Attorney General's Office which resulted in the advice presented in a letter to a named individual in connection with his pension entitlements on the grounds that various exemptions applied

22 August 2018

Background

On 3 May 2017, the applicant sought all background papers from 1 January 2003, relevant to a submission to the Attorney General's Office, which resulted in the advice presented in a letter dated 14 July 2004 from the Department to a named individual (Mr A) in connection with his pension entitlements. On 29 May 2017, the Department refused access to the six records it identified as coming within the scope of the request under various provisions of the FOI Act. The applicant sought an internal review of that decision on 23 June 2017, following which the Department affirmed its refusal of the six records. It also identified six further records as coming within the scope of the request, of which access was granted to two records and access was refused in the case of the remaining four.

On 8 January 2018, the applicant sought a review by this Office of the Department's decision. In conducting this review, I have had regard to the submissions of the applicant and the Department. I have also had regard to the nature and content of the relevant records. I have decided to bring this case to a close by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it provided with its internal review decision.

Scope of Review

The Department refused access to records 1 to 8, 10 and 11 under various provisions of the Act. In his request for internal review, the applicant indicated that he did not require access to records 4 and 5 as they are already publicly available. Accordingly, this review is concerned solely with whether the Department was justified in refusing access records 1, 2, 3, 6, 7, 8, 10 and 11.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary points. Firstly, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I consider it appropriate to examine the Department's additional claim for exemption under section 42, notwithstanding the fact that it did not originally rely on this exemption to refuse access to the record at issue.

Secondly, it is important to note that under section 22(12)(b), a decision to refuse a request is deemed not to have been justified unless the public body can satisfy this Office that its decision was justified.

Analysis and Findings

All of the correspondence at issue relates to a claim made by Mr A, relating to his pension entitlements. Essentially, the individual in question submitted that he was entitled to a higher pension payment as a result of pension arrangements in place when he transferred from the civil service to a semi state body in 1984. It appears that, following receipt of legal advice on the matter, the semi state body rejected that claim, following which Mr A contacted the Department in furtherance of his claim.

The Department sought legal advice on a particular matter relating to that claim, following which it wrote to Mr A on 14 July 2004. The applicant's request was for records relating to the advice sought. He received Mr A's consent to seek the release of all material held by the Department relating to the matters that Mr A raised concerning his pension entitlements. I will address matters related to that consent later in this decision.

The Department sought to rely on sections 30(1)(c), 31(1)(a), 35(1) and 37(1) to refuse access to the records sought. During the course of the review, it also sought to rely on section 42(f) to refuse access to certain records. As the effect of section 42 is to exclude records from the scope of the Act, I will address that section in the first instance.

Section 42(f)
The Department claims that section 42(f) applies to records 8, 10 and part of record 11 (page 4). That section provides that the Act does not apply to a record held or created by the Office of the Attorney General (AG) other than a record relating to general administration. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which concern the management of the Office such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as advising on legislation or litigation.

Record 8 is a letter from the AG to the Department, a copy of which is also to be found at page 4 of record 11. Record 10 is a fax from that Office to the Department. Having examined the records, I am satisfied that the records in question were created by the AG and that they do not relate to general administration. I find, therefore, that section 42(f) applies to records 8 and 10 and to page 4 of record 11.

Section 31(1)(a)
Of the remaining records at issue, the Department refused access to records 1, 2, 3, 6, and the remainder of record 11 on the basis that section 31(1)(a) applies. That section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. 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 (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).

Records 1 and 6 are letters from the Department to the AG seeking legal advice. I accept that section 31(1)(a) applies to record 1 and the first two pages of record 6. I note that when seeking advice, the Department included copies of records 2 and 3 as attachments to record 1. I am advised that privilege does not generally attach to pre-existing documents, i.e. documents created for some purpose other than litigation or for seeking legal advice.

According to the Department, record 2 was created by the legal advisers to the semi state body to whom Mr A had transferred in 1984. It contains details of the body's position in relation to the claim made and reflects the legal advice the body received on the matter. I am satisfied that the release of the record would involve the disclosure of the advice received by that body. While the disclosure of privileged information by a beneficiary of the privilege to a third party generally amounts to a waiver of privilege, this is not always the case. I accept that waiver of privilege may not arise where there is limited disclosure for a particular purpose, or to parties with a common interest. In this case, I find that the record at issue was provided to the Department in confidence for a specific, limited purpose and that the body did not waive privilege by sharing the record with the Department. I find, therefore, that section 31(1)(a) applies to record 2.

On the other hand, record 3 is a note that Mr A prepared in relation to his claim and that he forwarded to the then Department of Public Enterprise. The mere fact that it was attached to record 1 does not, of itself, mean that it attracts privilege. The record existed before the Department sought advice on a matter relating to the claim in question and it was not prepared for that purpose. I find, therefore, that section 31(1)(a) does not apply to record 3.

The remainder of record 6 comprises two letters Mr A issued concerning his pension entitlements, one to the semi state body with whom he was formerly employed and the second to the then Department of Public Enterprise. As with record 3, the fact that the letters were attached to a request for legal advice does not, of itself, mean that they attract privilege. Both letters existed before the Department sought advice on a matter relating to the claim in question and they were not prepared for that purpose. I find that section 31(1)(a) does not apply to pages 3 to 6 of record 6.

Record 11 comprises the following:
Page 1 is a covering memo; page 2 is an internal email; page 3 is a draft letter to Mr A; page 4 is the letter from the Attorney General to which I have found section 42(f) to apply; and page 5 is a note that formed part of the request for advice as set out in record 1. I find that section 31(1)(a) applies to page 5.

However, I find that section 31(1)(a) does not apply to pages 1 to 3.

The applicant has submitted that legal advice privilege was waived by the Department as it was disclosed in the letter of July 2004 to Mr A. The records containing legal advice to the Department are those to which the FOI Act does not apply as they are created by the AG. The other records for which legal privilege was claimed and found to apply are correspondence to the AG seeking legal advice. I am satisfied that the question of a waiver of legal advice privilege does not arise.

Section 30(1)(c)
The Department refused access to records 7 and 11 under section 30(1)(c). That section provides that an FOI body may refuse to grant a request if it considers that access to the record sought 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.

This provision 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 and records relating to past, present or future negotiations may be protected under section 30(1)(c). However, previous decisions of this Office have found that FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

The records at issue concern the Department's consideration of the arguments raised by Mr A in relation to his pension entitlements. Having examined the records, I see no evidence to suggest that they contain positions taken or to be taken or that they form part of any negotiations, nor has the Department identified any such negotiations to which the records relate. Having regard to the provisions of section 22(12)(b), I find that the Department has not justified its decision to refuse access to the records under section 30(1)(c).

As the Department has not shown that that the records relate to any negotiations, I find that section 30(1)(c) does not apply to records 7 and 11.

Section 35(1)(a)
The Department cited section 35(1)(a) in refusing access to records 2 and 3. As I have already found record 2 to be exempt under section 31(1)(a), I do not need to consider that record further. Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. A number of conditions must be met in order for the exemption to apply. In order for section 35(1)(a) to apply, it is necessary to show the following:

that the information was given to an FOI body in confidence and,
that the information was given on the understanding that it would be treated by the FOI body as confidential and,
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.

Record 3 is a note that Mr A prepared in relation to his claim and that he forwarded to the then Department of Public Enterprise. As I mentioned earlier in this decision, Mr A has given his consent to the applicant, by letter dated 19 June 2017, to seek the release of all material held by the Department relating to the matters that he had raised concerning his pension entitlements. I note that the Department's internal reviewer considered that he could not have regard to that letter as it was not available to the decision maker and suggested that the applicant could make a new request if he wished to change the scope of this request. In my view, the internal reviewer could indeed have had regard to the letter of consent. In any event, in light of the de novo nature of this review, I am satisfied that it is appropriate to have regard to that letter. Given that Mr A has consented to the release of the information at issue, I find that section 35(1)(a) does not apply in this case.

Section 37(1)
The Department cited section 37(1) in refusing access to a number of the records. That section provides that access to a record shall be refused if access would involve the disclosure of personal information relating to an individual other than the requester. However, subsection (2)(b) provides that subsection (1) does not apply if the individual to whom the information relates consents to its disclosure to the requester. In light of the letter of consent supplied by the applicant, I find that the Department was not justified in refusing access to personal information relating to Mr A under section 37(1).

Having examined the other records, I am satisfied that records 7 and 11 contain some personal information relating to individuals other than Mr A, to which section 37(1) applies. I find that section 37(1) applies to the following information:

Record 7:

The names of two individuals in paragraph numbered 2 on page 3
The text on page 3 from "In June/July 2000 ..." to "... was also referred here."
The text on page 3 from "Of the three cases ..." to "... in the scheme."
The text in paragraph 1 of page 4 from "However ..." to "... civil services rules"
The text in paragraph 2 of page 4 from the beginning of the paragraph to "... the Minister so ruled" and the second last sentence in paragraph 2
The surnames mentioned in paragraph 1 on page 5, apart from Mr A

Record 11:

The text on page 5 from "... the case of ..." to "... with him".

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. In my view, only section 37(5)(a) is of relevance in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in the Long Title to the Act (which makes it clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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 find that, in the circumstances of this case, the right to privacy of the individuals concerned outweighs, on balance, the public interest in granting access to the information at issue.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I find that it was justified in refusing access to records 1, 2, pages 1 and 2 of record 6, and page 5 of record 11 under section 31(1)(a) and to records 8, 10, and page 4 of record 11 under section 42(f). I find that it was not justified in refusing access to records 3, pages 3 to 6 of record 6, 7, or pages 1 to 3 of record 11, apart from the following information in records 7 and 11, which I have found to be exempt under section 37(1):

Record 7:

The names of two individuals in paragraph numbered 2 on page 3
The text on page 3 from "In June/July 2000 ..." to "... was also referred here."
The text on page 3 from "Of the three cases ..." to "... in the scheme."
The text in paragraph 1 of page 4 from "However ..." to "... civil services rules"
The text in paragraph 2 of page 4 from the beginning of the paragraph to "... the Minister so ruled" and the second last sentence in paragraph 2
The surnames mentioned in paragraph 1 on page 5, apart from Mr A

Record 11:

The text on page 5 from "... the case of ..." to "... with him".

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.

Stephen Rafferty
Senior Investigator