Whether the Department was justified in refusing access to records relating to the applicant and to [Deleted] on the ground that the records are exempt from release under sections 15(1)(d), 28, 29, 31(1)(a), 31(2)(a), 35, 37, 42(e), 42(f), 42(j) of the FOI Act 
 

02/11/2018

Background

On 13 June 2017, the applicant made an FOI request to the Department for "records that I believe are held by your organisation" relating to himself and to " [Deleted]. The Department did not issue a decision within the statutory time-frame. The applicant applied for an internal review decision on 30 November 2017. The Department issued an internal review decision to the applicant on 21 December 2017, in which it released certain records and refused access to the remaining records, under sections 15(1)(d), 28, 29, 31(1)(a), 31(2)(a), 35, 37, 42(e), 42(f), 42(j) of, and Schedule 1 to, the FOI Act. On 22 January 2018, the applicant applied to this Office for a review of the Department's decision.
In reviewing this case I have had regard to the correspondence between the applicant and the Department as outlined above, as well as correspondence between both parties and this Office. I have also had regard to the content of the withheld records provided by the Department to this Office for the purposes of this review. Finally, I have had regard to correspondence from a third party to the Department. 

Scope of the Review

This case involved a large number of records, some of which the Department released during the review process. The Department scheduled and presented the records in a number of different files. It is inevitable that there are duplicates in many cases, especially where a record was forwarded to a number of people or at different times. The following is important to note in order to clarify the scope of the review:
Following questions from this Office, the Department granted or part-granted access to: record 13 of File 3602; record 16(ii) of File 3691; pages 5-28 of record 14; records 5, 8, 11, 18, 23, 24, 26, 30a, 33, 40, 52, 60, 70 and 72 of File 1937. The released parts of those records fall outside the scope of the review. I consider the withheld parts below under sections 31 and 37 of the FOI Act.

The applicant has confirmed that he does not seek access to correspondence to and from his own solicitors. Therefore, the following records fall outside the scope of the review: records 1(i), 2(iii), 3(ii), 7(i), 8(i) and 8(ii) of File 3602; records 1(ii), (iii), (iv), 3(ii), (iii) of File 3691; record 6 of File 1983. 
The Department says that the majority of records 15 and 16 of File 3602 fall outside the scope of the applicant's FOI request. However, rather than extracting pieces from those records, I consider them as a whole under section 31(2)(a) of the FOI Act below.
Finally, the applicant sought information in relation to [Deleted]. The Department states that it believed that it could only respond to the FOI request in relation to the applicant himself. Yet it scheduled records which contain information relating to individuals other than the applicant. I consider those under section 37 of the FOI Act below. The Investigator asked the applicant if he claimed that further records existed within the scope of his original FOI request which were not scheduled. The applicant did not respond on this point. I therefore do not propose to consider it further. 
Accordingly, the question which remains for me is whether the Department was justified in refusing access to the records which remain withheld, under sections 15(1)(d), 28, 29, 31(1)(a), 31(2)(a), 37, 42(e), 42(f) and 42(j) of the FOI Act. 

Preliminary Matters

 
Before considering the exemptions claimed, I wish to make the following points. First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews 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 Department to satisfy me that its decision is justified. 

Secondly, 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.

Analysis and Findings

Section 15(1)(d) - Refusal on administrative grounds to grant FOI requests
The Department refused access to certain information on the ground that it is publicly available, under section 15(1)(d) of the FOI Act. Section 15(1)(d) provides that FOI bodies may refuse access to information where the information is already in the public domain. The following records comprise newspaper articles, Parliamentary Questions and Answers, excerpts from Oireachtas debates and statements by the former Tánaiste, all of which are in the public domain: records 11, 14 and 17 of File 3602; records 10, 11, 12, 13, 14(i) and 17 of File 3691; records 8, 9 and 10 of File 1983; records 1, 2, 3, 9 (the Parliamentary Question and Answer), 13, 20, 21 and 25 (the Parliamentary Questions and Answers), 26A, 27, 30, 31, 34, 36, 73 and 74 of File 1937; records 2- 6, 10, 12, 13,  14 of File 1937 misc (the Parliamentary Questions and Answers); record 13 of File 297. I find that the Department is justified in refusing access to these records, under section 15(1)(d) of the FOI Act. 

Section 42(j) - Restriction of the Act

Section 42(j) of the FOI Act provides that the FOI Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee or sub-committee of either or both of such Houses (including such proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State (whether answered orally or in writing)). 

Having reviewed their content, I am satisfied that section 42(j) applies to the following: records 14(ii), 15 and 18 of File 3691; record 7 of File 1983; records 9, 21 and 25 of File 1937 (not the Parliamentary Questions and Answers); records 2 - 6 of File 1937 misc (not the Parliamentary Questions and Answers), record 7 of File 1937 misc, records 8, 9, 10, 12, 13, 14 of File 1937 misc (only the briefing notes). I find that the Department is justified in refusing access to these records under section 42(j) of the FOI Act.
However, the first pages of records 8 and 9 of File 1937 misc do not constitute a record given by an FOI body to a member of the Government etc. for the purposes of proceedings in either House of the Oireachtas or other proceedings listed in this exemption. I therefore find that section 42(j) does not apply to these pages. I find that the Department is not justified in refusing access to this information under section 42(j) of the FOI Act. 

Section 42(f) - Restriction of the Act

Section 42(f) of the FOI Act 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 (CSSO) is part of the Office of the Attorney General (AGO). The following records were created either by the CSSO or the AGO and I am satisfied that they do not relate to general administration: record 4 of File 3602; the second email in record 2(i) of File 3691, records 5, 6(i), 7(i), 8(i), 9(i)  of File 3691; record 1 of File 297; records 2, 3, 5 and 7 of File 297 (emails from the AGO only). I find that the Department is justified in refusing access to these records under section 42(f) of the FOI Act. 
I consider the remaining parts of records 2(i) of File 3691 and 2, 3, 5 and 7 of File 297 under section 31(1)(a) of the FOI Act below.
Section 31 - Parliamentary, court and certain other matters

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).
This Office 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. The former Commissioner 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 attaches to records that form part of a continuum of correspondence that results from the original request for advice. 

The Department has advised this Office that records in File 3602 relate to litigation which is ongoing. It provided the Court reference for the relevant proceedings. I am satisfied that the following records contain confidential communications made between clients and their professional legal advisers and/or internal communications, the dominant purpose of which is the preparation for pending litigation: records 2(i) and (ii), 3(i), 6 and 10(i) - (v) of File 3602; records 38 and 39 of File 1937 (which also relate to the relevant legal proceedings). 

I am also satisfied that the following records disclose confidential communications made between clients and their professional legal advisers and/or form part of a continuum of seeking and receiving legal advice resulting from the original request for advice: the first email in record 2(i) of File 3691; record 7(ii) of File 3691; pages 1-4 in Record 14 of File 1937; records 15 and 19 of File 1937; the withheld information on page 5 of records 36A, 40A and 66 of File 1937 and on page 9 of record 69 of File 1937; records 2, 3, 5 and 7 of File 297 (emails from the Department); records 4 and 6 of File 297.
 
I therefore find that the Department is justified in refusing access to the information listed above under section 31(1)(a) of the FOI Act.
However, I am not satisfied that section 31(1)(a) applies to record 5(i) of File 3602, which is a letter from the Personal Injuries Assessment Board (PIAB) to the Department. I do not consider that either limb of legal professional privilege applies to this record. I find that the Department is not justified in refusing access to this information under section 31(1)(a) of the FOI Act. 

Section 31(2)(a) - Records relating to the appointment or business of a tribunal

Section 31(2) is a discretionary and class-based exemption. Section 31(2)(a) provides that an FOI body may refuse to grant an FOI request if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies and the request is made at a time when it is proposed to appoint the tribunal or at a time when the performance of the functions of the tribunal has not been completed. Section 31(3) disapplies section 31(2) insofar as the record relates to the general administration of, or of any offices of, a tribunal.
The Department claims section 31(2)(a) over records 15 and 16 of File 3602 and records 8 - 12, 14-16 of File 297. Having reviewed these records, I accept that they relate to the business or proceedings of the Tribunal of Inquiry into Protected Disclosures, which was established under the Tribunals of Inquiry (Evidence) Act 1921 on 17 February 2017. I also note that the FOI request was made at a time when the performance of this tribunal's functions had not been completed; it has not yet completed its functions, although it has published several interim reports. Having examined the content, which relates to the establishment and terms of reference of the tribunal, I do not consider that this material relates to the general administration of the tribunal. Having regard to the above, I find that the Department is justified in refusing access to these records under section 31(2)(a) of the FOI Act. 

Section 29 - Deliberations

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. 

The Department claims section 29 of the FOI Act over record 5(i) of File 3602. It submits that the Minister is entitled "to make legal considerations" and form opinions in relation to litigation. It says that how the Minister may decide on which course the litigation is to progress can be seen as a decision, a recommendation or a determination; therefore section 29 was applied. In relation to the public interest, it says that releasing the records in File 3602 would be likely to prejudice the work of the tribunal or "interfere with live proceedings". 

This record is a letter from the PIAB which notifies the Department of a personal injury claim. I found above that it does not attract legal professional privilege. The Department has not shown how this particular record contains matter relating to a deliberative process (including opinions, advice, recommendations etc.) or how it would be contrary to the public interest to release it at this time. I am not satisfied that either limb of section 29 applies to record 5(i) of File 3602. I find that the Department is not justified in refusing access to this record under section 29 of the FOI Act.

Section 37 - Personal Information

Section 37(1)
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. These include: (iii) information relating to the employment or employment history of the individual; and (ix) a number, letter etc. assigned to the individual by an FOI body for the purpose of identification.

The following records contain the names, reference numbers, addresses and information relating to the employment history of individuals other than the applicant: record 9 of File 3602; records 2(ii), (vi) and (vii), 3(i) and (iv), 4 and 19 of File 3691; records 2 and 4 of File 1983; the withheld parts of records 11, 12, 16, 17, 18, 22, 23, 24, 26, 28, 30a, 33, 36A and 40A (except information I found to be legally privileged), 48, 49, 66 and 69 (except information I found to be legally privileged) of File 1937; records 1 and 11 of File 1937 misc; the withheld part of File 2030. I find that this information is exempt from release under section 37(1) of the FOI Act. This finding is subject to 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 the information concerned. That is to say, (a) it 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 information.

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. 
On balance, I do not consider that the public interest that the request should be granted outweighs the Constitutional right to privacy of the individuals to whom the records listed above relates. I find that section 37(5)(a) does not apply in the circumstances. 
It has not been argued that releasing the record 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 Department is justified in refusing access to these records under section 37(1) of the FOI Act. 
Other Exemptions
The Department claimed multiple exemptions over most of the records in this case. Where I have found records to be exempt under one provision, it is not necessary for me to consider the other exemptions claimed. It is therefore no longer necessary for me to consider the exemptions which the Department claimed under sections 28 or 42(e) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision. I affirm its decision on the majority of records, under sections 15(1)(d), 31(1)(a), 31(2)(a), 37, 42(f) and 42(j) of the FOI Act, as outlined above. I annul its decision on the remaining records and direct their release. For the avoidance of doubt, those records are: the first pages of records 8 and 9 of File 1937 misc (subject to the redaction of the name of the third party); and record 5(i) of File 3602.

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
2 November 2018