13 June 2018
Whether the Department was justified in refusing access to records which contain information relating to the applicant under sections 31(1)(a) and 37(1) of the FOI Act
Background
The background to this FOI request is grounded in a dispute between the applicant and a third party in relation to property which they own jointly and which is registered with the Department for the purposes of the Green Low-Carbon Agri-Environment Scheme (GLAS). This Office previously issued a decision in relation to records which are relevant to this matter in case number170562(Mr X and Radio TeilifÃs Éireann). The records at issue contain emails between a third party and the Department in relation to the jointly owned property or emails between the Department's staff and its in house legal adviser in relation to the property and the GLAS scheme.
On 25 July 2017, the applicant made an FOI request to the Department for access to any records which relate to himself, his land holdings and his entitlements under the GLAS scheme. The applicant also requested any records which concern the Department's decision to write to him on 12 September 2016 in relation to his GLAS entitlements and any information provided by third parties which led to the Department's decision to send this letter. On 31 August 2017, the Department refused access to 34 records under section 15(1)(i) of the Act on the basis that it had already released these records to the applicant on 9 June 2017. The Department refused access to the remaining records on the basis of legal professional privilege (section 31(1)(a) of the Act) or on the basis that the records contain third party personal information (section 37(1) of the Act). The applicant requested an internal review of the Department's decision. On 4 October 2017, the Department affirmed its original decision.
On 21 March 2018, the applicant applied to this Office for a review of the Department-™s decision. The applicant also confirmed in writing that he wished to narrow the scope of the review to records which concern the Department's decision to write to him on 12 September 2016 in relation to his GLAS entitlements and any information provided by third parties which led to the decision to send this letter. The Department provided this Office with a schedule and with 16 records which fall within the scope of the narrowed request. Following communications with this Office, the Department confirmed that it had released two of these records (6 and 15) to the applicant.
Both the applicant and the Department made submissions during the course of the review. I have now decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of the review
The scope of this review is confined to whether the Department was justified in refusing access to records 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14 and 16 under section 31(1)(a) of the Act or under section 37(1) of the Act.
Preliminary matters
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
Section 18 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. 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, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.
Analysis and Findings
Sections 31(1)(a) Legal Professional Privilege
The Department refused to release records 7, 9, 10, 12 and 16 on the basis that they are exempt under section 31(1)(a) of the Act. Section 31(1)(a) provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). 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).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner accepts that, provided the ingredients of the relevant type of LPP are present, the fact that the professional legal adviser concerned is employed as an in house legal adviser does not operate to prevent the client from being able to assert the privilege over the communications at issue. 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. The LPP exemption does not contain a public interest balancing test.
Records 7, 9, 10, 12 and 16 contain email correspondence between staff members of the Department and an in house legal adviser in the Department's legal services section. I have examined the records closely and I accept that they contain requests for or the provision of legal advice. The Department did not seek to rely on section 31(1)(a) of the Act in relation to records 8, I note however that this record forms part of the same thread of email correspondence between staff members and the legal adviser. I am satisfied that record 8 is also exempt under section 31(1)(a) of the Act. I find, therefore, that that records 7, 8, 9, 10, 12 and 16 are exempt under section 31(1)(a) of the Act
Section 37 Personal Information
The Department refused to release records 1, 2, 3, 4, 5, 11, 13 and 14 on the basis that they are exempt from release under section 37(1) of the Act. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.
The definition of "personal information" is contained in section 2 of Act: "personal information means information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential, and, without prejudice to the generality of the foregoing, includes - (ii) information relating to the financial affairs of the individual; (xiv) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI Body concerned relates to the individual; (xiii) information relating to property of the individual (including the nature of the individual's title to any property); (xiv) the views or opinions of another person about the individual.
The records at issue contain emails threads between a third party and staff members of the Department. The records contain information relating to the financial affairs and property interests of both the applicant and the third party. The context for the creation of the records is a dispute between the applicant and the third party in relation to lands which are in the GLAS Scheme operated by the Department. I am satisfied that the applicant's personal information is so closely intertwined with the personal information of the third party that it is not practicable to separate the two. I find, therefore, that the records are exempt from release on the basis of section 37(1), subject to the provisions of section 37(2) and section 37(5) which I examine below.
Section 37(2)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case
Section 37(5)
Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals concerned. I am satisfied that section 37(5)(b) does not apply in this case.
The 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. In relation to the issue of the public interest, it is important to take note of the obiter comments of the Supreme Court in the Rotunda case. Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest." Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Thus, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
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 the language of section 37. 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.
In his application to this Office, the applicant states that he is specifically seeking access to information in relation to a letter sent to him on 12 September 2016 by the Department. He states that during a telephone conversation with the letter writer, it transpired that there was information on his file that the Department considered in deciding to issue the letter in question. The applicant states that he requires access to this information as he is concerned that his good name and standing as a law abiding and compliant person has been damaged by inaccurate information provided by a third party to the Department. The applicant also states that he is concerned that as he has not responded to this letter, future GLAS payments could be delayed or stopped.
The Commissioner does not consider it open to him as Information Commissioner to determine that further personal information should be provided to an applicant, in the public interest under section 37(5)(a) of the FOI Act, as a means of remedying any actual or suspected wrongdoing. This is reflected in the High Court decision in FP v The Information Commissioner [2014 No. 114 MCA] where McDermott J stated:
"It is clear that "private" as opposed to "public" interests are not a sufficient basis upon which to exercise the discretion in favour of the appellant under section 28(5)(a) [now section 37(5)(a)]. Thus the suggestion that access to the records might assist in some way in determining whether he had a cause of action against any of the parties or in advancing such a claim or might provide the basis for making a criminal complaint or mounting a judicial review... do not qualify as matters of public interest in that respect."
The fact that release of the withheld records might assist the applicant in protecting his reputation and his property interests is not a matter that can be taken into consideration in determining where the balance of public interest lies. I am not satisfied that the public interest in the release of the records in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individual to whom the information relates. I find that the redacted information is exempt from release on the basis of section 37(1) and that none of the exceptions under section 37 apply.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department's decision. I find that section 31(1)(a) applies to records 7, 8, 9, 10, 12 and 16 as these records would be exempt from production in proceedings in a court on the ground of legal professional privilege. I find that section 37(1) applies to records 1, 2, 3, 4, 5, 11, 13 and 14 on the basis that release of these records would involve the disclosure of personal information of an individual other than the applicant and the public interest that the request should be granted does not outweigh the public interest that the right of privacy of that individual should be upheld.
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
