Whether the Agency was justified in its decision to refuse access under sections 31(1)(a) and 37(1) of the FOI Act in full or in part to certain records sought by the applicant concerning a workplace matter

25/09/2018

Background

On 22 February 2018, the applicant requested access to records held by the Agency relating to him from June 2017 to the date of his request. In the application, the applicant identified a number of departments and individuals within the Agency which were to be included in his request. In its original decision, the Agency granted access to a number of records and refused access in full and in part to others on the basis of section 31(1)(a) (legal professional privilege) and section 37(1) (Personal Information) of the FOI Act. The applicant applied for an internal review and clarified with the Agency that the review related to one department and two individuals mentioned in his original request. In its internal review decision the Agency released all records it said it held relating to the department and affirmed its original decision on the basis of sections 31 and 37 of the FOI Act. On 6 June 2018, this Office received an application for review of the Agency's decision from the applicant.

During the review, the Agency released a number of additional records.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Agency and the applicant and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. 

Scope of Review

This review is concerned solely with whether the Agency was justified in deciding to refuse access, in full and in part, to certain records falling within the scope of the applicant's FOI request as clarified, on the basis of sections 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

The applicant explained why he wanted access to the records. It would not be appropriate here to go into the detail of his concerns. However, 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 the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. 

Reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to other matters related to issues concerning the applicant and the Agency.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

During the review, the applicant referred to section 52 of the FOI Act. Section 52 provides for the penalty of a fine for a person convicted of the deliberate altering or destruction of records which are the subject of an FOI request. The applicant was advised of the provisions of section 52 and was offered the opportunity to provide further information to this Office but he did not provide anything further other than to repeat the allegation he originally made. However, I have no evidence in relation to alleged alteration or destruction of records and the Commissioner does not have a role in adjudicating on complaints concerning section 52. As I understand it, the Agency has told the applicant that if he provides evidence to support his allegations, it will investigate them.

Findings

Withheld Information - Outside scope of request and review
In its decision the Agency refused access to a number of records on the basis that they are not within the scope of the FOI request. The records are identified as File 7(b) - Numbers 26 & 27; File 12 - Numbers 2, 5-7, 13, 14, 17-19; File 18 - Numbers 10-12; and in relation to records held by a named individual within the Agency, all or parts of record numbers 21-28. 

Having examined carefully the records, I am of the view that they concern other matters which are not within the scope of the applicant's request as made. Accordingly, I find that the records are not within the scope of this review.

Are further records held?
During the review the applicant referred to records that have not been included in his request. He said that he was not confident that all files pertaining to him had been released. The Investigator asked the applicant to provide further information in support of his point that further records should exist. The Agency was also invited to provide details of searches it had undertaken in relation to the request. In a telephone conversation with the Investigator, the applicant explained that the reference in his application to "not all files....have been released" referred to those records/parts of records that were refused. In a subsequent submission, the applicant did not refer to the matter of additional records. In its submission, the Agency stated that in conducting its search it extended the criteria to take into account other aspects and keywords relating to the applicant's employment position. The applicant very helpfully clarified the type of records that he was not seeking e.g. duplicates, correspondence created by him.

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records. Importantly,  this Office has no remit to examine, or make findings on whether or not the Agency or individual staff should have created further records, the level of detail in records that were created, the adequacy of the Agency's record keeping or how it goes about its business.

I do not consider that this Office has any basis on which to find that the Agency holds further records falling within the scope of the request as clarified which it has withheld. If the applicant has identified specific additional records which he believes are held by the Agency, it is open to him to consider making a fresh request for access to those. 

Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. 

Section 31(1)(a)
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. 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 (legal advice privilege), and 
confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege). 

The Agency stated that the following records are withheld on the basis of legal advice privilege: File 9: Records 5-10 and 26-28 inclusive and File 10: Records 3-5 inclusive.

Advice 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 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. 

Having examined the records, I accept that they qualify for legal advice privilege and disclose legal advice sought or received from the Agency's professional legal adviser.

Accordingly, I uphold the Agency's refusal of information in the records identified above under section 31(1)(a) of the FOI Act.  

Section 37- Personal Information
Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. 

Section 2 of the FOI Act defines the term "personal information". It also sets out a non-exhaustive list of 14 examples of "personal information", and three quite narrow exclusions to what shall be considered to be personal information where public servants are concerned. One of the exclusions provides that the name of a person in their capacity as a public servant, is not considered to be their personal information. 

While I cannot discuss their content in any detail, I can state that the information withheld in full and in part in the records contain relatively small pieces of information relating to other individuals. Many of the records contain the same information in repeated email threads. I am satisfied that this type of information about individuals in the workplace is not of a type that would come within the exclusions to the definition of personal information.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 

Section 37(5) of the FOI Act provides that a request that 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 right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. As regards section 37(5)(a), the public interest in openness and transparency in how the Agency dealt with the applicant has been served to some extent by the release of some of the information in records to the applicant. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.

I am satisfied that the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Agency. I affirm its decision to refuse access to a number of records under section 31(1)(a) of the Act on the basis of legal professional privilege. I affirm the Agency's decision to refuse access in full and in part to the remaining withheld records under section 37(1) of the FOI Act, on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request does not outweigh the public interest in upholding the privacy rights of other individuals. 

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