Whether the Department is justified in refusing to grant the applicant's request for the amount in Euros of all legal costs incurred by the Minister for Finance in respect of certain litigation relating to the applicant from 8 August 2011 to the date of his request under sections 31(1)(a), 32(1)(a)(iv) and 36(1)(c) of the FOI Act

14/02/2019

Background

On 23 March 2018, the applicant submitted a request to the Department for certain information in connection with various specified sets of legal proceedings from 2011 to 2018 to which he, other third parties, and the Minister for Finance (the Minister) are/were parties. Specifically, he sought details of "[t]he amount in Euros of all the legal costs incurred by the Minister ... relating to my person in respect of all the above mentioned litigation since 8 August 2011 till today."

In its decision of 24 April 2018 the Department refused all of the records it identified as containing relevant information, comprising legal adviser invoices and fee notes, under sections 31(1)(a) (legal professional privilege), 32(1)(a)(iv) (prejudice to the fairness of civil proceedings in a court) and 36(1)(c) (prejudice to the conduct or outcome of negotiations). 

The applicant sought an internal review of that decision on 14 May 2018. In its internal review decision of 31 May 2018, the Department stated that a number of the records identified in the schedule that was provided with the original decision lay outside the time-frame of the request but otherwise affirmed its refusal of the request. 

The applicant sought a review by this Office of the Department's decision on 31 July 2018. 

I have now completed my review of the Department's decision. In carrying out my review, I have had regard to the correspondence between the applicant and the Department as set out above, to correspondence between this Office and both the Department and the applicant on the matter, and to the contents of a sample of the relevant invoices.

Scope of the Review

Before I outline the scope of my review, I must first consider a number of related issues that have arisen during the review concerning the scope of the FOI request itself. It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for records containing the information sought. 

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, if the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

In its correspondence with this Office, the Department sought to address an issue that arose in its earlier correspondence with the applicant regarding whether or not the information sought was personal information relating to the applicant. It argued that the information sought is not personal information relating to him for the purposes of the FOI Act. It stated that the information sought relates to legal costs incurred by the Minister in respect of separate sets of ongoing proceedings and related appeals to which he is but one of a number of parties. In so arguing, it argued that there are no records of the specific type sought (i.e. relating to the applicant) as the costs incurred do not relate to him but rather relate to the defence of the challenges brought by him and other parties. It argued that it is not possible to attribute certain elements of the costs relating to each set of proceedings to actions taken by the applicant and not the other parties to those proceedings.

During the course of the review, this Office also queried whether the Department was in a position to extract details of the total costs incurred electronically, pursuant to the provisions of section 17(4). In subsequent submissions the Department argued that it does not have a record that contains the information sought and that it does not have a facility to extract the information sought electronically. It stated that it holds invoices which set out, inter alia, some of the legal costs incurred by the Minister in the relevant matters. It stated that many of the records also contain details regarding other unrelated legal work carried out for the Minister. It argued that the sums set out in the invoices relate to matters captured by the FOI request are indicative only and that in order to establish a definitive figure as to what legal costs were incurred by the Minister relating to the litigation in question, the invoices would have to be reviewed to isolate the relevant sums and the Chief State Solicitor's Office (the CSSO) would need to confirm the proportion of counsels' fees attributable to the relevant cases. It argued that this is a process which is undertaken in the taxation of costs, unless the parties to the litigation reach agreement. It further argued that in carrying out such a manual exercise, any figure arrived at would be indicative only as a final figure of the legal fees incurred by the Minister in the relevant litigation. It also stated that the Minister is not billed for the legal work carried out on his behalf by the CSSO.

Following further exchanges of correspondence, the Department subsequently provided this Office with an indicative total of the costs incurred by the Minister in respect of the litigation at issue. It stated that the indicative total does not include fees incurred but not invoiced, or fees incurred by parties other than the Minister. It stated that it calculated the indicative total by reviewing each relevant invoice set out in the schedule to the FOI request and determining which of the solicitors' fees and counsels' fees set out therein were referable to the litigation in question. However, it argued that the indicative total is not definite for a number of reasons, including that the fees may have been incurred but not invoiced as at the date of the request, that the costs incurred do not relate solely to the applicant, that the sum of costs may be subject to taxation before the Taxing master of the High Court, and that the CSSO incurred some costs for part of the litigation.

In essence, the Department's position is that it does not hold a record containing the specific information sought by the applicant in light of the fact that the costs incurred do not relate solely to him and that the costs incurred do not represent the entirety of the costs incurred. In my view, the Department has taken an unduly narrow interpretation of the applicant's request. The applicant has not sought details of the total costs of the Minister in relation to the litigation in question. Rather, he sought details of the costs incurred within a defined period. In his submission of 14 August 2018 to this Office, the applicant stated that the information sought refers exclusively to invoices paid by the Minister regarding past legal services relating to the litigation involving him. He argued that the invoices containing the information sought have clearly been identified by the Department in the schedules of records provided when processing his request. 

The Department has, indeed, identified a number of records which contain relevant information, i.e. details of costs incurred by the Minister in relation to the litigation in question within the defined period. While this Office has no role in determining whether that information comprises the entirety of the costs incurred or in determining what proportion, if any, is attributable to the applicant, it does, indeed, have a role in determining whether the Department was justified in deciding to refuse access to the very information that it deemed to be relevant to the FOI request and to which the applicant seeks access.

The Department provided a sample invoice for consideration by this Office. It highlighted the fact that the total amount set out in the invoice in respect of solicitors' fees was for a number of matters, some of which did not relate to the litigation at issue. However, the schedule accompanying the invoice provides a breakdown of that total fee by legal matter and the proportion of the overall fee attributable to each matter. I am satisfied, therefore, that the invoices identified by the Department do, indeed, contain information that falls within the scope of the applicant's request, i.e. they contain details of details of the amount of all the legal costs incurred by the Minister in respect of the litigation and period specified. 

As such, this review is concerned solely with whether the Department was justified in its refusal to provide the applicant with details of the costs incurred by the Minister for the legal proceedings and relevant period as set out in the relevant invoices and fee notes it holds relating to the proceedings at issue and the period in question under sections 31(1)(a), 32(1)(a)(iv) and 36(1)(c) of the FOI Act.

For the sake of completeness, I should add that this Office has no role in determining whether the Department should provide access to its estimate of the indicative cost incurred by the Minister which it calculated during the course of the review.  I can consider only records that existed at the date of receipt of a request, except where an FOI body is able to produce a record further to section 17(4), which is not the case here. 

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been 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 this Office that its decision to refuse to grant access to the information sought was justified.

Findings

Section 31(1)(a)

Section 31(1)(a) is a mandatory provision that applies to records attracting legal professional privilege. The Department's arguments for citing this exemption are based on the nature of the other information contained in the invoices at issue and which falls outside the scope of this review. As such, I do not consider it necessary to consider this exemption further.

Section 32(1)(a)(iv)

Where an FOI body relies on section 32(1)(a) to refuse access to a record, it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. Subsection (iv) provides for the refusal of a request where access to the record sought 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. The Department stated that the proceedings at issue remain ongoing in the courts and before the Taxing Master of the High Court. It stated that the issue of legal costs falls to be determined in accordance with the Rules of the Superior Courts at the conclusion of legal proceedings. It argued that it would be likely to be prejudicial to a party to litigation to be required to disclose to an opposing party during the course of on-going proceedings or appeals information in relation to the legal costs that the party has incurred in respect of the proceedings and appeals and, in particular, the underlying details and/or descriptions referable to those costs. 

As I have outlined above, the release of the underlying details and/or descriptions referable to the costs incurred is not at issue in this review, which is concerned only with the question of whether the details of the costs incurred as contained in the invoices in question should be released. Furthermore, the Department has not explained how the release of those costs could possibly prejudice the fairness of the proceeding at issue. Accordingly, I find that the Department has not justified its decision to refuse the request under section 32(1)(a)(iv).

Section 36(1)(c)

Section 36(1)(c) provides for the refusal of a request where access to the records sought could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The Department argued that this exemption also applies to settlement negotiations concerning costs. It argued that the Minister must retain the right to confidentiality over the records concerned in order to ensure that his ability to negotiate any settlement of the ongoing proceedings and appeals, should that arise, with any of the litigants concerned is protected and not prejudiced in any way.

However, the Department has not explained how the release of the information at issue could possibly give rise to any such harm. It is important to note that the disclosure of the information concerned would not represent the entirety of the costs incurred in the various legal proceedings. In the circumstances, I find that the Department has not justified its decision to refuse the request under section 36(1)(c).

In conclusion, therefore, I find that the Department has not justified its refusal to grant access to those parts of the invoices that are covered by my review. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's refusal of the applicant's request. I direct it to grant access to details of the costs incurred by the Minister for the legal proceedings and relevant period as set out in the relevant invoices and fee notes it holds relating to the proceedings at issue and the period in question.

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. 

Stephen Rafferty
Senior Investigator