Whether the Council was justified in refusing to grant access to records relating to an investigation and disciplinary process concerning the applicant, which had not been identified in relation to his previous request on the basis of sections 30(1)(a) and (b), 31(1)(a) and 37 of the FOI Act 

21 January 2019 

Background

The applicant was previously employed by the Council and had made an earlier FOI request for records relating to an investigation concerning him. On 16 April 2018 he made a new FOI request, seeking access to any additional information regarding the handling of the investigation and the disciplinary process which had not been identified in relation to his earlier request. The Council part granted his request on 24 May 2018. It identified 22 additional records, eight of which were released in full (records 1, 2 and 4-9). It withheld access to one record in part (record 3) and the remainder in full, on the basis of sections 30(1)(a) and (b), 31(1)(a) and 37(1) of the FOI Act.

On 25 May 2018, the applicant requested an internal review of the Council's decision. The Council affirmed its original decision on 13 June 2018 on the same grounds. The applicant applied to this Office for review of the Council's decision on 1 August 2018.

During the course of this review, the Council located an additional record (record 23) to which it also refused to grant access. This will be considered as part of this review. The Council also informed this Office that some of the pages in records 10-23 had been considered in respect of the applicant's earlier request. Accordingly, these pages are not within the scope of this review. 

Having completed my review, I have decided to bring this case to a close by way of a formal, binding decision. 

In conducting this review, I have had regard to the correspondence between the Council and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Council, as well as the contents of the records concerned.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse to grant access to records 3 (in part) and 10-23 (in full) on the basis of sections 30(1)(a) and (b), 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the records sought was justified.

Analysis and Findings

The Council refused to grant access to record 3 in part on the basis of section 37(1) of the FOI Act (third party personal information). It also refused to grant access to records 10-23 in full on the basis of sections 30(1)(a) and (b) (functions and negotiations of FOI bodies). While it also listed section 31(1)(a) as the basis of refusal in relation to some of the records concerned in the document schedule accompanying its internal review decision, the text of the accompanying letter indicated that it considered this exemption (legal professional privilege) to apply to all of the records withheld in full. 

Records 10-23 comprise correspondence between the Council and the Local Government Management Agency (LGMA), from which the Council sought advice in relation to the investigation and disciplinary proceedings concerning the applicant, as well as internal Council emails including those forwarding correspondence from or suggesting draft replies to the applicant and/or his representative. As noted above, some of the records contain information which had already been identified and considered for release in respect of the applicant's earlier request, which is not within the scope of this review. The following records contain such information, including email chains or attachments: records 12, 13, 16, 17, 18, 19 and 21. I shall consider records 10-23 under each exemption below and record 3 under section 37.

Section 30(1)
Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

This is what is known as a harm-based provision. Where an FOI body relies on section 30(1)(a) it should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for -˜any-™ draft report. In relying on this exemption, the FOI body should also identify the potential harm to the function concerned. 

In this case, the Council identified its investigations relating to staff matters and its ability to seek related advice from the LGMA as the relevant functions which could be prejudiced by the release of the records concerned. 

In essence, it stated that release of the records at issue could result in the Council no longer being able to procure HR advice from the LGMA. The Council stated that this would hamper it in future investigations. Essentially, the Council appears to be of the view that the LGMA would no longer provide advice relating to industrial relations or human resource management if these records were to be released. It also considered that it could no longer engage with the LGMA or similar professionals in a full and open manner if the records were released. The Council further stated that the records would reveal positions it had adopted and advice it had received which would prejudice it in this or in future cases, either by hampering its investigations or by interfering with its ability to defend itself against legal actions. When asked to explain how these harms could reasonably arise, the Council did not elaborate beyond asserting that release would cause the harms identified above. 

As set out in the Council's submission to this Office, the LGMA is an agency whose statutory remit includes "the delivery of such services as may be required by local authorities in the industrial relations and human resources management domain". As such, it is not clear to me that the LGMA would be in a position to refuse to provide such advice or assistance in future if it objected to the release of the records sought. Furthermore, the Council has not explained why it believes that the LGMA would refuse to provide such advice or, indeed, why the Council could no longer seek advice from external sources if the records at issue were released. In any event, there is nothing before me to show that this would be the case. 

The Council has maintained that the investigation at issue was carried out in line with its own disciplinary policy and procedure, which it described as a nationally-agreed policy adopted by local authorities following consultations with union representatives. It has confirmed that this policy is made available to all Council staff. Furthermore, it has not explained how the release of the records concerned would reveal specific positions or views taken which go beyond what is contained in the policy document. 

Having examined the records at issue, it seems to me that the Council refused to grant access to records 10-23 without considering them individually. Some of the records contain requests for straightforward procedural advice, or concern the text of draft letters which were later sent to the applicant. Furthermore, not all of the records are between the LGMA and the Council; some are internal Council correspondence. For instance, record 14 comprises an internal Council email enclosing a template form for reporting on an investigation. 

Having considered the above, I am of the view that the Council has not demonstrated how section 30(1)(a) applies to the records at issue, insofar as while it has identified a harm, it has not explained how it would reasonably be expected to arise as a result of the release of the records concerned. Accordingly, I find that the Council did not justify its decision to refuse to grant access to records 10-23 on the basis of section 30(1)(a) of the FOI Act.

Section 30(1)(b)
Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). 

In relation to section 30(1)(b), the Council stated that the disclosure of the records could prejudice its management of staff, its ability to carry out relevant investigations using appropriate methods and procedures, and its ability to seek legal/professional advice concerning these matters. It also stated that its ability to defend against industrial relations matters or legal proceedings would be undermined by release of the records concerned. It further said that release would prejudice it in all future claims, as it would no longer be in a position to obtain advice from the LGMA. 

I have already considered most of these arguments in respect of section 30(1)(a) above. For the same reasons as those already outlined, I do not accept the Council's arguments. In my view, the Council has not demonstrated how the various harms would arise based on the contents of the individual records concerned. I find, therefore, that the Council has not justified its decision to refuse access to the records at issue under section 30(1)(b). 

Section 31(1)(a) - Legal Professional Privilege
Section 31 is a mandatory exemption. In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the ground of legal professional privilege (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)

It is important to note that where a claim for exemption is made on the basis that the records are covered by LPP, each record should be considered in its own right.

The records concerned in this case comprise correspondence between the Council and the LGMA and internal Council records, including records forwarding or discussing correspondence between the Council and the applicant (or his representative).

Litigation Privilege
In a submission to this Office, the Council indicated that it was relying on the second limb of LPP, litigation privilege. In considering litigation privilege, the judgment of 21 March 2014 of Finlay Geoghegan J, in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Geoghegan J said that the relevant document must have been created when litigation is apprehended or threatened. She said that the document must have been created for the dominant purpose of the apprehended or threatened litigation. It is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation, and that the onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or to enable his solicitor prosecute or defend an action. 

During this review, this Office's Investigator informed the Council of her view that the records concerned were created for the dominant purpose of conducting the internal investigation and disciplinary process. In response, the Council argued that from the outset, it was very clear that there was a high probability that the matter would result in litigation. It stated that its purpose in seeking advice was to ensure that its position was adequately protected in the event of litigation by the applicant. 

The question that I must address is whether the dominant purpose of the records created was apprehended litigation. In some circumstances, it seems to me that it is almost inevitable that a public body sees litigation as the expected outcome and thus takes measures during the course of its enquiries in the event that litigation materialises. I have carefully examined the content and circumstances of the records in this case. I have also had regard to the jurisprudence on litigation privilege which indicates that assertions regarding the dominant purpose of a document are not sufficient and that, generally, inspection of the content and consideration of the circumstances are necessary to determine the matter.
I accept that the Council may have had eventual litigation in mind when ensuring it followed best practice when dealing with the issues at hand. However, it seems clear to me that it was equally, or even more, concerned with getting the actual procedures of the investigation and disciplinary hearing right. I consider that the Council rightly sought advice from the LGMA so that it could be as sure as it could be that it conducted the disciplinary process in a correct and fair manner, since it was aware that the potential consequences for the applicant were very serious. It seems to me that, having regard to the role of the LGMA as a resource for local authorities, it would not be at all unusual for any Council to seek guidance from the LGMA on HR and other matters. On that basis, I do not accept that the Council created the records for the dominant purpose of apprehended litigation. 

Legal Advice Privilege
While the Council clearly stated that it was solely relying on litigation privilege in its submission to this Office, it referred to a recent unreported Circuit Court decision on an appeal of a decision of the Employment Appeals Tribunal (Richard Carron v Fastcom Broadband Limited UD 1515/2013), which dealt with both limbs of LPP. In this regard, the Council stated that the LGMA acted as its professional adviser in relation to these matters and acted on its behalf at the Workplace Relations Commission. In essence, its position is that the Circuit Court found that LPP applied from the outset to correspondence between an employer and a professional (non-legal) HR adviser in similar circumstances to this case, and that LPP applies to the records at issue. I note that no argument has been made that the advice sought/given involved a professional legal adviser within the LGMA. 

While I note the Circuit Court's unreported findings, it seems to me that they were made in respect of litigation privilege and not advice privilege. I also note White J's statement at paragraph 54 of the High Court decision inPetraitis -v- Philmic Ltd. t/a Premier Linen Services[2017] IEHC 831 in 2017, which states as follows:

"The issue raised about litigation advice privilege being available to a business advisory firm who are not solicitors or barristers is an important one. It should, however, be decided in a context of an appropriate genuine dispute relating to documents sought and their category so that either an expert Tribunal or the High Court on a statutory appeal can determine this important issue appropriately." 

While I believe it is the case thatlitigationprivilege may, in certain circumstances and subject to the dominant purpose test, extend to confidential communications between a client and a third party, the test for legal advice privilege does not cover third party communications at all. Accordingly, I remain of the view that legaladviceprivilege solely applies to confidential communications made between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. In the circumstances of this case, I am not satisfied that this applies to the communications between the LGMA and the Council.

Accordingly, I find that the Council has not justified its reliance on section 31(1)(a) in its decision to refuse to grant access to the records sought. 

Section 37 (Personal Information)

Section 37(1) of the FOI Act 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. 

 "Personal information" is defined in section 2 of Act as follows:

"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 -“

"...(iii) information relating to the employment or employment history of the individual
 ...(v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record of a member of staff of an FOI body)"

Record 3 comprises email correspondence between the applicant's union representative and the Council. The information withheld is the representative's mobile phone number. The representative is not employed by the Council and there is no indication that this is anything other than her personal mobile phone number. Under the circumstances, I am satisfied that this comprises her personal information and that section 37 applies. 

I note that pages 3 and 4 of record 15 contain the names of two individuals who are not employed by the Council. I also note that record 23 (pages 2-6) contains a preliminary report regarding the incident which gave rise to the investigation and disciplinary meeting, prepared by a member of Council staff. The report contains accounts of the incident based on interviews with people who were on site at the time. 

Section 2 of the FOI Act includes an exclusion to the definition of personal information that relates to members of staff of an FOI body. It states that in a case where the individual holds or held a position as a member of staff of an FOI body, personal information does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. Similarly, where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service does not comprise personal information.

Generally speaking, the exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally. Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight and the privacy rights of those same individuals regarding their private employment affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and employment affairs, which are specifically included in the definition of personal information. It seems to me that in many instances, records covering sensitive issues such as complaints, allegations and disciplinary issues in the workplace will fall to be considered as personal information under section 37 of the Act. 

The information concerned in records 15 and 23 relate to a workplace incident which occurred in November 2016. Record 23 contains individual accounts of the incident, which took place during working hours, in the course of the individuals' employment. Record 15 contains the names of two individuals who were involved in the incident. Having reviewed the records concerned, I am satisfied that the names in record 15 comprise the personal information of third parties other than the applicant. I am also satisfied that personal information of the applicant is so closely intertwined with the personal information of other parties in record 23 that it is not feasible to separate the two. In addition, I consider that it would not be feasible to redact additional information which could identify the witnesses from the record without causing the remainder of the record to be misleading (section 18 of the Act refers). 

Having reviewed the record 3, 15 and 23, I am satisfied that the information identified above is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act applies to the records at issue.

Section 37(2) of the FOI Act sets out certain circumstances in which sections 37(1) and (7) do 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 sections 37(1) and (7) 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(s) to whom the information relates, or (b) the grant of the information would be to the benefit of the person(s) 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. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right to privacy of the individuals to whom the information relates.

The Public Interest
In relation to the issue of the public interest under section 37(5)(a), it is important to note the obiter comments of the Supreme Court in the Rotunda case mentioned above. It is noted that 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.
In this case, while the applicant has not identified any particular public interest factors favouring release of the records, the FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. 

I must have regard to the provisions of the FOI Act, which 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. In my view the public interest in enhancing the transparency and accountability of the Council in how it carries out its functions has been served to a large extent by the release of the records already provided to the applicant. Furthermore, I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. 

I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I vary the Council's decision and find that it was justified in its decision to refuse access to the information withheld from release in record 3, the two names on pages 3 and 4 of record 15 and the report at pages 2-6 of record 23 on the basis of section 37(1) of the FOI Act. 

Records to be released
In the interests of clarity, I am directing the release of the following records (any parts of the records annotated (a)-(f) by the Council are outside scope as set out above) to the applicant:

Records 10, 11, 12 (pages 1-5), 13 (pages 1-2, 5, 6 and part of 7), 14, 15 (with the exception of third party names on pages 3 and 4), 16 (pages 1-2), 17 (except bottom half of page 1), 18 (release email on top of page 1 and pages 4-6), 19 (pages 1 and 2 except final email dated 20 October 2016 15:20), 20, 21 (except final page), 22 and 23 (page 1). 

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Council's decision to refuse access to the records concerned in full or in part. I find that it has not justified its decision to refuse access to the records concerned under sections 30(1)(a) or (b) or 31(1)(a) of the FOI Act. I also find that section 37 applies to records 3, 15 and 23 in part and that the public interest does not favour the release of that information. Accordingly, I direct the release of records 10-23 subject to the redaction of third party personal information and joint personal information in records 15 and 23.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI Act.

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