Whether the Council was justified in refusing access to records relating to its procurement of certain services in connection with a disciplinary investigation under Sections 30(1)(b), 31(1)(a) and 32(1)(a)(iv) of the FOI Act

17 January 2020

Background

The applicant in this case has been represented by his trade union representative. Accordingly, all references to correspondence with the applicant should be taken to include correspondence with his trade union representative acting on his behalf. In a request dated 18 April 2019, the applicant sought access to records relating to the procurement process followed by the Council that resulted in the appointment of three named parties (parties A, B and C) in connection with a disciplinary investigation and the related costs. 

In a decision dated 21 May 2019 the Council refused the request under section 31(1)(a) of the FOI Act. The applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request and also cited section 30(1)(b) in support of its refusal. On 19 August 2019, the applicant sought a review by this Office of the Council-�s decision.

During the course of the review, the Council initially provided this Office with six records it deemed relevant to the request, one of which it provided for information purposes only. Following several engagements with this Office, it eventually provided a schedule of eleven relevant records. In referring to the records at issue, I have adopted the numbering system used by the Council in that schedule.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and the comments made by him in his application for review and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the course of the review, the council provided the applicant with a copy of record 11, comprising a purchase order and invoice in respect of the appointment of party B. Having examined the remaining records provided by the Council, I am satisfied that records 1, 5, 8, 9, and 10 fall outside the scope of the applicant-�s request.

Record 1 is a copy of the Council-�s general procurement policy and procedures that is publicly available on its website. Records 5, 8, 9 and 10 do not relate to the relevant procurements. The records remaining to be considered, therefore, are records 2, 3, 4, 6, and 7. Records 2, 3, 4 and 7 relate to the appointment of party A to conduct the disciplinary investigation. Record 6 relates to the appointment of party B to conduct an audit of the Council-�s IT systems.

It is the Council-�s position that no other relevant records exist. It said it had no records relating to the costs associated with the appointment of party A as no payment was made at the date of the request. It said it had no records relating to party C as that party was subcontracted by party B and would have been paid by party B. It also said it had no other records relating to the appointment of party B as it deemed the matter to be an emergency situation and that the normal procurement procedures did not apply.

Accordingly, the scope of this review is concerned solely with whether the Council was justified in refusing access to records 2, 3, 4, 6, and 7.

Analysis and Findings

In its submissions to this Office, the Council sought to rely upon sections 30(1)(b), (31)(1)(a) and 32(1)(a)(iv) to refuse access to the records at issue.

Management Function- Section 30(1)(b)

The Council submitted that section 30(1)(b) applied to all five records. That section 30(1)(b) provides for the refusal of a request where the body considers that access to the record concerned could 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). Section 30(2) provides that section 30(1)(b) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record.

This Office expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a -�significant, adverse-� nature (rather than, say, the -�prejudice-� standard contained in other provisions of the FOI Act). The FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.

In its submissions to this Office, the Council argued that the release of the records at issue would have resulted in the union representing the relevant staff member becoming aware of its position in relation to an ongoing industrial relations issue and would have resulted in the staff member becoming aware of internal reports in relation to the issue. It subsequently stated that the union representing the staff member objected to the manner in which the Council appointed an external investigator (party A) and referred that dispute to the Workplace Relations Commission (WRC). It said that at the time the request was received the case before the WRC was pending. It said it was concerned that if records were released before the WRC hearing was held, the union would allege that it acted in bad faith and it said it would be reasonable to assume that the union would use this to try to undermine the Council-�s case. The Council added that while the WRC hearing was held and the Council-�s position was upheld, the union has now appealed the case to the Labour Court. While I note the date for that hearing was set for November 2019, I am not aware of the outcome of that hearing

In essence, the Council-�s argument is that the staff member-�s union would argue that the Council had not followed proper procurement procedures and that this would undermine the Council-�s WRC case and/or the subsequent Labour Court appeal. I note that the Council-�s position is that normal procurement procedures did not apply in this case as it deemed the matter to be an emergency situation and that it considers this to be provided for in its published policy and procedures. I fail to see how the staff member becoming aware of its position could reasonably be expected to undermine that position to the extent that it would have a significant, adverse effect on the performance by the Council of its industrial relations functions. In any event, even if I was to accept its argument, that position is now known to the staff member and his union as the matter has already been considered by the WRC. As such I am satisfied that section 30(1)(b) does not apply.

Legally Privileged Information- Section 31(1)(a)

­The Council submitted that section 31(1)(a) applied to all five records. That section provides for the mandatory refusal of a request if the record sought attracts legal professional privilege. 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 (LLP) in court proceedings.

LLP 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)

In a submission to this Office, the Council indicated that it was relying on the second limb of LPP, litigation privilege. I am satisfied that the records at issue do not attract litigation privilege. The dominant purpose of the records was simply to procure certain services and to set out the nature of those services. The fact that the services provided were in respect of an industrial relations matter that was elevated to the Labour Court does not, of itself, mean that the records relating to the procurement of those services are privileged. I find that section 31(1)(a) does not apply.

Section 32(1)(a)(iv) -� Fairness of criminal/civil proceedings in a court or tribunal

Section 32(1)(a)(iv) provides for the refusal of a request where the body considers that 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.

In essence, the Council-�s argument in relation to the applicability of section 32(1)(a)(iv) is the same as its argument relating to the applicability of section 30(1)(b), namely that the release of the records would allow the staff member-�s union would argue that the Council had not followed proper procurement procedures and that this would undermine the Council-�s WRC case and/or the subsequent Labour Court appeal.

As I have noted above, the Council-�s position is now known to the staff member and his union as the matter has already been considered by the WRC. As such, I find that section 32(1)(a)(iv) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council to refuse access to records 2, 3, 4, 6, and 7 relating to its procurement of certain services in connection with a disciplinary investigation and I direct release of those records.

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