Whether the Department was justified in refusing to grant access to additional records on foot of the applicant’s request for the amount in Euros of all legal or other costs incurred by the Minister for Finance or any other emanation of the state in respect of certain litigation from 1 January 2011 to 27 May 2019

15 May 2020

Background

There are two overlapping requests at issue here (Department reference numbers 126/2019 and 201/2019) relating to similar records and I have decided to consider both applications together in a single review.

The background to this case is complicated in that it arose out of a previous, separate FOI request. It is necessary to set it out in some detail however as it relevant to this current review.

Previous request and review

On 23 March 2018, the applicant submitted an FOI request to the Department for certain information in connection with various sets of proceedings to which he, other third parties and the Minister for Finance are or were parties. Specifically, he sought details of “the amount in Euros of all of the legal costs incurred by the Minister… relating to my person in respect of all of the above mentioned litigation since 8 August 2011 till today.” The Department refused access to all of the legal advisor invoices and fee notes it identified as containing relevant information, the matter came on review to this Office and was allocated case reference number 180298.

During the course of that review, the Department stated that many of the records contain details regarding other legal work carried out for the Minister and it argued that it would be prejudiced by having to disclose to the applicant information in relation to legal costs and the underlying descriptions of how those costs were incurred. This Office queried whether the Department was in a position to extract details of the total costs electronically, pursuant to the provisions of section 17(4) of the Act. The Department stated that it does not have a facility to extract the information electronically but it provided an indicative total of the costs incurred by the Minister in the litigation. 

This Office issued its decision in case 180298 on 14 February 2019 (available at www.oic.ie/ decisions/new-decisions-6/index.xml). The Senior Investigator found that the scope of the review was 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 relevant legal proceedings. He decided that release of details regarding other legal work and underlying descriptions of costs incurred was not at issue in that review. The Senior Investigator stated that this Office has no role in determining whether the Department should provide access to the estimate of legal costs that it calculated during the course of the review. He stated that he could only consider records that existed at the date of receipt of the request, except where a body is able to produce a record further to section 17(4) which was not the case in that review. The Senior Investigator found that the Department had not justified its refusal to grant access to those parts of the invoices covered by the review. He directed the Department to grant access to details of the costs incurred by the Minister as set out in the relevant invoices and fee notes it holds relating to the proceedings at issue and the period in question.

On 12 March 2019, the Department provided the applicant with redacted copies of 75 invoices and fee notes. The applicant complained to this Office that the Department had failed to comply with the decision in case 180298. In reply, the Investigator stated that, in directing the Department to release details of the costs incurred as contained in the invoices held, the decision only required release of the amount of the costs (as sought) and not supplementary details. The Investigator confirmed that this Office was satisfied that the Department had complied with its decision.

Requests to which the current review relates

On 19 March 2019, the applicant made the following FOI request to the Department (his first 2019 FOI request the text of which I reproduce in full here):

“In accordance with the FOI Act, I request all the existing records, which the Department of Finance holds containing the following information (having regard, inter alia, to the requirements under section 17(4) of the FOI Act to extract records or existing information held on electronic devices);

• the amount in Euros or another currency of all of the costs, including:
  • all the Solicitor’s costs incl., inter alia and not limited to, all the cost relating to [a named firm of solicitors] and the Chief State Solicitor and
  • all the Counsel’s costs incl., inter alia and not limited to, all the cost relating to [certain named Counsel] and
  • all the expert and/or consultant costs incl., inter alia and not limited to, all the cost relating to the expert opinions and affidavits [of certain named individuals]
  • all other costs
• incurred by the Minister for Finance in respect of all the litigation listed in paragraph 1  above and in any way resulting from or related to the said litigation
• since the beginning of 2011 including all the costs of all the preparations regarding the Direction Order effected on 26 July 2011, which came about as a result of my actions in organising shareholder opposition against the Minster’s proposals at the EGM of [a named bank] which was followed by the said Direction Order that was then opposed in [certain proceedings]
• till 19 March 2019,
• where I have been a party to the litigation in question (and, as such, the information included in the records relates to me personally),
• having regard to the fact that a meaningful portion of the relevant records sought in this request have been either omitted, or not yet included or redacted in the heavily redacted records provided to me in respect of my 2018 request,
• where the records sought herein should include - but not be limited to - all the existing records held by the Department, which were explicitly identified by the Department of Finance and attached to the letter to me from the Department of Finance dated 24 April 2018 following my 2018 request.”

On 1 April 2019, the Department informed the applicant that pursuant to section 27 of the FOI Act a fee of €310 would be charged for the search and retrieval costs of the request. In a decision dated 15 April 2019, the Department identified 102 records that fall within the scope of the request. The records include the 75 records identified in case 180298 as well as the estimate of legal costs created during that case (record 102). The decision maker granted access to details of costs incurred by the Minister as contained in the relevant invoices and fee notes and refused access to the remainder of the records under sections 31, 36 and 37 of the FOI Act. The applicant requested an internal review of this decision.

In a decision dated 24 May 2019, the Internal Reviewer decided that the Department was not required to reconsider release of records containing information on the amount of legal fees for the time period covered by the applicant’s 2018 request as this Office had already made a finding on these records which was not appealed to the High Court. The Internal Reviewer stated that she was only considering that additional part of the request which had not been fully processed under case 180298 i.e. all expert, consultant or other costs related to the specified litigation for the period March 2011 to 19 March 2019 and records of legal costs for the additional time period. She granted access to all of the information considered to fall within the scope of the request with the exception of names of individuals which she withheld under section 37 of the Act. The decision maker stated that the fee information relating to the specified litigation is contained in records which contain a large amount of information which is not covered by the request and is therefore redacted and the matter of exemptions does not arise in relation to this information. Finally, she stated that she was reducing the search and retrieval fees to €272 to reflect time spent by the original decision maker scheduling records that fall outside the scope of the request.

On 27 May 2019, the applicant made the following FOI request to the Department (his second 2019 FOI request): 

“In accordance with the FOI Act, I request all the existing records, which the Department of Finance holds, containing the following information (having regard, inter alia, to the requirements under section 17(4) of the FOI Act to extract records or existing information held on electronic devices);

• The amount in Euros or another currency of all of the costs and/or expenses and/or fees, including:
  • all the Solicitor’s costs and/or fees incl., inter alia and not limited to, all the cost relating to [certain named firms of solicitors] and the Chief State Solicitor and
  • all the Counsel’s costs and/or fees incl., inter alia and not limited to, all the cost relating to [certain named Counsel] and
  • all the expert and/or consultant costs and or fees incl., inter alia and not limited to, all the cost relating to the expert opinions and affidavits of [certain named individuals]
  • all other costs and or expenses and/or fees,
• incurred and/or borne and/or reimbursed and/or compensated by the Irish State or any of its emanations, including - but not limited to - those that have been in any way incurred and/or borne and/or reimbursed and/or compensated by:
  • the Minister for Finance; and/or
  • the Chief State Solicitor Office (“CSSO”); and/or
  • the National Treasury Management Agency; and/or
  • any other agency and/or agent and/or emanation of the Irish State; and/or
  • any company that is majority-owned by the Irish State and/or by any of the State’s emanations, such as [a named banking group/bank], including - but not limited to - all counsel fees and/or solicitor fees and/or other fees paid by [a named banking group/bank], including inter alia, those paid by [a named banking group/bank] on the recommendation of the CSSO and/or on the recommendation of any other emanation of the State,

in respect of all the litigation listed in paragraph 1 above and in any way resulting from or related to the said litigation,

• since the beginning of 2011 including all the costs of all the preparations regarding the Direction Order effected on 26 July 2011,
• till the reply to this FOI request 2019,
• having regard to the fact that a meaningful portion of the relevant records sought in this request have been either omitted, or not yet included or redacted in the heavily redacted records provided to me in respect of my first 2019 request,
• where the records sought herein should include - but not be limited to -  all the existing records held by the Department of Finance, which were identified by the Department of Finance in respect of or in the course of addressing my 2018 FOI request and/or my first 2019 FOI request.”

In a decision dated 25 June 2019, the decision maker granted access to details of the costs incurred by the Minister as contained in the records covered by the 2018 FOI request, the applicant’s first 2019 request as well as subsequent records identified in the expanded scope of the second 2019 request which specifically includes what the Department termed “the H proceedings”. The decision maker stated that there were two new records (103 and 104) which are captured under the second 2019 FOI request. He stated that the remaining records being released to the applicant, while having been provided as part of the first 2019 request, were now being provided to take into account the expanded scope of the second 2019 FOI request. The decision maker released 46 records and stated that the remaining 58 records remain unaltered from the first 2019 FOI request and were not being issued again. The decision maker relied on sections 31, 32, 36 and 37 as the basis under the FOI Act for the part-refusal of records. On internal review, this decision was affirmed.

On 27 August 2019, the applicant applied to this Office for a review of the Department’s decisions in relation to his first and second 2019 FOI requests. In his submissions, the applicant argued that the Department ought to hold further records that fall within the scope of his request. He also   argued that the search and retrieval fee charged to locate records was excessive. In its submissions, the Department provided pertinent search details not previously disclosed to the applicant and further information in relation to the search and retrieval fee charged. This Office provided the applicant with this additional information and the applicant made a further submission.

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 and to the records which I have examined. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the course of the review, this Office requested the Department to confirm its position in relation to the redacted information. In its submissions to this Office, the Department stated that all information which falls within the scope of the applicant’s request has been released to him. Therefore, the Department’s position now is that the redacted information falls outside the scope of the applicant’s request. The Department argues, however, that even if the redacted information was found to fall within the scope of the request, it is nevertheless exempt under sections 31, 32, 36 and 37 of the Act.

The scope of this review is concerned solely with whether the Department was justified in refusing access to the withheld information on the basis that it falls outside the scope of the request or is exempt under sections 31, 32, 36 or 37 of the Act and whether the Department was justified in deciding that section 15(1)(a) of the FOI Act applies and in applying the search and retrieval fees charged in this case.

Analysis and Findings

Scope

In his submissions to this Office, the applicant states that he has been forced to make three FOI requests to the Department in order to achieve the level of specificity so as not to leave any room for “undue manoeuvres and evasive tactics” by the Department. He states that the fact that he was forced to make three FOI requests which are partly overlapping does not mean that those requests were aimed at obtaining duplicates of records that had previously been released to him. He states that the partly overlapping requests were aimed at addressing “loopholes that the Department tried to unduly concoct” in order not to release or excessively redact records which should have been released but which had not been released to him previously. The applicant states that under the FOI Act he was permitted to request, and the Department was obliged to release records and not information. He also states that his 2019 FOI requests sought records in any way resulting from or related to the specified litigation.

The applicant expanded the scope of his 2018 request in his first 2019 request and he expanded on the scope of that in his second 2019 request. He expanded his request to include expert and other costs and costs paid or borne by emanations of the state other than the Department. He also expanded the time period of his request and the list of litigation to which his request refers. I accept, therefore, that in his first and second 2019 FOI requests, the applicant did not simply request duplicates of records that had previously been released to him. I note that following his first and second 2019 FOI requests, the Department released further records and it also released additional information contained in the records previously identified.

The records identified by the Department are legal advisor invoices and fee notes. The Department has released details of the amount in Euros of legal and other costs incurred in respect of the specified litigation and the specified period. It has withheld underlying descriptions of how the legal costs were incurred, details of costs incurred by parties other than the state and details regarding other legal work carried out for the Minister.

The applicant argues that he is entitled to access the invoices and fee notes in full. The last two bullet points of the applicant’s second 2019 FOI request state that the request is made:

• “having regard to the fact that a meaningful portion of the relevant records sought in this request have been either omitted, or not yet included or redacted in the heavily redacted records provided to me in respect of my first 2019 request,
• where the records sought herein should include - but not be limited to -  all the existing records held by the Department of Finance, which were identified by the Department of Finance in respect of or in the course of addressing my 2018 FOI request and/or my first 2019 FOI request”

I have considered whether these bullet points could be interpreted to capture any previously redacted parts of the records in the scope of the request. The applicant’s request as worded is, however, confined to the amounts in Euros of costs incurred by the state in relation to the litigation listed in the request. It seems to me that it would not make sense to interpret the request so as to include within its scope redacted parts of records which do not relate to the litigation listed in the request or which do not relate to costs incurred by the state or which contain descriptions of background to costs incurred as opposed to the amounts in Euros of particular costs as requested. In my view, the last two bullet points of the applicant’s request must be interpreted in light of the first part of the applicant’s request which governs the remainder. The Commissioner does not have jurisdiction to extend the review to consider records or parts of records that did not fall within the terms of the FOI request made.

I do not accept that the Department has engaged in “undue manoeuvres or evasive tactics” in withholding descriptions concerning work done in relation to the legal costs incurred, details of costs incurred by parties other than the state and details regarding other legal work carried out for the Minister. I have examined the records and am satisfied that all of the amounts covered by the requests have been released and that the redactions relate to information not included in the requests as made.  I am satisfied that the Department has released all information that falls within the scope of the applicant’s request from the records at issue. I find that the information withheld from the records falls outside the scope of the request so that the application of exemptions does not arise in relation to it. In light of this finding, it is not necessary to consider whether the redacted parts of the records are exempt under sections 31, 36 or 37 of the Act.

Section 15(1)(a) - "Search" issues

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available at www.oic.ie).

The applicant states that his second 2019 FOI request is much more extensive than his first 2019 FOI request as it refers to costs incurred/paid by any emanation of the state. However, he says that despite this, the Department released just one additional record with an attachment i.e. record 103 and 104. He states that the Department has limited the records considered to those related to ‘Company S’ and he argues that this is inconsistent with the wording of his FOI requests which do not limit the records to those related to ‘Company S’. The applicant says that record 97 contains an email that states “the Department also has records of Counsels’ fees paid by a named bank on the recommendation of the CSSO but these records are not set out in one document.” He argues that these records were not released. He further argues that the Department has not released counsel fee notes and an invoice listed under record numbers 55 and 59 of his first 2019 FOI request.

Following the applicant’s submissions, this Office requested the Department to respond to detailed queries in relation to searches undertaken to locate records within the scope of the request, including those specifically mentioned by the applicant. It also sought information on the Department's record management practices.

The Department says that it is not in a position to search for records held by other emanations of the state. It says that the additional record released following the second 2019 FOI request was a new 2019 record which was not held by Department at the time of processing the first 2019 FOI request. However, it states that all existing records were reviewed again in light of the expanded scope of the second 2019 FOI request and further information was released in 46 records. The Department states that all invoices are headed by its external legal advisors with “catch-all” account references. It states that “Company S Challenge” has been used from 2016 onwards. It states that prior to that invoices were not separated out by project and one invoice was issued covering a number of different legal items. The Department states that following the applicant’s second 2019 FOI request, which referred to the ‘company H proceedings’, it released details of costs in relation to those proceedings from relevant invoices/fee notes. The Department argues, therefore, that it has not limited the records to those related to the Company S challenge.

The Department states that the records of Counsels’ fees referred to in Record 97 were released. It states that Counsel fee notes were released in redacted form for 2011 and that that these were fees requested rather that the fees actually paid as no such records could be located for 2011. It states that for subsequent years the records released were the fees recommended for payment by the Chief State Solicitors Office (CSSO). Therefore, the Department says that the records were released, but not all “set out in one document” as per what is outlined in Record 97. The Department states that the record referred to as Record 55 was a covering email from the CSSO which listed no costs and was scheduled to provide context with regard to its attachments. It states that records 55 (01) to (08) inclusive were the attachments to that cover email and these records were first released in redacted form.  It states that when the scope was expanded in the second 2019 FOI request, further information was released. The Department states that the record referred to as Record 59 was scheduled under the applicant’s 2018 FOI request but not under the 2019 FOI requests due to the Department having received revised invoices. It states that an initial invoice was issued for the time period concerned; however, following discussions between both parties, the invoice was revised and reissued and the applicant has received the revised invoice.

The Department states that a single researcher was responsible for the search and retrieval of these records. According to the Department, this researcher was also responsible for the processing of all invoices relating to this litigation and worked closely with the decision makers in each of the three FOI requests. The Department states that the records requested by the applicant in each of the FOI requests were received, processed and stored by only one Division within the Department namely the Shareholding and Financial Advisory Division. It states that the records are stored within a folder on an internal “Sharepoint” system. It states that this folder can only be accessed by a small number of authorised Department officials. It states that there is nowhere else in the Department where such records might be stored, it states that all records are held by the Shareholding and Financial Advisory Division which is the only Division managing this litigation on behalf of the Minister. The Department states that duplicates are supplied to its accounts section once they have been approved for payment, but these are supplied by the Shareholding and Financial Advisory Division in the Department so that it would only hold what is supplied by that Division.

This Office provided the applicant with an overview of the additional information provided by the Department in relation to the searches undertaken. In further submissions to this Office, the applicant states that it is clear from the information provided by the Department that the records in question are stored electronically as the Department states that the records are stored within a folder on the “Sharepoint” system.  The applicant states that the Department can search and extract the electronically held records by taking reasonable steps by the researcher in the Shareholding and Financial Advisory Division. I note that the Department has previously stated that it does not have a facility to extract the information sought electronically.  It has however provided the applicant with copies of invoices and fee notes in which the information that falls within the scope of the request is released to the applicant.

It is clear from the applicant’s further submissions that he expected that the Department ought to hold fully comprehensive records of the legal costs incurred in the litigation in question. He complains that the Department has been “trying to conceal records linked to the spending of many millions of Euros of public money on an outside legal team to conduct this litigation” and he argues that the stance taken by the Department flies in the face of the spirit of the FOI Act.

The Department’s position is that the sums set out in the invoices and fee notes it holds are indicative only. It states that in order to establish a definitive figure as to what legal costs were actually incurred relating to the litigation in question, the invoices would need to be reviewed to isolate the relevant sums and the Chief State Solicitor’s Office would need to confirm the proportion of counsel’s fees attributable to the relevant cases. Therefore, the Department states that it does not hold exhaustive records of the legal costs incurred in this litigation.

The FOI Acts do not provide for a right of access to records which ought to exist. The fact that one might expect such records to have existed and to have been maintained in certain formats or systems is not something on which I can rule in this review. Furthermore, the FOI Acts do not require public bodies to create records if none exist, apart from the requirement under section 17(4) to extract records or existing information held on electronic devices.  It is also outside the function of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

On the basis of the information provided by the Department and its detailed responses to the Investigator’s queries, I am satisfied that it has taken reasonable steps to locate all records within the scope of the applicant’s request that it holds in its Offices. It may well be the case that other state bodies hold further records in relation to the costs of the litigation at issue. Although it would be convenient and efficient if a full set of such records were held by one body, I can only deal with these particular FOI requests in this decision. I find, therefore, that section 15(1)(a) of the Act applies to the applicant’s requests insofar as they relate to any further records which in the applicant’s view the Department ought to hold.

Section 27 of the Act – Search and Retrieval Fees

Section 27 of the FOI Act provides that FOI bodies can charge fees for the search and retrieval of records. Search and retrieval includes time spent by the FOI body in determining whether it holds the information requested, locating the information or documents containing the information, retrieving such information or documents, extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and preparing a schedule specifying the records for consideration for release. Search and retrieval fees are capped at €20 per hour.

The applicant argues that the Department was not permitted to charge him for the search and retrieval of records that were already identified in respect of his 2018 FOI request as part of his first 2019 FOI request. He argues that as his first 2019 FOI request yielded only a small number of additional records on top of the records already disclosed following his 2018 FOI request, the €272 search and retrieval fee was excessive. He argues that the Department should not have charged him for time spent isolating parts of invoices that related to the ‘Company S challenge’ as this was unwarranted by the wording of his first 2019 FOI request.

The Department states that no fee was charged in respect of the applicant’s 2018 FOI request due to an administrative error. It states that following the applicant’s first 2019 FOI request, the decision maker spent 15.5 hours on search and retrieval work which was charged at 20 euro per hour resulting in total fees of €310. It states that at internal review, the search and retrieval fee was reduced to €272 euro to take account of time spent scheduling records that were determined to fall outside the scope of the request. The Department states that most of the search and retrieval work consisted of finding and isolating those parts of the invoices that related to the ‘company S’ proceedings within large invoices containing large volumes of unrelated information. The Department did not charge a further search and retrieval fee in respect of the second 2019 FOI request.

The Commissioner’s view is that the Oireachtas intended to confer some latitude on FOI bodies in their estimation of the time to be spent on a search and retrieval of records, but that this latitude was to have its limits. At the same time, the Commissioner has also noted that the FOI Act confers on the Information Commissioner the jurisdiction to vary or annul an estimate where such an estimate falls outside these limits. He considers that the FOI Act foresees that there will be cases in which the amount of the fee or deposit sought by an FOI body will be found by him to be inappropriate. In all cases, the Commissioner expects the FOI body to be able to explain how its estimate of the costs of search and retrieval was arrived at. If the FOI body concerned gives reasons for its estimate which indicate that there was a reasonable basis for the calculation of the fee or deposit decided upon by it, the Commissioner is not inclined to interfere with that decision.

The Department states that the records are stored within a folder on the “Sharepoint” system and there is nowhere else in the Department the records might be stored. Although they appear to have been held in one place, the invoices and fee notes contain a large amount of information which falls outside the scope of the applicant’s first 2019 FOI request. The Department located over one hundred relevant invoices and fee notes. I accept that it was the retrieval of the requested information in the records that took up the bulk of the time. The Department extracted details of legal costs in relation to the Company ‘S’ challenge, it also extracted details in relation to other costs.

In my view, the fact that the Department had already located many of the records following the 2018 request did not mean it did not have to conduct a fresh search given the wider scope of the first 2019 request. The decision maker for the applicant’s first 2019 FOI request was not the decision maker for the 2018 request. I accept that it would have been his responsibility to satisfy himself that the search and retrieval process was adequate and to ensure that all relevant records were captured in light of the expanded scope of the request. In addition to searching for records and extracting information, the Department also spent time scheduling records. For these reasons, I am satisfied that the search and retrieval fees were reasonable and I find accordingly.

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 the information withheld from the records falls outside the scope of the request so that the application of exemptions does not arise in relation to it. I find that the Department was justified in refusing access to additional records under section 15(1)(a) of the Act on the basis that additional records either do not exist or cannot be found after reasonable searches have been carried out. I find that the Department was justified in charging the level of search and retrieval fees charged in this case.

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