Whether the Agency was justified in its decision to refuse to grant access in full to records under sections 31(1)(a) and 37(1) of the FOI Act
28 January 2020
Background
On 21 December 2018, the applicant requested access to records held by the Agency relating to her. The Agency granted access in full and in part to some of the records and refused other records in full and in part under section 37(1) (Personal information) of the FOI Act. Following a request for an internal review the Agency affirmed its original decision. On 3 September 2019, this Office received an application for review from the applicant.
During the review, the Agency granted access to additional records in full and in part. The Agency also advised this Office that it relied on section 31(1)(a) (Legal Professional Privilege) to refuse access to one record.
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 to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records and to the provisions of the FOI Act. The applicant was invited to make a submission but none was received.
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 records on the basis of sections 31(1)(a) and 37(1) of the FOI Act.
Preliminary Matters
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.
Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Analysis and Findings
Section 31(1)(a)
The Agency stated that record 21 in file -NCCIS- is refused on the basis of legal advice privilege.
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).
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.
I do not believe that I would be revealing exempt information in violation of section 25(3) of the FOI Act by noting that the record is a letter from the Agency to its own Legal Services forwarding copies of a file. The copies enclosed are not part of record 21. Record 21 is the first page of a two-page letter, and given its content and the fact that it has the same reference identification, it seems to me that record 22 is the second page of that letter. Record 22 was released to the applicant.
Having examined the record, I do not accept that the information in it can be held to be confidential communication between the Agency and its professional legal advisers. I do not accept that it qualifies for legal advice privilege and that it discloses legal advice sought or received from the Agency's legal advisers.
The Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications which was for the purpose of giving or receiving legal advice. In my view record 21 does not form part of a continuum of correspondence resulting from a request for legal advice to which privilege might attach.
Accordingly, I find no basis for concluding that the record qualifies for exemption under section 31(1)(a) on the basis of legal advice privilege.
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. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".
Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).
While I cannot discuss their content in any detail, I can state that information is withheld in four sets of records and is personal information about third parties other than the applicant.
Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.
Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case.
Section 37(5)
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.
In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, -a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law- must be distinguished from a private interest for the purpose of section 37(5)(a).
The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Agency carried out its functions. On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.
I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), as mentioned earlier, the public interest in openness and transparency in how the Agency dealt with the applicant has been served to a large extent by the release to her of the bulk of the information in the records. 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.
Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Agency. I affirm the Agency's decision to refuse access in full and in part to 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 annul the Agency-s decision to refuse access to record 21 under section 31(1)(a) and I direct the release of that record.
If it has not already done so, I direct the Agency to release to the applicant those records and parts of records which it agreed to release during this review.
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
