Whether the Department was justified in refusing access to records related to the Irish Airlines Superannuation Scheme under sections 28, 31(1)(a), 35(1)(a) and 42(f) of the FOI Act

30 June 2020

Background

The applicant acted through his solicitors in this matter. On 27 May 2019, he made an FOI request to the Department for records about the Irish Airlines Superannuation Scheme, including documents relating to legislative proposals, changes to the scheme rules and the acquisition of State shares in Aer Lingus. Following correspondence with the Department, he refined his request on 2 September 2019.

On 11 September 2019, the Department consulted with third parties under section 38 of the FOI Act. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37) but that the record(s) should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest.

On 10 October 2019, the Department issued a decision. It granted access to some records and refused access to the remaining records on the ground that they were exempt under sections 28, 31(1)(a), 35(1)(a), 37(1) and 42(f) of the FOI Act. On 22 October 2019, the applicant applied to this Office for a review of the Department’s decision. That application concerns the records about which the Department consulted third parties under section 38. On 26 November 2019, the applicant applied for an internal review of the decision on the remaining records. The Department issued an internal review decision on those records on 12 December 2019. It varied its decision on two records and affirmed its decision on the other records. On 20 December 2019, the applicant applied to this Office for a review of the Department's decision on the remaining records. As both applications concern the same applicant and subject-matter, I consider it appropriate to deal with them in one decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review. I have also had regard to submissions made by third parties.

Scope of this Review

On 22 November 2018, the Information Commissioner issued a decision about records held by the Department in Case 160068, which can be found on our website at www.oic.ie. Three of the records in this review were the subject of that decision, made under section 22 of the FOI Act. Section 22(9)(a)(iii) of the FOI Act provides that the Commissioner may discontinue a review where the matter has been the subject of another review under section 22. During the review, the Investigator notified the applicant and the Department that she would recommend discontinuance of the review on those three records and invited their submissions. Neither party objected. In the circumstances, I consider it appropriate to discontinue the review insofar as it relates to the three records concerned. They are scheduled in this case as Records 12, 14 and 19.

Furthermore, the applicant confirms that he does not seek access to the withheld information in Records 15 and 22. Accordingly, this review concerns the information which remains withheld in Records 8, 10, 13, 21, 23, 26, 31, 32, 33, 34, 35 and 36. The question for me is whether this information is exempt under sections 28, 31(1)(a), 35(1)(a) and 42(f) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. Thirdly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument. Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege

The Department claims section 31(1)(a) over Records 8, 10, 13, 21, 23, 26, 32, 33, 34, 35 and 36. In view of its submission on Record 26, I consider it appropriate to deal with that record under section 31(1)(b) below.

Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of 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).

Having examined the records, I am satisfied that Records 10 and 21 disclose confidential communications made between the Department and the Attorney General’s Office for the purpose of obtaining and/or giving legal advice. I am also satisfied that Record 13 discloses confidential communications made between Aer Lingus and its legal advisers for the purpose of obtaining and/or giving legal advice, as well as between the Dublin Airport Authority and its legal advisers for the purpose of obtaining and/or giving legal advice. I am further satisfied that Record 23 discloses confidential communications made between the trustees of the pension scheme and their legal advisers for the purpose of obtaining and/or giving legal advice, as well as between the Department and the Attorney General’s Office for the purpose of obtaining and/or giving legal advice. I have applied section 18 of the FOI Act in reaching my conclusions. However, I am not satisfied that section 31(1)(a) applies to all of the following records:

• Record 8 is a communication between the DAA and the Department. I accept that the penultimate paragraph on the second page discloses a confidential communication between the DAA and its legal advisers for the purpose of obtaining and/or giving legal advice, but am not satisfied that the rest of this record is covered by legal professional privilege. I consider the rest below, under section 35(1)(a) of the FOI Act.

• Records 32, 33, 34 and 35 are witness statements. The Department says that they were created specifically and solely for the purpose of legal proceedings. I accept this. However, the witness statements themselves are not confidential communications made between a client and their professional legal adviser or the professional legal adviser and a third party or between a client and a third party. That said, I accept that the following paragraphs within the witness statements disclose confidential communications made between the Department and their legal advisers for the purpose of obtaining and/or giving legal advice: paragraph 14 of Record 32, paragraphs 36, 81, 82, 83, 89 of Record 34, the last paragraph on page six of Record 35 (which ends on page seven).

• Record 36 is a signed Court order. The Department says that it was obtained for the purposes of litigation. Having regard to its content, I am not satisfied that it meets the criteria to qualify for legal professional privilege.  

For completeness, I am satisfied that the sharing of legal advice by third parties with the Department does not amount to a waiver of legal privilege in circumstances where it was a limited disclosure for a particular purpose. I find that the Department was justified in refusing access to Records 10, 13, 21 and 23 under section 31(1)(a) of the FOI Act. Given this finding on Record 21, I am not required to consider the exemption claimed under section 42(f) of the FOI Act. I also find that the Department was justified under section 31(1)(a) in refusing access to information within Records 8, 32, 34 and 35 which I have found to be legally privileged. Finally, I find that the Department was not justified in refusing access to the remaining information within those records and to Records 33 and 36 under section 31(1)(a).

Section 31(1)(b) – Contempt of Court

Section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court. Breach of an undertaking given to the court (whether express or implied) is a contempt of court. Documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking given to the court and to the other party by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed.

In its submission to this Office, the Department said that it obtained Record 26 from the Pensions Authority as part of a discovery process. Accordingly, the Investigator contacted the Pensions Authority to confirm the position. The Pensions Authority advised that it was subject to a court order for non-party discovery, as part of which it disclosed Record 26 to the parties in the case.

The applicant says that Record 26 is an important document in his effort to understand the background to the significant reductions made to his pension entitlements and in informing him of appropriate actions he might take to address these reductions. He also says that he was not a party to the Court order for discovery which led to the disclosure of this document to another party. As noted above, I am required to disregard an applicant's reasons for an FOI request and I note that no public interest test arises for consideration under section 31(1)(b). Furthermore, I note that Record 26 is held by the Department on foot of a Court order for discovery and is therefore subject to an implied undertaking. I do not believe that the fact that the applicant was not a party to the relevant Court order affects this position.

In the circumstances, I am satisfied that disclosure of Record 26 would constitute contempt of court and section 31(1)(b) of the FOI Act applies to it. I find that the Department was justified in refusing access to Record 26, under section 31(1)(b).

Section 28 – Meetings of the Government

The Department claims section 28(1) over Record 31. To be exempt from disclosure under section 28(1)(a), the record must fulfil three criteria: that the record has been (or is/was proposed to be) submitted to the Government for its consideration; and has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General; and was created for the purpose of submission to the Government for its consideration. Section 28(1)(b) exempts a record which is a record of the Government but not a record by which a decision of the Government is published to the general public by or on behalf of the Government. For section 28(1)(c) to apply, the record must contain information (including advice) for a member of the Government, the Attorney General, a Minister of State or the Secretary General to the Government and this information must be for use by that person solely for the purpose of the transaction of any business of the Government at a meeting of the Government.

The Department says that Record 31 is an unpublished decision of the Government based on material that was submitted to Government for its consideration and relates solely to Government business.

Section 28(3) disapplies section 28(1) if and insofar as the record contains factual information relating to a decision of the Government that has been published to the general public. Section 2 of the FOI Act provides that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. The Commissioner also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.

Having examined Record 31, I consider that it is a record of the Government which contains proposals and recommendations and is not a record by which a decision of the Government is published to the general public by or on behalf of the Government. I find that section 28(1)(b) applies to Record 31 and the Department was justified in refusing access to it under section 28(1). For completeness, I note that it relates to a decision of the Government made in May 2015 and it would be open to the applicant to make a fresh FOI request for it.

Section 35 - Information obtained in confidence

The Department claims section 35(1)(a) over Record 8. I have found the penultimate paragraph of this record to be exempt under section 31(1)(a) above. Therefore, this finding only concerns the remaining parts of Record 8.

Section 35(1)(a) of the FOI Act applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and it is important to the body that such further similar information should continue to be given to the body. Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (see section 35(3)).

Section 35(2) disapplies section 35(1) to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. Record 8 is an email from the DAA to the Department about pension scheme arrangements. The DAA is not an FOI body, being an exempt agency under Part 2 of Schedule 1 to the FOI Act. Neither is it a service provider to the Department. Therefore section 35(2) does not apply.

The Department says that this record was provided to it in confidence, on the understanding that it would be treated as confidential and disclosure of this record would likely prejudice the giving of similar information in the future. Regarding the public interest, the Department says that State companies need to be able to communicate with the Department regarding matters of legal and commercial significance on a confidential basis, which overrides the public interest in release.

The DAA submits that section 35(1)(a) applies to Record 8. It says that it contains confidential information regarding proposals for restructuring the pension scheme and was shared with the Department in strictest confidence. It says that given the nature of the information and the context and circumstances in which the information was provided, it is evident that it was given in confidence and on the understanding that it would be kept confidential. The DAA says that the confidentiality of this information has not diminished with the passage of time. It says that it is crucial that it can share information of this nature in confidence with the Department in the future and this overrides the public interest in release. It also says that if this information is disclosed, it would discourage the DAA from sharing information on such important matters.

As the Information Commissioner observed in Case 160068, the proposed changes to the pension scheme involved matters of political, legal, and commercial significance to the State and the relevant third parties. Having reviewed this record, I accept that it was given to the Department in confidence and on the understanding that it would be treated by the Department as confidential. I also accept that it is important to the Department to continue to receive any further similar information from the DAA. However, I am not satisfied that disclosure would prejudice the giving of further similar information from the DAA to the Department. I believe that it serves the interests of all parties, including the DAA, for a flow of information to continue in order to resolve such issues.

Even if I am wrong on this and section 35(1)(a) applies, I would be required to consider the public interest balancing test under section 35(3). On the one hand, section 35 itself recognises a public interest in the protection of confidentiality. On the other hand, section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making. I am cognisant of the passage of time since the creation of this record, coupled with the developments around the pension scheme since then, which are publicly known. I consider that on balance, the public interest in transparency around engagement between the Department and the DAA on the relevant legislation outweighs the public interest in protecting confidentiality. I find that the Department was not justified in refusing access to Record 8 under section 35(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision as follows. I affirm its decision to withhold certain records under sections 28, 31(1)(a) and 31(1)(b) of the FOI Act, as outlined above. I annul its decision to withhold the remaining information and direct its release. For the avoidance of doubt, the information which falls for release is as follows: Records 8 (except the penultimate paragraph), 32 (except paragraph 14), 33, 34 (except paragraphs 36, 81, 82, 83, 89), 35 (except the last paragraph on page six, which ends on page seven) and 36. Any names and contact details of individuals other than staff members of FOI bodies should be redacted, in accordance with section 37 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