Whether CORU was justified in refusing access to records relating to an inquiry under sections 15(1)(a), 15(1)(d), 15(1)(i) and 31(1)(a) of the FOI Act

7 July 2020

Background

On 29 November 2019, the applicant made an FOI request to CORU for a list of specified information relating to an inquiry process of which they were the subject. CORU issued a decision on 23 December 2019. It granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 15(1)(a), 15(1)(d), 15(1)(i) and 31(1)(a) of the FOI Act. On 31 December 2019, the applicant applied for an internal review. On 20 January 2020, CORU issued an internal review decision, in which it affirmed its original decision. On 23 January 2020, the applicant applied to this Office for a review of CORU's decision.

In conducting my review, I have had regard to the correspondence between CORU and the applicant as described above, as well to correspondence between this Office and both the applicant and CORU.  I have also had regard to the contents of the records at issue and the provisions of the FOI Act. 

Scope of the Review

During the review process, CORU released further pieces of information, scheduled as B and G, to the applicant. That information therefore falls outside the scope of this review. Furthermore, the Investigator asked the applicant to confirm whether they had the information refused under section 15(1)(i), which applies to records already available, and to specify any information which was not available to them. The applicant replied that “the outstanding information pertains to points A, B, E, F, G and H of the initial request”. I note that the applicant says that the minutes of the CORU Council meeting, which are scheduled as B (at pages 164-176), are heavily redacted. I have examined those redactions and can confirm that they fall outside the scope of the applicant’s FOI request. They relate to other business of that meeting of the CORU Council and not to the inquiry of which the applicant was subject.

This review is concerned with whether CORU was justified in refusing access to the withheld information which falls within the scope of the applicant’s FOI request under sections 15(1)(a), 15(1)(d), 15(1)(i) and 31(1)(a) of the FOI Act.

Preliminary Matters

First, it is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Secondly, 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.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

CORU refused access to information scheduled as E and H under section 15(1)(a). During the review process, the Investigator asked CORU about its record-management practices and the steps it had taken to search for any records falling within the scope of the request. The information at E is described as “media outlets that the press release will be forwarded to by CORU”. CORU says that it confirmed with the Head of Legal Affairs and Fitness to Practise and the Head of Communications that no such records exist. CORU says that it publishes its decisions in accordance with its guidance, but does not contact media outlets to inform them of the outcome of inquiries. The information at H is described as “Reports and information forwarded to CORU, (if any), by the media and/or the Courts Service, in relation to the outcome of the CORU hearing in [year], and the High Court Appeal in [year]”. CORU says that it searched its case management system and found no results. It says that all members of staff who work in the relevant section searched their emails and the email inboxes they are responsible for monitoring and found no such records. CORU confirmed with the Head of Communications that no such reports or information were received from the Courts Service or media outlets.

CORU refused access to the information scheduled as F under section 15(1)(d) of the FOI Act, which provides that access to records may be refused if the information is already in the public domain. However, I consider it more appropriate to examine this information under section 15(1)(a). The information is described as “the proposed date of publication of the outcome of the CORU inquiry”. CORU says that at a meeting on [date], it decided that it was in the public interest to publish disciplinary information regarding an inquiry and it uploaded that information to its website on [date]. It provided this Office with relevant web-links. However, during the review process, CORU confirmed to this Office that no record containing “the proposed date of publication of the outcome of the CORU inquiry” exists. Furthermore, I can see that the minutes of the meeting of [date] (scheduled as B) do not contain “the proposed date of publication of the outcome of the CORU inquiry”. As noted above, an FOI request is only valid insofar as it can be inferred to be a request for a record containing the relevant information. The FOI Act does not require FOI bodies to create records. In the circumstances, I find that CORU was justified in refusing access to the information as F under section 15(1)(a) of the FOI Act, on the basis that it does not exist. Given this finding, I am not required to consider the exemption claimed under section 15(1)(d).

The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. In the circumstances, I am satisfied that CORU has taken reasonable steps to search for the records sought. I find that CORU was justified in refusing access to further records under section 15(1)(a) of the FOI Act.

Section 15(1)(i) – Refusal on administrative grounds

Section 15(1)(i)(i) of the FOI Act allows an FOI body to refuse to grant a request where the request relates to records already released to the same or a previous requester, where the records are available to the requester concerned. It seems to me that the purpose of section 15(1)(i) is to allow an FOI body to refuse a request where it has already released the record the subject of the request and it is available to the requester.

CORU refused access to information scheduled as A (pages 1-154) and B (pages 155-176) under section 15(1)(i). During this review process, the Investigator asked CORU to provide the applicant with a copy of the schedule. The Investigator then asked the applicant to confirm whether the information refused under section 15(1)(i) was available to them and to specify any information which was not. In response, the applicant referred the Investigator to their application for review and said that it concerned information which had been withheld and not information which had been published or provided. The information at A (pages 1-154) is unredacted. The information at  B (pages 155-176) which falls within the scope of the applicant’s FOI request is also unredacted. I find that CORU was justified in refusing access to the information at A (pages 1-154) and B (pages 155-176) which falls within the scope of the applicant’s FOI request, under section 15(1)(i) of the FOI Act.

Section 31(1)(a)

CORU claims section 31(1)(a) over information scheduled as B and I (pages 1-19). 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).

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 Case 020281 the former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]: "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." The Commissioner has adopted this approach and takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

Having examined the records as B and I (pages 1-19), I am satisfied that they disclose confidential communications made between CORU and its legal advisers for the purpose of obtaining and/or giving legal advice and form part of a continuum of correspondence that results from the original request for advice. I therefore find that CORU was justified in refusing access to these records under section 31(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm CORU’s decision under sections 15(1)(a), 15(1)(i) and 31(1)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Elizabeth Dolan

Senior Investigator