Whether the Council was justified in refusing access to certain correspondence relating to the applicant and/or his role in a named radio station and/or his company

2 November 2020

Background

In a request dated 3 June 2020, the applicant sought access to all correspondence which relates to and/or references himself and/or his role in a named radio station and/or his company held on the computer of a certain Council official and/or sent from or received by the Council official since 1 January 2019. In a decision dated 30 June 2020, the Council granted the request in part but refused it in larger part under sections 15(1)(i), 30(1)(a), 31(1)(a), and 37(1) of the FOI Act. On 24 July 2020, following the applicant’s request for an internal review, the Council affirmed its original decision. On the same day, the applicant applied to this Office for a review of the Council’s decision, stating that he was unhappy with every aspect of that decision.

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 Council in support of its decision.  I have also examined the records at issue. I note that, on 5 August 2020, this Office invited the applicant to make submissions in relation to any matter relevant to the review. Subsequently, on 13 October 2020, the applicant was given an opportunity to comment on the Council’s updated position on the matter. To date, however, no submissions have been received from the applicant. I have now decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The Council identified 31 records in a schedule of records as relevant to the applicant’s request. It granted access to six records in full and three records in part. Records numbered 28 to 31 were refused under section 30(1)(a) of the FOI Act. Following contacts with this Office, however, the Council decided that it no longer wished to rely on section 30(1)(a) of the Act. Therefore, on 5 October 2020, the Council agreed to release records 28 to 31.

Accordingly, my review in this case now concerned with the question of whether the Council was justified in refusing access to the following:

• Records 7, 26, and 27 (in part) under section 15(1)(i)(i) on the basis that the records have already been made available to the applicant;
• Records 6, 8-21 under section 31(1)(a) on the basis of legal professional privilege;
• Records 1 (in part), 22 (in part), and 25 under section 37(1) on the basis of personal information.

Preliminary Matters

Before setting out my findings, I should point that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.

It is also important to note the release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

Section 15(1)(i)(i)

Section 15(1)(i)(i) states that an FOI request may be refused where it relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. According to the Council, the applicant has made eight FOI requests since April 2019 relating to concerns raised by the Chief Executive regarding a business affairs programme that he produces and presents on the radio station named in his request in this case.  It is the Council’s position that records 7, 26, and 27 (in part) were previously released to the applicant in response to requests dated 15 April 2020 and 22 May 2020, respectively. The Council provided this Office with the text of the applicant’s previous requests in support of its position that section 15(1)(i)(i) applies. The applicant has not disputed that the relevant records were previously released and are available to him. I am therefore satisfied that section 15(1)(i)(i) applies as claimed.

Section 31(1)(a)

Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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
(b) 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 accepts that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  He has adopted this approach having regard 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."

In this case, the Council confirmed in its submissions that records 6 and 8-21 relate to legal advice sought from its solicitor. Based on my examination of the records, I accept that these records contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice and that section 31(1)(a) therefore applies.

Section 37

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Section 37(7) specifies 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 (commonly known as joint personal information). Personal information is defined in section 2 of the FOI Act 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 which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual".

The details redacted from records 1 and 22 are names and email addresses of private individuals. Record 25 relates to a third party FOI consultation with a private individual. The Council stated in its submissions that the email addresses of these individuals would not be known to the wider public. I also note that the email addresses and the context in which the names appear would reveal information about the employment or employment history of each respective individual. I am therefore satisfied that the names and emails addresses qualify as personal information within the meaning of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) 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 find no basis for concluding that the release of the information concerned would be to the benefit of the third party individuals to whom it relates. I therefore find that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

In this case, the substantive content of records 1 and 22 has been released to the applicant and therefore he is aware of the discussions that took place between the Council officials involved. I find no relevant public interest in granting access to the redacted names and email addresses that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. Accordingly, I am satisfied that the Council’s decision to refuse access to the redacted information was justified under section 37(1) of the FOI Act.

However, access to record 25 has been refused in full. The substantive content does not reveal any personal information about any third party individual. Rather, it relates to a previous FOI request made by the applicant and a third party consultation process that took place as a result. For the reasons stated above, I find that the names of the private individuals therein and the email address of the private individual who was notified of the request are exempt under section 37(1) of the FOI Act. As I find no basis for refusing access to the remainder of the record, I direct its release subject to the relevant redactions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision in this case. I direct the release of record 25 subject to the redaction of the names of the private individuals therein the email address of the private individual concerned. I affirm the decision to refuse access to the remainder of the records at issue under sections 15(1)(i), 31(1)(a), and 37(1) 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.

 

Stephen Rafferty

Senior Investigator