Whether the CSSO was justified in refusing access under section 42(f) of the FOI Act to records containing the amount of the costs/expenses/fees incurred and/or borne and/or reimbursed and/or compensated and/or provided for by the State or any of its emanations in connection with specified litigation

12 January 2021

Background

On 28 May 2019, the applicant submitted a detailed request to the CSSO for certain information from 2011 to 2019 in connection with an extensive number of specified sets of legal proceedings to which he, other third parties, and the Minister for Finance (the Minister) are/were parties. Specifically, he sought access to all the records held by the CSSO containing the amount of all the costs and/or expenses and/or fees, including those of solicitors, counsel, experts and /or consultants, incurred and/or borne and/or reimbursed and/or compensated and/or provided for by the State or any of its emanations.

The CSSO is a constituent part of the Office of the Attorney General (the AG’s Office). Section 42(f) of the FOI Act states that the Act does not apply to records held or created by the AG’s Office, other than records relating to general administration. In a decision dated 25 June 2019, the CSSO refused the request on the basis that the request related directly to a number of legal cases and was not considered to fall within general administration. On 26 June 2019, the applicant sought an internal review of the CSSO’s decision.

On 12 July 2019, the CSSO affirmed its original decision to refuse the request under section 42(f) of the Act. It added that the only circumstances in which it would have financial records of the type sought in the request would be where it is engaged to provide solicitor services and where it engages counsel or other experts and it is those records only that would fall to be considered on foot of the request. It said that it would not have any record of legal fees paid to professional firms directly by other State bodies.

The CSSO maintained that the litigation-related fees and costs of the type referenced in the request would be specific to a piece of litigation. It said that such fees and costs would be based on particular circumstances arising in a case including, for example, the complexity of issues arising and the amount of work involved. It said that records containing such information would not comprise records relating to general administration.

On 23 August 2019, the applicant made a detailed application to this Office for a review of the CSSO’s decision. During the course of the review, some confusion arose over the scope of the request and thus whether the CSSO may hold additional relevant records other than those referred to in its internal review decision. However, 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 applicant and the CSSO. I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matters

In its submissions dated 19 November 2019, the CSSO identified the records that it regarded as relevant to the applicant’s request as consisting of two fee notes, one from Senior Counsel and one from Junior Counsel, along with records of travel expenses relating to an appearance in Luxembourg before the Court of Justice of the European Union (CJEU) in relation to a certain case. However, included among the supporting documentation submitted with the applicant’s review application were memoranda from the CSSO advising the Department of Finance on fee notes submitted by counsel in relation to certain proceedings relevant to the applicant’s request in this case. It is also relevant to note that in a case decided in May 2020 involving similar requests by the applicant to the Department of Finance, OIC-56012/55962, the Department indicated that the CSSO may hold additional relevant records given its role in recommending the level of fees for payment. The Department also suggested that the CSSO would have a pivotal role in any exercise to determine a definitive figure as to what legal costs were actually incurred relating to the litigation in question. It was thus difficult to understand the CSSO’s position, as stated on internal review, that it would not hold any records relevant to the applicant’s request unless it had itself provided solicitor services and engaged counsel or other experts.

Accordingly, the Investigator initially assigned to this case corresponded with the parties in an effort to clarify the scope of the request, as was entirely appropriate in the circumstances. In the course of his correspondence, the Investigator had regard to the statement made in the applicant’s own application for review in which he said that “the records sought specifically contain information about how much public money the State has spent on the fees paid to solicitors, barristers and advisors representing the State in the litigation in question”. The CSSO took the position that the applicant’s request was limited to records of payments made by the State or other bodies specified in the request, whereas the applicant argued that his request captured all records containing costs/expenses/fees in relation to the specified litigation, whether paid or not. In a letter to the applicant dated 24 April 2020, the Investigator indicated that he agreed with the more restrictive interpretation of the request in light of the statement made in the application for review.

At no point did the Investigator suggest that his letter represented the conclusion of the review. On the contrary, it was readily apparent that the letter was merely an interim step in the review process and that the applicant had the right of reply. The applicant exercised this right on 8 May 2020 by submitting a 14-paged letter accompanied by 52 pages of supporting documentation. The tone of the applicant’s letter is quite adversarial throughout, but what is particularly concerning is that the applicant described the Investigator as “biased” and otherwise questioned his integrity. This Office strongly rejects the applicant’s comments about the Investigator, who acted independently, professionally, and courteously in all of his engagements with the parties in this matter. I also wish to emphasise that the Commissioner’s review functions under the Act are inquisitorial and generally informal rather than adversarial in nature, as expressly required under the Act (section 45(6) refers). The Commissioner also takes the view that applicants have a responsibility to act reasonably in relation to the processing of their requests by FOI bodies and in their engagements with the staff of this Office. Moreover, in relation to the Investigator’s consideration of any new arguments that arose in the course of the review, I wish to emphasise that this was entirely in line with this Office’s procedures given the Commissioner’s inquisitorial role and the fact that a review by this Office under section 22 of the Act is de novo, in that it is based on the circumstances and the law as they apply on the date of the decision.

On a related matter, I note that the applicant suggested that he has been treated unfairly because his “submissions” were shared by this Office with the CSSO without a copy of the CSSO’s submissions having been forwarded to him. Section 22(6) of the FOI Act requires a copy of the application for review to be given to the FOI body concerned. On 12 September 2019, in response to the invitation to make submissions in support of his review application, the applicant asked that his application for review together with its five attachments and other documents referred to therein be treated as his submissions. It is for this reason that he is correct in suggesting that his “submissions” had been shared with the CSSO, but this was done by the Support Unit of this Office in compliance with the procedural requirements under the Act. It is otherwise the general policy of this Office that submissions are not exchanged between parties to a review but that parties should be notified of material issues arising for consideration, as occurred in this case in relation to the scope of the request.

Scope of the Review

Nevertheless, while I consider that the applicant’s letter of 8 May 2020 may arguably be regarded as vexatious, I accept that his request and application for review were made in good faith and that the question of discontinuing the review under section 22(9)(a)(i) of the Act does not arise. I also accept that the CSSO has adopted an overly narrow interpretation of the terms used in the applicant’s request.

While the applicant has made confusing and inconsistent statements in relation to the scope of his request, it is apparent that he intended for the request to be regarded as more inclusive than not, in relation to the amounts sought. Indeed, if he had wished for his request to be limited to the amounts of the costs/expenses/fees actually paid, he presumably would have simply said so from the outset. Instead he specified that he sought “the amount … incurred and/or borne and/or reimbursed and/or compensated and/or provided” (emphasis added).  Incurred means more than paid; it includes charges that are owed and thus I accept that it would encompass the amounts contained in relevant invoices and fee notes, whether paid or not, which is the approach taken in Case OIC-56012/55962 (referenced above). It would also cover memoranda from the CSSO of the type submitted by the applicant in support of his application for review insofar as such memoranda contain the amounts of such costs/expenses/fees. While the statement made in his application for review may support a more restrictive approach, I do not consider that the statement, on its own, is sufficient to narrow the scope of the request. On the other hand, as in Case OIC-56012/55962, the plain terms of the applicant’s request confine the scope to the amounts contained in the relevant records; thus, the request does not cover, for instance, the descriptions of the background to the recommended amounts contained in the CSSO memoranda.

Accordingly, my review in this case is concerned with the question of whether the CSSO was justified in refusing access under section 42(f) to any records it holds, including memoranda, invoices, and fee notes relating to costs incurred by other State bodies, insofar as such records contain the amounts of the costs/expenses/fees incurred and/or borne and/or reimbursed and/or compensated and/or provided for by the State or any of its emanations in connection with the specified litigation.

Analysis and Findings

As noted above, section 42(f) states that the Act does not apply to records held or created by the AG’s Office, other than records relating to general administration. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the AG's Office and its constituent offices, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the AG’s Office. The core business of the AG’s Office includes, but is not limited to, advising on legislation and litigation.

It is the CSSO’s position that there is a clear distinction between financial records concerning the operation of the AG’s Office (e.g., financial expenditure on payroll or ongoing operational expenses), on the one hand, and financial records concerning legal proceedings in which the CSSO acted as solicitor for the State. It says that payments related to expenditure on legal cases are accounted for under “Subhead B – Fees to Counsel” in its Appropriation Accounts, whereas all expenditure of an administrative nature is accounted for under “Subhead A” on its financial management system.

The applicant is of the view that his request is only concerned with records which relate to general administration. He argues that the records sought have to do with the management of the CSSO, specifically, with “pay matters” and “accounts”. He states that a part and parcel of the management of the CSSO is ensuring the fulfilment of its mission, which is “to provide the highest standard of professional legal services to Government Departments and Offices, as economically and efficiently as possible”. He contends that the records unequivocally do not have to do with the core business of the CSSO, such as advising on legislation or litigation. On the other hand, the applicant emphasises that the litigation referred to in his request was unique and consisted of multiple proceedings, the main part of which was determined by the courts to be of “exceptional public importance”. The applicant also argues that it is clear from the letter and spirit of the FOI Act that it was not the intention of the Oireachtas to exclude from the jurisdiction of the FOI matters such as those covered by his FOI request.

Section 42 is contained in Part 5 of the Act, which is entitled “Restriction of Act”. Its intention is to exclude the records held by the relevant bodies from the ambit of the Act subject to certain exceptions. The Irish Supreme Court has indicated that such exceptions should be interpreted narrowly. It seems to me that the “pay matters” and “accounts” that form part of the general administration of the AG’s Office are those that relate to the general or routine management of the Office and its constituent offices, not the costs/expenses/fees incurred in connection with specific litigation. Such costs would be based on the particular circumstances arising in the relevant cases, including the complexity of the issues concerned, the amount of work involved, and the travel that may be required, as occurred in one set of proceedings, to appear before the CJEU in Luxembourg. Indeed, the applicant’s own description of the specified litigation supports the view that the associated costs would not be regarded as a matter of general administration or management. Moreover, any memoranda recommending the amounts of fees for payment, and related records, would be part of the core, substantive work of the AG’s Office as an advisory body. In the circumstances, I find that the records requested do not relate to general administration and that section 42(f) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CSSO 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.

Stephen Rafferty

Senior Investigator