Whether the Department was justified in refusing access, under various provisions of the FOI Act, to records relating to its decision not to appoint the applicant to a particular role
13 April 2022
Background
The applicant in this case applied for a particular role within the Department. While he was offered and accepted the position, the Department ultimately decided not to proceed with his appointment. On 4 June 2021, he sought access to all records the Department held relating to him on the matter.
On 28 July 2021, the Department part-granted the applicant's request, releasing some records and refusing access to a number of other records, either in whole or in part, under sections 31, 35, 36 and 37 of the FOI Act. On 29 July 2021, the applicant sought an internal review of the Department's decision. He also argued that additional relevant records should have been considered for release.
On 13 August 2021, the Department varied its original decision, part-releasing two additional records and identifying 10 more records as falling within the scope of the request, to which it refused access under section 31 (making a total of 86 records identified by the Department as falling within the scope of the applicant's request). On 16 August 2021, the applicant sought a review by this Office of the Department's decision. He maintained that the Department had not considered all relevant records for release.
During the course of the review, the Investigator considered that the release of one record (see below) that the Department withheld under sections 35(1)(a) and 36(1)(b) had the potential to affect the interests of a third party organisation. Accordingly, he invited the organisation to make a submission on the matter of the release of the record. A submission was duly received.
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 correspondence between the applicant and the Department as set out above and to the communications between this Office and the applicant, the Department, and the relevant third party organisation on the matter. I have also had regard to the contents of the records at issue.
I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedules of records it prepared when processing the request.
Scope of the Review
While the Department redacted certain information from records 1, 2, and 8, it indicated in its schedule of records that the redacted information was not relevant to the applicant's request. While I agree that the information redacted from record 8 is not relevant as it has nothing to do with the applicant, I am satisfied that records 1 and 2 are relevant in their entirety. As such, while record 8 can be excluded from the scope of this review, records 1 and 2 fall within the scope of this review. I also note that record 29 is an exact copy of record 28 and record 71 is an exact copy of record 70. Accordingly, I have removed records 29 and 71 from the scope of the review.
Moreover, in relation to the additional records that the applicant argued ought to exist, I consider the Department's position to amount to an administrative refusal of any further relevant records under section 15(1)(a), and examine this aspect of the applicant's case below under this provision of the Act.
Accordingly, this review is concerned with
i. whether the Department was justified in refusing access, under various provisions of the Act, to records 10 to 15, 18, 19, 26, 28, 35 to 38, 40, 41, 54, 57, 58, 65, 67, and 69, 70, 72, and 77 to 86 and in redacting certain information from records 1 to 3, 6, 25, and 43, and
ii. whether the Department was justified in effectively refusing to grant access, under section 15(1)(a) of the Act, to any other relevant records on the ground that no further relevant records exist or can be found.
Analysis and Findings
While I am required by section 25(3) of the FOI Act to take all reasonable precautions during the course of a review to prevent the disclosure of exempt information, I think it would be useful to set out a brief background to the records at issue, the details of which I consider to be known to the applicant having regard to the records released by the Department to date.
As I have mentioned above, the applicant applied for a particular role within the Department. While he was initially offered and accepted the position, the Department received information relating to the applicant and his previous employment that caused it to reconsider its offer of employment. As a result of the information received, the Department sought and received legal advice in relation to issues arising concerning the applicant's proposed employment. In a letter dated 1 April 2021 (record 17), the Department informed the applicant that it had received information concerning the termination of his previous employment with a named company. It provided an outline of allegations made and it invited him to comment on the issues arising before making a final decision on whether to proceed with his employment. The applicant submitted a substantive response on 2 April 2021 (record 21) and again on 21 April 2021 (record 39).
In a further letter dated 23 April 2021 (record 45), the Department informed the applicant that representatives from the company spoke with one of its officials with regard to the reasons for his resignation. It requested the applicant to engage directly with the company on the matter. It also offered him a further opportunity to make submissions on the matter. The applicant responded on 29 April 2021 (record 47) and 5 May 2021 (record 49). On 3 June 2021, the Department informed the applicant that it would not be proceeding with his appointment (record 75)
Section 31(1)(a)
As many of the records have been withheld under section 31(1)(a) of the Act I consider it appropriate to examine the applicability of that exemption in the first instance. The Department relied upon section 31(1)(a) to refuse access to records 10 to 14, 18, 19, 26, 35 to 38, 40, 41, 54, 57, 58, 65, 67, 69, 70, 72, and 77 to 86, and to redact certain information from record 25. In its submissions to this Office, the Department said it had also refused access to record 29 in part under section 31(1)(a). As I have indicated above, I have excluded record 29 from the scope of the review as it is an exact copy of record 28. Accordingly, while the Department did not specifically cite section 31(1)(a) as a ground for refusing any part of record 28, I will consider whether the exemption applies given its arguments in respect of record 29.
Section 31(1)(a) provides for the mandatory refusal of a request where the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).
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 Department argued that litigation privilege attached to the redacted part of record 25 and to record 28 and that advice privilege attached to all of the remaining records to which access was refused under section 31(1)(a). I will deal with the claim of legal advice privilege first.
The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
During the course of the review, the Investigating Officer sought clarification from the Department as to the basis on which it argued that section 31(1)(a) applied to three specific records that, on their face, did not appear to attract LPP, namely records 18, 65, and 67. In response, the Department explained that record 18 was drafted by its legal adviser for the purposes of briefing the Minister for Transport. It explained that record 65 was a modified version of Record 18, brought up to date with the inclusion of certain additional information that had come to light since the original record was drafted and that record 67, a document entitled "Legal Briefing", was created by the Department's HR Section and provided to the Office of the Attorney General for the purposes of briefing legal counsel.
Having considered the nature and contents of the records at issue and the details of the Department's submissions, I find that section 31(1)(a) applies to records 10 to 14, 18, 19, 26, 35 to 38, 40, 41, 54, 57, 58, 65, 67, 69, 70, 72, and 77 to 86. I should add, for the sake of completeness, that a number of the records concerned were created by the Office of the Attorney General and as such, the Act does not apply to those records pursuant to section 42(f) of the Act. That section provides that the Act does not apply to a record created by the Attorney General or the Office of the Attorney General, other than a record relating to general administration.
Turning to the Department's claim that litigation privilege applies to the redacted part of record 25 and to record 28, as I have outlined above, litigation privilege attaches to 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. It should also be noted that for litigation privilege to apply, legal proceedings must be contemplated or pending.
As to whether litigation is contemplated, this Office takes the view that the mere possibility of proceedings is not sufficient, and that litigation can be said to be "contemplated" where there is a definite prospect, apprehension or threat of litigation and not a mere anticipation of it. In addition, in order for litigation privilege to apply, the records must have been created for the dominant purpose of contemplated or pending litigation. The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. in Silver Hill Duckling Limited v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516. Furthermore, in the judgement of the High Court in University College Cork -“ National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) (the UCC case), Finlay Geoghegan J. stated:
"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."
Moreover, in her judgment Finlay Geoghegan J stated that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action".
The Department has not argued that it is involved in any relevant litigation in this case. Rather, it argued that the release of the information at issue would have given sight to the applicant of the position taken by the Department and a third party in any possible future legal proceedings. It said the records were created where that litigation was reasonably anticipated or in contemplation, and that it was litigation to which the Department reasonably anticipated becoming a party.
Record 25 comprises a letter from the Department to the named company while record 28 comprises the company's response to that letter. It seems to me that a key issue to be considered is whether it can be reasonably argued that the dominant purpose of the communications was the preparation for contemplated/pending litigation. Having regard to the contents of the letters, I am of the view that it was not. It seems to me that the dominant purpose for the exchange of correspondence was to allow the Department to establish the company's position in respect of a particular matter.
As such, I consider that the Department has not discharged the onus upon it to prove on the balance of probabilities that the records were created for the dominant purpose of contemplated litigation. Accordingly, I find that section 31(1)(a) does not apply to the relevant part of record 25 or to record 28.
However, this is not the end of the matter as the Department has cited further exemptions in support of its refusal of record 28. Moreover, given the content of record 25, I am of the view that the potential applicability of section 35 of the Act must be considered, albeit that the Department itself did not cite this provision of the Act in its decision on the applicant's request or its submissions to this Office. I take this view in light of the fact that this review is do novo, in other words that it is based on the circumstances and the law as they pertain at the time of the review.
Section 35
The Department refused access to records 15 and 28 and to the redacted part of record 43. As I have indicated above, I consider that the applicability of section 35 to the redacted parts of record 25 must also be considered.
Record 15 comprises a note prepared by a staff member of the Department concerning information he received from the company (the applicant's previous employer) concerning the reasons for the applicant's resignation. Record 25 comprises a letter of 6 April 2021 from the Department to the company relating to that information. Record 28 comprises the company's response, while record 43 comprises a letter from the Department seeking further clarification of the matter.
Section 35 provides that, subject to the section, an FOI body shall refuse to grant an FOI request if -
(a) the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a staff member of an FOI body 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 its staff.
As records 15, 25 and 43 were prepared by staff members of the Department, I must first consider whether section 35(2) serves to disapply section 35(1). The question I must consider is whether the release of the records 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 its staff. It is well settled that a duty of confidence provided otherwise by law includes an equitable duty of confidence.
In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 IR 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called "the contours" of the equitable doctrine of confidence as follows:
"1. the information must in fact be confidential or secret: it must ... "have the necessary quality of confidence about it";
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence."
Having carefully examined the information at issue in this case, I am satisfied that its disclosure would involve the disclosure of confidential information that the company expected would be treated in confidence and that the release of such information would constitute an unauthorised release to the detriment of the company. I find, therefore, that section 35(2) does not serve to disapply section 3(1) in this case. Moreover, as I have found that the release of the information at issue in records 15, 25 and 43 would constitute a breach of a duty of confidence that is provided for otherwise by law and is owed to a person other than an FOI body or its staff, it follows, therefore, that section 35(1)(b) applies to that same information. For the same reasons, I am also satisfied that section 35(1)(b) applies to record 28.
Section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence and this Office may consider the public interest defence in the context of section 35(1)(b). We take the view that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, there is no basis for setting aside the requirements of section 35(1)(b) in this case.
Section 37(1)
The Department cited section 37(1) of the Act as the basis for redacting certain information from records 3 and 6. Given the nature of the information redacted, I will also consider the applicability of section 37(1) to the information redacted from records 1 and 2 that I have found to fall within the scope of the review.
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. Under section 37(1), such personal information cannot be released unless one or more of the other relevant provisions of section 37 apply.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at paragraph (iii) information relating to an individual's employment or employment history.
Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...".
Having examined the records at issue, I find that the information redacted from records 1 and 2, comprising the name and job title of a staff member of an FOI body, is not personal information for the purposes of the Act, having regard to the exclusion from the definition of personal information provided for in Paragraph (I) of section 2, as outlined above. I find that section 37(1) does not apply to those redactions. As no other exemption have been cited in support of the redaction of records 1 and 2, I find that they should be released in full.
On the other hand, I find that the information redacted from records 3 and 6 comprises personal information relating to individuals other than the applicant as it comprises information relating to the employment of those individuals. I find that section 37(1) applies.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. In particular, section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.
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 am satisfied that the release of the information at issue in this case would not be to the benefit of the individual to whom the information relates.
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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". 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.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court 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 case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
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. It is also important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.
Bearing in mind the foregoing, I can identify no pressing public interest in favour of releasing the information to which I have found section 37(1) to apply that would, on balance, outweigh the right to privacy of any individuals identified in the records. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Department was justified in redacting certain information from records 3 and 6 under section 37(1).
Additional Records Sought by the Applicant
As outlined above, the applicant stated that he was not satisfied that the records scheduled by the Department constituted all records that fell within the scope of his request. In particular, he stated that no record had been scheduled that indicated the reason(s) why the Department had written to him on the 1 April 2021. The applicant stated his belief that, by denying him access to full information in relation to the matter, he was being denied fair process and the opportunity to properly respond to accusations and defend his reputation. Previously, in his request to the Department for an internal review, the applicant had given a specific example of additional records that he believed ought to exist, namely earlier communications from certain parties in relation to the applicant that were referenced by the Department in record 42. The applicant claimed that these earlier communications should have been scheduled by the Department, even if it had then gone on to redact or refuse access to them.
This Office put the above to the Department for a response. In doing so, we also indicated to the Department our view that section 15(1)(a) of the Act may be applicable in relation to the additional records that the applicant believed should exist. Section 15(1)(a) provides for the administrative refusal of a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
In response, the Department stated in relation to the specific earlier communications referenced by the Department in record 42 that what was being referred to was a transcript of communications between a third party and a Department official, from which transcript record 15 had been created. The Department stated that record 15 outlined the transcript of the communication in question, and stated that after exhaustive searches it was satisfied that no other records existed regarding communications between third parties and the relevant Department official.
The Department went on to state, in relation to section 15(1)(a) of the Act, that searches for additional records had been conducted in emails, its HR Drive, file records relating to the case, and emails and records held by relevant Department staff and by a named agency which operates under the Department's aegis. The Department stated that it was satisfied that there were no other locations where relevant records could be found. It also stated that the relevant individuals had been contacted in relation to the location of records, and that it was satisfied that no additional records that had existed had been destroyed.
On foot of these searches, the Department indicated that it identified one additional document that should have been scheduled and considered for release in its initial response to the request. Specifically, it stated that the additional record was part 2 of a memo issued by the Department's legal adviser in relation to the matter and should have been included as a second document under record 14 in the schedule of records.
As outlined above, this record was refused under section 31(1)(a) of the Act, and the Department indicated that the additional document it had found was exempt from release under the same provision. On the basis of the above, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the records sought. I find that the information provided by the Department in relation to queries from this Office regarding section 15(1)(a) of the Act constitutes a clear and sufficiently detailed explanation of the relevant systems and processes that accounts for the non-existence of the additional records sought. As such, I find that this aspect of the applicant's appeal has been addressed satisfactorily by the Department. In relation to the additional record identified by the Department, having examined same I consider that it is exempt from release under section 31(1)(a) of the Act. My analysis above in respect of record 14 refers in this regard.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Department in this case. While I find that it was justified in its decision to refuse access to the vast majority of the records at issue, I find that it was not justified in redacting information from records 1 and 2 and I direct their release in full.
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 requester 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
