Whether the Council was justified in refusing access, under sections 29(1), 30(1)(a), 30(1)(b), 32(1)(a) and 37(1) of the FOI Act, to letters from a named property management company to Dublin Fire Brigade in relation to fire safety issues at a residential complex

19 April 2022

Background

The applicant in this case is an owner of an apartment in a named apartment complex and a member of the related management company. On 4 June 2021, he sought access to a copy of a letter from the property management company to Dublin Fire Brigade relating to fire issues at the complex.  In a decision dated 1 July 2021, the Council refused access to two letters it identified as coming within the scope of the request, under sections 29(1), 30(1)(a), 30(1)(b), 32(1)(a) and 37(1) of the FOI Act.  On 19 July 2021 the applicant sought an internal review of that decision, following which the Council affirmed its refusal of the request. 

On 18 August 2021, the applicant applied to this Office for a review of the Council's decision. During the course of the review, submissions were sought from the applicant the Council, and the estate management company (the company) that provides estate management services for the relevant management company. 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 Council and the applicant on the matter and to the submissions made to this Office. 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.

Scope of Review

The scope of the review is concerned solely with whether Dublin City Council was justified in refusing access to the two records at issue under sections 29(1), 30(1)(a), 30(1)(b), 32(1)(a) and 37(1) of the FOI Act.

Analysis and Findings

During the course of the review, the Council indicated that it was prepared to release the majority of the two records at issue, with the exception of personal information contained in the records. However, it further indicated that it understood that the company would not support the release of the records to the public at large as it considered the information contained in the records to be private to the management company and its members. The Council added that it understood that there was ongoing litigation between a member of the management company and the insurers for the management company and that the records at issue may have been requested in relation to that litigation.  Finally, the Council stated that it understood that the company had been asked by the solicitors acting for the insurers not to share any documents with plaintiffs in litigation which was currently underway.       

It is important to note that the management company does not have a right of veto over the release of records whose release may affect its interests. The records are held by the Council and while it is not unreasonable that the Council may wish to determine the views of an affected party on the possible release of the records, it is a matter for the Council itself to decide whether the records should be released on foot of an FOI request or whether they are exempt from release.

As I have outlined above, the Investigating Officer invited the company to make a submission on the question of the release of the records. In response, the company said it did not know who had made the request and it forwarded an email it had provided to the Council on the matter. In that email, the company said it would not be supportive of the release of the documents to members of the general public as they consider the information contained within the documents as private to the management company and its members. It added that if the request was made by a member of the management company, it would note that there is ongoing litigation between a member of the management company and the insurers for the management company and that the documents may have been requested in relation to that litigation.  It said it was asked by the Solicitors acting for the Insurers in these legal cases not to share any documents with the Plaintiffs in light of the current litigation.

The fact that there may be ongoing litigation between a member of the management company and the insurers for the management company does not, of itself, provide a valid basis for refusing access to the records at issue. However, it does raise the question of whether section 31 of the Act might apply to the records. A review by this Office is considered to be "de novo", which means that it is based on the circumstances and the law as they pertain at the time of the decision. Section 31 of the Act provides for the mandatory refusal of certain records relating to court proceedings. Accordingly, in light of the "de novo" nature of our reviews and in light of the concerns expressed by the company, I consider it appropriate to examine the applicability of section 31(1) to the records, notwithstanding the fact that the provision was not relied upon by the Council as a ground for withholding them.

Section 31(1)(a) of the Act provides for the mandatory refusal of a request if the record concerned 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).

Having examined the relevant records, I am satisfied that neither advice privilege nor litigation privilege applies to either record. They comprise letters from the company to the Council. They do not comprise communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, nor can it be said that the dominant purpose of the communications is the preparation for contemplated/pending litigation. I am satisfied that section 31(1)(a) does not apply to either record.

Section 31(1)(b) of the FOI Act provides that a head shall refuse to grant a request if the record concerned is such that the head knows or ought reasonably to have known that its 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.

This Office considers that the release of records under FOI is precluded in circumstances where an order for discovery may subsequently be made in relation to those records.  Rather, the relevant question is whether such records were the subject of an order for discovery and thereby would amount to a contempt of court. The company has not argued that the records at issue in this case have been the subject of an order for discovery and I have no evidence that any undertaking in respect of these records has been given to a court. I am therefore satisfied that section 31(1)(b) does not apply to the records at issue. 

Section 37

As outlined above, the Council has indicated that it is prepared to release the records at issue, subject to the redaction of certain personal information. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.

Having examined the records, it seems to me that the only information in the records that can reasonably be described as personal information for the purposes of the Act is the name and signature of the individuals who sent the letters to the Council on behalf of the company. I am satisfied that section 37(1) applies to that information.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act 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 would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right to privacy of the individuals to whom the information relates.

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 v The Information Commissioner & Ors[2020] IESC 57, 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". While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, 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.

Having carefully considered the matter, I find that there is no public interest factor in favour of the release of the information that, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Dublin City Council was justified in refusing access, under section 37(1) of the Act, to the names and signatures of the individuals who sent the letters to the Council on behalf of the company.

For the sake of completeness, I should add that I am satisfied that it is not necessary to consider whether any of the other exemptions originally cited by the Council in support of its refusal of the request apply to the remainder of the records, in circumstances where it subsequently informed this Office that it was willing to release them.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council to refuse access to the two records at issue and I direct their release subject to the redaction the names and signatures of the authors of the letters, which I find to be exempt under section 37(1).

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