Whether the Council was justified in refusing access to records held by the Chief Executive on the basis of sections 15(1)(d), 29(1), 31(1), 35(1) and 37(1) of the FOI Act 

10 November 2022

Background

In a request dated 1 February 2022, the applicant sought access to records held by the Council-�s Chief Executive referring or relating to the publication of a report by the Standards in Public Office Commission (SIPO) following an ethics hearing relating to advertising and a named radio station. The request covered the period from 1 January 2022 to the date of the request and the applicant specified that searches of -�any mobile phones, relevant private email addresses and/or messaging services-� should be considered. On 8 February 2022, the applicant clarified with the Council that -�records held-� in this instance referred to emails, correspondence and text messages. On 23 February 2022, the Council informed the applicant that it would be applying an extension to the processing of the request.

In a decision dated 22 March 2022, the Council part-granted the applicant-�s request. Certain records were redacted or refused in their entirety under sections 15(1)(d), 29(1), 31(1)(a), 35(1) and 37(1) of the FOI Act. On 23 March 2022, the applicant sought an internal review of the Council-�s decision. In a decision dated 12 April 2022, the Council varied its original decision and released a number of additional records or parts of records. It relied on the above sections to refuse access to the remaining records in whole and in part. On 5 May 2022, the applicant applied to this Office for a review of the Council-�s 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 applicant-�s comments in his application for review and to the submissions made by the Council in support of its decision.  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 Council when processing the request. Records with a -�T-� refer to text messages. Records with a -�W-� refer to Whatsapp messages. The other records are emails or attachments, with attachments including the letters -�A-� or -�B-�.

Scope of Review

The Council has identified 217 records as coming within the scope of the FOI request. 43 records comprise emails and attachments (records 1-24B). 126 records are copies of text messages (1T-126T) while 48 records are copies of WhatsApp messages (1W-48W).

Records 1, 2, 5, 14, 15, 16, 18, 18A and 18B of the email records have been released in full. None of the text or WhatsApp records have been released in full.

14 of the email records have been released in part, while 20 have been withheld in their entirety. Five of the WhatsApp records have been withheld, while 43 have been released in part. 18 of the text records have been withheld, while 108 have been released in part.

Accordingly, this review is concerned with whether the Council was justified in refusing access, in whole or in part, to records 3, 4, 4A, 5A, 5B, 6, 6A, 7A, 7B, 8, 8A, 9, 9A, 10, 10A, 11, 12, 13, 13A, 14A, 15A, 16A, 17, 19, 19A, 19B, 20, 21, 21A, 22, 23, 24, 24A, 24B, 1T to 126T and 1W to 48W on the basis of sections 15(1)(d), 29(1), 31(1)(a), 35(1) and 37(1) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising in this case, it is important to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent the disclosure of information in an exempt record, under section 25(3). This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

It is also important to note that section 22(12)(b) of the Act provides that a decision to refuse a request is presumed not to have been justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy this Office that its decision to refuse access to the records at issue was justified.

Finally, 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. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to particular records in the FOI body-�s decisions on the request.

Analysis and Findings

Given the mandatory nature of the exemptions, I propose dealing with sections 37(1) and 31(1) of the FOI Act at the outset.

Section 37(1) -� personal information

Section 37(1) of the FOI Act 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 third party personal information. 

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. This includes, at subsection (xiv), the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). In a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, does not fall within the definition of personal information (Paragraph II refers).

Records to which the Council has applied section 37(1)

The Council has applied section 37(1) to 164 records. 13 of these records comprise emails or attachments and the remaining 151 records comprise copies of text or Whatsapp messages. All have been refused in part. The Council-�s position is that the information withheld comprises names, email addresses or information about identifiable individuals and is personal information as per the definition at section 2 of the FOI Act.

In his submission to the Office, the applicant queried whether the information withheld relates to staff members of a public body, elected representatives or service providers to the Council. This Office sought submissions from the Council on that matter. The Council said that none of the individuals referenced in the records are service providers. It said 18 records relate to members of staff of an FOI body but that the remaining 156 records do not. Having reviewed the content of the records, I am satisfied that the information withheld from these 156 records comprises personal information relating to individuals who are not captured by the exclusions to the definition of personal information.

In respect of the 18 records containing information relating to members of staff of an FOI body, the Council-�s position is that such individuals were acting in a personal capacity in the course of correspondence and were not engaged in the performance of their functions.

The exclusion to the definition of personal information at section 2(I), referenced above, does not provide for the exclusion of all information relating to such directors, staff or office holders. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out his or her official functions. The exclusion to the definition of personal information at (I) does not deprive staff members or directors of, or office/position holders in, FOI bodies of the right to privacy generally. It is not the case that names of staff members must always be released; this is dependent on the nature and context of the record and the information.

Having carefully reviewed the 18 records at issue, I accept the Council-�s position that staff communicating through the relevant channels were doing so in a personal capacity rather than in the performance of their functions as staff of a public body and that the records are personal communications. I do not accept that releasing the names of staff members who sent personal communications unrelated to their functions is a requirement of the exclusion at section 2(I). I am satisfied that the release of the withheld information would involve the disclosure of personal information relating to the individuals concerned and that section 37(1) therefore applies.

Additional records

The Council has applied sections 29(1), 31(1)(a) and 35(1)(a) to the majority of the remaining records. However, having reviewed the content of the records, I am satisfied that a number contain personal information as defined in the FOI Act. This includes personal information as defined in subsection (xiv) of section 2(1); the views or opinions of another person about the individual.

The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

I am satisfied that the following comprises personal information, having regard to section 18 of the FOI Act.

Record 5A -� the document in full

Record 6A -� the document in full

Record 7A -� the contact details of third party legal service providers

Record 8A - the contact details of third party legal service providers

Record 14A -� the final paragraph of section 3.0 (page 6), the second paragraph of section 5.0 (page 8), sections 3.3, 5.0 (numbering duplication), 5.1, 5.2, 6.0, 7.0 (pages 11-19 in full)

Record 15A -� the document in full

Record 16A -� the final paragraph of section 3.0 (page 6), the second paragraph of section 5.0 (page 8), sections 3.3, 5.0 (numbering duplication), 5.1, 5.2, 6.0, 7.0 (pages 11-19 in full)

Record 21 -� the email addresses of external third parties

I am also satisfied that section 37(1) applies to 23 records comprising copies of text and Whatsapp messages. While the Council has applied section 35(1) to these records, having reviewed the contents, I am satisfied that they contain information the release of which would disclose personal information about third-party individuals. In relation to these records, the Council says that the Chief Executive has only one phone which is used for both work-related and personal communications. It says it believes -�that people who sent texts or Whatsapp messages considered them to [have been sent] on a personal basis-� and also that -�if it were formal communication, they would have used emails-�. The Council says it carefully considered the records and released those which are -�work-related-�. It referenced a previous decision of the Commissioner in respect of section 37 and the finding that the exclusion to the definition of personal information as it relates to staff of FOI bodies does not deprive those individuals of the right to privacy generally.

Having reviewed the 23 records in question, I am satisfied that they are personal communications containing personal information including the views or opinions of another person about the individual. In line with my earlier analysis in respect of other text and Whatsapp records, I find that section 37(1) applies to the following records: 7W, 8W, 9W, 14W, 15W, 16T, 17T, 40T, 44T, 45T, 46T, 47T, 48T, 49T, 54T, 55T, 111T, 112T, 113T, 114T, 124T, 125T, and 126T. 

In sum, I find that section 37(1) applies to the information withheld from the 164 records identified by the Council. I find that section 37(1) also applies to the additional records listed above in whole or in part. These findings are subject to the consideration of sections 37(2) and (5), however.

Sections 37(2) and 37(5)

Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a true public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 5 (The eNet case). In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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 its submissions in respect of the public interest consideration, the Council cited a public interest in protecting the right to privacy of staff members in relation to their personal circumstances as well as a public interest in members of staff being able to communicate in confidence with their friends without fear that such records would be made public. It says that it balanced these considerations against the public interest in openness and transparency.

In a separate submission received by this Office, the Chief Executive of the Council referenced the eNet case and argued that mandatory exemptions -�should only be set aside in the public interest when there is an exceptional reason to do so-�. He says that there is no such reason and that the public interest has been served by the manner in which the Council has dealt with this and previous FOI requests. 

Having reviewed the records in question, it seems to me that by releasing certain details from the records, the Council has sought to strike a balance by releasing as much information as it could whilst seeking to protect the privacy rights of the individuals concerned. Having regard to the nature of the remaining information at issue, and in keeping with the findings of the Supreme Court in the eNet case, I am aware of no public interest factors in favour of the release of the withheld record and parts of records that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Council was justified in applying section 37(1) of the FOI Act to the 164 records referenced in the schedules submitted to this Office. I find that section 37(1) also applies to records 5A, 6A, 7A, 8A, 14A, 15A, 16A and 21, in full or in part, and records 7W, 8W, 9W, 14W, 15W, 16T, 17T, 40T, 44T, 45T, 46T, 47T, 48T, 49T, 54T, 55T, 111T, 112T, 113T, 114T, 124T, 125T, and 126T in full.

As I have found that section 37(1) applies to the 23 records which the Council applied section 35(1) to, I do not need to consider that section of the FOI Act.

Section 31(1)(a) -� legal professional privilege

Section 31(1)(a) 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. Legal professional privilege 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).

In the decision-making records, the Council applied section 31(1)(a) to nine records (4A, 7A, 8A, 9A, 10A, 13A, 19A, 19B, and 20), all comprising email correspondence or attachments to same. Its position is that the records contain requests for legal advice and responses and it has clarified the identity of the legal advisor. I would note that limited submissions were received from the Council in respect of the specific application of the exemption though it has indicated that it is relying on the first limb of legal privilege, advice privilege, in respect of the records. It said it was seeking legal advice on the wording of various communications.

In its submissions to this Office, the Council sought to apply section 31(1)(a) to a further 23 records, all of which are emails or attachments to same. A number of these emails are between staff of the Council or indeed appear to comprise emails whereby attachments are being sent by an individual to their own email address. Very limited information has been provided by the Council in respect of the application of this exemption to the additional records. It said -�this exemption also covers the -�continuum of communication-� and we have exempted other records under deliberation which were based on the legal advice requested-�.

The applicant did not make substantive submissions in respect of the application of the exemption but he queried whether the Council was justified in applying same to attachments. In respect of the attachments, the Council-�s position is that it was seeking legal advice in respect of same.

The concept of -�once privileged always privileged-� applies to advice privilege, and therefore, unless otherwise lost or waived, lasts indefinitely. This Office also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Section 31(1)(a) does not require a consideration of the public interest.

Having carefully examined the records in question, I am satisfied that records 4A, 9A, 10A, 13A, 19A, 19B and 20 comprise confidential communications between the Council and its professional legal advisors for the purpose of obtaining and giving legal advice and/or form part of a continuum of correspondence resulting from the original request for advice.

All seven records comprise attachments in respect of which the Council said it was seeking legal advice. Generally speaking, a document is not considered privileged under the first limb of LPP unless it is brought into existence for the purpose of seeking or giving legal advice. However, this is a complex area. In the current case, I have considered that the attachments shared are the subject of the legal advice sought; it is the content of these documents in respect of which the Council is seeking and receiving advice. I am satisfied that the documents form part of a continuum of correspondence resulting from the original request for advice.

I am not satisfied that the exemption applies to records 7A and 8A. Both comprise copies of the same document; a letter from the Council-�s solicitors. However, record 7A is an attachment to an email between the Council-�s Chief Executive and a named Wexford County Councillor who was acting as chair in respect of a particular meeting. As stated above, one of the factors necessary to establish that legal professional privilege arises is that the communication concerned is confidential. Where the communication ceases to be confidential, waiver of privilege may result. The email attaching the relevant record says that the correspondence will form part of the Chief Executive-�s statement to the elected members of Wexford County Council. This email was released to the applicant in full. It appears that the action of sharing the record was deliberate and did not arise from a mistake or misunderstanding. Furthermore, it appears that no attempt has been made to put limits on the use of the record. Accordingly, I am satisfied that the communication has ceased to be confidential and that the exemption at section 31(1)(a) therefore does not apply. Similarly, record 8A comprises a copy of the same document and I am satisfied that section 31(1)(a) does not apply on the same basis.

In addition, I am not satisfied that section 31(1)(a) applies to the further 23 records which the Council identified in its submissions to this Office. Very limited submissions have been received from the Council in respect of this position. I am not satisfied that the records in question form part of a continuum of correspondence arising from an initial request for legal advice. While some of the records comprise cover emails between the Council and legal representatives, these have already been part-granted on the basis of section 37(1) and the withheld information has been considered accordingly. None of the records refer to legal advice received, nor is it evident that such advice is contained in the records.

Accordingly, I find that section 31(1)(a) applies to records 4A, 9A, 10A, 13A, 19A, 19B and 20 and that the Council was justified in refusing access to the records on that basis. I find that section 31(1)(a) does not apply to records 4, 5, 5A, 5B, 6, 6A, 7, 7A, 7B, 8, 8A, 9, 10, 13, 14, 14A, 15, 15A, 16, 16A 19, 21, 21A, 22 and 23.

Section 15(1)(d) -� information in the public domain

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request where the information is already in the public domain. The Council refused accessed to records 24A and 24B on the basis of section 15(1)(d). The applicant did not raise this matter in his application in respect of this case.

Having reviewed the records, I am satisfied that the records in question comprise procedures and reports of SIPO which are published on its website. I therefore find that the Council was justified in refusing access to this information under section 15(1)(d).

Section 29(1) -� deliberations of public bodies

Section 29(1) provides that a request may be refused if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office that both requirements have been met.

The first requirement that must be met in order for section 29(1) to apply is that the record must contain matters relating to the -�deliberative processes-� of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in the particular records which relates to these processes.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The Council applied section 29(1) to 13 records; 11 email records or attachments and two text messages. All have been refused in full. The majority of the records comprise drafts of documents. Four records comprise drafts of a particular submission, the final version of which was released to the applicant, as confirmed by the Council. The Council says that the deliberative process involved -�the weighing up and evaluation of competing options of the course of action to be taken-�. It says that the drafts contain factual inaccuracies, thought processes and considerations before the final version is agreed.

The applicant-�s position is that section 29(1) was not intended to cover the type of process described in the records. In his application to this Office he referenced a previous decision of the Commissioner in support of this position; case numberOIC-111828. In that case, the records comprised emails relating to the precise wording of a response by the FOI Body. The Commissioner found that the records did not contain matter relating to a deliberative process.  

As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by providing the following description, having reviewed the records in question. The draft documents do not vary considerably in respect of content; in respect of some drafts, minor wording changes are made. In respect of some, formatting changes have been made. In a small number of records, sections have been amended and/or removed.  

Having considered the matter and having examined the content of the records, I do not accept that they contain matter relating to a deliberative process as envisaged by section 29. It seems to me that the Council had a particular position in respect of the subject matter of the records and had taken the decision to draft the relevant documents. The drafts reflect amendments to the wording and formatting of same, rather than the substance or position expressed. As such, I find that the first requirement of section 29(1) has not been met.

For the avoidance of doubt, even if I was satisfied that the records related to a deliberative process, I do not accept that their release would be contrary to the public interest. The Council has provided limited submissions in respect of this point. It said that -�the release of versions containing factual inaccuracies would be contrary to the public interest-�. It did not elaborate further on these factual inaccuracies or the impact of release.

As we have said many times before in our published decisions, this Office does not generally accept that the possibility that information once released will be misinterpreted by the public is a valid reason for refusing access to the information, nor is there any provision in the Act to exempt the release of information on the grounds that it is factually inaccurate. We hold this view as, apart from anything else, such an argument appears to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act. Even if I was satisfied that the records in question related to a deliberative process, the Council has not provided sufficient evidence to support its position that release would be contrary to the public interest.

Accordingly, I find that section 29(1) does not apply to records 5A, 5B, 6A, 7B, 14A, 15A, 16A, 19A, 19B, 21, 21A, 48T, 49T.

Summary of Findings

In summary, I find that the Council was not justified in refusing access to a number of records, or parts of records. I direct the release of the following records, subject to the redaction of personal information therein: records 5B, 7A, 7B, 8A, 14A, 16A, 21, and 21A.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision. I find that the Council was justified in refusing access to certain records on the basis of sections 15(1)(d), 31(1) and 37(1) of the FOI Act. I find that the Council was not justified in refusing access to other records on the basis of section 31(1) and that it was not justified in refusing access to certain records on the basis of section 29(1) of the FOI Act. I direct their release, subject to the redaction of personal information.

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