Whether the Council was justified in refusing access to records relating to the compulsory purchase of certain lands under sections 15(1)(a) and 32(1)(a)(iv) of the FOI Act

14 February 2022

Background

In a request dated 10 September 2020, the applicant who is a solicitor, sought access to all records relating to the compulsory purchase of his client’s land in order to facilitate a road development project. In a decision dated 13 November 2020, the Council granted access to 13 sets of records listed in schedule 1A and it refused access to seven sets of records listed in schedule 1B on the basis that they contain privileged information.

On 23 November 2020, the applicant sought an internal review of that decision. On 21 December 2020, the Council affirmed its original decision. On 13 April 2021, the applicant applied to this Office for a review of the Council’s decision. The applicant provided a submission in support of his application in which he said he accepts that correspondence between the Council and its Solicitors listed in schedule 1B is privileged, however he contended that the remaining records listed in schedule 1B should be released. He also contended that further records falling within the scope of his request ought to exist.

During the course of the review, I wrote to the head of the Council and outlined this Office’s view that the original and internal review decisions fell short of the requirement under the FOI Act to provide reasons for the refusal to release records. This letter required the Council to furnish the applicant, and this Office with a statement of reasons for its refusal pursuant to section 23 of the Act. This Office’s investigator also provided the Council with an opportunity to make focused submissions in support of its decision. The Council provided the applicant and this Office with a copy of its statement of reasons and with a copy of its focused submissions.

This Office requested certain clarifications in relation to the Council’s submissions. In reply, the Council said it had carried out a review of the refused records listed in schedule 1B and it had decided to release many of these records, with the redaction of information concerning landowners other than the applicant’s client. The Council provided the applicant and this Office with a revised schedule and copies of these records.

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 to submissions made by the Council. 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

I have examined the information redacted from the records released by the Council during this review and I am satisfied that it falls outside the scope of the applicant’s request. In its submission, the Council also stated that it no longer wished to rely on section 31(1)(a) of the FOI Act (legal professional privilege) in refusing access to the remaining records listed in schedule 1B. It contended however that these records, and three additional records located during the review, are exempt under section 32(1)(a)(iv) of the Act (prejudice to the fairness of criminal or civil proceedings). This Office provided the applicant with an update and an opportunity to comment in relation to the Council’s revised position.

In light of the applicant’s submission, I am excluding the correspondence between the Council and its Solicitors listed in schedule 1B (i.e. record 129.71) from the scope of this review. I am however including the additional records which were located by the Council in the scope of the review (these records are included in records 129.21, 129.22). The scope of this review is confined to the following two questions:

• Whether the Council was justified in refusing to release additional records falling within the scope of the applicant’s request under section 15(1)(a) of the FOI Act;
• Whether the Council was justified in refusing to release the remaining records listed in schedule 1B under section 32(1)(a)(iv) of the Act: (i.e. records 129-12, 129-13, 129-14, 129-15, 129-17, 129-18, 129-20, 129-21, 129-22, 129-40.)

Preliminary Matters

It is important to note that a review by this Office is de novo and so I must consider all of the reasons provided by the Council for refusing access to the records involved. While it would have been preferable for the Council to have provided those reasons to the applicant during the initial decision-making process, instead of in the piecemeal fashion employed here, the applicant has now been made aware of the exemptions that are at issue.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

Section 15(1)(a) Adequacy of Searches

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In his submissions to this Office, the applicant states that while the Council released certain correspondence in Schedule 1A with his client and a named equine advisor, he does not believe it provided all records of correspondence with them. The applicant also states that the Council did not provide any correspondence with certain named individuals including a quantity surveyor and a structural engineer and he believes that correspondence with these individuals exists.

During the review process, this Office requested the Council to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request made including those specifically mentioned by the applicant and to respond to detailed queries in relation to its record-management practices. The Council’s response to these queries was provided to the applicant and is set out in summary here. In its response, the Council says that it believes that all correspondence with the applicant’s client both before and after the date of the Compulsory Purchase Order (CPO) were provided. The Council states that the named equine advisor, quantity surveyor and structural engineer are all experts working on behalf of the applicant’s client. It states that it conducted a further search for records of correspondence with these individuals, however no further records were located.

The Council states that searches were undertaken in the National Road Project Office in Sligo, on its IT server and of the relevant CPO file. It states that searches were conducted manually of paper files and by computer using the relevant CPO group number, the landowners name or the names of the advisors or experts employed by the Council or employed by the landowner in this matter. The Council states that it is most unlikely that there would be any records coming within the terms of the request located elsewhere.

The Council states that all relevant individuals were consulted and their records searched. It states that the Senior Staff Officer and the Senior Executive Engineer provided hard and soft copy records in relation to this matter. The Council states that during the course of the review, its Senior Executive Engineer conducted a further examination of the records and noticed that three documents, which were attachments to emails, were inadvertently omitted from the information provided to this Office. The Council provided this Office with copies of these attachments and they are listed on the schedule provided to the applicant under records 129-21 and 129-22.

Section 15(1)(a) does not require absolute certainty as to the existence or location of records as situations arise where records are lost, destroyed, or simply cannot be found. What is required is that the public body concerned takes all reasonable steps to locate relevant records. Public bodies are not required to search indefinitely for records in response to an FOI request.

I understand the applicant’s position that further records ought to exist. It is my view that the Council provided reasonable responses to these points. As set out above, the Council followed up the specific points raised by the applicant with the relevant personnel internally and provided answers to specific questions during this Office’s investigation, all of which were provided to the applicant.

Taking into account the search details provided by the Council, its responses to the applicant's points above, and to this Office's queries, I am satisfied that the Council has conducted reasonable searches to locate records relevant to the applicant’s request and I find accordingly.

Section 32(1)(a)(iv) fairness of court or other proceedings

Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or civil proceedings in a court or other tribunal.

It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.

Where a body wishes to rely on section 32(1)(a)(iv) to refuse access to records, it should be able to refer to proceedings that are either underway or that might reasonably be contemplated. The fact that proceedings are not actually in being does not necessarily mean that the exemption does not apply. If there is a real likelihood, as opposed to a remote possibility, of such proceedings coming into being, this may be sufficient. However, the fact that proceedings may be pending does not, of itself, mean that release of records could reasonably be expected to prejudice the fairness of those proceedings.

In its submissions to this Office, the Council states that a landowner whose lands is acquired by CPO has an entitlement to compensation. It states that the quantum of compensation (in default of agreement) is dealt with in accordance with the provisions of the Acquisition of Lands (Assessment of Compensation) Act 1919. It states that there is provision for the appointment of a property arbitrator who will determine the amount payable. The Council states that there is a parallel process for the assessment of compensation under the terms of an agreement made between the Irish Farmers Association (IFA) and Transport Infrastructure Ireland (TII). It states that the landowner has elected to bring his claim under the terms of this agreement.

The Council states that an assessor has been appointed and has directed appropriate disclosure for the purposes of the assessment against both parties and this is currently being dealt with. The Council states that the landowner may reject the award under the agreement and proceed to arbitration. It states that proceedings before the arbitrator normally follow the procedure of a civil action in court. It states that the parties will be legally represented, generally by counsel and witnesses will be examined under oath. The Council contends that there is a real likelihood of arbitration and the arbitration process constitutes a tribunal.

For the purposes of this case, I have considered the definition of a tribunal, as set out in Hogan and Morgan's book Administrative Law in Ireland, (p. 256) which provides that a tribunal is:

"a body, independent of the Government or any other entity but at the same time, not a court, which takes decisions affecting individual's rights, according to some fairly precise (and usually legal) guidelines by following a regular and fairly formal procedure".

Having regard to the above, I am satisfied that the arbitration process constitutes a ‘tribunal’ for the purposes of section 32(1)(a)(iv) of the Act. Given the background to this case and the complex nature of the matters at issue, I am also satisfied that proceedings before a property arbitrator are reasonably contemplated in this case.

However, that is not the end of the matter. As I have outlined above, for the exemption to apply, the Council must show how the release of the records at issue could reasonably be expected to prejudice or impair the fairness of those contemplated proceedings.

In its submissions, the Council states that the information which it seeks to withhold includes communications between its Officers and its professional advisors in respect of the many different aspects of the claim. It states that they represent evaluations and assessments of the claim made by the landowner and the development of its own position in terms of settlement proposals.

The Council states that in circumstances where one party to the proceedings is obliged to disclose material and the other is not, there is an obvious unfairness as between the parties. It contends that the disclosed material may be used by the landowner to reinforce his position in negotiations and may be relied on by his counsel in the cross examination of the Council’s witnesses. It contends that the arbitration process may be affected by an imbalance between the sides, and this may affect the award ultimately made. The Council states that release of the information at this stage could prejudice and impair its case in the arbitration proceedings. The Council states that the Assessor has directed appropriate disclosure for the purposes of the assessment against both parties and this is currently being dealt with. The Council says it accepts that the Assessor’s view of what is appropriate is not determinative of the position under the FOI Acts, but it submits that it is relevant to the issue of fairness. In the absence of a procedure for reciprocal disclosure of equivalent material, the Council contends that the imposition of an obligation on one side is an unfairness.

As I have outlined above, when relying on section 32(1)(a)(iv) to refuse access to a record, the body should show how or why releasing the record could reasonably be expected to harm the fairness of the proceedings, i.e. what it is about the particular record or the particular information in the record which, if released, is expected to cause the harm envisaged and how or why is that harm expected to occur.

The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of proceedings. There are many instances where the release of information could prejudice or impair the fairness of such proceedings. For example, if the disclosure of information could result in the manufacture or destruction of evidence, prejudicial pre trail publicity or interference with potential witnesses then clearly the fairness of the court proceedings would be prejudiced or impaired. Furthermore, this Office has previously accepted that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings.

I note the Council’s argument that it does not wish to provide the applicant with details of its own position in terms of settlement proposals or information that may be used by the applicant’s client to reinforce his position in negotiations in advance of likely arbitration proceedings.

The making available by a public body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing. The mere fact that disclosure of certain information might weaken the prosecution or strengthen the defence is irrelevant as such disclosure would not, of itself, damage the fairness of the proceedings. Furthermore, the fact that release of the records by the body may provide the applicant with information in a situation where there is not a corresponding requirement on the applicant to provide the body with similar information, does not necessarily prejudice or impair the fairness of the proceedings. The lack of reciprocity alone does not mean that the fairness of the proceedings will be prejudiced or impaired. It is also important to note that while the release of records may have implications for the reaching of a settlement of proceedings, this would be a separate matter to the issue of the fairness of the proceedings.

Nevertheless, I accept that the release of material relating to the proposed conduct of a case is likely to prejudice the fairness of future proceedings. In so doing, I believe it is correct to draw a distinction between records which are in the nature of a submission which has been prepared with a view to being seen by other parties and records which relate to the preparation by the body for its conduct of a case or its legal strategy.

I have carefully examined the records at issue in this particular case. While I am limited in the description that I can give by virtue section 25(3) of the FOI Act, I can say that the records contain emails between various Council officials and professional advisors employed by the Council with attached reports provided by these advisors. I am satisfied that a number of these emails contain information that could be described as legal strategy or details of how the Council proposes to conduct its case. I am satisfied that section 32(1)(a)(iv) applies to the following information:

• Record 121.12: email of 02/07/19 F.S. to B.S. at 15.21,
• Record 121.13: email of 25/7/19 B.S. to E.C. at 11.56, email of 02/07/19 B.S. to E.C. at 15.22
• Record 121.14: email of 26/07/19 B.S. to F.S. at 16.25, email of 02/07/19 B.S. to E.C. at 15.22
• Record 121.15: email of 23/09/19 F.S. to B.S. at 9.18, email 26/07/19 B.S. to F.S. at 16.26, email of 02/07/19 B.S. to E.C. at 15.22
• Record 121.40 email of 12/11/19 T.R. to F.S. at 11.34,

I am not satisfied, however, that the remaining emails or reports from various advisors contain legal strategy or details of how the Council proposes to conduct its case, nor is it clear to me how the disclosure of the remaining parts of the records could possibly give rise to the fairness of the proceedings being prejudiced or impaired. In the circumstances, I find that the exemption contained in section 32(1)(a)(iv) does not apply to the remainder of records 129-12, 129-13, 129-14, 129-15, 129-17, 129-18, 129-20, 129-21, 129-22, 129-40.

Section 32 (3) The Public Interest

If a record or part of a record falls to be refused under section 32(1), the FOI body must still consider the public interest test under section 32(3). The public interest test provided for in section 32(3) differs from the public interest balancing test that exists in other exemptions.

The public interest test in section 32 is limited to certain circumstances specified in section 32(3)(a)(i) or (a)(ii). If any of those circumstances exist and the FOI body considers that the public interest would, on balance, be better served by granting the request, then the exemption at section 32(1) does not apply.

There is nothing before me to indicate that section 32(3)(a) or (b) applies to the information which I have found to be exempt under 32(1)(a)(iv) in this case. Accordingly, I find that section 32(3) does not disapply section 32(1)(a)(iv) in relation to the information concerned.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Council. I find that the Council was justified in refusing access to additional records having regard to section 15(1)(a) of the FOI Act. I find that the Council was justified in refusing access to the following information having regard to section 32(1)(a)(iv) of the FOI Act:

• Record 121.12: email of 02/07/19 F.S. to B.S. at 15.21,
• Record 121.13: email of 25/7/19 B.S. to E.C. at 11.56, email of 02/07/19 B.S. to E.C. at 15.22
• Record 121.14: email of 26/07/19 B.S. to F.S. at 16.25, email of 02/07/19 B.S. to E.C. at 15.22
• Record 121.15: email of 23/09/19 F.S. to B.S. at 9.18, email 26/07/19 B.S. to F.S. at 16.26, email of 02/07/19 B.S. to E.C. at 15.22
• Record 121.40 email of 12/11/19 T.R. to F.S. at 11.34,

I find that the Council was not justified in refusing access to the remaining information contained in records 129-12, 129-13, 129-14, 129-15, 129-17, 129-18, 129-20, 129-21, 129-22 and 129-40 under 32(1)(a)(iv) of the FOI Act and I direct the release of these records to the applicant.

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.

Deirdre McGoldrick
Senior Investigator