Whether the Council was justified in refusing access to housing and other records it holds relating to the applicant under sections 31(1)(a) and 37(1) of the FOI Act

19 February 2024

Background

In a request dated 21 April 2023, the applicant sought access to a copy of his housing file from the Housing Section of the Council, including documents, emails, diary entries, minutes, audio and video recordings, and any other information in the possession of the housing section. He also requested a list of all files, including their titles and date ranges, that pertain to or identify him, copies of all files identified in the list above and any related information such as emails, notes or documents that pertain to or identify him.

The Council issued separate decisions from its Law and Housing Departments. On 16 May 2023, the Law Department part granted the applicant's request. It located 70 records, it released 27 of these records and it refused access to the remaining 43 records under section 31(1)(a) of the FOI Act. The Housing Department issued decisions from three separate sections. On 17 May 2023, the Housing Welfare Section granted the applicant's request, it located 71 records and it released all of these records to the applicant. On 18 May 2023, the Housing Allocations Section part granted the request. It located 21 records, it released 18 records and part released 3 records under section 37(1) of the FOI Act. On 19 May 2023, the Housing Assistance Payments (HAP) Section part granted the request. It located 29 records, it released 18 records, it part released 6 records and it refused access to 5 records under section 37(1) of the FOI Act.

The applicant sought an internal review of the Council's decision. The Council failed to issue its internal review decision within the statutory time period. This Office instructed the Council to provide the applicant with its effective position on his request.  On 8 September 2023, the Council's Housing Department issued a single decision which affirmed the original decisions issued by its Welfare, Allocations and HAP Sections. On 14 September 2023, the Council's Law Department varied its original decision and released one additional record (record 36) to the applicant. On 14 September 2023, the applicant applied to this Office for a review of the Council's decision.

During the course of review, the Council re-examined the records at issue and it decided to release further records to the applicant. The Council released Law Department records 4, 18, 20, 21, 22, 23, 25, 26, 29, 33, 47, 52, 58, 60, 62, 67, 69 and 70. It also part released Law Department records 24 and 65 with the redaction of a small amount of information under section 37 of the Act. Finally, the Council agreed to release HAP records 1, 23 and 29.

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 to date. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Following the Council's decision to release additional records to the applicant, the scope of this review is confined to:

• Whether the Council was justified in refusing access in full to Law Department records: 1, 2, 7, 8, 10, 11, 12, 13, 14, 15, 16, 19, 27, 31, 32, 35, 37, 39, 40, 44, 54, 56 under section 31(1)(a) of the Act;
• Whether the Council was justified in refusing access in part to Law Department records 24 and 65 under section 37(1) of the Act;
• Whether the Council was justified in refusing access in part to Housing Allocations records: 15, 16, 21 under section 37(1) of the Act;
• Whether the Council was justified in refusing access in part HAP records 8, 11, 28 and in full to HAP Records 10, 14, 18, 19, 20 under section 37(1) of the Act.

Preliminary Matters                                                                       

Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Secondly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.  

Analysis and Findings

The Council refused access in full to Law Department records 1, 2, 7, 8, 10, 11, 12, 13, 14, 15, 16, 19, 27, 31, 32, 35, 37, 39, 40, 44, 54 and 56 under section 31(1)(a) of the FOI Act. Section 31(1)(a) provides for the mandatory refusal of a request if 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:

(a) 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

(b) 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).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) of the FOI Act where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. In this regard, I note the following comments of Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R.., 246, CA.] -¦[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings-¦ There will be a continuum of communications and meetings between the solicitor and client-¦Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

It is also important to note that the concept of "once privileged always privileged" applies only to claims of privilege based on legal advice privilege, and not to litigation privilege. Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied. Nevertheless, communications between a client and his/her professional adviser in the course of, or in anticipation of, litigation may also benefit from legal advice privilege. In such circumstances, the concept of "once privileged always privileged" applies.

The Council states that the applicant has taken a case against it to the Workplace Relations Commission (WRC).  It states that the records refused on the basis of section 31(1)(a) include emails to the Council's legal advisers and form part of a continuum of correspondence. It states that other records disclose legal advice sought or received e.g. in memo's updating staff of actions to be taken on foot of that advice. The Council contends that these records qualify for legal advice privilege as they disclose confidential legal advice sought and received from the Council's legal adviser. The Council also contends that the records include documents that qualify for litigation privilege as they were prepared with the dominant purpose of preparation for the ongoing WRC case between the parties.

I have examined the records carefully. Records 2, 7, 8, 11, 19, 27, 37, 39, 40 and 44, contain communications between the Council's housing or social work departments and the Council's in-house legal advisers seeking advice on how to reply to various issues. A number of these records contain advice from the legal adviser in the form of suggested replies. The records also include information passed to the Council's legal advisers by the relevant departments so that advice may be given. I am satisfied that these records contain requests for /or the provision of legal advice or form part of a continuum of communications for the purpose of obtaining and/or giving legal advice.

Litigation encompasses not only court proceedings but also proceedings before tribunals exercising quasi-judicial functions such as the WRC. Records 1, 10, 12, 13, 14, 15, 16, 31, 32, 35, 54 and 56 relate to the Council's preparation for the WRC proceedings.  The records include notes, prepared by the Council's legal advisers, of meetings with colleagues to discuss the Council's approach in relation to the case. The records also contain the gathering of information by the legal advisers from colleagues in the housing department in order to formulate a reply for the WRC case. I am satisfied that these records contain communications between the Council and its legal advisers and the dominant purpose of these communications is the preparation for contemplated or pending litigation.

In conclusion, therefore, I find that the Council was justified in refusing access to the records described above under section 31(1)(a) of the FOI Act on the grounds that they would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Section 37(1)-" Personal Information

The Council refused access in full or in part the following records under section 37(1) of the FOI Act:

• Law Department records: 24, 65 (in part);
• Housing Allocations records: 15, 16, 21 (in part);
• HAP records 8, 11, 28 (in part) and HAP records 10, 14, 18, 19, 20 (in full).

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the 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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to; (ii) information relating to the financial affairs of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, (xiii) information relating to property of the individual (including the nature of the individual's title to any property)

The Council states that it relied on section 37(1) of the Act in redacting the name of a staff member from Law Department record 24 and in redacting medical information relating to a staff member from Law Department record 65. It states that the information withheld or redacted under section 37(1) of the Act from the remaining Housing Allocations and HAP records contains the personal information of three private individuals.

As the Council has relied on section 37(1) of the Act in refusing access to information in relation to identifiable individuals in their capacities as staff members of an FOI body, section 2(I) of the FOI Act is relevant. This paragraph excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body 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.

The exclusion at section 2(I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive public servants of the right to privacy generally.

The Council states that Law Department record 24 contains the name of a member of staff and it redacted this name from the record to ensure future communications remain through the agreed channels. The fact that Council wishes to ensure that communications with the applicant remain through agreed channels is not a valid basis for redacting the identity of a staff member under section 37(1) of the Act. I am satisfied that the exclusion to the definition of "personal information" in section 2(I) applies to this information and it is not exempt under section 37(1) of the Act.  I am satisfied that record 65 contains information relating to the medical status of a staff member of an FOI body and the exclusion to the definition of "personal information" in section 2(I) does not apply to this information and this information is exempt under section 37(1) of the Act.

I am satisfied that Housing Allocations records 15, 16, 21 and HAP records 8, 10, 11, 14, 18, 19, 20 and 28 contain the personal information of private individual's. This information includes names, addresses, financial information, details of an individual's ownership of property and an individual's tax return details. I am satisfied that the release of these records would involve the disclosure of personal information relating to individual's other than the applicant and that section 37(1) applies. As I have found that the information withheld from these records is exempt under section 37(1) of the Act, I am required to consider sections 37(2) and 37(5) in relation to them.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the records does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)

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. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as true public interest factors in favour of release of the records, for example where matters raised in relation to the request may also be regarded as matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, which do not apply in this case, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 ("the Enet case"). In that 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.

On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

In its submissions to this Office, the Council stated that factors that were considered in favour of release include:

• Ensuring openness and transparency of organisational functions to the greatest possible extent;
• The public interest in members of the public exercising their rights under the FOI;
• That there is more than just a transitory interest by the public in this information.

It stated that factors that were considered against the release of the record include:

• Allowing a public body to hold personal information without undue access by members of the public;
• That there is a reasonable and implied expectation that personal information provided to the Council will remain confidential;
• That there is no overriding public interest that outweighs the individual's right to privacy.

The Council concluded that the public interest in preserving the confidentiality of the personal information outweighs the public interest which would be served by the release of the records.

I accept that there is a public interest in enhancing transparency concerning the manner in which the Council carries out its housing functions. I note, however, that the Council has released all of the housing social work department records and most of the records held by the housing allocations and HAP sections. It has also released the residential tenancy agreement with the redaction of a small amount of third party personal information. This, in my view, goes a long way towards serving the public interest in transparency and accountability in relation to how the Council carries out its housing function.

Having carefully considered the withheld information, it is not apparent to me how release of the information at issue, which concerns names, addresses, PPS numbers and tax information etc.  of private individuals would enhance transparency concerning the manner in which the Council carries out its housing functions. As mentioned above, the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.  I am not satisfied that any public interest in releasing the information at issue outweighs the right to privacy of the individuals concerned. I find therefore, that section 37(5)(a) does not apply. Consequently, I find that the Council was justified in refusing access to the withheld information under section 37(1) of the FOI Act.

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 Law Department records 1, 2, 7, 8, 10, 11, 12, 13, 14, 15, 16, 19, 27, 31, 32, 35, 37, 39, 40, 44, 54 and 56 under section 31(1)(a) of the FOI Act. I find that the Council was justified in refusing access in full or in part to Law Department record 65, Housing Allocations records 15, 16, 21 and HAP records 1, 8, 10, 11, 14, 18, 19, 20 and 28 under section 37(1) of the Act. I find that the Council was not justified in refusing access to information in Law Department record 24 under section 37(1) and I direct release of this record 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.

Jim Stokes
Investigator