Decision
Mr. Z and Office of Public Works
From Office of the Information Commissioner (OIC)
Case number: OIC-144143-Z1V3R9
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and Irish Legal Information Institute
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URL: http://www.bailii.org/ie/cases/IEIC/2024/144143.html
Cite as: [2024] IEIC 144143
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Whether the OPW was justified, under section 42(f) of the FOI Act, in refusing access to a record relating to Castletown House
3 October 2024
On 25 August 2023, the applicant made a five-part FOI request for various specified records relating to Castletown House, a national heritage site in County Kildare managed by the OPW. He did not receive a decision on the request within the statutory four-week period and on 19 October 2023 sought an internal review of that effective refusal. As the OPW did not issue an internal review decision within the statutory three-week period, on 16 November 2023 the applicant applied to this Office for a review of the deemed refusal of his request. Following communications with this Office, on 21 November 2023 the OPW issued a decision part-granting the applicant's request. It identified 37 relevant records, releasing most of them in full but refusing to release thirteen records, in full or in part, citing sections 31, 36, 37 and 40 of the FOI Act. On 27 November 2023, the applicant confirmed that he was not satisfied with the OPW's effective position and that he wanted the decision to be reviewed by the Information Commissioner.
During the review, the OPW said that the applicant has made a similar request under the AIE Regulations which he had then appealed to the Office of the Commissioner for Environmental Information (case reference OCE-144138-L8X2M3). In the course of that appeal, the OPW said that it had released in full all the records refused under the FOI Act, apart from record 8, and the redaction of the name of an individual from record 12. While the OPW had originally refused record 8 under section 31(1)(a)(legal professional privilege), the OPW changed its position and said that it considered the record instead to be exempt under section 42(f). In light of these changed circumstances, I wrote to the applicant to update him on same and to confirm his position as regards this review. He said that he was satisfied with record 12 as released, however he wished the review to proceed on the decision to refuse record 8.
As record 8 was a letter sent by the legal representatives of a third party to the Chief State Solicitor's Office (CSSO), as legal representatives of the OPW, I made the decision to notify the legal representatives of the third party of this review and to give them an opportunity to make relevant submissions. I informed the OPW on 19 September 2024 of my intention to do this. It raised concerns that the record in question was a record held by the CSSO rather than an OPW record, and said that it intended to consult with the CSSO on this matter. No further comments or submissions have been made by the OPW in this regard. On 26 September 2024, I wrote to the legal representatives of the third party. On 2 October 2024, they provided a response, confirming that they had "no issue with the release of the letter referred to therein".
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 OPW and the applicant, and to the correspondence set out above. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
As noted, given that the record in question was a letter sent by a third party, I consulted with that third party and gave it an opportunity to raise any concerns it might have, such that another exemption would have to be considered e.g. in case it considered the record to contain commercially sensitive information, or information provided in confidence. The third party raised no such concerns. This review will therefore only consider whether the OPW was justified, under section 42(f) of the FOI Act, in refusing to release the record.
Section 42(f) provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General (AG) or the Director of Public Prosecutions (DPP) or either of their Offices. The Chief State Solicitor's Office (CSSO) is a constituent part of the Office of the Attorney General; thus, section 42(f) also applies to such a record held or created by the CSSO.
Record 8 is described on the schedule of records as "Legal letter from private landowner's solicitor". Having examined the record, I am satisfied that it concerns substantive matters being communicated from a third party to the OPW via the CSSO acting in its capacity as legal advisors to the OPW, and does not relate to general administration.
The OPW made no substantive submissions as to why it believed section 42(f) to apply to this letter. The record was self-evidently not created by the CSSO. In a phone call to this Office, the OPW suggested that the record was held by the CSSO rather than the OPW but provided no elaboration on this position. I accept that it is likely that the CSSO also holds a copy of this record, and indeed if the applicant had made an FOI request to the CSSO for it, such a request would be refused under section 42(f). However, the OPW clearly also holds the record. This Office does not accept that the fact that a copy of a record might also be held by the AGO or CSSO, means that section 42(f) serves to put the record outside the scope of the FOI Act, unless the record was actually created by the CSSO (and does not relate to general administration). I find that section 42(f) does not apply to record 8.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the OPW's decision. I find that it was not justified, under section 42(f), in refusing to release record 8 and I direct its release.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Emer Butler
Investigator