Decision
Mr L and the Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-53230-L2J0X4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-53230-L2J0X4
Published on
Whether the Department was justified in refusing access to records relating to the applicant in full or in part, on the basis of sections 15(1)(d), 15(2), 15(1)(i)(i), 29, 30, 31, 32 and 37 of the FOI Act
4 November 2019
On 11 October 2017, the applicant sought access to records containing personal information relating to him and his company held by the Department. The applicant provided proof of his identity on 23 November 2017 and clarified the time period covered by his request (2009 to 2017).
The Department identified two separate divisions (Divisions A and B) which held relevant records. Both divisions issued decisions refusing the request on 23 January 2018, relying on sections 15(1)(i)(i), 29, 30, 31, 32 and 37 of the FOI Act (Division A) and sections 15(1)(i)(i) and 31(1)(a) (Division B). The applicant requested an internal review of both decisions on 9 February 2018. On 16 March 2018, Division A affirmed its original decision on the same basis. Division B also affirmed its original decision to refuse access to the records sought on 21 March 2018, although it relied solely on section 31(1)(a) (legal professional privilege).
The applicant applied to this Office for a review of the Department's decisions by letter received on 25 May 2018.
During the course of this review, this Office's Investigator contacted the applicant by letter on two occasions. She initially informed him of her view that the records withheld under sections 15(1)(i)(i) and 32(2) would not form part of this review, as he had not referred to them in his application for review or in his submission to this Office. She invited him to comment if he disagreed with her view, but he did not reply. She subsequently informed him of her view that section 31(1)(a) (legal professional privilege) applied to the majority of the records concerned and again invited him to comment. His solicitor replied to this letter on the applicant's behalf and indicated that he did not agree with her views.
Having completed my review, I have decided to bring this case to a close by way of a formal, binding decision.
In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department, as well as the contents of the records concerned.
There is a large number of records to be considered in this case, and it may have been open to this Office to discontinue this review on that basis. However, following clarification from the Department in relation to the circumstances and ongoing nature of the matters concerned in the records, I have decided to proceed with this review. I regret that this case has taken far longer than I would have wished to bring to a conclusion. The records cover protracted and difficult engagements, including legal proceedings, between the applicant and the Department over many years.
The Department identified eight schedules of records relating to this case. Some of these contain the names of the applicant/his business. To avoid repeating this, I will refer to the schedules as Schedules 1-8. In the interest of clarity, the original names are listed in Appendix A to this decision, which will be provided only to the Department and the applicant.
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. Furthermore, it is 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.
While I acknowledge that there was a large number of records which fell within the scope of the applicant's request, this has resulted in a lot of duplication in the records schedules prepared by the Department. In any event, from a careful examination of the records I am satisfied that many records are included in the schedules more than once, or are listed both individually and as part of a chain of correspondence. Each record will only be considered once as part of this review. For ease of reference I have listed the duplicate records which will not form part of this review in Appendix B to this decision.
During this review, this Office's Investigator informed the Department of her view that a number of records which it had considered to be outside the scope of the applicant's request should have been considered for release. These records had been created after the date of the applicant's initial request (11 October 2017), but on or before the date on which he clarified the time period covered by his request and provided proof of identification to the Department (23 November 2017). The Department had clearly informed the applicant that his request would be processed from 23 November 2017.
I am satisfied that a number of records were created after 23 November 2017 and are not within the scope of the applicant's request. For ease of reference, these are listed in Appendix B to this decision. However, in the circumstances of this case, I consider records dated between 11 October and 23 November 2017 inclusive to be within the scope of the applicant’s request. The Department has informed this Office that it has decided to refuse to grant access to these on the basis of various sections of the FOI Act. Accordingly, these records will be considered alongside the other records withheld below.
In response to queries from this Office, the Department confirmed that the following records had been overlooked by its decision makers and had not been considered for release: Division A Schedule 1: records 63, 81, 86, 147 and 178. I do not consider that it would be appropriate for this Office to direct their release if they have not already been subject to a decision making process by the Department. Accordingly, I have decided to direct the Department to undertake a new decision making process on these records in line with the provisions of the FOI Act.
During the course of this review, the Department provided submissions from both divisions in support of its decisions to refuse access to the records sought. In these submissions, Division A informed this Office that it is no longer relying on section 29 to withhold records. It also indicated that, in addition to the other exemptions previously relied upon, it was also relying on litigation privilege under section 31(1)(a) in respect of all of the records previously withheld on the basis of section 37 alone.
As set out in the Investigator's letter to the applicant, dated 20 July 2018, the Department’s reliance on sections 15(1)(i)(i) and 32(2) to refuse to release records will not form part of this review. Records withheld on the basis of section 15(1)(i)(i) are listed at Appendix B of this decision for reference.
Accordingly, this review is concerned with whether the Department was justified in refusing access to the records withheld in full or in part on the basis of sections 15(1)(d), 15(2), 30(1)(a), 31(1)(a) and 37 of the FOI Act.
Section 15(1)(d) provides that a head may refuse to grant a request where the information concerned is already in the public domain. I am satisfied that records 19, 42 and 92 in Division A, Schedule 6 contain information (i.e. newspaper articles) which is in the public domain. Accordingly, I find that the Department is justified in refusing to grant access to these records on that basis.
Section 15(2)(b) provides that a head may refuse to grant access to a record, a copy of which is available for purchase or removal free of charge by members of the public. The Department has stated that a number of records identified in this case are available for purchase on the Companies Registration Office website. I am satisfied that this is the case. Accordingly, I find that the Department was justified in refusing to grant access to the following records on the basis of section 15(2)(b) of the FOI Act: Division A, Schedule 2, records 1-4 and 14-41.
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 personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.
Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.
Personal information is defined in section 2 of the Act as follows:
"Personal information means 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,
and, without prejudice to the generality of the foregoing, includes –
... (ii) information relating to the financial affairs of the individual,
(iii) information relating to the employment or employment history of the individual,
… (v) information relating to the individual in a record falling within section 11(6)(a),
… (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 Department stated that a number of the records concerned were not deemed to comprise the applicant's personal information (section 37 refers). The Investigator informed the Department of her view that the majority of the records concerned related to the personal information of the applicant, as they were created as a result of the Department's investigations and interactions with the applicant, his staff and his customers and referred to him or the court case taken against him by the Department. She referred to section 2 of the Act which defines personal information and stated that much of the information in the records fell within subsections vi), vii), xiii) and xiv) of section 2 (see below):
"vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual,
vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings,
…xiii) information relating to property of the individual (including the nature of the individual's title to any property),
xiv) the views or opinions of another person about the individual."
In response, the Department stated that "information of the nature sought did not always comply with the definition of personal information in the FOI Act", although it did not elaborate.
In the High Court case EH and the Information Commissioner [1996] No 96 MCA, the court found that "[a]s a starting point it seems to me to be absolutely clear from the use of the phrase “relates to” that a document need not itself contain “personal information” about the requester. … If the record contains an express reference to the requester, be it however insubstantial or trivial then clearly it “relates to personal information”, about the requester. … Where the record does not name or has no express reference to the requester a substantial link will be established, if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of large scale class of the same. "
Bearing in mind the court's comments in EH and the Information Commissioner, I am satisfied that documents which contain substantive discussions of the applicant, his alleged offences and the running of his court case relate directly to his personal information as defined in the Act. I am also satisfied that records expressly referencing the applicant, especially in the context of the ongoing court proceedings, fall to be considered for release under the FOI Act.
However, I am also satisfied that out of office emails, read receipts, internal Department requests for files to be photocopied, or matters such as discussions of meeting times, do not have a sufficiently substantial link to the applicant's personal information, even where his name is in the subject line of the relevant email.
Furthermore, section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
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.
Bearing this in mind, I am satisfied that it would not be appropriate to direct the Department to redact all of the information in the records relating to administrative matters which did not “relate to the personal information” of the applicant, so as to release emails with everything removed except his name in the subject line.
Accordingly, I will consider all of the records identified by the Department in the document schedules provided as coming within the scope of the applicant's request for access to personal information, other than the following records described above as solely concerning administrative matters such as email receipts, photocopying, etc.:
Division A Records
Division B Records
Schedule 7: Records 3, 47, 94, 106-107, 109, 125-126, 129, 143-144, 151-152, 157, 173, 188, 196-197, 226-230, 232, 234-239, 280-284, 308-312, 314-315, 317-322, 324-328, 332, 345-349, 358-367, 379-382 and 388-389.
Having carefully reviewed the records at issue, I am satisfied that all of the withheld information in the following records is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals:
Division A
Accordingly, I find that section 37(1) of the Act applies to these records. Section 37(2) of the FOI Act sets out certain circumstances in which sections 37(1) and (7) do 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 sections 37(1) and (7) 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(s) to whom the information relates, or (b) the grant of the information would be to the benefit of the person(s) 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.
The Public Interest
In relation to the issue of the public interest under section 37(5)(a), it is important to note the obiter comments of the Supreme Court in the Rotunda case mentioned above. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
In this regard, I must have regard to the provisions of the FOI Act, which recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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 this case, the applicant has not identified any particular public interest factors favouring release of the records, other than to argue that the Department's decisions had not demonstrated how the public interest favoured withholding the records concerned. However, the FOI Act itself recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions.
In my view, the public interest in enhancing the transparency and accountability of the Department in how it carries out its functions has been served to a large extent by the release of the records already provided to the applicant. Furthermore, I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the records listed above are exempt from release under section 37(1) of the FOI Act.
As indicated above, the records at issue in this case consist of correspondence between the Department and its legal advisers, internal Departmental correspondence and correspondence with the applicant/his legal adviser. The records concern the various stages of the investigation into the applicant, his businesses and customers and the subsequent legal proceedings brought by the Department and other regulatory bodies.
The Department has relied upon section 31(1)(a) to refuse to grant access to all of the records within the scope of this review. Section 31(1)(a) is a mandatory exemption which protects records that 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:
In a submission to this Office, Division B indicated that it was relying on legal advice and litigation privilege under section 31(1)(a). Division A referred to both types of LPP in its submission, although it concentrated on litigation privilege.
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner 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.
The Department stated that the applicant was found guilty of an offence and subsequently lodged an appeal, which I understand has been heard. The Department also stated that while the proceedings it initiated have now concluded, related proceedings were initiated by other professional bodies against the applicant. I understand that one set of proceedings has been heard and a decision issued. I also understand that the second matter was heard but that a decision has not yet issued.
In essence, the Department stated that LPP applies to all of the records at issue. It stated that the dominant reason for the creation of the records was the preparation for litigation, either its own, or that of the regulatory bodies. It stated that the evidence seized from the applicant's company demonstrated "serious breaches" of the relevant legislation and that, as I understand it, prosecution was contemplated from the beginning of the investigation in 2009. The Department also argued at various points in the process that legal advice privilege applied to the records concerned.
The applicant did not agree that the records concerned were exempt from release under LPP. His solicitor relied on the High Court decision in Artisan Glass Studio Limited v The Liffey Trust Limited and Others [2018] IEHC 278 in this regard. The Court in that case found that the following elements had to be present for litigation privilege to apply:
"(a) Whether litigation was reasonably apprehended at the time the documents in question were brought into being;
(b) Whether the documents in question were brought into being for the purpose of that litigation;
(c) If the documents were created for more than one purpose, the documents will be protected by litigation privilege in the event that the litigation was the dominant purpose;
(d) The party claiming privilege has the onus of proving that the documents are protected by privilege."
The judgment also found that "the onus lies on the party claiming privilege to prove that the dominant purpose for which the document was brought into existence was to enable his solicitor to prosecute or defend the anticipated litigation". Furthermore, the Court approved an earlier judgment, which held that "to carry the protection of litigation privilege into cases where the litigation purpose is secondary or equal with another purpose would be excessive and unnecessary".
The findings in the Artisan Glass case reflect the comments of Finlay Geoghegan J in University College Cork – National University of Ireland v The Electricity Supply Board [2014] IEHC 135 (UCC v ESB), who found that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action".
The UCC v ESB judgment also stated that "[t]he document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."
In her judgment, Finlay Geoghegan J. held, on the facts before her, that there had been, at minimum, an equal purpose, apart from the purpose of preparation for apprehended or threatened litigation, for the creation of a record for which litigation privilege was claimed. She found that the defendant had not established, as a matter of probability, that the dominant purpose of the creation of the record was apprehended or threatened litigation.
I accept that for litigation privilege to apply, the dominant, or arguably the sole purpose, for the creation of the documents in this case must be the contemplated or pending litigation against the applicant.
However, it is important to note, that 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. (Legal advice privilege lasts indefinitely, even where the advice pertains to concluded litigation, or litigation that did not proceed.)
In the circumstances of this case, and having carefully examined the records at issue in this case, I am satisfied that the Department has identified a number of records which comprise either requests made by the Department to its professional legal adviser for legal advice or legal advice received; or form part of a continuum of correspondence that results from an original request for advice; and/or records which were prepared with the dominant purpose of preparing for pending or contemplated litigation, including the prosecution of the Department's case against the applicant and/or the professional bodies' own proceedings.
Accordingly, I am satisfied that the following records attract legal advice or litigation privilege and I find that they are exempt under section 31(1)(a) of the FOI Act:
DIVISION A
DIVISION B
Section 31(1)(a) does not require the consideration of the public interest.
LPP does not apply
However, I am also satisfied that section 31(1)(a) does not apply to a number of the records concerned in this case. I do not consider that routine administrative type exchanges regarding hearing dates, etc. could be considered to be confidential, or made with the purpose of receiving or giving legal advice. Neither do I accept that records relating to a data protection request made by the applicant, or internal briefings or discussions concerning the availability of staff members could be considered to have been created for the dominant purpose of preparing for contemplated or pending litigation. Furthermore, I note that a number of the records at issue comprise correspondence with the applicant’s own legal advisers. I am satisfied that none of the remaining records comprise confidential correspondence with the Department's legal advisers, or form part of a continuum of legal advice, or could be said to attract litigation privilege.
Under the circumstances, I find that section 31(1)(a) does not apply to the remainder of the records held by Division A. Where relied upon by the Department, I shall consider these records under the other exemptions claimed below.
Division B did not rely on any other exemptions in respect of the 402 records identified. As I am satisfied that section 31(1)(a) does not apply to the following records I direct their release:
Division B
Schedule 7: Records 52, 89, 119-120, 168, 204, 240, 289-290, 292, 334, 351-352, 368-369 (emails dated 17 July 2017, 9:30 and 9:50am), 396 and 402.
I am satisfied that where any of these records refer to other cases, or contain the personal information (such as personal mobile numbers or email addresses) of the people involved, that that information does not come within the scope of the applicant’s request. Accordingly, I direct the release of these records subject to the appropriate redactions.
The Department relied on section 30(1)(a) to refuse to grant access to a number of the records concerned. Section 30 is a harm based exemption. Accordingly, an FOI body seeking to rely on section 30 should first identify the potential harm in relation to the relevant function that might arise from disclosure and secondly consider the reasonableness of any expectation that the harm will occur.
Section 30(1)(a) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. This is subject to section 30(2) which disapplies subsection (1) when the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
When a public body relies on section 30(1)(a), it should first identify the potential harm or prejudice to the relevant test, examination, etc., and show how releasing the record could reasonably be expected to prejudice the effectiveness of the relevant test, etc. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations, etc., now in progress but may also cover similar exercises conducted in the future. The FOI body should then go on to consider the public interest test under section 30(2).
In submissions to this Office, Division A stated that release of the records concerned could
reasonably be expected to prejudice its ongoing investigation or the procedures or methods employed for the conduct thereof.
I note that the Department did not make any detailed arguments to support its position. With regard to the context of this case, I am willing to accept that the Department has identified a potential harm. However, having regard to their content, I do not consider that the Department has demonstrated how the release of the records at issue could reasonably be expected to prejudice the effectiveness of the work of a particular unit in the Department.
In any event, I have carefully considered all of the records withheld on the basis of section 30(1)(a), which I have not already found to be exempt above. Having regard to the information contained in the records at issue, I do not accept that section 30(1)(a) applies to the following records:
Division A
Schedule 1: records 5, 53, 99 (email on top of page), 211.
Schedule 3: records 15, 19.
I therefore direct their release.
In the interest of clarity, I have listed all of the records to be released at Appendix B to this decision.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Department's decision to refuse access to the records sought. I find that sections 15(1)(d) and 15(2) apply to certain records as set out in the record schedules supplied by the Department, and that it was justified in not granting access to these records. I find that section 31(1)(a) applies to a number of the records sought and that they are exempt from release. I find that most of the records concerned relate to the personal information of the applicant to a greater or lesser extent, but that a number of these also contain the personal information of third parties and/or joint personal information. I find that the public interest does not, on balance, favour the release of such information. I also find that section 30 does not apply to the records which were not found to be otherwise exempt from release. I direct the release of a number of records, as set out in Appendix B to this decision. I also direct the Department to carry out a new decision making process in respect of a small number of records as set out above.
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.
Elizabeth Dolan
Senior Investigator