Decision
Ms M and Cork City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-144745-W5X4M1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144745-W5X4M1
Published on
Whether the Council was justified in refusing access under section 15(1)(a) to any further records relating to the applicant, on the basis no further records exist or cannot be found and under section 31(1)(a) to record 7 in part, on the basis of legal privilege
19 November 2024
In a request dated 19 October 2023, the applicant sought access to all records held by the Council relating to her in the context of her housing application. In a decision dated 16 November 2023, the Council identified 9 records as coming within the scope of her request. It released records 1, 4 and 6 in full, as listed on the accompanying schedule, and granted partial access to records 2, 3, 5, 7 and 8 with certain information redacted under section 37(1) of the FOI Act, which is concerned with the protection of third-party personal information, and section 31(1)(a), on the basis of legal professional privilege. It refused access to record 9 under section 15(1)(i) of the FOI Act, on the basis that this record, comprising 100 pages, had previously been released to the applicant under a separate FOI request.
On 22 November 2023, the applicant sought an internal review of the Council’s decision. She said she disagreed with the decision to redact certain information and suggested that the Council holds further records relating to her. In particular, she said that certain records she sent to the Council relating to her children and a doctor’s report had not been identified for release.
On 13 December 2023, the Council varied its original decision. It released records 2, 3 and 5 in full and released additional information from record 7, redacting two pages under section 31(1)(a) of the FOI Act. In response to the applicant’s contention that certain records were not provided, it said that all records in the possession of the Housing Directorate had been identified in the Schedule of Records and no further records could be located on the applicant’s file which had been transferred from Cork County Council to Cork City Council in 2019. On that basis, it refused access to any further relevant records under section 15(1)(a) of the FOI Act on the ground that no further records could be found.
On 18 December 2023, the applicant applied to this Office for a review of the Council’s decision. She was of the view that medical records relating to her housing application should be held by the Council. She was also of the view that records of correspondence between An Garda Síochána and the Council should be held on her file.
During the course of the review, the Council provided a submission to this Office outlining the details of the searches conducted for relevant records. The applicant was provided with details of those submissions and invited to make further submissions, which she duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In doing so, I have had regard to the correspondence exchanged between the parties as referenced above, to the applicant’s comments in her application for review and to the submissions made by the applicant and the Council. I have also considered the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The Council’s position is that all relevant records have, at this stage, been released to the applicant and no further records can be found or exist. This is, in essence, a refusal to release any other relevant records under section 15(1)(a) which provides for the refusal of a request where the records sought do not exist or cannot be found.
Given that record 9 was released to the applicant in full as part of a separate FOI request in April 2022 and that six of the other eight records have been released in full, the scope of this review is concerned with whether the Council was justified (i) in refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records apart from those already identified, and (ii) in redacting certain information from records 7 and 8 under sections 31(1)(a) and 37(1) of the FOI Act.
In the course of the review, the applicant made submissions to this Office expressing concerns about the manner in which her request has been processed by the Council. While the applicant’s apparent frustration with what she considers to be the piecemeal release of her information in this matter are noted, this review has been undertaken in accordance with section 22(2) of the FOI Act and is concerned solely with a review of the decision taken by the Council on her FOI request, as outlined in the Scope of Review section above.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office may find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
As noted above, during the course of this review the Investigator provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist outside of those granted nor could further records be found.
Searches Undertaken
The Council said all housing applicants are issued with a unique client reference number. It said that this client reference number along with an applicant’s PPSN and date of birth are used as key identifiers for correspondence submitted by an applicant. It said that all correspondence relating to a housing application is generally added to the relevant file and this includes any correspondence received on behalf of an applicant submitted by third-parties, such as an advocate or representations from a public representative. The Council said it carried out searches relating to the applicant of all hardcopy records held by it and of all electronic files and emails on the ‘iHouse system’ using the above identifiers. Having reviewed the hardcopy and electronic files held, it said no additional records exist relating to the applicant from the Housing Directorate. The Council said the ‘iHouse system’ is a software solution used by the majority of local authorities. It also said as iHouse is used nationally and administered by the Local Government Management Agency, the Council does not have a facility to remove or delete files from the system. It is the view of the Council that all relevant records have been released to the applicant.
Findings
Following receipt of the details of the Council’s submissions, the applicant made further submissions wherein she outlined her concerns relating to the manner in which her request had been processed. In relation to the steps the Council took to locate relevant records, she provided copies of additional records that she believes the Council should hold on her housing file. The applicant said the Council should have medical records and correspondence between An Garda Síochána and the Council relating to her. She provided this Office with copies of certain records she believes the Council should hold on her housing file.
This Office’s Investigator contacted the Council to seek further information on what specific searches, if any, were carried out for medical records relating to the applicant and any possible correspondence between An Garda Síochána and the Council. The Council said all records relevant to the applicant’s request have been released to her. It said medical records submitted prior to May 2019 may have been submitted to Cork County Council, as Cork County Council was the housing authority responsible for the applicant’s housing catchment area until that time period. With regard to possible correspondence between An Garda Síochána and the Council, it said it is standard practice to carry out Garda checks on prospective tenants only when an offer of housing is being made. It said as no offer of housing has been made to the applicant, no record of any request for a Garda check or correspondence between An Garda Síochána and the Council would exist on the applicant’s file.
The Council also said despite carrying out searches for medical records relating to the applicant with no records being found, it is willing to undertake further searches if the applicant can provide the Council with specific dates or other specific information that would assist in locating such records.
The question I must consider is whether the Council has, at this stage, taken all reasonable steps to ascertain the whereabouts of records falling within the scope of the applicant’s request. Having considered the Council’s detailed submissions, I am satisfied that it has. The Council has searched all relevant hardcopy records held by it and all electronic files and emails on the ‘iHouse system’ using the applicant’s unique identifiers. It has also conducted further searches for any relevant medical records relating to the applicant. Accordingly, I find that the Council was justified in its decision to refuse to release additional records on the basis of section 15(1)(a) of the FOI Act.
The Council refused Record 7 in part (two pages) under section 31(1)(a) of the FOI Act. 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 advisor for the purpose of obtaining and/or giving legal advice (‘advice privilege’), and
• confidential communications made between the client and a professional legal advisor or the professional legal advisor and third-party or between the client and a third-party, the dominant purpose of which is the preparation for contemplated/pending litigation (‘litigation privilege’).
The concept of ‘once privileged always privileged’ applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. This Office is also of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. Moreover, this Office accepts that provided the ingredients of the relevant type of privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.
The relevant part of record 7 that was withheld under section 31(1)(a) comprises two emails between the Council’s Housing Directorate and its Office of Legal Affairs. The email from the Office of Legal Affairs issued on foot of a letter it received from the applicant’s legal representatives wherein, among other things, litigation was threatened. The email from the Housing Directorate provided relevant information to allow for a response to be prepared by the Office of Legal Affairs. In the particular circumstances arising, I am of the view that the withheld emails comprise confidential communications made between the Council and a professional legal advisor, the dominant purpose of which is the preparation for contemplated/pending litigation. I find, therefore, that section 31(1)(a) applies to the relevant part of record 7.
Record 8 is a letter sent on behalf of the applicant. The Council redacted the sender’s name, a person working in an advocacy capacity in another FOI body. 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. ‘Personal information’ is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition, including (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. Paragraph (I) provides that where the individual is or was a staff member of an FOI body, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied 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 those functions.
In its submissions to this Office, the Council said the name of the signatory had been redacted as the applicant engaged the services of the body advocating on her behalf and not the person who sent the letter. Regardless, the fact remains that the name of a staff member of an FOI body is excluded from the definition of personal information pursuant to Paragraph (I). The body in question in this case is an FOI body. Accordingly, I find that section 37(1) cannot apply as the disclosure of the individual’s name would not involve the disclosure of personal information for the purposes of the FOI Act. I find that the Council was not justified in redacting the name from record 8 and I direct its release.
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 redacting certain information from record 7 under section 31(1)(a), and in refusing access, under section 15(1)(a), to any additional records coming within the scope of the applicant’s request other than those already released. I find that the Council was not justified in redacting the name of a staff member of an FOI body from record 8 under section 37(1) 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 by the requester 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