Decision
Mr F and National Roads Authority
From Office of the Information Commissioner (OIC)
Case number: 130281
Published on
From Office of the Information Commissioner (OIC)
Case number: 130281
Published on
Whether the NRA was justified in refusing the applicant's request for additional records relating to the applicant's proposal to introduce payment of toll road charges by SMS/text messages.
14 May 2014
On 12 July 2013, the applicant made an FOI request for all records relating to his proposal to introduce payment of toll road charges by SMS/text messages. In its decision dated 25 September 2013, the NRA granted the request in part, but refused access to six records under section 22(1)(a) of the FOI Act. The applicant sought an internal review of this decision and on 29 October 2013, the NRA issued an internal review decision affirming its earlier decision. On 11 November 2013, the applicant sought a review by this Office on the basis that further records should exist. The applicant also requested this Office to review the NRA's decision to refuse access to records withheld under section 22(1)(a) of the FOI Act.
On 24 March 2014, Ms Mary Byrne, Investigator, wrote to the applicant outlining her preliminary views on the matter and providing him with an opportunity to make any further comments which he wished to have taken into account before this Office reached a final decision. No response was received from the applicant by the requested response date of 14 April 2014. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In carrying out this review, I have had regard to the correspondence between the NRA and the applicant as set out above. I have had regard also to communications between this Office and the applicant, and between the Office and the NRA. Finally, I have had regard to the provisions of the FOI Act.
The scope of this review is confined to assessing whether or not the NRA was justified in refusing the applicant's request for access to certain records relating to his proposal to introduce payment of toll road charges by SMS/text messages under section 22(1)(a) of the FOI Act and in refusing access to additional records on the grounds that no such records exist or can be found.
Section 10(1)(a)
The NRA's position is that it cannot locate further relevant records. Accordingly, section 10(1)(a) of the FOI Act is relevant, which provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts.
The Commissioner's role in a case such as this is to review the decision of the public 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A., available on the website of this Office at www.oic.ie).
In its submissions to this Office, the NRA detailed the various searches conducted by it to locate all records relevant to this request. The NRA stated that issues in relation to tolling are managed by the NRA’s Commercial Operations Unit and the search that was undertaken on foot of the applicant's FOI request involved all areas of that unit’s activities. The NRA also stated that there is no other unit or division within the NRA which would hold records relevant to this request. Records such as those relating to this FOI request, which relate to a project or operation managed by the Commercial Operations Unit, are retained on the project files for the duration of the project or operation. In a case where the duration of the operation is indefinite, records would not normally be retained for longer than ten years unless they are deemed necessary to be preserved. In this case, the NRA said that the first communication with it occurred in 2009 and all relevant records have been searched for and located.
In his application for review to this Office and in his subsequent submissions dated 24 November, 09 December, 10 December and 11 December 2013, the applicant stated that the NRA should hold further records relevant to this review and he set out what further records he believed should exist. Ms Byrne put the points made by the applicant to the NRA which explained that it did not hold the further records as contended by the applicant, as the need for it to create records in the context of the particular instances raised by the applicant did not arise. Ms Byrne formed the view that the NRA's position was reasonable and informed the applicant of this in her preliminary views letter of 24 March 2014.
I have reviewed the steps taken by the NRA to identify the records sought in response to the applicant's FOI request and the explanations provided to this Office. Having considered the matter, I agree with Ms Byrne's view that the explanation provided by the NRA as to why it does not hold any further related records is reasonable. On that basis I am satisfied that the NRA was justified in concluding that no further records exist that came within the scope of this review. Accordingly, I find that the decision of the NRA was correctly made in accordance with section 10(1)(a) of the FOI Act.
Section 22(1)(a)
Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused, if the record concerned 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:
• confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between the client and a legal adviser or the 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.
Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.
It is relevant in this context that the Information Commissioner has found that LPP also attaches to records where they are part of a continuum of correspondence arising from an original request for advice or preparation for litigation. In considering whether a record would be exempt from production in a court on the grounds of LPP, the Commissioner has to ignore whether or not proceedings took place and bear in mind that LPP resides with the client. The question comes down simply to whether the public body, in the event of court proceedings, would succeed in withholding the records on the grounds of LPP.
The NRA withheld six records, some of which contain a number of emails and having examined these records, I am of the view that they comprise confidential communications made between the NRA, its contractors and its professional legal advisers for the purpose of obtaining and/or giving legal advice, or comprise a continuum of such communications. I find that the NRA was justified in relying upon the provisions of section 22(1)(a) of the FOI Act to refuse access to these records.
In its submissions to this Office, the NRA has raised additional claims for exemption under sections 20(1), 21(1) and 27(1) of the FOI Act, which relate to deliberations of public bodies, functions and negotiations of public bodies and commercially sensitive information respectively. As I have found that the six records at issue are exempt under section 22(1)(a), it is not necessary for me to determine whether the applicant's request also falls to be refused under the other exemptions claimed.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the NRA in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator