Decision
Mr P and Meath County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120209
Published on
From Office of the Information Commissioner (OIC)
Case number: 120209
Published on
Whether the Council was justified in refusing to fully release an invoice, submitted to it by its legal team, further to a court case taken by the applicant
13 March 2014
On foot of an FOI request, dated 11 July 2011, the Council fully released three invoices, and partially released a fourth, to the applicant. The invoices had been submitted to it by its legal team further to a court case taken by the applicant.
On 27 April 2012, the applicant made an FOI request to the Council for a full copy of the partially redacted invoice, and for a copy of the "full report" referred to therein. The Council's decision of 12 June 2012 refused this request under section 22(1)(a) of the FOI Act. On 10 July 2012, the Council upheld its refusal, further to the internal review application submitted by the applicant on 20 June 2012.
On 22 August 2012, the applicant sought a review by this Office of the Council's refusal of his request. The Council agreed to release further excerpts of the redacted invoice in the course of this Office's review but maintained its position regarding the remainder.
In carrying out my review, I have had regard to the records at issue (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Council and the applicant as set out above; to details of various contacts between this Office and the Council; and to details of various contacts between this Office and the applicant, particularly a telephone conversation between the applicant and Ms Anne Lyons, Investigator, of 26 February 2014, and Ms Lyons' email to the applicant of that date. I have had regard also to the provisions of the FOI Act.
This review is confined to the sole issue of whether the Council has justified its refusal of the requested records.
Section 34(9)(a)(iii) provides that a review may be discontinued if the matter to which the application relates is, has been or will be, the subject of another review under section 34 of the FOI Act. I hereby discontinue this review in respect of the "full report", which will be covered by this Office's review in case 120210, which was also submitted by the applicant.
Further to the Council's agreement to release further elements of this record to the applicant, the details subject to review are as follows:
Section 22(1)(a) of the FOI Act is a mandatory exemption applicable to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
Privilege rests with the client, and, in considering the application of section 22(1)(a), it is not relevant whether or not the client followed the advice it received.
Having regard to the withheld details, I consider the following to disclose confidential communications between the Council and its legal advisor, or to comprise confidential communications between these parties for the purpose of dealing with the legal action taken by the applicant:
Accordingly, I find that the above details are exempt from release under section 22(1)(a) of the FOI Act.
The Council has agreed to release additional words from the extract from "arranging for Irish translations thereof" to "attendance at the High Court". Withheld at this stage is a name of a third party, and details of legal representatives who acted for that party in the court action. As release under FOI is akin to release to the world at large, it is immaterial whether the applicant knows, or thinks he knows, the identity of the party concerned. I am satisfied that release of any of the details concerned, in the circumstances of this case, would disclose the identity of the third party and thus reveal personal information about that party. Thus, I consider the details concerned to be exempt from release under section 28(1) of the FOI Act, which provides that, subject to the other provisions of section 28, a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.
I am satisfied that section 28(2), which provides that section 28(1) does not apply in certain circumstances, is not relevant in the particular circumstances of this case. I am also satisfied that section 28(5)(b), which provides for the release of a record to which section 28(1) applies if it can be demonstrated that the grant of the request would benefit the third party whose information may be released, does not apply.
Section 28(5)(a) provides that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". While there is a public interest in openness and accountability on the Council's part, the language of section 28 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 unenumerated personal rights under the Constitution). Accordingly, when considering section 28(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.
I do not consider that the public interests in favour of release of the details are sufficiently strong in this case to require the breach of the rights to privacy of the third party (nor has the applicant made any arguments to the contrary). I find accordingly.
At issue at this point is the sentence preceding "Settlement was not possible", which refers to the applicant. The Council is not willing to release it on the basis that the comment concerned is not attributed "to any party or individual". It states that it does not hold the view as stated in the sentence, which it considers to be "hear say".
It was put to the Council that the comment was not exempt under section 22(1)(a), nor is there any provision in the FOI Act that would apply to the comment for the reasons given. Although the Council maintains its position that the comment should not be released, it has not identified any relevant provision of the Act that might be applicable, or provided arguments as to why the comment should be so exempt. I find that there is no basis for the sentence to be withheld, and I direct its release accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal of the withheld details, bar the sentence preceding "Settlement was not possible", which I direct be released.
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.
Sean Garvey
Senior Investigator