Decision
Mr N and Department of Housing, Local Government and Heritage
From Office of the Information Commissioner (OIC)
Case number: OIC-136132-J8Z7J8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-136132-J8Z7J8
Published on
By way of background, this case relates to proposed works to be carried out on and around Moore Street in Dublin City Centre. The works comprise upgrade works to be carried out by Dublin City Council (the Council), works to be carried out in relation to the preservation of number of buildings on Moore Street as a national monument by the Office of Public Works on behalf of the Department, and other extensive works to be carried out by a developer (Company X) affecting Moore Street and other nearby streets.
A number of street traders who operate on Moore Street were likely to suffer disruption on foot of the various proposed works. In 2021, a government-appointed advisory Group (the Moore Street Advisory Group (MSAG)) issued its report, and among other things, recommended that an “adequate and appropriately structured compensation package should be put in place for the traders as soon as possible”.
I understand from reports in the media that the Council granted planning permission in 2022 in respect of three related applications made by Company X, which included Moore Street, but that all three were appealed to An Bord Pleanala (ABP). I also understand that before ABP made its decision on the three appeals, the Council designated six buildings on Moore Street as protected structures. It appears that these buildings had been part of the grants of planning permission originally granted by the Council to Company X, and that in 2023 Company X appealed the Council’s subsequent decision to designate the properties in question to the High Court. From a review of the www.courts.ie website, it appears that this matter is listed for hearing later this year.
In a request to the Department of Finance dated 18 October 2022, the applicant sought access to records relating to the offering of financial compensation to the traders concerning Company X’s three planning applications. The request was transferred to the Department of Housing, Local Government and Heritage (the Department) which issued a decision on 25 November 2022, refusing the applicant’s request on the basis of section 36(1)(c) of the FOI Act, which protects information which could prejudice the conduct or outcome of negotiations. The applicant sought an internal review on 7 December 2022. On 28 December 2022, the Department affirmed its original decision to refuse the applicant’s request. It withheld access to the 13 records identified as relating to the applicant’s request under sections 35(1)(a) (information given in confidence) and 36(1)(c) of the FOI Act.
On 7 March 2023, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, based on the arguments the Department made, I formed that view that sections 30(1)(c) and 31(1)(a) were relevant. Section 30(1)(c) relates to the negotiations of public bodies and section 31(1)(a) concerns legal professional privilege. I notified the applicant of my view and invited him to make submissions in response within a certain timeframe. He did not respond.
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 applicant’s comments in his application for review and to the submissions made to this Office by the FOI body in support of its decision. I have also had regard to the content of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Department was justified in its decision to refuse to grant access to the records sought under the provisions of the FOI Act.
In his internal review request, the applicant stated that the Department’s original decision maker had been involved in the matters at hand and queried the appropriateness of her involvement in processing his FOI request. In this regard, I note that the internal reviewer stated that he had not been involved and had no prior knowledge of the matters concerned. I also note that in its submissions to this Office, the Department stated that the original decision maker deals with all FOI requests relating to the matters at hand.
It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Furthermore, this review cannot examine or take account of the Department’s handling of the FOI process. Nonetheless, this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI decision makers. Furthermore, while section 21(3) provides that an internal reviewer must be of a higher grade than the original decision maker, the FOI Act does not place any other qualifications on what staff may be delegated FOI decision makers. Indeed, in many circumstances it may be most efficient for staff members working in the relevant functional area to be involved in the processing of an FOI request related to their work.
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.
It is also important to note that 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.
Finally, it is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
As noted above, section 25(3) prevents me from revealing the contents of an exempt record. However, by way of background, I can refer to a statement made by the Minister of State at the Department of Housing, Local Government and Heritage (the Minister) in response to a Parliamentary Question on 4 May 2022. The Minster stated that the Department had been engaged in “limited preliminary talks, led by Dublin City Council, regarding compensation for the traders for a range of separate schemes of works to be carried out by different parties in the area, each of which would disrupt the traders’ business”. I am satisfied that the records concerned in this case relate to the limited preliminary talks referred to by the Minister.
The records concerned comprise email correspondence and attachments between the Department and relevant parties. The records also comprise internal Departmental email correspondence regarding its role in these matters. The Department withheld access to the records sought on the basis of sections 35 and 36. As noted above, I informed the applicant that I also considered sections 30(1)(c) and 31(1)(a) to be of relevance. Having regard to the content and context of the records in question, I will consider section 31(1)(a) in the first instance.
In its submissions to this Office, the Department indicated that some of the records sought contained legal advice. Section 31(1)(a) of the FOI Act provides for the mandatory refusal of a request if the record sought 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 adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional 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 (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. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. This Office accepts that privilege can apply to records that form part of a continuum of correspondence that results from the original request for advice. Moreover, providing the prerequisites of advice privilege are present, the fact that a professional legal adviser is employed as an in-house adviser does not prevent the client from asserting privilege over the communications at issue.
Having carefully examined the records in question, I am satisfied that records 10, 11, 12 and 13 reveal or contain confidential legal advice received by the Department. Accordingly, I find that section 31(1)(a) applies to these records. Section 31(1)(a) is not subject to a public interest balancing test.
I will now consider the remaining records (1-9) under section 30(1)(c).
Section 30(1)(c) provides for the refusal of a request where access to the records concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike sections 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
This Office takes the view that for section 30(1)(c) to apply, the negotiations at issue must first be identified. Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
As set out above, the applicant is seeking access to records relating to the offering of financial compensation to the traders concerning Company X’s three planning applications. Having carefully examined the records identified by the Department, I am satisfied that they relate to the Department’s internal and external discussions regarding the Department’s position and role in these matters.
Having carefully considered the information contained in each of the records, I am satisfied that release could reasonably be expected to disclose positions taken or adopted by the Department in respect of these negotiations. I am satisfied that section 30(1)(c) applies.
Public interest
Section 30(2) provides that section 30(1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
As noted above, the applicant has not made any submissions in relation to section 30. However, in his application to this Office, the applicant argued that the records in question related to the development of Moore Street which was the “last Battlefield site of the 1916 Rising” and noted that it adjoins the National Monument at 14-17 Moore Street. The applicant contended that the release of the records sought was “most certainly” in the public interest.
In his internal review request, the applicant also argued that there was “no evidence of any ongoing negotiations”. In support of this view, he referred to a Parliamentary Question (PQ) about this matter which received the following reply: "[m]y Department was indirectly engaged at the same time in some limited preliminary discussions, led by Dublin City Council, regarding compensation for the street traders for a range of separate schemes of works to be carried out by different parties in the area, each of which would disrupt the traders’ business. There have been no further discussions on the matter”. This appears to be a reference to a PQ answered on 27 October 2022 .
Essentially, the applicant’s view was that there are no ongoing negotiations by the Department that would be harmed by release and that there is a strong public interest in transparency concerning the matters at hand
The Department did not make any submissions in relation to the public interest test in section 30(2). However, I am satisfied that it is appropriate to take its arguments in relation to the public interest in section 36(2) into account as part of my consideration of section 30.
In its submissions to this Office, the Department stated that it considered there to be a general public interest in openness and transparency relating to how a public body performs its functions. It also considered there to be a public interest in members of the public exercising their rights under the FOI Act.
On the other hand, the Department essentially argued that there was a public interest in ensuring that future negotiations with the parties concerned would not be prejudiced by the release of the information sought. It was of the view that the release of the information contained in the records in advance of such future negotiations would not be in the public interest.
By way of background, the Department stated that it had been involved in discussions relating to compensation for the traders with the Council and Company X, but that it decided to step back from the proposed joint approach. It stated that it made this decision partly because any compensation paid by the Department would solely relate to disruption caused by the works on the proposed national monument on Moore Street, which would be wholly separate to and not contingent on the works to be carried out by Company X. I also understand that a number of planning applications had been lodged for the wider site around the monument and that the Minister for Housing, Local Government and Heritage is a statutory consultee under the Planning Acts in relation to archaeological heritage. In any event, the Department informed this Office that it has not taken part in any further talks concerning the payment of compensation to the traders since that time. However, the Department also stated that talks may proceed in the future.
Analysis
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). The Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. While the comments of the Supreme Court were not made in relation to section 30(1)(c), I consider them to be relevant to the consideration of public interest tests generally.
While neither party has identified a specific public interest in the release of the records sought, it seems to me that the applicant’s comments could be construed as an argument that there is a public interest in knowing that the Department is effectively managing matters relating to the national monument on Moore Street. It also seems to me that his request for records relating to the proposed payment of compensation to the traders could be taken as an argument that there is a public interest in knowing that the Department is exercising fiscal responsibility in relation to the expenditure of public funds in such circumstances.
I accept that the records in question relate to discussions between parties that were considering the matter of compensation for the traders on foot of disruption likely to arise from various building/development works. While I note the applicant’s argument that no ongoing discussions are in train which could be prejudiced by release, I have no reason not to accept the Department’s submissions as to why it decided to leave the negotiations, and more importantly, the reasons why they are likely to arise again in the future. It is clear from the media reports on the matters concerned that the likely effects on the traders’ business of the proposed works has been controversial, as has the matter of any offers of compensation made. It is also clear that these matters have been ongoing for quite some time and it appears that the proposed development work has been held up due to planning matters which have yet to be resolved.
In his request for internal review, the applicant appeared to question the Department’s role in the matters concerned and contended that members of the MSAG were not made aware that the Department was “party to or present at” meetings when a “proposed offer of compensation payments to traders to be made available out of the public purse was under discussion”. While I have no remit to consider the Department’s role in such matters, in circumstances where there may be concerns about the conduct of such discussions, it seems to me that there is a public interest in knowing how the Department approached the matters at hand and the positions it took in this regard. I accept that the release of the information at issue would add to the transparency around these matters.
On the other hand, it seems to me that there is a strong public interest in the Department being able to successfully carry out relevant negotiations with the parties concerned at the appropriate time. This public interest, it appears to me, is reflective of the wording of the exemption at section 30(1)(c). As noted above, there is no harm test in section 30(1)(c). The wording of the exemption makes no distinction between disclosures which have the potential to prejudice negotiations, or to cause some other harm, and disclosures which do not. However, this Office has previously found that such a distinction should be made in applying the public interest test in section 30(2).
Having carefully considered the Department’s submissions and the context and content of the records concerned, I accept that release could disclose information over and above that currently publicly known about the Department’s position on these matters. I also accept that release of the records sought at this time could negatively impact the Department in future related negotiations. I also consider it relevant that no public funds have been spent to date by the Department on these matters.
Having carefully weighed the public interest in knowing that the Department is adequately administering these matters, against the public interest in the Department and the State not being disadvantaged in later negotiations, I find that the public interest, on balance, does not favour the release of the remaining records sought.
Section 18(1) of the FOI Act 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 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). This Office 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, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Having carefully considered the matter, I am satisfied that so much of the information would have to be removed from the records in this case as to render the records misleading.
As I have found the records in question to be exempt under sections 30 and 31, I am satisfied that I do not need to consider the Department’s reliance on sections 35 and 36 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to the records sought. I find that section 31(1)(a) applies to certain records. I also find that 30(1)(c) of the FOI Act applies to the remaining records sought and that the public interest, on balance, does not favour their 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.
Sandra Murdiff
Investigator