Decision
Mr. C and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150966-J7N6L0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150966-J7N6L0
Published on
Whether the Council was justified in refusing access, in whole or in part, to records concerning wastewater treatment facilities at the applicant’s commercial property under sections 31(1)(a) and 37(1) of the FOI Act
9 September 2025
The background to this review lies in a dispute between the applicant and the Council about wastewater runoff from the applicant’s commercial property. In a request dated 28 November 2023, the applicant sought access to records concerning the wastewater treatment at his commercial premises. Specifically, he sought copies of “the emails/correspondence internally from within all the various Council Departments and externally from all the specialist or contracted professionals”. He also sought copies of the minutes of all the meetings that took place concerning the matter.
In a decision dated 2 January 2024, the Council identified 41 records as falling within the scope of the applicant’s request. Records 1, 8, 9, 10, 11, 12, 14, 15, 16, 17, 26, 27, 30, 31, 32 and 40 were refused under section 31(1)(a) of the Act. The remainder of the records were released in full to the applicant. The applicant applied for an internal review of the Council’s decision on 29 January 2024. He said the refused records could not be regarded as having the benefit of legal professional privilege. He also suggested that there was a substantial number of records which were not referred to in the Schedule and he requested a complete review of his request, seeking all documents since 21 April 1998. On 14 February 2024, the Council affirmed its decision to refuse access to certain records under section 31(1)(a). It made no reference to the applicant’s assertion that additional relevant records should exist. On 30 July 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, the Council said it was in a position to release further records to the applicant which were initially withheld under section 31(1)(a). It released records 9, 10, 12 and 27 in full and records 11, 14, 15 and 16 in part with the redaction of third-party names and mobile phone numbers under section 37(1) of the Act. It said the remaining withheld documents could be reviewed following a related court hearing which has not taken place to date. It also said it was satisfied that all relevant records were identified at the time of the original request.
This Office’s Investigator provided the applicant with details of the Council’s submissions and invited him to make further submissions. In response, the applicant provided details of interactions and engagements with Council officials regarding the ongoing wastewater issue at his property and suggested that relevant records concerning those interactions should exist. He also said he was no longer seeking access to record 30.
The Investigator informed the Council of the details of the applicant’s further submissions. In response, the Council said it conduced further searches arising from the additional information provided by the applicant, as a result of which it identified nine further relevant records, which it scheduled as records 43 to 51. It granted access to all nine records, with some information redacted from record 49 under section 37(1). The applicant was provided the opportunity to comment on the Council’s reliance on section 37(1) to redact record 49. In response, the applicant essentially said he wanted the information that is being withheld from him.
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 correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the Council was justified in its decision to refuse access to records 1, 8, 17, 26, 31, 32 and 40 under section 31(1)(a) and to redact certain information from records 11, 14, 15, 16 and 49 under section 37(1) of the FOI Act.
Before I address the substantive issues arising in this case, I must explain that 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. As such, while it is clear that the applicant is dissatisfied with the manner in which the Council dealt with the substantive issues underlying his request, this Office has no role in examining the appropriateness of those actions or any decisions taken on foot of same.
Section 31(1)(a) of the Act provides for the mandatory refusal of a request if the record concerned would be exempt from production in court proceedings on the ground of legal professional privilege (LPP). This mandatory exemption does not require a consideration of the public interest test. There are two types of LPP:
• 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 Council refused access to the relevant records on the basis of litigation privilege. For litigation privilege to apply the records must have been created for the dominant purpose of contemplated or pending litigation. The dominant purpose test was expressly adopted in Ireland by Hanlon J. in the case ofSilver Hill Duckling v Minister for Agriculture . In the judgment ofUniversity College Cork-National University of Ireland v The Electricity Supply Board [2014] IEHC 135 Finlay Geoghegan J. stated, “the 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 the same judgement Finlay Geoghegan J. also noted 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 to prosecute or defend an action.” Essentially this means that the dominant purpose of the creation of the record is in contemplation of actual or expected litigation. Communications do not necessarily need to be with legal advisers for documents to be covered by litigation privilege. Rather, litigation privilege applies to documents which came into being for the dominant purpose of contemplated or actual litigation. It is important to note that where a claim for exemption is made under section 31(1)(a), each record must be considered in its own right.
In its submissions, the Council said that the refused records pertain to a file which was being prepared by the Environment Department for legal action being served upon the applicant under the Local Government (Water Pollution Acts) 1997-2007 (the Water Pollution Acts). It said live proceedings against the applicant for allegedly failing to comply with a Notice under section 23 of the Water Pollution Acts have been in train since late 2023. It said the records contain information and evidence that has been relied upon in submissions to the court. It said all inspections that are undertaken under environmental legislation, particularly those that are undertaken on foot of complaints, have the potential to trigger enforcement action. It said it is standard procedure therefore to record factual observations and collate any evidence from the very beginning of the process to “court standard” in case such records are required. It said that in many cases, the inspector will form an opinion from an early stage.
In his submissions to this Office, the applicant said if records 8, 17 and 26 relate to his property, he is entitled to see them. He said records 31, 32 and 40 are letters to a Council official and queried how they could attract privilege.
Record 1 comprises a Council Engineer’s report dated 2 January 2024. Record 8 is an undated test report that is described on the Council’s schedule of records as dated 7 December 2023. Record 17 is a test report dated 31 July 2023. Record 26 is a Council Engineer’s report dated 1 November 2018. Record 31 is a Council Engineer’s report dated 227 November 2023. Record 32 is an almost identical copy of record 31 with an additional Council signature. Record 40 is a Council Engineer’s report dated 3 August 2023. All of the records at issue concern the issue of the Council’s enforcement of the Water Pollution Acts.
I accept the Council’s assertion that the records at issue contain information and evidence that has been relied upon in submissions to the court. I also accept its assertion that all inspections that are undertaken under environmental legislation, particularly those that are undertaken on foot of complaints, have the potential to trigger enforcement action. Nevertheless, this does not, of itself, mean that the records must be regarded as having been created for the dominant purpose of contemplated or pending litigation.
Under section 22(12)(b) of the FOI Act, a decision to refuse to grant an FOI request is presumed not to have been justified unless FOI body concerned can satisfy the Information Commissioner that the refusal was justified. I take this to mean that in this case, the onus is on the Council, as the party asserting privilege, to satisfy this Office that the dominant purpose for the creation of the records was pending or contemplated litigation. It is also important to note that it is not sufficient that a record has two equal purposes, one of which is pending or contemplated litigation.
Having regard to the contents of the records at issue, it is not apparent to me that the dominant purpose for their creation was pending or contemplated litigation. Pursuant to section 12 of the Acts, where it appears to a local authority that it is necessary to do so in order to prevent or control pollution of waters, it may serve a notice in writing on any person having the custody or control of any polluting matter on premises in its functional area specifying the measures it considers necessary to prevent such matter from entering waters and directing the person on whom the notice is served to take such measures as are specified in the notice, and the period within which such measures are to be taken. It seems to me that, at a minimum, an equally important purpose, if not the dominant purpose, for the creation of the records at issue was for the purpose of enabling the Council to carry out its enforcement powers pursuant to the Water Pollution Acts to prevent or control water pollution. I note that various Engineer’s reports contain both details of the engineer’s findings in respect of his investigation of a complaint of water pollution, and his recommendation that a Notice be served under section 12. In my view, the facts that such inspections have the potential to trigger enforcement action and that it is standard procedure to record factual observations and collate any evidence from the very beginning of the process to “court standard” are not sufficient to support a finding that the dominant purpose for the creation of all such reports can be regarded as being for pending or contemplated litigation. Indeed, even if there is no likelihood of litigation, the fact remains that such records would be created for the purpose of enabling the Council to carry out its enforcement powers pursuant to the Water Pollution Acts to prevent or control water pollution.
I note from the records released that a Notice under section 12 of the Water Pollution Acts was previously served on the applicant in June 2020. As such, I accept that the Council may well have considered that there was a much higher likelihood of litigation in this case. Nevertheless, this does not take away from the fact that the records at issue were created in the course of the Council performing its enforcement functions under the Water Pollution Acts. Having carefully considered the matter, I am not satisfied that the dominant purpose for the creation of the records at issue was for pending or contemplated litigation. I find, therefore, that the Council was not justified in refusing access to records 1, 8, 17, 26, 31, 32 and 40 under section 31(1)(a) of the Act.
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 third party personal information. Personal information is defined in section 2 of the FOI Act as 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. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above, including (iii) information relating to the employment or employment history of the individual, and (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.
The information redacted from records 11, 14, 15, 16 and 49 comprises names and phone numbers of third-party individuals. I am satisfied that section 37(1) applies to all of the redacted information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be gr1anted where, on balance, (a) 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, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case. In considering where the balance of the public interest lies, 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’). In that 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”. Although the Court’s comments were made in a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
While the applicant said that the Council are yet again withholding information from him in the file, he did not however identify any public interest in favour of release of the information at issue that might outweigh the privacy rights of the third parties concerned.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
While it is not apparent to me that the release of the information at issue would result in a breach of privacy rights to any significant extent, neither is it apparent to me that there is any overriding public interest in its release. The release of the information would not serve to enhance transparency and accountability in how the Council dealt with the complaint of pollution or how it carried out its enforcement powers under the Water Pollution Acts. In short, I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure in this case. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Council was justified in redacting certain information from records 11, 14, 15, 16 and 49 under section 37(1) of the Act.
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 not justified in refusing access to records 1, 8, 17, 26, 31, 32 and 40 under section 31(1)(a) and I direct their release to the applicant subject to the redaction of third party personal information. I find that the Council was justified in redacting certain information from records 11, 14, 15, 16, and 49 under section 37(1) of the FOI Act.
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