Decision
Mr X and Cork County Council
From Office of the Information Commissioner (OIC)
Case number: 120320
Published on
From Office of the Information Commissioner (OIC)
Case number: 120320
Published on
Whether the Council was justified in its decision to refuse to release certain records relating to its investigations into pollution on the applicant's farmland and into a waste tip on Council lands on the basis that they do not exist or cannot be found (section 10(1)(a) of the FOI Act), or attract Legal Professional Privilege (section 22 (1)(a) of the FOI Act).
11 August 2014
On 1 February 2012, the applicant made an FOI request to the Council for all documents, notes, memos etc. relating to investigations into pollution on his farmland and its investigation into a waste tip on Council lands. Following contact with the applicant's representative, the scope of the request was agreed; it was clarified and limited owing to the large volume of records covered by the request submitted. The Council, in its decision of 29 March 2012, released some records and withheld others on the grounds of Legal Professional Privilege, Law Enforcement (the potential to prejudice or impair the detection or investigation of offences), Commercial Sensitivity and/or because they were considered to contain the personal information of third parties . The Council provided a schedule of records released, those released with redactions, and those withheld.
On 25 April 2012, the applicant's representative submitted an application for an internal review of the Council's original decision. The representative raised a number of points and sought to broaden the FOI request to encompass, inter alia, documentation about the design of the N25 national route, and correspondence with Iarnród Eireann in relation to the sea embankment adjacent to a local railway line. He did not raise any issue in relation to the records which the Council had withheld on the grounds of Law Enforcement, Commercial Sensitivity or because they contain the personal information of third parties. The Council issued its decision on the internal review application on 11 June 2012, and gave detailed responses to all of the items raised in the internal review request, including those not within the scope of the original FOI request. The Council released some additional records and clarified that many of the records sought by the applicant did not exist. It also provided details of the searches that were carried out for the records.
The representative submitted an application to the Information Commissioner on 3 December 2013 for a review of the Council's decisions. Again, the representative did not raise any issues pertaining to the records which had been withheld on the grounds of the various exemptions listed above. In reviewing the case, Mr. Richie Philpott, Investigator, of this Office noted that the core issues, at that point in the case, seemed to arise from points identified in a letter from the Council to the applicant dated 25 October 2012. In this letter, the Council:
I. undertook to carry out further searches for documents relating to the N25 project;
II. refused to release a report, commissioned by the Council's solicitors, and prepared by a company called White Young Green (WYG), as the Council took the view that it was a record protected by Legal Professional Privilege;
III. undertook to hold a further meeting of relevant staff to obtain and provide clarifications to the applicant in relation to certain pollution-related tests which were carried out by a company called ELS on behalf of the Council;
IV. refused to release records of meetings between the Council and Iarnród Eireann on the grounds of Legal Professional Privilege;
V. undertook to search for records pertaining to certain complaints made to the Council by An Post;
VI. agreed to broaden the scope of the FOI review to encompass any correspondence between Government Departments and the Council pertaining to a specific environmental Special Area of Conservation (SAC) and a specific environmental Special Protection Area (SPA), and to conduct a search for relevant records.
Following correspondence between the Investigator and the Council, the Council's position on these issues was clarified as follows:
I. The relevant searches had been carried out and no relevant records had been located. The Council acknowledged its failure to notify the applicant of this outcome, and undertook to do so;
II. The Council continued to maintain that the report in question was subject to legal professional privilege;
III. The Council advised that the relevant searches were carried out. Again nothing of relevance had been found;
IV. The Council continued to maintain that records of meetings, etc. were subject to Legal Professional Privilege;
V. The Council advised that the relevant search had been carried out. Again nothing of relevance was found;
VI. Records pertaining to the relevant SPA and SAC are publicly available, and are therefore outside the scope of FOI, and, in any case, this matter is outside the scope of this particular FOI request.
In carrying out my review, I have had regard to correspondence between the Council and the applicant and/or his representative, to contacts between this Office and the Council; to contacts between this Office and the applicant and his representative, and, in particular, the "preliminary views" letters sent to him and to his representative by the Investigator. I note that the only response to those views was a request, by email from the applicant, for the case file to be kept open on the grounds of his desire to obtain the documents pertaining to the N25. Therefore, I must conclude the review by way of a formal binding decision. I have also had regard to the content of the records and to the provisions of the FOI Act.
The scope of this review is confined to whether or not the HSE has justified its decision to withhold certain records on the grounds that they are exempt from release in accordance with section 10(1)(a) or section 22 (1)(a) of the FOI Act. The Investigator engaged with the parties on the broader scope of the issues which were raised by the applicant subsequent to the original FOI request in the interest of achieving an informal resolution of the case. However, as the review must now be concluded by way of a final, binding decision, I can consider those issues which were raised in the original FOI request only. Therefore, this review covers items i. to v. only of the list in the Council's letter of 25 October 2012, referred to above.
Section 10(1)(a) --items i, iii, and v of the above list refer
Section 10(1)(a) of the FOI Act states:
"A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken"
The Commissioner's role in cases 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 and I must also assess the adequacy of the searches conducted by the public body in looking for relevant records. 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 were reasonable. Based on the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its 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 this Office's website,www.oic.ie ).
The Council has provided substantial details in relation to the searches it has conducted for various records in connection with this FOI application. While it has acknowledged, in its letter of 25 October 2012 referred to above, that additional searches were required in certain instances, it has stated that it has carried these out as agreed, and it has supplied details of the searches carried out. However, in each instance it has reported that no further relevant records were found.
In essence, the position of the Council is that the further records requested by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Taking into consideration the submissions of the Council relating to the searches carried out for the missing records, I am satisfied that all reasonable steps have been taken to find the records and that they do not exist or cannot be found. Accordingly, I consider that the Council was justified in refusing access to the records on the basis of section 10(1)(a) of the FOI Act. I find accordingly.
Section 6(9) --item ii of the above list refers
In relation to item ii from the above list, while the Council has claimed legal professional privilege in respect of the report in question, it has also contended that it does not have a copy of the report and that the report was in fact the property of Irish Public Bodies Mutual Insurance, its insurer. In effect the Council's position was that section 6(9) of the FOI Act does not apply in this instance. Section 6(9) provides that:-
"A record in the possession of a person who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body, and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances."
It is clear to me from the correspondence in this case that the report was paid for by the insurer, and that it is the insurer's report. The position is similar to that which arose in case number 130045 -- Mr. X and Cork County Council (which is available on the Information
Commissioner's website, at http://www.oic.gov.ie/en/Decisions/Decisions/Mr-X-and-Cork-County-Council1.html ), in which the applicant sought a report by a company called PBS which I found did not fall for release in accordance with the provisions of section 6(9) of the FOI Act, as it was the property of the insurers and not held by the Council. Again, in the current case, I have concluded that the WYG report is not "held" by the Council, either in the normal sense of the word or within the meaning as set out in section 6(9) of the FOI Act, and that it therefore does not fall for release under FOI. I find accordingly.
As I consider that this matter is appropriately dealt with in accordance with Section 6(9) of the FOI Act, I do not think it is necessary to make a finding on the Council's contention that the record is exempt on the basis of Legal Professional Privilege. However, as I understand it, the applicant and his representative have been notified by the Investigator of the Council's contention that the record was created in connection with ongoing litigation.
Section 22(1)(a) --item iv of the above list refers
The remaining item on which a determination is required is item iv on the above list. The Council refused access to this item on the grounds of Legal Professional Privilege.
Section 22(1)(a) of the FOI Act provides:
"A head shall refuse to grant a request under section 7 if the record concerned - (a) 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:-
I. confidential communications between a professional legal adviser and a client in the course of a professional legal relationship, made for the purpose of giving or receiving legal advice; and
II. confidential communications between a professional legal adviser and either a third party or the client; or between the client and a third party; or between the client and professional legal adviser, the dominant purpose of which is the preparation for contemplated or pending litigation.
III.
The Council has provided records to me which show that the correspondence in question was between the Council's solicitor and Iarnród Eireann, which is referred to as C.I.E. in the correspondence. Having examined the records at issue, I am satisfied that they refer directly to issues of legal liability in respect of a claim made against the Council by the applicant. I therefore find that they fall within one or both of the two types communications outlined in the definition of legal professional privilege given above and that the Council is justified in holding that they are exempt under section 22(1)(a) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby uphold the Council's refusal of the records concerned.
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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Elizabeth Dolan
Senior Investigator