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Whether the Council was justified in refusing to release certain records, held by it and its legal advisors, concerning two Planning Enforcement Notices issued by the Council to the applicant

Review Application under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

In 2005, the applicant sought a Judicial Review regarding an Enforcement Notice that the Council had issued to him in 2004 (the Council's Unauthorised Development (UD) file reference number 03/*** refers). The Notice concerned alleged breaches of planning permission granted to the applicant and his building company in 2002. In 2006, the Courts found the Notice to be invalid. As I understand it, a further Enforcement Notice issued in 2009 (UD 09/*** refers) concerning the same alleged breaches of the 2002 planning permission (to which I will refer as "the substantive issue"). The ensuing legal proceedings taken by the Council against the applicant were dismissed by the Courts in October 2010 also, in the words of the Council, on "procedural issues".

On 8 May 2012, the applicant made an FOI request to the Council for various records concerning the 2004 Enforcement Notice and the legal costs arising from it, as held by the Council and its legal representative, Regan McEntee, Solicitors. He also sought various records, held by the Council and Regan McEntee, concerning the Enforcement Notice issued to him in 2009.

The Council's decision, dated 9 July 2012, granted full and partial access to some records as contained on three Council files (UD 03/***, Legal File UD 03/***, and UD 09/***) that it considered relevant to the request, and refused the rest.

The applicant sought an internal review of the Council's decision on 20 July 2012, disputing, in particular, its contention that certain records attracted legal professional privilege and were exempt under section 22(1)(a). On 10 August 2012, the Council upheld its earlier decision.

On 22 August 2012, the applicant sought a review by this Office of the Council's decision on his request. In the course of the review, the Council agreed to release three further records, which contained details of other parties who had written, or paid a fee, to the Council in a particular period of time subject to the redaction of the names and addresses of all parties referred to therein, except those of the applicant (records 2, 3 and 5 on File UD 09/*** refer).

In carrying out my review, I have had regard to the records considered by the Council in the above decision-making process (which were provided to this Office for the purposes of my review); to correspondence between the Council and the applicant as set out above; to contacts between Ms Anne Lyons, Investigator in this Office, and the Council; and to contacts between Ms Lyons and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to the issue of whether the Council has justified its refusal of access to the requested records.

It will be clear from my findings below that this was a difficult and complex review and that the level of engagement by the Council with my Office was not ideal.

Part 1 of the Appendix to this decision lists the records, identified by Ms Lyons in her email to the applicant of 19 May 2014, as the records withheld from the three files considered by the Council to date, and the extent to which they were withheld (in full, or in part). Although invited to, the applicant has not identified any further records that he considers not to have been released, as claimed by the Council. I note that while record 5 on File UD 09/*** was initially fully withheld, it is now listed in Part 1 of the Appendix as having been partially withheld, further to the Council's release of part of it.

The applicant accepts that section 28 of the FOI Act is applicable to the personal information of parties other than himself, or the joint personal information of himself and other identifiable individuals. A number of such records were specifically identified to him in Ms Lyons' email of 19 May 2014. The applicant subsequently confirmed that such information can be removed from the scope of the review. I agree that such details, which are listed again at Part 2 of the Appendix to this decision, comprise personal information of other parties, or the joint personal information of the applicant and others. My decision, therefore, need not consider the records concerned.

The remaining records the subject of this decision are listed at Part 3 of the Appendix to this decision. However, having examined the records concerned, I consider records 30, 31, and the remainder of record 34 on UD 03/*** Legal File to comprise the personal information of a third party or parties, or the joint personal information of the applicant and others. Furthermore, record 98 on file UD 3/***(and its copies, record 58 on Legal File UD 03/***, and record 25 on UD 09/***) contains a very small amount of personal information about the Councils' legal advisor (i.e. the first seven words of the final sentence of the first paragraph of an email dated 31 July 2006). In accordance with the applicant's agreement that any personal or joint personal information can be excluded from the review, I consider it appropriate to exclude these details from my review and from this decision.

Furthermore, having examined record 106 on file UD 03/***, I note that a substantial part of the details in an email sent at 14:43 on 5 December 2006, and all of the details in an email sent at 14:18 on the same date, pertain to a development being constructed by builders other than the applicant, in a different part of Co. Meath. Such information is not relevant to, or covered by, the applicant's request and is excluded from my decision accordingly.

Findings

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. This provision is of particular significance in this review.

Furthermore, the Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of my review, rather than by reference to the facts and circumstances that applied at an earlier date.

Discontinuation of Review
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 note that the attachment to record 119 on UD 03/***in this case has already been the subject of a decision by my Office (case 120209 refers, which concerned the same applicant). I hereby discontinue this review in respect of the attachment to record 119 on UD 03/***, in accordance with section 34(9)(a)(iii) of the FOI Act.

There were two elements to the review in case 120209. The first concerned the copy of the attachment to record 119 in this case, which had been partially released to the applicant. This Office's decision directed the release of a further sentence of this record. The second element of that review concerned a particular record, which was generally referred to in that case as the "full report". However, Ms Lyons noted that "54" had been marked on the "full report". Having examined the records marked "54" in this case, she determined that the "full report" in case 120209 was the same as record 54 on UD 03/*** Legal File in the case at hand. Accordingly, the review of the "full report" in case 120209 was discontinued.

I am disappointed to note that the Council did not, at any stage, say that either of the records at issue in case 120209 were also encompassed by the review in case 120210. The record that was actually considered in case 120209 was not numbered, and thus it was not practicable to compare it to all of the records at issue in the present case. As the Council had not told this Office that the record concerned would be subject to review in the case at hand, I proceeded with my review of the Council's decision on that document. If the Council had brought the matter to this Office's attention, however, it is highly likely that the applicant would have withdrawn the application for review the subject of case 120209, and thus would have received a refund of €150 of the total €300 in application fees he paid to this Office.

Records Considered by the Council to be Relevant to the Scope of the Request
As noted already, the records considered by the Council to be relevant to the request are contained on three files (UD 03/***, Legal File UD 03/***, and UD 09/***). The Council explains the lack of a separate legal file for UD 09/*** on the basis that by 2009, the Council held its legal and enforcement files "as one file". I have no reason to dispute this contention.

The records at issue are largely comprised of internal Council records and correspondence between the Council and Regan McEntee and/or Counsel. However, although the request also clearly encompassed records held by Regan McEntee, the Council confirmed to this Office on 26 May 2014 that it did not "request Regan McEntee's legal file in relation to these two enforcement files".

I am disappointed to note that the Council did not explain why it failed to consider such records. Neither, indeed, did it explain why it took almost four months to respond to Ms Lyons' query of 31 January 2014 in this regard, notwithstanding her requests, by telephone and email on 13 February, 12 May, and 21 May 2014, that it do so.

The result of all this is that the Council has effectively refused that aspect of the applicant's FOI request encompassing records held by Regan McEntee. However, it has not justified that refusal. While section 34(12)(b) requires me to direct the release of those records held by the Council's legal advisor accordingly, I do not consider it appropriate to do so in this case solely on the basis that the Council has not properly justified its effective refusal of those records. The records concerned might have otherwise been found by me to be exempt under a mandatory provision of the FOI Act (such as section 22(1)(a)), or might affect the interests of third parties. Accordingly, I have decided to annul the Council's effective refusal of records relevant to the applicant's request as held by Regan McEntee and to direct that the Council undertake a fresh decision making process in respect of those records.

Section 22(1)(a)
The Council contends that section 22(1)(a) applies to the records at issue on the basis that they attract "litigation privilege".

Section 22(1)(a) of the FOI Act is a mandatory exemption applying 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:

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation.

In the remainder of this decision, I will refer to these types of communications as records subject to, respectively, "legal advice privilege" and "litigation privilege".

Internal records can attract legal professional privilege. In Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289, O'Hanlon J. held that the defendants were entitled to claim privilege in respect of "documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the plaintiffs". Furthermore, previous decisions from this Office have accepted that legal professional privilege also attaches to records, including internal records, where they are part of a continuum of correspondence arising from an original request for legal advice (Case Number 020281 - Mr.  X and the Department of Education and Science - available on our website oic.ie).

Litigation Privilege
In considering litigation privilege, I have had regard to the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135. I will refer to this judgment as the "ESB judgment". The proceedings related to a claim for damages arising from a flood that occurred in the River Lee in 2009. The plaintiff sought discovery of certain documents prepared by the ESB following the flood, as well as certain documents created following three earlier floods.

In granting the discovery sought, Ms Justice Finlay Geoghegan made it clear that:
the onus is on the party asserting privilege to "establish ... as a matter of probability that litigation ... was apprehended or threatened from [a particular date]";
the dominant purpose threshold is not met in a case where there are two equal purposes for a document's creation, even if one of those purposes is preparation for litigation; and
unlike legal advice privilege, litigation privilege does not "automatically continue beyond the final determination of either that litigation or ... closely related litigation."

There is no need for me to consider the "dominant purpose" test in respect of the records at issue. This is because I am not satisfied that the Council has justified its contention that any applicable litigation privilege continues in the circumstances of this case, and that the Courts would find legal professional privilege to apply to the records at issue accordingly.

As I understand it, the findings of the Courts in the litigation between the Council and the applicant to date, concerned the Council's procedures rather than the substantive issue. Further to the ESB judgment, the onus is on the Council to establish, on the balance of probabilities, that litigation on the substantive issue is contemplated or pending, or that closely related litigation has either not concluded or is contemplated or pending.

On 12 and 27 May 2014, Ms Lyons asked the Council to justify, in accordance with section 34(12)(b) and in light of the ESB judgement, why it might consider litigation privilege to apply to the records at issue in this case. She said that the ESB judgment indicated that it was not sufficient to suggest that further litigation is merely a possibility, and referred the Council to the Oxford English Dictionary definition of "contemplate" (to "have in view as a probable intention"). She also suggested that the finding in the ESB judgment, regarding the duration of litigation privilege, would seem to be very much at odds with any position that the Council might take to the effect that it has an indefinite entitlement to litigation privilege simply because the substantive issue has not been, or will not be, heard in Court.

Ms Lyons noted the lack of arguments regarding ongoing legal proceedings, or ongoing enforcement actions that are likely to result in further legal proceedings, concerning the substantive issue. She questioned also how further enforcement action might be initiated in 2014 (regardless of whether or not the relevant planning permissions, granted in 2002, were, in fact, fully complied with). She noted that no arguments had been put forward concerning any other related proceedings that were underway or contemplated. She questioned how there might be a basis to accept that details of the applicant's alleged specific breaches of planning permission would be of general application to any ongoing litigation, concerning other parties' breaches of planning laws, in which the Council may be involved.

Notwithstanding the detailed questions raised, the Council's emails to this Office of 26 May and 9 June 2014 merely said in response that its "litigation file in respect of [the applicant] is still a current file" because "the litigation on foot of the two Enforcement Notices referred to by the Applicant were disposed of on foot of procedural issues and the substantive issue as to the planning status of the Applicant's development has to date not been judicially determined. There is the possibility that this issue could come before the Courts at a later date and accordingly the Litigation Privilege which attaches to the documents may well continue beyond the determination of the Proceedings taken to date."

The Council did not address any of the particular issues raised by Ms Lyons, or otherwise try to explain how it felt that litigation privilege "may well" continue in the circumstances of this case. That "[t]here is a possibility" that an event will occur at some unspecified point in time does not mean, as is the standard required by the Courts, that it will happen on the balance of probabilities.

No argument has been made to me that it would be possible for the Council to take legal action against the applicant without a further Enforcement Notice having been issued in relation to the substantive issue. The Council has not referred me to such a Notice, nor do I have any basis to consider it is contemplating taking such steps now (notwithstanding the passage of time). Even if it is possible for the Council to take legal action against the applicant on the substantive issue without having issued an Enforcement Notice, the Council has not referred me to any other steps that it has taken, or is contemplating, in this regard. Neither has it identified any related legal proceedings in train, or that it is contemplating, which might have a substantive or close connection to the specific substantive issue in this case. Finally, neither has the Council explained how litigation in relation to the substantive issue could possibly be taken by any party other than the Council, and how the Council might be able to claim privilege over its own records in such a case.

If the Council was seeking to claim privilege before the Courts on such a basis, I find it difficult to see how the Courts would be satisfied that the Council has established, on the balance of probabilities, that litigation on the substantive issue is contemplated or pending, or that closely related litigation has either not concluded or is contemplated or pending, and that any records to which litigation privilege once applied continue to be privileged. Thus, I do not consider the Council to have met the requirements of section 34(12)(b) of the FOI Act, in that I am not satisfied that it has justified its contention that the Courts "would" accept that legal professional privilege applies accordingly. I thus find that the records at issue are not required to be withheld under section 22(1)(a) of the FOI Act on the basis that they continue to attract any litigation privilege that may once have applied to them.

Legal Advice Privilege
The ESB judgement suggests that any party arguing before the Courts, that legal advice privilege applies to a document, must make a "claim" that such privilege is applicable. The Council has not sought to justify why legal advice privilege might apply, in this case, to any or all of the records that may previously have attracted litigation privilege. Thus, one could argue that the Council has made no "claim" that some or all of those records attract legal advice privilege, and that the Courts would not accept that this to be a basis on which the Council would be entitled to claim legal advice privilege.

However, I have had regard to the High Court judgment given on 4 April 2001 in the case of EH and EPH v. the Information Commissioner[2001] 2 IR 463 (available on www.oic.ie). That judgment made it clear that where I, as Commissioner, or a public body becomes aware "that there is in existence an undertaking to a Court be it expressed or implied, ... disclosure [of the relevant records] must be refused on the basis of Section 22(1)(b)". Section 22(1)(b) is a mandatory exemption, as is section 22(1)(a). Also noting Ms Justice Finlay Geoghegan's comments in the ESB judgment that "[c]ommunications between a client and his/her lawyer in the course of, or in anticipation of litigation may for the most part benefit from legal advice privilege", I consider it appropriate to consider whether any of the records at issue in this case, created as they were for the purpose of legal proceedings, might attract legal advice privilege. If it is apparent to me that this is the case, the EH judgment suggests that I "must refuse" such records. I must make it clear, though, that I see no basis to direct that a record be withheld, in the absence of argument from the Council, where it is not apparent to me that it attracts, or even might attract, legal advice privilege.

Legal advice privilege lasts indefinitely, even where the advice pertains to concluded litigation, or litigation that did not proceed. However, it seems that there are limits to the application of legal advice privilege to records that would have attracted litigation privilege at some previous point in time. While it was not necessary for the Court to consider this issue in the ESB judgment, it seems to me that the limitation affects, in particular, records created by third parties with the dominant purpose of preparation for anticipated or contemplated litigation. An example of such a record might be an insurance assessor's report. Such records do not continue to attract litigation privilege once the litigation has concluded, and would not have attracted legal advice privilege in the first instance. The limitation might also affect records concerning legal assistance provided with the dominant purpose of preparing for an ongoing or anticipated court action; while those records might once have attracted litigation privilege, they do not attract legal advice privilege.

Certain of the records at issue in this case contain explicit requests for legal advice, or contain the responses to such requests. Furthermore, while not all of the content of correspondence between the Council and its legal advisors explicitly seeks or gives legal advice, I consider it implicit, in any contractual relationship between a client and its legal advisor, that the advisor is required not only to act for the client further to any litigation in which it is involved, but to provide it with all legal advice relevant to that litigation. It is reasonable to consider the records at issue in such a wider context.

Thus, I accept that views and suggestions given by a legal advisor to a client, about the implications of relevant Court precedents, or about the application of particular legislation, to the litigation to which the client is or was a party, would amount to legal advice, not legal assistance. I also consider legal advice to comprise the advisor's views, suggestions, or comments on the strongest and/or weakest aspects of the litigants' respective cases. Furthermore, it is my view that, in drafting documents such as affidavits, legal submissions, etc. to be placed before the Courts, a legal advisor is inherently advising their client by identifying those facts and arguments that are most supportive to the client's case and presenting them accordingly, (or alternatively, presenting the weaker elements of their case in the best possible light). I do not accept that any privilege that attaches to such draft documents has been waived when the final version thereof is submitted to Court. I also accept that legal advice privilege applies to requests from the legal advisor for information, or documents, that enable him or her to provide the client with legal advice, and to the documents or information so provided. Furthermore, some of the records at issue are the Council's requests for the legal advisor to draft letters that would address specific points, raised in correspondence from applicant or his advisors in the course of the then ongoing litigation. Such records seem to me to implicitly request legal advice.

It appears also, in the case at hand, that there were attempts to settle the litigation, although no settlement was actually arrived at. It is my understanding that details of settlement proposals, where expressed or otherwise proved to have been made "without prejudice," cannot generally be admitted in evidence, particularly where no settlement has been reached. There is no exemption in the FOI Act that enables records of "without prejudice" communications to be withheld, however. Be that as it may, I consider that it is appropriate that where attempts are being made to settle litigation, draft settlement proposals, or views of the legal advisors on those proposals, can be treated as containing contain legal advice. Furthermore, certain internal records of the Council, pertaining to all of the above, seem to me to form part of a continuum of communications arising from either explicit, or implicit, requests for legal advice.

In summary, and having regard to the above, I consider the records set out at Part 4 of the Appendix to this decision to attract "legal advice privilege" and to be exempt under section 22(1)(a) of the FOI Act. I find accordingly.

I do not accept that the records listed at Part 5 of the Appendix to this decision attract legal advice privilege or that they are exempt under section 22(1)(a). While some of these records, or parts of records, are attachments to other records that I have found to be exempt, they comprise letters sent from the Council's legal advisors to the applicant's legal (or other) representatives, and/or vice versa. Other such records comprise details of telephone conversations or discussions, in Court or elsewhere, between the Council's legal team and that of the applicant (or other representatives of the applicants) in relation to the litigation generally. Such open communications cannot be said to be confidential, nor has the Council made any argument as to why this might be the case.

In a similar vein, I do not consider those records that describe settlement discussions that took place with the applicant's legal advisors to attract legal advice privilege. Again, the Council has made no argument as to why such details might be confidential. Thus, I have directed the release of such records with the exception of any details therein that appear to me to comprise legal advice sought from or given to the Council by its legal advisor in relation to the proposed settlements.

Further records listed at Part 5 comprise translations (some described as "rough") by the Council's legal advisors of documents submitted in Irish by the applicant's legal team, or requests for same. I consider such matters to amount to requests for, or the provision of, legal assistance, being matters that the Council could seek to have done itself, e.g. by a fluent Council staff member or a translation service. Neither do I consider any cover letters that request translations, or forward translated documents, to comprise requests for, or the provision of, legal advice, except where such advice is specifically requested or provided in the relevant cover letter. In addition, I am directing the release of a record received from the Council's legal costs accountant in that it does not contain legal advice given by the Council's professional legal advisor. I also consider that some letters from the Council's legal advisor and internal records pertaining to the payment of costs fall to be released since I do not consider these to be part of a continuum of correspondence arising from an original request for legal advice. Finally, I note that the Council did not respond to Ms Lyon's view that privilege could not be claimed in respect of the small number of records comprising notes of evidence given in court (MFM v PW [2001 HC] 3 IR 462 refers). I have directed the release of such records except for any details therein that appear to me to comprise legal advice sought from or given to the Council by its legal advisor, relating to the events in Court.

Section 22(1)(b)
As noted earlier, further to the EH judgment, I "must refuse" any records that have been provided to the applicant under Discovery procedures under the mandatory section 22(1)(b). To do otherwise would be a contempt of Court since the applicant to whom discovery was made would have given an undertaking to the Court to use the documents only for the purpose of the litigation. Having noted references in certain records to an application for Discovery made by the applicant in this case, Ms Lyons asked the Council, on 31 January 2014, if records had been provided to the applicant accordingly. When no response was received, she asked the Council to confirm the position on 13 February 2014 (in a telephone call and in an email), 5 March 2014, 17 April 2014 and 23 April 2014.

On 28 April 2014, the Council confirmed that there had been discovery of records. It did not explain why it took some three months to confirm this matter of fact. On that same date, Ms Lyons provided the Council with a link to the "EH" judgment referred to above. Noting that O'Neill J. suggested it was open to any party making Discovery to waive the undertaking given to the Court, Ms Lyons' emails to the Council of 12 and 27 May 2014 told it she would take it that it had waived the said undertaking to the Court, and that section 22(1)(b) is not relevant, if it did not cite section 22(1)(b) in response to her emails. The Council's replies, of 26 May and 9 June 2014, neither referred to section 22(1)(b), nor listed the records that it had provided to the applicant under Discovery.

It seems open to me to take it, therefore, that the Council has waived any undertaking it previously gave to the Court regarding those documents it provided to the applicant under Discovery, and that there is no need for me to make a finding on section 22(1)(b) in the circumstances of this case.

However, the applicant has confirmed to this Office that he is not seeking the records previously provided to him under Discovery. Accordingly, the Council is required to identify the records concerned to the applicant (number, date, description, etc.) as contained on the files at issue and it need not release any such records that may be contained in the list of records at Part 5 of the Appendix to this decision.

Other Provisions of the FOI Act
Although invited to, the Council did not identify, or seek to rely on, any other provision of the FOI Act in relation to its refusal of access to the records. I have no basis, therefore, to consider any other provisions of the FOI Act in this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Council's decision and direct it to release the records in part, as set out at Part 5 of the Appendix, with the exception of any records in that list that the Council can confirm have been provided to the applicant under Discovery procedures. This is a case in which I consider it appropriate to specify, under section 34(13) of the FOI Act, the period of time within which effect shall be given to this element of my decision. I specify that, subject to sections 42 and 44 of the Act, the relevant records shall be released to the applicant within 10 working days of the expiration of the time for the bringing of an appeal to the High Court.

I also direct the Council to conduct a fresh decision making process in respect of records held by Regan McEntee, Solicitors that are covered by the scope of the applicant's request. The Council is required to make a fresh decision and to inform the applicant of its decision in accordance with section 8 of the FOI Act. That decision is subject to the usual rights of internal and external review.

Right of Appeal

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.

Peter Tyndall
Information Commissioner