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Whether the Council was justified in its decision to refuse access to certain records under sections 10(1)(a) and 22(1)(a) of the FOI Act.

Review application under the Freedom of Information Acts 1997 & 2003 to the Information Commissioner

Background

On 4 September 2012, the applicant submitted a Freedom of Information request to the Council for copies of records containing information relating to the design, installation, operation and maintenance of a culvert and "trash screen" at Ballybrack Stream, Douglas, Cork. The applicant requested records in 13 separate categories. In its decision, dated 9 October 2012, the Council refused the request under sections 21, 22 and 23 of the FOI Act and claimed that legal professional privilege applied. Following the applicant's request for an internal review, the Council, by way of letter dated 19 December 2012, released all records under the first two categories sought, and one record under category 5, but refused to release records on foot of the balance of the application, again asserting exemptions pursuant to sections 21, 22 and 23 of the FOI Act. On 22 February 2013, the applicant sought a review by this Office of the Council's decision.

I note that Ms. Anne O'Reilly of this Office initially conveyed her preliminary views to the Council on 28 June 2013. She stated that, in her view, the claims of exemptions under sections 21 and 23 were irrelevant to the substantive ground for the exemption claimed, that is legal professional privilege, but also stated her opinion that the section 22 exemption did not apply in this case, and that the records should be released. She invited the Council to comment on her views, and a volume of correspondence has been received both from the Council and the applicant in relation to this case. By email dated 16 October 2013, Ms. O'Reilly stated her understanding of the Council's position as being that it disagreed with her preliminary view in relation to the application of 22(1)(a) of the FOI Act. As the Council did not respond to Ms. O'Reilly's preliminary view, I consider that it does not accept that view.

I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to details of the submissions of the Council, to correspondence between the applicant and the Council and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

Preliminary Matters

During the course of this review, Ms. O'Reilly asked the Council to provide a detailed schedule which would identify what records it held in relation to each of the 11 categories remaining at issue out of the applicant's original request. The schedule provided clarified the Council's position as being that it held no records in relation to four of the categories sought, and that the refusal in relation to these categories was in fact grounded upon section 10(1)(a) of the FOI Act. A total of 74 records relating to the remaining seven categories were detailed in the schedule.

In addition, during the course of this review, the Council withdrew its claim for exemptions under sections 21 and 23 of the FOI Act. It relies only on its claim for an exemption under section 22(1)(a) of the FOI Act for its refusal to grant access to the 74 records relating to the seven categories at issue.

Scope of the Review

Accordingly, this review is concerned with the questions of whether the Council was justified in refusing access to records coming under categories 6, 7, 10 and 11 pursuant to section 10(1)(a) of the FOI Act, and whether the Council was justified in refusing access to records coming under categories 3, 4, 5, 8. 9, 12 and 13 of the applicant's request on the basis that they are exempt from release under the provisions of section 22(1)(a) of the FOI Act.

Analysis and Findings

Section 10(1)(a)
The Council refused access to records coming under categories 6, 7, 10 and 11 of the applicant's request on the basis of section 10(1)(a) of the FOI Act, which provides:-

"A head to whom a request under section 7 is made may refuse to grant the request if --

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken"

In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of 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.

In relation to category 6, the applicant sought "[c]opies of all notes, documents and memoranda concerning the installation, maintenance and inspection of the culvert at the Community Park, Douglas, Cork including the 'in culvert' CCTV / video monitoring system." The Council submitted that the records sought in relation to installation and maintenance were captured under category 3, over which legal professional privilege is asserted, while no CCTV footage was available as a closed circuit camera system had not been installed at the material time. I see no reason to doubt the Council's submissions in this regard. However, I will deal in due course with the issue of whether legal professional privilege is properly asserted in relation to category 3.

In relation to category 7, the applicant sought "[d]etails of the Council of construction and design of all flood control structures / devices / systems as exist between the culvert at the Community Park, Douglas, Cork and Douglas Shopping Centre." The Council furnished certain details in relation to the design of the flood control system, stating that a third party had been responsible for some of these works, but again submits that all relevant records are encompassed in category 3 and subject to legal professional privilege, which issue will, as I stated above, be considered in due course.

In relation to category 10, the applicant sought "[c]opy report of Mott MacDonald re records of flood data for Douglas as commissioned by Cork County Council." The Council submitted that it had commissioned no such report, nor was any such report held by it, but that it is aware of work having been done by the relevant firm of consultants on behalf of the Office of Public Works. I see no reason to doubt the Council's submissions in this regard.

In relation to category 11, the applicant sought "[c]opy report of RPS Consulting Engineers re Douglas flooding on 28th June 2012 as commissioned by Cork County Council." The Council submitted that it did not have a copy of the report in question, and that the report in question had, in fact, been issued to and was held by Irish Public Bodies Mutual Insurance, its insurer. The Council further submitted 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."

While it is not in dispute that the report was initially commissioned by the Council, it was submitted that the insurer directed, before the report was prepared, that it should take responsibility for this matter. Ms. O'Reilly received correspondence from RPS Consulting Engineers confirming that the report was issued to and paid for by the insurer rather than the Council. Following her extensive enquiries, Ms. O'Reilly concluded that the RPS 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, having considered the matter, I agree with this conclusion.

Therefore, for the foregoing reasons, I am satisfied that the Council was justified in its refusal to release records coming under categories 6, 7, 10 and 11 on the basis of section 10(1)(a) of the FOI Act. I find accordingly.

Section 22(1)(a)
The Council refused access to the 74 records coming under categories 3, 4, 5, 8, 9, 12 and 13 of the applicant's request on the basis of section 22(1)(a) of the FOI Act which 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:-

1. 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
2. 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.

In his decision, the Council's internal reviewer stated that, "there is currently legal action contemplated or in place against Cork County Council relating to a flooding event on June 28th last, and I consider that all records refused are covered by legal privilege." I have examined each of the records for which the Council claims exemption under section 22(1)(a) in order to decide whether this exemption was justified on the basis of the understanding of legal professional privilege set out above.

From my examination of the records, it is apparent that each one was generated in the ordinary course of business in relation to the planning, design and operation of the culvert and "trash screen". None of the records contain communications between officers of the Council and professional legal advisors. Only two of the records do not pre-date the flooding event on 28 June 2012, referred to by the Council. Therefore, even taking the Council's case at its height, it is clear that at the time when the vast majority of the records were created, no litigation was either contemplated or pending. Regarding the two records that were created after the flooding referred to by the Council, these consist of phone records relating to automated electronic communications sent by text message from a mechanism attached to the "trash screen". It is clear to me that neither of these records were prepared in contemplation of litigation.

The mere fact of there being a possibility or even a likelihood that a record may be produced or relied upon in the course of litigation is not of itself sufficient to render that record subject to legal professional privilege. It cannot be said of any of the records that the "dominant purpose for the document coming into existence [was for] the purpose of preparing for litigation then apprehended or threatened." (see Silver Hill Duckling Ltd. v. Minister for Agriculture [1987] IR 289 and Gallagher v. Stanley[1998] 2 IR 267). Equally, none of the records were prepared for the purpose of obtaining or giving confidential legal advice. Therefore, I agree with Ms. O'Reilly that these records are not exempt by virtue of section 22(1)(a) of the FOI Act and, accordingly, I find that the records in question should be released.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Council in this case and direct that those records coming under categories 3, 4, 5, 8, 9, 12 and 13 of the applicant's request, as set out in the schedule furnished by the Council, should be released in full to the applicant. I affirm its decision regarding exemption of the records in categories 6, 7, 10 and 11.

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.

Sean Garvey
Senior Investigator