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Whether the Council was justified in its decision to partially refuse a request for access to records relating to the applicant and relating in particular to the seizing of two dogs, on the basis that the information contained in the parts refused is exempt from release under sections 22 and 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant applied to the Council on 18 August 2014 for access to all personal records relating to him including all information concerning the confiscation of two dogs by the Council's dog warden. In its decision dated 14 October 2014, the Council part-granted the applicant's request. Access to certain records was withheld under sections 22(1)(a) and 28 of the FOI Act. The applicant sought an internal review of that decision on 16 October 2014. In doing so he referred to a particular record that had not been included in the records considered for release.

In its internal review decision of 7 November 2014, the Council varied its original decision and released one further record which had previously been refused. It also explained that the omission of the record identified by the applicant was an oversight and it decided that the to refuse access to the record concerned. The applicant wrote to this Office on 24 March 2015 seeking a review of the Council's decision.

In conducting this review, I have had regard to the correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council. I have also had regard to the records in question, copies of which have been provided to this Office by the Council for the purposes of this review. In referring to the records at issue I have adopted the numbering system used by the Council in the schedules provided to the applicant during the processing of his request.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access records 1, 7, 8, 10, 13, 16, 17 18, and 19 from Schedule 1 and records 3, 4, 6 and 7 (in part) from schedule 2 on the basis that they are exempt from release under the provisions of the Act.

Preliminary Matters

While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited.

At the outset I should explain that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body. The scope of the review is as outlined above

Analysis and Findings

Section 22(1)(a)
With the exception of record 7 on schedule 2, the Council refused access to all remaining records under section 22(1)(a) of the FOI Act. That section provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts that legal professional privilege enables maintaining the confidentiality of two types of communication:

i. 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
ii. 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).

In its original decision, the Council stated that the records at issue were exempt under that section because "they contain legal advice". In a submission to this Office in response to a request for clarification as to which limb the Council considers to apply to each record, the Council stated that the records from schedule 1 were refused "on the basis of legal advices to the client and in contemplation of litigation" while the records from schedule 2 were refused "as these documents relate to the provision of legal advice and obtaining legal advice". As the Council's argument is not entirely clear, I have considered whether the records are captured by either limb of legal professional privilege as described above.

It is important to note the Commissioner takes the view that privilege attaches to records forming part of a continuum of correspondence that results from the original request for legal advice. The Commissioner also accepts that, provided the ingredients of the relevant limb of legal professional privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue.

Record 1 from schedule 1 is described by the Council as an internal file note. In my view, the record does not come within either limb of legal professional privilege. It is not a communication between the Council and its legal adviser, nor does it contain details of legal advice sought or received. Indeed, I note that much of the information contained in the record is also contained in the relevant part of record 7 from schedule 2 that has been released to the applicant. I find that section 22(1)(a) does not apply to this records and direct its release, subject to redactions as outlined below.

Record 7 is an internal file note that was prepared by the Council's legal adviser. I am satisfied that it contains legal advice and is exempt from release under section 22(1)(a).

Record 8 is an internal memorandum sent to a Council Official by the Council's Legal Services Department. I am satisfied that it consists of legal advice and is exempt from release under section 22(1)(a).

Records 10, 13, 16, 17 and 18 comprise correspondence between the Council's Legal Services Department and Council Officials. Accordingly, having reviewed the records, I am satisfied that they form part of a continuum of correspondence that resulted from an original request for legal advice and that they are exempt from release under section 22(1)(a).

Record 19 consists of emails between the Council's legal services department and An Garda Síochána. The Council has stated to this Office that legal proceedings are still contemplated in relation to the issue discussed in these record. I accept the Council's assertion and having review the record, I am satisfied that it is captured by the litigation privilege limb. Accordingly I am satisfied that the record is exempt from release under section 22(1)(a).

Records 3, 4, and 6 from Schedule 2 consist of memoranda to or from the Council's Legal Services Department seeking or conveying legal advice. Having reviewed the records I am satisfied that the first limb of legal professional privilege, advice privilege, applies, and find that the Council correctly applied the exemption at section 22(1)(a).

Section 28
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to an individual other than the requester.

In its internal review decision the Council refused access to a small part of record 7 of Schedule 2 under section 28 on the basis that it consisted of the personal information of a third party. The record at issue is a report relating to a fine issued under the Control of Dogs Act. Having regard to the definition of personal information as set out in section 2 of the Act, I am satisfied that the information redacted comprises personal information relating to a third party or parties. Accordingly, I find that section 28(1) applies. In addition, record 1 of Schedule 1 contains the same information as outlined in relation to record 7 of Schedule 2, above. I find that section 28(1) also applies to the equivalent portion of information in record 1 Schedule 1.

Under Section 28(2) there are some circumstances in which the exemption for personal information under section 28 does not apply. Having examined the withheld records, I am satisfied that none of those circumstances arise in this case. That is to say, (a) that the third parties have not consented to the release of their information; (b) that the information is not of a kind that is available to the general public; (c) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (d) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5) of the Act also provides for the release of information to which section 28(1) applies, namely where:
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the records would not be to the benefit of the third party or parties in question and that section 28(5)(b) does not apply.

On the matter of whether section 28(5)(a) applies, the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 28(5)(a).

The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. There is also a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions. In my view, the public interest in openness, transparency and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies.

On the other hand, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will 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.

In relation to the records at issue, the substance of the records as it relates to the applicant has been disclosed to the applicant. In my view, this serves the public interest in openness, transparency and accountability to a strong degree. The question I must consider is whether the release of the remainder of the records sought would further serve that public interest to the extent that it would outweigh the privacy rights of the third party or parties about whom the information relates. I am satisfied that it does not. Accordingly, I find that section 28(5)(a) does not apply.

I find, therefore, that the Council was justified in refusing access to the redacted information in record 7 of Schedule 2 under section 28 of the FOI Act. In addition, while I direct the release of record 1 of Schedule 1, this release is subject to the redaction of the personal information identified above.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby vary the Council's decision. I direct release of record 1 from Schedule 1 subject to the redactions of persoanl information relating to third parties, as outlined above. I hereby affirm the decision of the Council to refuse access to the remaining records.

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.

Stephen Rafferty
Senior Investigator