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Whether the Department was justified in refusing access to certain records relating to, among other things, the functions of the County Registrar

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 16 September 2015, the applicant made a request for access for records to the Department for the following:

"Any correspondence, documents, records prepared / created / received by and/or under the control of the [Department] including but not limited to records received by the [Department] from the Courts Service and forwarded to the Office of the Attorney General from on or about the month of July 2014 to-date touching on or relating to or concerning any aspect of all of the following issues and any correspondence/records/ documents received from the Office of the Attorney General in relation to these matters:

1. Whether the decision to grant Judgment under Order 26 of the Circuit Court Rules is an adjudicative function of the County Registrar;
2. The correct method for authentication of documents in Combined Court Offices;
3. Is there a requirement to amend the Order of the CEO of the Courts Service dated 3/12/2013 establishing a Combined Court Office in [a certain county];
4. Can the Courts Service alter the statutory role of the Court Messenger by means of the Statement of Principles document;
5. The legal status of the Office of the Under-Sheriff;
6. Whether or not Clerical staff for the Under-Sheriff's office and the Court Messenger are under the control and management of the Under-Sheriff in the performance of duties of the Under-Sheriff.
7. The legal status of the Office of the County Registrar;
8. Whether or not Clerical staff for the County Registrar are under the control and management of the County Registrar in the performance of duties of the County Registrar;
9. The legal status of various other statutory functions of the County Registrar including but not limited to functions under the Juries Acts as amended being carried out by Combined Court Office staff not under the control and management of the County Registrar.
10. The legal status of the Statement of Principles document.
11. Records concerning the Indemnity enjoyed by current civil servants
12. Records concerning any Indemnity for County Registrars."

On 13 November 2015, the Department decided to partially grant the request. On 19 November 2015, the applicant sought an internal review of the decision. On 10 December 2015, the Department decided to uphold its original decision. On 21 December 2015, the applicant sought a review of the Department's decision by this Office.

Having regard to the contents of the records withheld, Mr Simon Noone, Investigator, notified a third party of the review and he invited the third party to make a submission on the matter. The third party informed Mr Noone that he did not object to the release of the records insofar as they related to him.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties and to the provisions of the FOI Act.

Scope of the Review

The Department identified 22 records as coming within the scope of the review. It granted access to 13 of the records, and refused access to 9 records (numbers 1, 2, 3, 5, 11, 12, 13, 14 and 19). Subsequently, during the course of the review, the Department informed this Office that it had located an attachment to record 19 that had been omitted previously. The Department originally refused access to record 19, but has stated that it is willing to grant partial access to the attachment.

Therefore, the scope of this review is concerned with whether the Department's decision to refuse access to the remaining nine records, whether in full or in part, was justified.

Findings

It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(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 record at issue is limited. Furthermore, this review is de novo, and the decision is made in light of the facts and circumstances as they apply on the date of the review.

The Department submits that the records to which it refused access are exempt from release under section 31(1)(a) of the FOI Act. It also claims that section 42(f) is applicable to records 3, 5, 12, 13 and 14. Finally, it submits that part of the attachment to record 19 should be redacted under section 37 of the FOI Act.

Section 42(f)
As the effect of section 42(f) applying to a record is to exclude that record from the scope of the FOI Act altogether, I have considered the Department's claim that section 42(f) applies to records 3, 5, 12, 13 and 14 in the first instance. The section provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions, other than a record relating to general administration. The applicant argues that section 42(f) cannot apply as the records relate to the administration of the courts or court offices. I am satisfied that for the exception in section 42(f) concerning records relating to general administration to apply, the records must relate to the general administration of the Offices of the Attorney General or the Director of Public Prosecutions. The records at issue in this case do not relate to the general administration of the Offices of the Attorney General or the Director of Public Prosecutions.

Having considered the relevant records, I find that section 42(f) applies to records 5 and 13 in their entirety and to those parts of records 3, 12 and 14 that were created by the Office of the Attorney General. I find that section 42(f) does not apply to those parts of records 3, 12, and 14 that comprise emails created by staff of the Department.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption that requires FOI bodies to refuse access to records that 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:

- 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 Department submits that the records are protected by legal advice privilege. It claims that the records comprise correspondence between the Department and the Office of the Attorney General for the purpose of obtaining legal advice.

Having carefully examined the contents of the records at issue, I am satisfied that records 2 and 11 and the remaining parts of records 3, 12, and 14 are protected by legal advice privilege and I find, therefore, that the Department was justified in refusing access to these records under section 31(1)(a).

The Department states that record 1 references previous discussion between the Department and the Courts Service in which the Department stated that it would seek legal advice from the Attorney General's Office, and that the information contained in this email formed the basis of the Department's request to the Attorney General. The record comprises a number of different documents, including a note of a conversation between the applicant and a member of staff of the Court Service, letters to and from the applicant, and legal briefing materials. I am satisfied that this latter briefing document, with attachments, is protected by legal advice privilege. However, I do not accept that the other documents are legally privileged, as they are not confidential communications; rather they are, or concern, communications between the Court Service and the applicant. Accordingly, I find that the Department was not justified in refusing access to pages 1 to 5 of record 1 under section 31(1)(a).

Record 19 comprises an email between the Courts Service and the Department, and an attachment consisting of a letter. Access to the email was refused under section 31(1)(a). The Department has stated that it is willing to release the majority of the attachment, but believes that part of it should be redacted as it constitutes personal information relating to a third party.

I do not agree that the email is protected by legal advice privilege. While it mentions, in passing, that advice has been received from the Attorney General, it is mostly concerned with proposed correspondence to the applicant. Regarding the attachment, the relevant third party has informed this Office that he does not object to the release of the information relating to him. Section 37(2)(b) provides that section 37(1) (which protects personal information of third parties) does not apply if the individual to whom the information relates consents to its disclosure. Therefore, I find that section 37 does not apply to the attachment.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. I direct the release of pages 1 to 5 of record 1, and the entirety of record 19. I affirm the Department's decision to refuse access to the remaining records under sections 31(1)(a) and 42(f).

Right of Appeal

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 applicant 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