21 December 2018

Whether the NTMA was justified in refusing access to certain records relating to the use of social media by its staff under sections 15(1)(a) and 31(1)(a) of the FOI Act

Background

On 21 February 2018 the applicant submitted a request to the NTMA for access to: 

• internal correspondence or memos dating from December 2017 to the date of his request in relation to the use of social media by NTMA staff, and 
• correspondence between the NTMA and the judiciary on the subject of criticism of judges by NTMA staff on social media

The NTMA part granted the request on 31 May 2018. It released 11 records and refused access to another 22 records under sections 31(1)(a) and 37(1) of the FOI Act. The applicant sought an internal review of that decision. On 7 August the NTMA issued its internal review decision. It stated that the original decision maker had actually identified 44 records but that 11 of them were duplicates. It affirmed the original decision to refuse access to 22 records. It also provided the applicant with a brief schedule of the 44 records concerned.

Following a request for an internal review, the NTMA affirmed its decision. On 8 August 2018 the applicant sought a review by this Office of that decision. In his application for review he also contended that additional relevant records should exist.  

I have decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the NTMA outlined above and to the communications between this Office and both parties on the matter. In referring to the records at issue, I have adopted the numbering system used by the NTMA in the schedule of records provided to the applicant. 

Scope of Review

The Department released records 3, 4, 6, 9, 10, 15, 16, 19, 43, 44, and an attachment to record 44. According to the Department, records 1, 2, 5, 7, 8, 11 to 14, 17 and 18 are duplicates of records that have been released as a result of the fact that those records comprise parts of email chains that are included in released records. Record 1 and 2 are contained within record 3, records 5 and 8 are contained within record 10, record 7 is contained within record 9, while records 11 to 14 are contained within record 15. I have therefore excluded records 1, 2, 5, 7, 8 and 11 to 14 from the scope of this review. 

Record 17 comprises two emails, both of which are incorporated in record 18. That record comprises three emails. The email that was sent on 11:48 was released. However, the subsequent were not released and therefore form part of my review. I have excluded record 17 from the scope of this review.

Access was refused to records 20 to 42 (some of which have attachments) under section 31(1)(a).

This review is concerned with whether the NTMA was justified in refusing access to (i) the relevant parts of record 18 not previously released, (ii) records 20 to 42 under section 31(1)(a), and (iii) any additional records on the ground that no further relevant records exist or can be found.

Preliminary Matters

There are a number of comments I wish to make before addressing the substantive issues arising. First, it should be noted that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. 

It is also important to note that while I am required by section 22(10) of the Act to give reasons for my decisions, this requirement is subject to section 25(3) which requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Accordingly, I am limited in the description I can provide of my reasoning in this case and of the records at issue.    

Finally, I wish to comment on the NTMA's handling of the request. First, the NTMA did not acknowledge the applicant's request within the required 10 working days of receipt. Of particular concern is the fact that the NTMA's original and internal review decisions both issued well outside the respective time limits of 20 and 15 working days of receipt. It does not appear that the NTMA sought any extension in that regard, or that it informed the applicant of his appeal rights. Additionally, in its original decision, the NTMA did not provide the applicant with a schedule of the records identified. The applicant later requested such a schedule, so that he could make informed submissions based on the type(s) of records involved. However, the NTMA responded, stating that there is no legal requirement to provide such a schedule. While it went on to provide a schedule with its internal review decision, I note that it did not include any description of the records concerned. 

The Central Policy Unit of the Department of Public Expenditure and Reform has published a Code of Practice for Public Bodies which specifically provides that public bodies should provide a schedule of records when responding to FOI requests. I expect the NTMA to follow this guidance when responding to requests in future. 

Analysis and Findings

Record 18
It appears that the NTMA's failure to release the relevant parts of record 18 was simply an oversight as it assumed that the record had already been released and was, in its entirety, a duplicate of a released record. No argument has been made for the exemption of the record. Accordingly, for the avoidance of doubt, I find that the NTMA has not justified its refusal to grant access to record 18 and I direct its release.

Records 20-42
Section 31(1)(a) provides for the mandatory refusal of a request where the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. Unlike a number of other exemption provisions, section 31 does not provide for the setting aside of the exemption where to do so would serve the public interest.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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 
(b) 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).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. 

Having carefully examined records 20-42, I accept that the records, and the relevant attachments, contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice or arising from an initial request for legal advice. 

I find, therefore, that the NTMA was justified in refusing access to records 20-42, and the attachments to those records, under section 31(1)(a) on the basis that the records attract legal professional privilege. Given my finding, it is not necessary for me to consider the application of any other exemptions to these records.  

Do other records exist?
As I have noted above, the applicant contended that additional relevant records should exist. As such, section 15(1)(a) is relevant in this case. That section provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable. 

The NTMA has provided details of the searches it conducted in response to the applicant's request. That request related to an earlier query he submitted to the NTMA concerning social media posts regarding the judiciary. The NTMA submitted that, given the matter to which the request related, the number of persons potentially involved was limited. It stated that all relevant persons were consulted in this regard and it was established that any relevant correspondence would have been communicated through the NTMA's Chief Legal Officer (CLO). 

The NTMA submitted that, accordingly, its IT Security Team searched the CLO's email account for emails concerning social media. It stated that 142 documents were located and an initial review established which of these were relevant and which referred to 'social media' in other contexts. 44 records were identified as relating to the request. 

The NTMA also had regard to records of its internal electronic system which it uses to issue reminders and updates to staff about policies and procedures. The NTMA determined that one message relating to the use of social media had issued during the relevant period, and a copy of that record was provided to the applicant. 

With regard to the second part of the request, the NTMA submitted that the relevant staff had stated that, in fact, no such correspondence had taken place, and this was confirmed in email searches. 

Having regard to the nature of the records sought, the NTMA's explanation of the searches it undertook on foot of the request, and the contents of the records located, I am satisfied that the NTMA has taken all reasonable steps to identify all relevant records coming within the scope of the applicant's request. I find, therefore, that the NTMA was justified in its decision to refuse access to additional relevant records under section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the NTMA. While I find that it was justified in refusing access to records 20-42 under section 31(1)(a) and in refusing access to additional relevant records on the ground that no further relevant records apart from those already identified exist or can be found, I find that it was not justified in refusing access to record 18 and I direct its release.

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