Whether the Council was justified in refusing access to records relating to the use of the applicant’s property as a civic or cultural amenity centre under sections 15(1)(a), 30(1)(a) and 31(1)(a) of the FOI Act

9 August 2019

Background

The background to this review concerns a property owned by the applicant which was used as a shopping centre until it closed in 2008. In 2010, the property was zoned under the Limerick City Development Plan 2010 for retail use. In March 2013, the Council served notice on the applicant that it was going to enter the property on the derelict sites register. Following correspondence between the parties, the site was not placed on the derelict sites register. In 2013, the Council identified the site under the Limerick 2030 Economic and Spatial Plan for potential development as a civic or cultural centre. In 2016, the Council commissioned a feasibility study on replacing the property with a new city library. In 2017, the Council raised with the applicant the issue of compulsory purchase of the site.

In January 2018, the Council served notice on the applicant that it was going to enter the property on the vacant sites register. In July 2018, the applicant submitted two FOI requests to the Council for (i) records relating to the decision to enter the property on the vacant sites register and (ii) records relating to the development of the property as a civic and cultural centre. It later applied to this Office for a review of the Council’s decisions in relation to both requests.

In January 2019, the High Court granted the applicant a stay on An Bord Pleanála’s determination of an appeal of the Council’s decision to place the property on the vacant sites register. The stay was granted pending the determination of judicial review proceedings taken by the applicant. In April 2019, the applicant agreed to sell the property to a third party. In July 2019, the applicant confirmed to this Office that, notwithstanding its agreement to sell the property, it wished to have both reviews finalised by way of a formal written decision.

In its FOI request dated 25 July 2018, the applicant sought access to copies of all correspondence, attendance notes, minutes, emails, reports, submissions or any other record concerning:

1. The development, formulation and proposed implementation of Variation Number 4 to the Limerick City Development Plan 2010-2016;

2. The development, formulation and proposed implementation of the Limerick 2030 Economic and Spatial Plan;

3. Any matter relevant to the zoning of the property consequential on the Limerick 2030 Plan including any documentation relating to its suitability for retail use;

4. Any matter relating to the identification, inclusion or development of the property in the Limerick 2030 plan as a civic or cultural amenity centre for the city of Limerick including any feasibility study and/or business case undertaken that includes or refers to the property;

5. Any matter concerning the acquisition by the Council of property surrounding the property and its plans in connection with the development thereof in connection with a civic or cultural amenity centre;

6. Communications with the then Minister for the Environment, Community and Local Government or Minister for Housing, Planning and Local Government as it now is and with any Department officials in connection with the property or its surrounds whatsoever;

7. Any matter relating to a proposed compulsory acquisition of the property by the Council including valuations, reports, submissions or objections by any party;

8. Any statement made by any member of the Council whether elected or not to the media in connection with a proposed compulsory acquisition of the property;

9. Any interaction with any governmental, state or national body regarding the inclusion of the property in either the Development Plan or the Limerick 2030 Plan.

In a decision dated 22 August 2018, the Council granted the applicant’s request in part. The Council refused access to records which relate to parts 3 and 9 of the request under section 15(1)(a) of the FOI Act. It refused access to records which relate to parts 4 and 5 of the request under sections 30(1)(a) and 31(1)(a) of the Act respectively. On 18 September 2018, the applicant requested an internal review of the Council’s decision.

In its internal review decision dated 11 October 2018, the Council informed the applicant that it was releasing a number of additional records which it located following further searches. The Council stated that no further records exist or can be found after all reasonable steps to locate them have been taken and therefore section 15(1)(a) applies to the applicant’s request. Finally, the Council affirmed its decision to refuse access to records which relate to parts 4 and 5 of the applicant’s request under sections 30(1)(a) and 31(1)(a) of the Act. On 21 December 2018, the applicant applied to this Office for a review of the Council’s decision. Both the applicant and the Council made submissions during the course of this review.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Another request by the same applicant also dated 25 July 2018, is the subject of a separate review under reference OIC-53268-S4L3K6.

Scope of the review

The scope of this review is confined to whether the Council was justified in its decision to refuse access to further records under section 15(1)(a) of the FOI Act and whether the Council was justified in its decision to refuse access to records which relate to parts 4 and 5 of the applicant’s request on the basis that they are exempt from release under sections 30(1)(a) and 31(1)(a) of the Act.

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in 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 and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available at www.oic.ie).

The applicant states that its property was previously used for retail purposes; however, the Limerick 2030 Plan provides that its property is not suitable for retail use and is better suited to civic or cultural use. The applicant states that the Council has refused to provide records relevant to the zoning of its property consequential on the Limerick 2030 Plan on the basis that no such records exist. It argues that the Council must hold some records which underpin the conclusions in the 2030 Plan. The applicant also argues that the Council ought to hold further records in relation to the proposed compulsory acquisition order (CPO) and it argues that the Council ought to hold further records of correspondence with the Minister for the Environment, Community and Local Government and other governmental, state or national bodies regarding the property or its inclusion in the Development Plan or the Limerick 2030 Plan.

Following the applicant’s submissions, this Office requested the Council to respond to detailed queries in relation to searches undertaken to locate all records held within the scope of the request, including those specifically mentioned by the applicant. It also sought information on the Council's record management practices.

The Council states that the Limerick 2030 Plan concludes that the property is not suitable for retail use and is better suited to civic or cultural use; however, it says that the Plan has not altered the zoning of the property and therefore no records exist in relation to zoning consequential on the 2030 Plan. According to the Council, the reasons which underpin its conclusion are contained in the 2030 Plan itself which states that the property is relatively remote from the main shopping area and is better suited to civic or cultural use given its Waterfront prominence. The Council says it has provided the applicant with a valuation report prepared for the purposes of the proposed CPO and it has provided the applicant with communications between the Council and the media in connection with the proposed CPO. The Council states that aside from a Senior Planner’s Report (access refused under section 31 of the Act - dealt with below) it does not hold any further records in relation to the proposed CPO. The Council also states that it does not hold any further correspondence with governmental, state or national bodies regarding the property or its inclusion in either the Development Plan or the Limerick 2030 Plan.

According to the Council, records relevant to the applicant’s request would be kept in the Forward/Strategic Planning Section; Planning and Environmental Services and the Property Services Section. The Council states that records relevant to a development plan would be stored on site while the plan is live and they would be archived and retained indefinitely after a new development plan is prepared. According to the Council, physical records were reviewed on files stored in the relevant sections and archive files were manually reviewed in storage. The Council states that computer files were also reviewed. It says that these searches were carried out by a Senior Executive Planner and discussions were held with all relevant staff to ensure each staff member searched areas under their control.

In its application to this Office, the applicant states that the Chief Executive’s Report to Members dated January 2015 seems to end prematurely at page 19, the Inception Report dated June 2012 appears to be missing the final two pages and the Interim Report dated August 2012 appears to contain redactions. This Office requested the Council to address these queries. In its reply, the Council states that the complete Chief Executive’s Report which was prepared for the Elected Members was provided to the applicant. It states that the final two pages of the Inception Report were excluded in error and it confirmed release of those pages to the applicant during the review. It says that there were no redactions from the Interim Report of August 2012 and the pages referred to by the applicant are blank pages in the document.

The Council has located and released many of the records mentioned by the applicant in its request. It is clear that the applicant expected that further records ought to exist particularly in relation to the Council’s conclusion that the property is not suitable for retail use and is better suited to civic or cultural use. It should be noted that the Commissioner is primarily concerned with ensuring public access to records in accordance with the provisions of the FOI Acts. The FOI Acts do not provide for a right of access to records which ought to exist. The fact the one might expect such records to have existed and to have been retained is not an issue for review. Further, the FOI Acts do not require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

On the basis of the information provided by the Council including its response to queries posed by the Investigator, I am satisfied that it has taken reasonable steps to locate all records relevant to the applicant’s request. I find that section 15(1)(a) of the Act applies to the applicant’s request insofar as it relates to any further records which, in the applicant’s view, the Council ought to hold.

Section 30(1)(a) – Functions and Negotiations of FOI Bodies

The Council refused access to a draft feasibility study on a new Limerick City Library under section 30(1)(a) of the Act. This section provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In examining the merits of an FOI body’s view that the harm could be reasonably expected, I do not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

The applicant argues that the Council has not demonstrated any reason why the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the Council or the procedures or methods employed for the conduct thereof would be prejudiced by the release of the feasibility study. The applicant states that the Limerick 2030 Plan has been finalised and fully incorporated into the Limerick City Development Plan 2010-2016 by means of variation 4 to the Plan. It argues, therefore, that there can be no prejudice or harm caused by the release of any studies undertaken that underpin the Limerick 2030 Plan.

The Council states that the feasibility study was not carried out to underpin the Limerick 2030 Plan which was prepared in 2013; it was carried out in 2016, as part of the Limerick bid for City of Culture 2020. The Council states that no final feasibility study was completed as it decided not to proceed with the study. The Council states that it reconsidered its position in relation to the proposal and that the feasibility study is no longer relevant. The Council argues that release of an incomplete document, which was prepared for information purposes and not finalised or agreed internally, may have a significant adverse effect on its performance. It argues that the document could mislead the public if released in its current format and there is no public interest to be gained from the release of the document.

An FOI body relying on section 30(1)(a) should show the link between granting access to the record concerned and the harm identified. It should do this by reference to the specific record being considered for release: what is it about the particular record or the particular information in the record which, if released, could reasonably be expected to cause the harm envisaged? An FOI body’s submissions to the Commissioner should be sufficiently detailed to demonstrate that link.

The harm identified by the Council is that release of the feasibility study could have a significant adverse effect on its performance. As this argument is more relevant to section 30(1)(b) than section 30(1)(a), I will also consider that subsection. The draft feasibility study contains high level information in relation to the vision and guiding principles for the project, the cultural and environmental context, a high level planning review, details about the existing building and other libraries that serve as a precedent for the proposed library. It is not clear to me, and the Council has not explained, how release of this type of high level information could reasonably be expected to prejudice the tests, examinations, investigations etc. conducted by the Council or could reasonably be expected to have a significant adverse effect on the performance by the Council of any of its functions relating to management (section 30(1)(b)).

The Council also argues that if the study was released it could mislead the public. The argument that releasing certain information may mislead has to be based on either of two assumptions: that the public is not capable of properly understanding the information or that the information itself is wrong. The Commissioner has made it clear in other decisions that arguments based on the need to protect the public from possible "misuse" of the information or misunderstanding are unlikely to succeed. There is no provision in the Act to exempt the release of information on the grounds that it is factually inaccurate although this could possibly be a factor when weighing the public interest in release. In this case, the Council's concern is that it has reconsidered its position in relation to the proposal and release of the feasibility study in its current format could mislead the public. One would imagine that it would be quite easy to explain to any member of the public who might query the study that the Council changed its position and is no longer proceeding with the library and that the site in question has been sold to a third party.

I am not satisfied that the Council has demonstrated the link between granting access to the study and the harms anticipated. I find that the feasibility study is not exempt under section 30(1)(a) or (b) of the Act. In light of this finding, it is not necessary to consider whether the public interest would, on balance, be better served by granting than by refusing to grant access to the record at issue.

Section 31(1)(a) – Legal Professional Privilege

The Council also refused access to a Senior Planner’s report on the proposed CPO of the applicant’s property under section 31(1)(a) of the Act. Section 31(1)(a) 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 (LPP). LPP 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 concept of “once privileged always privileged” applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, legal advice privilege lasts indefinitely.

The applicant states that the Senior Planner’s report on the proposed CPO is not capable of being subject to legal professional privilege in circumstances where there is no evidence that it was sent to the Council’s legal advisers for legal advice.

The Council states that the report on the proposed compulsory purchase was provided to its legal advisers for the purpose of seeking legal advice and was also discussed at a meeting with its legal advisers and with Senior Counsel.

This Office asked the Council whether it can provide further information to show that the report was provided to its legal advisers for the purpose of obtaining for legal advice. In reply, the Counsel provided this Office with evidence of exchanges, including invoice and payment details, between it and its solicitors. Having regard to the information provided by the Council, the content of the report and the context in which it was created, I am satisfied that the report was provided as a confidential communication from the Council as client to the Council’s legal advisers for the purpose of obtaining legal advice. I find that the report is exempt under section 31(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the Council’s decision. I find that the Council was justified in refusing access to additional records under section 15(1)(a) of the Act on the basis that additional records either do not exist or cannot be found after reasonable searches have been carried out. I find that the Council was not justified in refusing access to a feasibility study under section 30(1)(a) or (b) of the Act and I direct release of this record to the applicant. Finally, I find that the Council was justified in refusing access to the report on the proposed CPO of the applicant’s property under section 31(1)(a) of the Act on the basis that the records would be exempt from production in a court on the basis of legal professional privilege.

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.

 

 

 

 

Elizabeth Dolan

Senior Investigator