Case number: OIC-119986-C3H0N9
28 October 2022
The applicant, a real estate investor, participated in a tender process run by the Council for the sale and development of a Hotel. During the process, the applicant was informed by the Council, that its bid was not the preferred bid, and that another bidder had been selected as the preferred bidder. High Court proceedings were brought against the Council by the applicant on foot of this. The proceedings challenged the process and outcome of the tender. Following this, by letter dated 14 September 2021, the applicant was informed that DCC was cancelling the tender process. It is my understanding that the proceedings are ongoing.
In a request dated 15 November 2021, the applicant sought access to the following records in relation to the “Collapse decision” taken by the Council.
1. Records relating to any discussions or meetings had, consideration given, analysis or advice, or decisions made regarding the Collapse Decision.
2. Records reflecting considerations, information and materials which were taken into account in the making of the Collapse Decision.
3. Records reflecting or disclosing the reasons for the making and adoption of the Collapse Decision.
4. All records of correspondence relating to the Collapse Decision.
5. Any and all draft versions of the Collapse Letter.
The applicant also sought a written statement of reasons under section 10 of the FOI Act and findings on material issues of fact.
In a decision dated 10 December 2021, the Council wrote to the solicitors representing the applicant, and indicated that they were partially granting the request. Eight records were identified as being relevant to the request. Access to records three, and six were withheld in accordance with section 31 of the Act. The Council argued that the contents were within the realms of legal professional privilege. Record five, was partly withheld in accordance with section 38 of the Act, as it related to third party information.
On 21 December 2021, a request for internal review was submitted by the applicant’s solicitors. In the request, they argued that the eight records identified by the first-instance decision-maker were highly unlikely to be the only records that respond to the section 12 request. They sought a review in respect of whether further records existed. On 24 January 2022, the Council issued its internal review decision. The decision set out that further records had been identified as relevant to the request, a schedule of 111 documents was released, 73 of those records were classified by the Council as exempt under section 31(1)(a), and other documents were partially granted in accordance with section 36(1)(c). The Council stated, that for the avoidance of doubt, the documents are privileged in that they contain confidential legal advice sought by and received by the Council.
On 24 February 2022, the applicant applied to this Office for a review of the Council’s decision. The application set out that the applicant considered that there were further records related to the request, but that they had not been identified or released by the Council. They further argued that the Council had over-relied on section 31(1)(a) in relation to withholding records. Finally, it stated that the section 10 statement which had been provided by the Council was inadequate.
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 by the relevant parties who made submissions, the applicant’s comments in their application for review and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The request for a review of the section 10 decision, has been dealt with by way of a separate review.
This review is concerned with whether the Council was justified in refusing, under section 31(1)(a) of the FOI Act to 73 of the scheduled records on the basis that they enjoy Legal Professional Privilege.
Moreover, in relation to the additional records that the applicant argued ought to exist, I consider the Council’s position to amount to an administrative refusal of any further relevant records under section 15(1)(a), and examine this aspect of the applicant’s case below under this provision of the Act.
It is important to note as a preliminary matter that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not applicable in this case).
Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25(3). This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was 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 and also must assess the adequacy of the searches conducted by the FOI 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 and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.
In its submissions to this Office, the Council have stated that searches for records were undertaken by both the Planning and Development Department and the Law Department. The Council stated that the Planning Department conducted searches of their physical files for any records relating to the collapse of the process, searches were also carried out on relevant shared drives for the terms and “Collapse” and the relevant Hotel name.
The Council have stated that as the collapse of the process was initiated by the legal proceedings, which were lodged by the applicant, the majority of records falling within the scope of the request were held by the Law Department. It stated that the Department utilised a “Keyhouse” file management system, and that all records generated by the Law Department are on this system. Accordingly, the Council have stated that on foot of the request, the relevant “Keyhouse” file was interrogated with each item reviewed. It stated that everything which came under the search terms was collated and included on the schedule released to the requester, and that all correspondence received by the Department is entered into the Keyhouse system. It confirmed that on that basis no further records exist.
In response to the submissions of the Council, the applicant’s solicitors have argued that it is unlikely that the records identified by the Council comprise the sum total of the records that exist relating to the matter at hand. They have argued that the records, which have been found, suggest the existence of other records that respond to the request. They have argued that there may be other departments, such as the CEO’s Office, which holds records, and that records could be contained on personal drives.
They also argued that the search terms used were limited, and the Council should have expanded their search to include terms such as “project”, “tender”, “process”, “cancellation”, “withdrawal”, “termination” and “abandonment” or variations of those terms. They noted an instance in a document, which they had received, whereby the Council referred to “cancelling the process”.
Further information was sought from the Council on foot of the applicant’s contention that the search terms used were too narrow. In response, the Council contended that the other terms referred to in the applicant’s submissions were too vague, and would have generated a large volume of records to be reviewed, which would have caused disruption to the work of the section. It clarified that all FOI requests received by the Council are examined at a daily team meeting, and at this meeting it was decided which Department were relevant to the request, it was stipulated that if decision makers felt that other departments or sections could be involved, to inform immediately. The Planning and Law Department were the only ones in which searches were conducted. A number of individuals across these Departments were requested to search their personal drives.
In response the applicant’s solicitors have argued, that the search terms used in conjunction could not be expected to yield all relevant records. They noted that the Valuers Office was also searched, and that it would surely be relevant at least to check with the CEO and/or his office to see what records were held. They have noted that one of the records released contains comments from the CEO on the matter during the course of a Committee meeting, and that arising from that there could be additional records related to the comments made at the meeting. They have further noted that the comments given do not refer to a “collapse” process, but rather a cancellation.
It is important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.
Having regard to the submissions of both parties, I am of the view that the Council have not taken all reasonable steps to establish if further records exist. I am not satisfied that it has sought all of the potentially relevant Departments to be searched. Having regard to the fact that the Chief Executive spoke to a Committee on the matter, it seems unlikely that the Chief Executive would not hold records relevant to the request. I also consider it unlikely, that the Chief Executive would not hold records in relation to matters concerning a High Court action involving the Council.
Separately, I note from my own examination of the records, that the term “cancellation”, appeared across a number of records. While I accept the Council’s point regarding the vagueness of that term, I do not accept that the use of that term in conjunction with the name of the relevant hotel, would have brought up records which were unrelated to the matter.
On that basis, I consider that the matter should be remitted to the Council for further searches to be carried out.
Section 31(1)(a) – Legal Professional Privilege
In their application for review, the applicant’s solicitors have set out their belief that the Council has relied too heavily on section 31(1)(a). Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned 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:
(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).
The Council states that it is claiming both types of legal professional privilege for the records it has listed as exempt under section 31(1)(a) of the FOI Act.
The Council have set out that the following records were refused on the basis that they enjoy litigation privilege: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 43, 51, 52, 53.
The following on the basis of Legal Advice Privilege: 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41 42, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 , 70, 71, 72
Finally, it has stated that the following are also exempt based on both exemptions: 44, 45, 46, 47, 48, 49, 50, 73, 74
It is important to note that 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) of the FOI Act where they form part of a continuum of correspondence resulting from the original request for advice.
The applicants in this case have set out their view, that records created as a result of pending litigation does not satisfy the criteria of legal professional privilege. They have argued that the test, is whether the records comprise confidential communications between the Council and a professionally qualified and practicing lawyer, or third party or between a lawyer and a third party, the dominant purpose for which is preparation for contemplated or actual litigation. They have also remarked upon the “shelf life” of “litigation” which does not always subsist past the conclusion of proceedings.
The Council have maintained that the litigation process which is referred to in their submissions is still ongoing, and that there is a discovery process underway between the Council and the applicant in this matter. It has argued that the records refused under litigation privilege relate directly to its engagement of an external legal team, as a result of proceedings instigated and in contemplation of pending litigation.
Having considered the contents of all records for which Litigation Privilege is claimed, I am satisfied that the majority of them benefit from the exemption under section 31(1)(a). Each of the records concerned were created on foot of the proceedings which were initiated by the applicant, and I am satisfied that the dominant purpose for which they were created was in anticipation of said litigation. The records primarily involve communications between legal representatives and employees within the Council and the external solicitors which were engaged for the purposes of the proceedings. In respect of the applicant’s arguments as regard whether the communications satisfy the following requirements:
(a) Confidential communication
(b) Between the Council and a professionally qualified and practising lawyer, or a third party
(c) The dominant purpose of which is preparation for contemplated or actual litigation.
I am satisfied that the above applies to the following records: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 43, 51, 52.
Record 53 does not appear to have been created for the dominant purpose of litigation, although it is not unrelated. As such, I consider that it does not benefit from the exemption under section 31(1)(a) and should be released to the applicant.
In respect of the records for which legal advice and litigation privilege were claimed, I am of the view that they meet the requirements of litigation privilege: 44, 45, 46, 47, 48, 49, 50, 73 and 74. The records once again involve communications between legal advisors and Council, they contain links to items such as Affidavits and Notices of Motion, and further contain information passed between the Council and its solicitors so that legal advice may be sought or given. As such, I do not consider it would be appropriate to release them.
In the submissions provided by the Council, it has clarified that the matter is one which is currently ongoing. Taking account of the above, I consider that the Council has discharged the onus upon it to show that the records were created for the dominant purpose of litigation.
Legal Advice 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, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results 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. In this regard, I note the following comments of Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:
“Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317;  2 All E.R.., 246, CA.] …[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings… There will be a continuum of communications and meetings between the solicitor and client…Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach.”
It is also 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.
On consideration of the documents themselves, I am of the view, that the majority are exempt from release as they contain legal advice, or form part of a continuum between the legal advisor and client resulting from the original request for advice. More specifically, a number comprise proposed drafts of letters and emails, which contain comments and observations from internal solicitors. I have carefully examined the records and I accept that they contain confidential communications or form part of a continuum of communications for the purpose of obtaining and/or giving legal advice.
I am satisfied that the above applies to the following records: 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39, 40, 41 42, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 , 70, 71, 72
With regard to record 34, I do not consider it to be exempt from release. It concerns a separate press release received by the Department. It cannot be argued that the dominant purpose for the creation of same was in contemplation of litigation nor does it contain any legal advice.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. While I find that it was justified in its decision to refuse access to the vast majority of the records at issue, I find that it was not justified in refusing access to records 34 and 53 on the basis that they do not meet the threshold for exemption under section 31(1)(a).
In addition, I find that the Council has not taken all reasonable steps in their searches for records. I am remitting the matter to the Council for additional searches to be carried out, and if any further records are identified for those records to be assessed for release to the applicant.
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.