Case number: OIC-137253-N5V4C7

Whether the Council was justified in refusing access to records concerning the development of playing pitches as part of the Dublin City Development Plan 2022 – 2028

 

2 October 2023

 

Background

In a request dated 17 November 2022, solicitors for the applicant submitted a request to Dublin City Council seeking access to a variety of records, including reports, correspondence, memos, notes of meeting etc. relating to;

1. The Chief Executives recommendation that St Paul’s football pitch in Raheny be zoned Z1 and Z9,

2. Correspondence to or from any elected members in relation to the playing pitches,

3. And correspondence to or from any elected officials relating to a motion submitted by a local Councillor.

The Council failed to issue a decision within the timeframe set out under section 13(1) of the FOI Act, and on 20 December 2022 an internal review of the matter was sought. The internal review decision issued on 23 January 2023. The decision maker partially granted the request, the accompanying schedule sets out that 12 records were considered relevant to the request. the Council granted access to six of the records and further partially granted access to two records withholding personal information within the records under section 37(1). The Council refused access to the remaining four records on the basis that the records were considered exempt under section 31(1)(a) of the Act on the basis that they were legally privileged.

On 6 April 2023, an application was made to this Office for a review of the Council’s decision. In the application, the solicitors for the applicant stated that it was concerned in respect of the manner in which exemptions had been applied, they put forward a number of arguments which I will consider in the decision.

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. 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.

Scope of Review

This review is concerned with whether Dublin City Council was justified in refusing, under section 31(1)(a) access to records 3, 5, 6 and 9 and their corresponding attachments which for the purposes of this decision will be numbered as: 5(a), 6(a) and 9(a)/(b). It is also concerned with whether the Council was justified in refusing access to certain information in records 4 and 4(a), in full or in part, under section 37(1).

Preliminary Matters

In their submission to this Office, solicitors for the applicant raised concerns about their dealings with the Council and its handling of their FOI request. It is important to note that this Office has no role in examining the administrative actions of FOI bodies, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the FOI Act.

Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Finally, a review by this Office is considered to be de novo, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision.

Analysis and Findings

The records

The ten records scheduled as part of this request all relate to the consideration of zoning and development matters related to a 16.5 acre site within St Anne’s Park. It is in the public domain that planning permission for this site has been appealed to the High Court on a number of occasions by environmental groups and developers and the matter has been remitted following for fresh consideration. According to Dublin City Council, the matter of development on the site remains unresolved.

The records span from 2018 – 2021, and relate to a number of separate legal challenges concerning the site which were either contemplated or taken.

The Council have highlighted the complexity of the matter due to a number of appeals taken against An Bord Pleanala relating to the matter since 2018. The Council were a notice party in some of the appeals. It has further highlighted that they are currently involved in litigation with the applicant related to the zoning policy for the lands and a number of other objectives of the 2022 – 2028 City Development Plan.

Section 31(1)(a)

Section 31(1)(a) is a mandatory exemption, which applies to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. 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 to legal advice privilege and thus, unless otherwise lost or waived, it lasts indefinitely. This is not the case for litigation privilege, in circumstances where litigation privilege is claimed, the public body must show that closely related proceedings are contemplated or pending in the circumstances. The Commissioner also takes the view that legal advice privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice.

Where a claim for exemption is made on the grounds of litigation privilege and where the documents concerned were created or obtained in preparation for proceedings which did not proceed or have since concluded, the FOI body should show how litigation privilege would continue to apply by providing details of any other related proceedings in being, or contemplated, and to explain how those proceedings have a substantive or close connection with the earlier proceedings.

The Council have claimed legal advice privilege over records 3 and 6 and consider litigation privilege to apply to records 5, 6 and 9. 

Legal Advice

In the Council’s submissions, it argued that records 3 and 6 relate to judicial review proceedings, and in respect of record 3 that the communication between the law advisor and the client, in this case the Council, was for the purposes of obtaining/giving advices on actions available to the relevant department in the context of the proceedings. During the course of the review, I sought clarity from the Council on whether the information in record 3 could be more appropriately described as “legal assistance”, the Council argued that the record should attract privilege on the basis that the email was seeking advices as to the standing of the legal matters at the time, and that this could have an effect on enforcement options available to the Council. On that basis, it maintained that the record was created for the purpose of seeking advice and forms part of the continuum of advice relevant to the matter at hand.

Solicitors for the applicant have set out in their submissions that the Council failed to clarify whether information in the e-mail was a request for legal advice and not legal assistance or whether legal advice applies to the entirety of record 3 or if it could be applied in part. It also noted that that record on the schedule was described as an email to the legal advisor, and that while the Council later asserted that the record contained a response from the legal agent, it was not clear whether this was in the context of providing advices. It further noted that it was not clear that the provision of status updates on ongoing proceedings would, necessarily amount to legal advice even where those updates are provided by a lawyer.

The applicant has argued that for a communication to benefit from legal advice privilege it must be made between a professional legal advisor acting in his or her professional capacity as such. In submissions provided by the applicant’s solicitor it referred to the Information Commissioner’s Decision in Ms P and Mayo County Council (OIC-116323-J6X4J9), whereby it was stated that privilege will not cover purely commercial advice, even where it is given or requested by a lawyer. 

Legal Advice Privilege only extends to protect communications that contain legal advice as to a person’s rights and liabilities and does not apply to the provision of legal assistance (Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469) which includes for example the drafting of contracts or documents. The Commissioner takes the view that correspondence which is of an administrative nature and is not seeking or giving advice is not privileged.

In respect of the argument put forward by the applicant in terms of the of the legal advisor acting in his/her professional capacity, 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. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

With regard to record 3, information is sought from the in house legal advisor on the status of the relevant proceedings at the time. Having regard to the definition of “legal advice” set out above, I am not satisfied that record 3 constitutes a request for legal advice. The legal adviser, while acting in her capacity as such provided an update on the proceedings, despite the fact that the knowledge of the status of the proceedings might have an impact on the options available to the requester, this has no bearing on the fact that the advisor was not actually providing advice as to the liabilities or rights of the client. It is also not clear that the communication arises out of a continuum or original request for advice. Accordingly, I do not consider that record 3 meets the threshold for legal advice privilege in the circumstances.

On the other hand, I am satisfied that record 6 comprises of a confidential communication between the Council’s legal advisor and the Chief Executive for the purposes of giving advice with respect to potential actions relevant to the proceedings at the time. I also find that as the advice given directly stems from the attachment 6(a), that it forms part of a continuum in which legal advice is requested, given or received. Accordingly, I find section 31(1)(a) to be applicable in the circumstances to record 6 and record 6(a).

Litigation Privilege

For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation. In the judgment of the High Court in University College Cork – National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) Finlay Geoghegan J. stated -

"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."

As such, a body claiming the exemption must satisfy the Commissioner, on balance, that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created.

The Council have stated that all records withheld under section 31 were created for the purpose of contemplated or pending litigation. As section 31(1)(a) is a mandatory exemption, I have considered the question of whether record 3, which I found not to be privileged on the basis of legal advice, could be exempt from release due to litigation privilege. I am satisfied that this is appropriate given the de novo nature of reviews by this Office. Having regard to the contents of the record, I am satisfied that it was created for the dominant purpose of pending litigation.

As specified above, the Council have served as a notice party in relation to planning appeals for the above site. The dealings have been protracted over a number of years, and while the information withheld is related to proceedings which have concluded, the development of the site in question has been relevant to each of the proceedings initiated.

Record 5 constitutes an email attaching a report created by the City Planning Officer for the Chief Executive in respect of an An Bord Pleanála appeal which took place in 2020. The Council have stated that the record relates to a judicial review which was undertaken at the time and that it was created as a result of an emergency motion which urged the involvement of the Council in the matter. It is worth noting that in the end the Council did not serve as a notice party to the appeal in question.

Record 9 relates to an invitation to the Council to attend review proceedings, the record comprises of an email and two attachments one of which is a briefing note for senior counsel on the matter in advance of a planned hearing, the other relates to a report appendix on the land.

The Council have argued that the creation of the records was for the dominant purpose of ongoing litigation at the time.

In response, solicitors for the applicant argued that the previous litigation which the Council referred to involved judicial reviews to planning permission lodged with An Bord Pleanala. They noted that permission for the development of housing on the site was overturned a number of times through various court appeals. In respect of the live set of proceedings, solicitors for the applicant noted the proceedings are a challenge to the City Development Plan and not a judicial review. It was noted that the grounds for the challenge relate to the decision of the Council to re-zone the lands in question. It has noted that the grounds of the challenge relate specifically to the decision making process used by the Council in adopting its development plan and that it does not relate to the planning permission for the land.

In their submissions, solicitors for the applicant have referenced the High Court decision in University Cork vs ESB [2014] IEHC 135. The decision concluded that ESB was not entitled to refuse discovery of documents that were privileged under a separate, historic, set of proceedings. The judge, in that case stated that for litigation privilege to subsist, there must be commonality between “the parties, or the subject matter, or both” and that “no privilege attaches to … communications in subsequent proceedings unless their subject matter is the same,” It was further noted, that in conclusions she stated “[w]here the second proceedings are not closely related to the first proceedings, there is no objective of the proper conduct of the administration of justice which can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”

On this basis, the applicants have argued that there is no commonality between the proceedings in terms of subject matter or parties. It maintains that the Council was named as a notice party in three of the historic proceedings, and as such the applicants have argued that they are the only commonality between all six sets of proceedings.

My Analysis

Based on the arguments of both the Council and the contents of the records, I accept that litigation was reasonably apprehended at the time the documents in question were brought into being. This however, is not in itself determinative that they are still protected by litigation privilege. Based on my review of the documents, it is clear the Council were preparing to serve as a notice party to the planning permission appeals which An Bord Pleanala and the applicant were involved in. Accordingly, with the exception of An Bord Pleanala, the parties involved in the previous litigation referred to in the documents, and the current litigation are the same.

As to the subject matter of both proceedings, I accept the applicant’s comments that the current challenge is far more broad in scope than the planning permission appeals to which the earlier records refer. I note that this challenge directly relates to the Council’s decision to de-zone the land in question as part of the 2022 – 2028 city development plan. It is true that the proceedings are different, in that the earlier proceedings related to planning permission to develop and the current proceedings relate to the decision to de-zone the lands.

With respect to the applicant’s arguments concerning University Cork vs ESB [2014] IEHC 135 and the question of litigation privilege subsisting, I would note, that the question of continuing litigation privilege referred to in those proceedings involved a different party, with the commonality between the earlier case being floods which occurred. It is my view, that the relevant proceedings in this case bear a closer connection to one another. This arises from the fact that applicant has been involved in the prior litigations referred to, and that the lands in question are owned by the applicant, with the question of the development and zoning of the lands has been relevant in each of the prior appeals. As Ms Justice Finlay-Geoghegan also states in her judgement “[litigation] … cannot be said to be terminated, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.”

The right to development of the land has been the subject matter of each of the previous appeals and that in my view is directly relevant to the question of zoning which is currently under consideration. While I would not classify the legal combats as the same, I am satisfied that there is commonality between the subject matter and the parties, and on that basis that litigation privilege could subsist in the circumstances.

In terms of the arguments concerning the dominant purpose test, it is clear the cover emails were created on foot of potential proceedings that the Council was either anticipating involvement in, or was involved in. The email and attachment in record 5 relate directly to the litigation proceedings which were underway at the time. I am also satisfied that the attachment was created specifically for that purpose. With respect to record 9, I accept that the briefing note for the senior counsel was prepared in the context of the High Court proceedings at the time. With respect to the second attachment to record 9, 9(b), it is not clear that the record was created for the dominant purpose of apprehended litigation. It relates to the Council’s interpretation of the zoning issues on the site, and appears to have been appended to the briefing note to provide further context. As such, I don’t consider litigation privilege to be applicable in the circumstances.

As stated, the litigation proceedings referred to in the above records have concluded. In order for the duration of litigation privilege to be extended relevant factors to be considered are whether there are any closely related proceedings currently underway and the identity of the parties to any such litigation. I am satisfied based on the contents of the records before me that the Council has satisfied the above requirements in respect of litigation privilege continuing.

Section 37

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The Supreme Court, in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (“the Rotunda case”), held that once the information at issue falls into one of the then 12 (now 14) categories in the definition of personal information, there is no requirement for it to also meet the requirements of paragraph (a) or (b).

A name and contact details from records 4 and 4(a) have been refused on the basis that it is exempt from release under section 37(1).

In the application for review submitted by solicitors for the applicant, it was argued that contact details are neither information known only to the individual or their family and friends, they may also be a matter of public record if the individual holds any formal corporate appointments. They furthered the argument that the information may not be held on the understanding of confidentiality, and that the Council had not provided any indication of what public interest factors it considered in favouring the release or the withholding of the relevant information.  

The Council in its submissions have noted that it refused access to the relevant information in records 4 and 4a on the basis that it contains the name and phone number of a third party individual who had been in contact with an elected representative. The Council concluded that none of the circumstances in section 37(2) arise in the circumstances, as the individual is not an employee of a public body, or providing a service to one.

Upon review, of the information I am satisfied that section 37(1) applies and that none of the provisions of section 37(2) serve to dis-apply subsection (1).

Section 37(5) – the Public Interest

There is a public interest in openness and accountability relating to how public bodies carry out their functions. However, there is a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution), which is recognised by the language of section 37 and also by the Long Title to the FOI Act.

When considering section 37(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. I do not see any public interest in favour of the release of the personal information of a third party in circumstances where the applicant is seeking information relating to the Council’s consideration of zoning on lands owned by the applicant. I also note that the applicant has not made any public interest arguments in this regard.

On balance, I find that the public interest in granting access to the name and contact details of a private individual contacting their local representative is not such that it outweighs the public interest that the right to privacy of the third party concerned should be upheld. I find, therefore, that the Council was justified in refusing access to the relevant part of the records under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was justified in refusing access to records 3, 4, 4(a), 5, 5(a), 6, 6(a) and 9, 9(a). I am not satisfied however that the Council has proved that 9(b) was created for the dominant purpose of litigation. Accordingly, I direct the release of that record 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.

 

Rachael Lord
Investigator