Case number: 120118
Whether the Department was justified in deciding to refuse access to records relating to interception of communications.
On 24 August 2011, the applicant made a request to the Department for records from 2001 onwards relating to either (a) the lawful interception of communications, or (b) legislative measures intended to address the unlawful interception of communications. The original request listed various items to be included in the request. The Department issued its original decision on 22 September 2011 refusing access to the records sought. The applicant made an internal review request on 17 October 2011, specifying that it related only to paragraphs 1, 2(a), 2(b), 2(h) and 5 of the request. The Department's internal review decision issued on 25 November 2011, affirming its original decision to refuse access. The applicant submitted a review application to this Office on 24 May 2012, specifying that the application related to items 2(h) and 5 of the request.
As the Department failed to issue an internal review decision within the required timeframe, this is effectively a deemed refusal and in such cases, no fee is payable to this Office. The fee paid has been refunded to the applicant.
The Investigator in my Office who dealt with the review advised the Department and the applicant of her preliminary views by letter of 7 August 2013. I have decided to bring this review to a conclusion by issuing a binding decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to the provisions of the FOI Acts, and to the content of the records at issue.
The scope of the review relates solely to whether the decision of the Department to refuse access to records relevant to items 2(h) and 5 of the original request was justified under the FOI Act.
Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Section 34(12)(b) of the FOI Act provides that a decision to refuse a request "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."
Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record.
In his response to the Investigator's preliminary views, the applicant raised concerns as to how the Department had dealt with his original request, where it refused access to records on the basis that it did not hold any records relevant to parts of the request, in particular item 1 and 2(g). According to the applicant, records released by another public body in response to a related FOI request made it clear that the Department did hold records relevant to item 2(g). As the applicant in making his application for review to this Office limited the scope of the review to items 2(h) and 5, it is not open to this Office at this stage to widen the scope of the review to include other items. However, as a general matter, it is important that public bodies have appropriate procedures in place to ensure that all records relevant to a request are identified for consideration.
Item 5of the request is for "records (whether pre or post 2001) which relate to interception in the context of directions issued by the Minister pursuant to section 110 of the Postal and Telecommunications Services Act, 1983". Access to records identified as relevant to this part of the request was refused on the basis of Sections 23, 24 and 26 of the FOI Act.
Section 24(1)(a) provides that:
"A head may refuse to grant a request.... if, in the opinion of the head, access to it could reasonably be expected to affect adversely-
(a) the security of the State"
For the exemption to apply, the decision maker must first of all identify the particular adverse affect on the security of the State and then consider the reasonableness of any expectation that such an adverse affect would occur. For the public body to succeed in its arguments, I have to be satisfied that granting access to the records, in respect of which the exemption is claimed, could reasonably be expected to have the adverse affect so identified. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for the public body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.
Given the nature of the records at issue (which are similar and in some cases duplicates of records dealt with in another review application from the same applicant to a different public body), I am satisfied that the Department, in its submissions to this Office, has met the requirements for the exemption in Section 24(1)(a) to apply, in that it has identified the particular adverse affect and the expectation that such an affect will occur. In his response to the Investigator's preliminary views, the applicant pointed to the lack of a description of the records, and the particular adverse affect or the reasonableness of the expectation that it would occur not being addressed. As set out above, this Office is required by Section 43(3) to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Given the particular exemption under consideration here, I am satisfied that it would not be appropriate to set out in detail a description of the records or of the potential consequences of the release of the records.
I find that the exemption provided for in Section 24(1)(a) is justified in relation to those records relevant to item 5 of the request for which it has been claimed. As I have found that Section 24(1)(a) applies, I do not need to consider whether other exemptions claimed also apply to these records.
Item 2(h) of the request is for "records relating to interception in the context of the preparation or implementation of the Communications Regulation (Postal Services) Bill 2011." (the Bill)
The Department identified 31 records as relevant to this part of the request and has provided this Office with a schedule of these records, setting out the exemptions which the Department claims applies to protect these records from release. The Department claims that Sections 19(1), 20(1), 22(1)(a), 23(1) ,24(1) and 46(1)(b) apply to these records. The Department has advised that it considers the contents of the schedule to be sensitive and therefore, I must take due care in describing the records.
In her preliminary views letter, the Investigator set out her view that not all of the records identified by the Department were in fact relevant as a number of the records did not contain contain any reference to "interception of communications". I agree with the Investigator that these records are outside the scope of the review. The records remaining in scope are all or part of records 1-13, 18, 21, 22, 25, 27-31. I note that in some cases only very small parts of the records are relevant e.g. 2 lines out of 34 pages in record 27.
Section 19(1)(a) provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose.
Section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".
The Department has claimed that Section 19 applies to records 28, 30 and 31. As these records are memoranda for Government prepared for submission to the Government, I am satisfied that Section 19(1)(a) applies to these records. I am further satisfied that Section 19(3)(a) does not apply and these records should not be released. I find accordingly.
Section 22(1)(a) provides that : "A head shall refuse to grant a request under section 7 if the record concerned (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"
Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
In considering whether particular records would be exempt from production in a court, I have to bear in mind that legal professional privilege resides with the client and ignore the likelihood or otherwise of court proceedings taking place. The question comes down to whether the client would succeed in withholding the document on the ground of legal professional privilege in court proceedings. The Department has made no argument that the dominant purpose in preparing these records was the preparation for litigation and I do not find that the second limb of legal professional privilege would apply to the records at issue. I understand that the first limb of the rule of legal professional covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). I have examined the records in the context of whether they constitute confidential communications between professional legal advisers and their clients giving or seeking legal advice.
The Department has claimed that Section 22(1)(a) applies to records 8, 9(part), 21 and 29. Records 8 and 21 are communications between a client (the Department) and its legal advisor for the purpose of obtaining legal advice and therefore the first limb of legal professional privilege is satisfied. Records 9(part) and 29 are internal documents which disclose legal advice received by the Department from its legal advisors and as such satisfies the criteria for legal professional privilege. I find that the exemption provided for in Section 22(1)(a) applies to records 8, 9(part), 21 and 29.
Section 46(1)(b) provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record concerning the general administration of that Office. As the Chief State Solicitor's Office (CSSO) and the Office of the Parliamentary Counsel (OPC) are constituent parts of the Office of the Attorney General, Section 46(1)(a) also applies to any records created by these Offices. The Department has claimed that Section 46(1)(b) applies to parts of records 3, 5, 6 and 11. I have examined these records and I am satisfied that they were created by the Office of the Attorney General or one of its constituent offices and are not related to the general administration of those offices. Therefore, I am satisfied that Section 46(1)(b) applies to those parts of records 3, 5, 6 and 11 for which it has been claimed and find accordingly.
Section 23(1)(a)(i) provides that:
"(1) A head may refuse to grant a request under section 7 if access to the record concerned could...reasonably be expected to -
(a) prejudice or impair
(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,"
As Section 23 is a harm based exemption, it is necessary for the Department to show to the satisfaction of this Office how disclosure of the information at issue could give rise to any of the harms identified in section 23 and of the reasonableness of its expectation that such harm will arise.
The Department has claimed that Section 23(1)(a)(i) applies to Records 1, 2, 4, 7, 10, 12, 13, 18, 22, 25, 27 and parts of records 3, 5, 6, 9, and 11. These records relate to the preparation of the Communications Regulation (Postal Services) Act, 2011 and, in particular, provisions relating to the lawful interception of communications. They include correspondence with the Department of Justice and Equality on the matter. Mindful of the provisions of Section 43(3), I do not consider it appropriate to give a more detailed description of these records. Having examined the records and considered the submissions of the Department, I am satisfied that release of these records could give rise to the harm envisaged in Section 23(1)(a)(i) and that there is a reasonable expectation of such harm arising.
Section 23(1)(a)(i) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of a record, rather than by it being withheld, in the event that one of three conditions is fulfilled.
The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law...is not authorised by law or contravenes any law". The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law"" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law".
Having examined the relevant records as held by the Department, I do not consider the records to contain any information that satisfies these conditions. Accordingly, I am satisfied that the public interest is not required to be considered in respect of the withheld records and that Records 1, 2, 4, 7, 10, 12, 13, 18, 22, 25, 27 and parts of records 3, 5, 6, 9, and 11 are exempt from release under section 23(1)(a)(i) of the FOI Act and I find accordingly.
As I have found that all of the records relevant to the request are exempt from release as set out above, it is not necessary for me to consider the application of the other exemptions claimed by the Department.
Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the Department and find that Sections 19(1)(a), 22(1)(a), 23(1)(a)(i), 24(1)(a), and 46(1)(b) apply to the records and no records should be released.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.