Case number: 150087

Whether the Department was justified in deciding to refuse access to records relating to the applicant's employment with the Department on the grounds that the records are exempt under section 10(1)(a) or section 22(1)(a) or excluded under section 46 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 March 2014, the applicant made an FOI request to the Department for a copy of all information on his personnel/personal file and copies of all other records relating to his employment, including assignment of duties, performance reviews, expense claims, promotion competitions, meetings related to his employment. By letter dated 28 May 2014, the Department granted partial access to the records and stated that given the volume of records, it was releasing the records on a phased basis. It subsequently emerged that over 1000 records were identified. On 25 June 2014, the applicant appealed this decision. However, in subsequent email correspondence with the Department, he clarified that he did not wish to request an internal review at that stage.
The Department released records to the applicant between May and August 2014. Its decision was to release certain records; partially release other records; and refuse access to the remaining records on the basis that they were not applicable or relevant to the applicant or exempt under section 19(1)(c) of the FOI Act - "AG advice". On 15 September 2014, the applicant applied for an internal review of the Department's decision. The Department issued an internal review decision by letter dated 25 September 2014, in which it affirmed its original decision. On 24 March 2015 the applicant applied to this Office for a review of the Department's decision.
In conducting my review, I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; and the content of the withheld records provided to this Office by the Department for the purposes of this review.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters
Section 18 - statement of reasons
The applicant's application for review dated 24 March 2015 referred to section 18 of the FOI Act. However, his original FOI request dated 13 March 2014 did not apply for a statement of reasons under section 18. Indeed, the request seemed unambiguous in seeking hard copies of a particular file and records. In subsequent correspondence with this Office, the applicant stated that his original FOI request was intended to elicit all information relating to his employment and was a reiteration of previous requests for statements of reasons.
The Freedom of Information Act 1997 (Section 18) Regulations 1998 (SI 519/1998) state that "An application under section 18 shall be expressed to be made under that section" (reg. 3). Reg. 5 provides, among other things, that:

"Where a public body receives... an application which does not purport to be an application under section 18 but which requests information access to which can be obtained only by way of an application under section 18, the head shall assist, or offer to assist, the individual in the preparation of an application under that section."

I do not see how this Office has jurisdiction on the matter of reasons for acts of the public body in this instance, since the request giving rise to this review was not expressed to be made under section 18 as required and did not request information access to which can be obtained only by way of a section 18 application. Accordingly, this review will not consider section 18 of the FOI Act. By letter dated 11 June 2015, this Office told the applicant that it was open to him to write to the Department requesting a statement of reasons under section 18 (section 10 of the 2014 Act).

Handling of the request by the Department

The applicant's letter of appeal dated 24 March 2015 requested that this Office carry out an investigation into the Department's record-keeping. He has also criticised the Department's handling of the FOI request.
The Department failed to adhere to the statutory FOI time limits and its processing of the request was unsatisfactory in a number of areas. Its position is that the applicant agreed to the phased release of records and that the alternative was to consider refusal of the request under section 10(1)(c) on the grounds that it would, by reason of the number of records to be received and examined, cause a substantial and unreasonable interference with or disruption of the Department's work.
As I note below, a number of the records listed on the Department's schedule fall outside the scope of the applicant's FOI request. In addition, a significant number of the records listed on the schedule and provided to this Office are in fact duplicates of other records. In correspondence with this Office, the Department explained that given the number of records involved, it was not practical to cross-reference each record. It is fair to say that the lengthy schedule, the number of duplicates and the lack of clarity around exemptions cited made the review process longer and more difficult than it should have been. When dealing with FOI requests, public bodies should ensure that their schedule of records is clear and accessible. In this regard, I would refer the Department to the Central Policy Unit's manual on dealing with FOI requests, which contains a sample schedule of records and guidance on preparing schedules. It is clear from that manual that the schedule of records is intended to be an essential reference point, both for the person seeking access and for this Office if the matter goes to review.
It would seem that the Department's reference to section 19(1)(c) of the FOI Act was an error. Again, I would expect that the Department would ensure that its decision-makers were familiar with the various exemptions and would notify requesters of the correct exemptions, as required by the FOI Act. In discussions with the Department, this Office clarified that the exemptions upon which the Department intended to refer in its schedule were in fact section 22(1)(a) of the FOI Act (legal professional privilege) and section 46 of the FOI Act (which excludes records created by the Attorney General's Office).
Under section 36 of the FOI Act, the Commissioner has the discretion to carry out general investigations into FOI practices and procedures, which are separate from reviews under section 34 of the FOI Act. This Office has carried out several investigations under section 36, all of which to date have involved more than one public body. Among the factors considered in deciding to initiate an investigation and publish a report are: the resources available; whether the process and outcome are likely to be concerned with systematic issues within public bodies; whether the investigation has broad public interest implications or has potential to bring about improvement in practices and procedures across the public sector. The Commissioner does not propose to launch a specific investigation into the Department at this point in time.

Scope of the Review

This review is solely concerned with whether the Department is justified in refusing access to the records within the scope of this review under section 22(1)(a) or under section 46 and whether section 10(1)(a) applies.
By letter dated 8 April 2015, this Office requested the Department to provide it with a schedule and numbered copies of the "records which are the subject of the request". The Department provided this Office with a schedule which listed 1036 records. This Office then sought copies of the records which had been withheld or partially released to the applicant. In the course of correspondence between this Office and the Department, it transpired that the Department considered that a number of the records included on the schedule in fact fell outside the scope of the applicant's request. These are identified in the schedule as "No ref to (the applicant)" and "N/A". They comprise information concerning management and staffing of the Department, including matters relating to individual staff other than the applicant and do not reference him or his particular employment issues. Following correspondence between this Office and the Department and having examined the relevant records, I accept that those records fall outside the scope of the applicant's FOI request and therefore outside the scope of my review. In addition, following correspondence between this Office and the Department and having considered the redacted parts of the partially released records (records 45, 69, 94 and 649), I find that those redactions also fall outside the scope of the applicant's FOI request and therefore outside the scope of my review.
The applicant's FOI request relates to the circumstances of his employment with the Department. I should mention that he has made a number of lengthy and detailed submissions to this Office, which primarily relate to the manner in which the Department has dealt with those circumstances. I must emphasise that my jurisdiction does not extend to examining how the Department dealt with the applicant's employment circumstances or any procedures in this regard. The scope of this review is confined to whether the records which the Department withheld were properly withheld under the FOI Act.
Finally, the applicant has raised certain other issues with this Office which fall outside my remit. This Office has addressed those issues in correspondence with the applicant insofar as it has clarified the role of the Commissioner.

Analysis and Findings

Before I consider the exemptions claimed, I wish to make three general points. First, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43. Secondly, section 13 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 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 13 shall not apply if the copy of the record provided would be misleading. Finally, in accordance with section 8(4) of the FOI Act, I am required to disregard the applicant's reasons for his request.
Section 10(1)(a) - existence of other records
The applicant claims that further records exist, in addition to those listed on the schedule which the Department provided to him, namely:
1. "Copies of all annual and interim reviews in that period (since 1 January 2007), all probationary reports, and copies of my applications for competitions, and all related documents, in that period";
2. "All relevant documents handled or produced by the Personnel Officer in the period January, 2013, to 13 March, 2014";
3. Records relating to "requests relevant to my employment sent to Mr X during his time in (a certain location) in the first half of 2013";
4. Records relating to "interactions and discussions Mr Y had with the Employment Divisions in the period September, 2011, to early 2012, in deciding to move me from (brief A to brief B) in early 2012";
5. Records relating to a meeting between the Requester and Mr Y on 14 February 2013;
6. A completed and signed annual review form for 2011 in respect of the applicant; and
7. An agreement on secondment of staff between the Department and the Department of Foreign Affairs and Trade.

Therefore, I am required to decide whether the decision to effectively refuse access to further records requested and not released to the applicant is justified. Section 10(1)(a) of the FOI 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. Following correspondence with the Department about the record searches which it undertook, I am satisfied that the Department has disclosed a full schedule of records to the applicant. It said that, in addition, the applicant was invited to inspect his personnel file. This Office asked the Department whether a manual or electronic search for each of the records listed from 1 to 7 took place. It said that both types of search were conducted and outlined the staff members who had undertaken such searches. The Department responded to the Investigator's queries and set out details of its searches and records management practices in regard to the various records. The Department maintained that the records listed above have either already been released to the applicant pursuant to his FOI request (1 - 5) or do not exist (6-7). While the applicant may not be satisfied with this position, he has provided no supporting evidence that other records do indeed exist. This Office is not required to search for records. Its understanding of its role in this type of case was approved by the High Court in Matthew Ryan and Kathleen Ryan v. the Information Commissioner(2002 No. 18 M.C.A.), which is available on this Office's website www.oic.ie. On this basis, I find that section 10(1)(a) applies in that additional records do not exist or cannot be found after reasonable searches have been undertaken.

Section 46 - records created or held by the Attorney General's Office

Section 46 of the FOI Act disapplies the FOI Act in relation to records which are held or created by the Attorney General or the Office of the Attorney General. The records within the scope of this review consist of email correspondence, memoranda and draft letters created by officials of the Department. Some of these records were created by its legal adviser, who was on secondment from the Attorney General's Office to the Department. I consider the status of the legal adviser below under section 22(1)(a). It is clear from the records that they were not created or held by the Attorney General's Office. Accordingly, I find that section 46 of the FOI Act does not apply.

Section 22(1)(a) - legal professional privilege (LPP)

Section 22(1)(a) of the FOI Act provides that a head shall refuse to grant a request under section 7 if the record concerned would be exempt from production in proceedings in a court on the ground of LPP.
The records within the scope of this review consist mainly of correspondence between Department officials and their legal adviser, relating to the applicant's employment. I must point out that while a large number of such records have been identified, many are duplicates or "chains" of emails. I have examined submissions received from the Department and the applicant.
The applicant submits that emails which do not emanate from the legal adviser should be released, as they are not legal advice. He says that many records appear to be draft letters or drafting assistance, which cannot be considered legal advice. He queries the status of the Department's legal adviser and whether her legal advice had the approval of the Attorney General. Finally, he says that the Department should not be permitted to "hide behind" legal advice which, he claims, was obtained on the basis of a false representation of events. The applicant notes that LPP is not allowed where communications exist to further conduct which is criminal or fraudulent.
The Department submits that its legal adviser is on secondment from the Attorney General's Office. It submits that the records in question are covered by LPP on the basis that they contain legal advice received from the Office of the Attorney General; communication of the legal advice between parties within the Department; and references to and quotes from the legal advice received.
In deciding whether section 22(1)(a) applies, I must consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP 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).
LPP belongs to the client, who has the right to waive this privilege if he or she so wishes. Waiver may also be implied in certain circumstances. There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice; and, communications in furtherance of a criminal offence. The LPP exemption does not contain a public interest balancing test.

The communication must be made between the client and his or her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. As noted above, the applicant has queried the status of the Department's legal adviser. Following correspondence between this Office and the Department, I am satisfied that the individual in question is a legally qualified professional who was seconded to the Department and acting in the capacity of a legal adviser to the Department at the time the records under review were created. In Case 020281 (Mr. X and the Department of Education and Science) available at www.oic.ie, the former Commissioner found that the fact that a professional legal adviser may be employed as an in-house legal adviser did not prevent privilege being attached to the communications at issue, given that possession of a professional legal qualification entails being either a member of the Law Society (for solicitors) or the Honourable Society of King's Inns (for barristers). I am also satisfied that the fact that the legal adviser was on secondment from the Attorney General's Office is of no direct relevance in these circumstances.

The former Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of confidential communications regarding the giving or receiving of legal advice. In Case 020281 referred to above, she referred to the following comments by 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; [1988] 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; and 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."

I have adopted this approach and take the view that privilege applies to records which form part of a continuum of correspondence which results from the original request for advice. I must also bear in mind the distinction to be drawn between legal advice and legal assistance, as identified by the Supreme Court in Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] ILRM 58, to the effect that any correspondence which is of an administrative nature and does not involve the seeking or giving of legal advice is not privileged. This test was adopted by the former Commissioner and upheld by the High Court in The National Maternity Hospital v The Information Commissioner & Or [2007] IEHC 113.

As regards the argument that certain parts of requests for legal advice or responses might include legal assistance rather than confidential legal advice, this Office does not interpret section 13 of the FOI Act as requiring the extraction of isolated words and phrases. Accordingly, if the overall purpose of a particular record was the seeking or providing of legal advice, this Office is not obliged to parse that record to extract certain words or phrases which might not, in isolation, be legally privileged. I believe that this approach is supported by the provisions of the FOI Act and by legal authorities on LPP, including Prendergast v McLoughlin [2008] IEHC 296.

Having considered the submissions of the applicant and the Department and having carefully examined the records within the scope of this review, I am satisfied that section 22(1)(a) applies to the majority of the records,with the exception of records 276 and 418. I make this finding on the basis that the majority of the records are confidential communications between a legal adviser and client for the purposes of obtaining and/or giving legal advice. However, records 276 and 418 consist of emails sent for information and therefore I do not accept that they formed part of the continuum of seeking and receiving legal advice. As it appears that the Department is not claiming litigation privilege, I have not examined the records in the context of the second limb of LPP.
Finally, the applicant submits that a potential reason for displacing LPP is if the documentation in question exists to further conduct which is criminal or fraudulent. There is nothing on the papers before me to suggest that the records under review exist for these purposes. Having regard to the Supreme Court decision of Murphy v Kirwan [1993] 3 IR 501, [1994] ILRM 293, I do not believe that I am required to consider this issue further.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department by affirming its decision to refuse access to the records within the scope of this review, apart from records 276 and 418, in respect of which I annul the Department's decision and direct release.

Right of Appeal

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. Such an 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.

Elizabeth Dolan
Senior Investigator