Case number: OIC-53228-Y2L6M3 (180019)

Whether AIT was justified in refusing parts of the applicant's requests for records relating to interactions he had with AIT in 2011-2012 regarding issues relevant to his role on the basis that sections 15(1)(a), 15(1)(i), 31(1)(a) and 31(1)(b) applied

20 August 2019

Background

In November 2016 the applicant submitted four separate applications to this Office for a review of decisions taken by AIT on four separate requests he had made under the FOI Act for various records relating to interactions he had with AIT regarding issues relevant to his role as a member of the staff of AIT. Following review, this Office issued a composite decision in respect of all four applications for review on 6 September 2017 in which the decision of AIT was annulled and AIT was directed to conduct a new decision-making process on the requests.

On 28 November 2017 AIT issued a fresh composite decision on all four requests. On 30 November 2017 the applicant sought an internal review of AIT's decision on all four requests. AIT issued a single internal review decision covering all four requests. It affirmed the decision in respect of the request at issue in this case.  On 11 January 2018, the applicant sought a review by this Office of AIT's decision on all four requests.

The request that is the subject of this review comprised five separate parts covering a period from January 2010 to January 2012 and was for records relating to matters concerning his contract of employment. The request was assigned the reference number AITFOI_1_1. AIT refused the request under sections 15(1)(a), 15(1)(i) and 31(1)(b). It also stated that the queries pertain to the subject matter of a settlement agreement of 19 January 2012 between AIT and a number of individuals including the applicant and argued that the matter should not be re-opened under the FOI Act. The settlement agreement in question brought High Court proceedings between the parties to a conclusion.

I have now concluded my review of AIT's decision. In conducting the review, I have had regard to the correspondence between AIT and the applicant and to the correspondence between this Office and both the applicant and AIT on the matter.  I have also had regard to the contents of the records at issue.

Scope of Review

This review is concerned solely with the question of whether AIT was justified in refusing the request under sections 15(1)(a), 15(1)(i), 31(1)(a) and 31(1)(b).

Analysis and Findings

In order to determine the validity of the applications for review, this Office sought copies of the decision making records on all four requests. On 16 January 2018 AIT provided copies of records relating to the processing of the applicant's requests, including a submission it made on 1 June 2017 during the course of the original review conducted which culminated in our decision of 6 September 2017. In that submission AIT argued that request AITFOI_1_1 directly pertains to the subject matter of the settlement agreement of 19 January 2012 and argued that the matter should not be reopened under the FOI Act. It also referred to a previous discovery of documents in respect of the High Court proceedings that were subsequently settled.

Following acceptance of the application for review, this Office sought copies of the subject records that were considered by AIT and a schedule of those records. In response, AIT provided copies of an affidavit sworn by a member of its staff in December 2011 in connection with the High Court proceedings with an accompanying schedule of the records that were discovered or were refused as privileged, and a copy of the settlement agreement.

Part 1 of the request

Part 1 of the request was for all records from January 2010 to January 2011 relating to the applicant having been given notice of termination of his employment in January 2011. In a submission of 8 March 2018, AIT identified a letter of 24 January 2011 to the applicant giving notice of the termination of his employment as being of relevance. It refused access to this record under sections 15(1)(i) and 31(1)(b) on the ground that the record had already been released on foot of a discovery order. It also indicated that a submission made to the Labour Court dated 4 May 2010 and two of five related appendices may be of relevance. It argued, however, that those records form part of the settlement agreement and that disclosure of the records could constitute a contempt of court (section 31(1)(b)).

The notice of termination

Section 15(1)(i) provides for the refusal of a request where the request relates to records already released, either to the same requester or a previous requester, where the records are available to the requester concerned. As the notice of termination was previously given to the applicant and he has not suggested that the record is not available to him, I find that AIT was justified in refusing access to the record under section 15(1)(i).

The Labour Court Submission and appendices 1 and 5

Section 31(1)(b) of the FOI Act requires the refusal of a FOI request where it is known, or ought reasonably to be known, that disclosure of the record sought would constitute contempt of court. AIT argued that the Labour Court submission and related appendices form part of the settlement agreement between the parties in relation to the High Court proceedings. The settlement agreement provides that it constitutes full and final settlement between the parties of all claims of whatsoever nature and disputes arising from the cessation of the relevant courses and the applicant's resulting redeployment.

In essence, its argument is that the applicant's use of FOI to seek access to records relating to the issues that were the subject of the High Court proceedings and the subsequent settlement agreement is not in keeping with the terms of the agreement and as such that such use may be regarded as a contempt of court. I disagree. I fail to see how the applicant's FOI request could reasonably be regarded as the pursuit of a relevant claim or a dispute that could be considered a breach of the terms of the settlement agreement and a contempt of court. I find that AIT has not justified its decision to refuse access to the Labour Court submission or the related appendices under section 31(1)(b).

Appendix 1 of the submission comprises a copy of the various notices of complaint, including that of the applicant. I find that AIT has not justified its decision to withhold the applicant's notice of complaint and I direct its release.

Appendix 5 comprises copies of the applicant's various contracts of employment and related correspondence. I understand that these contracts were previously made available to the applicant. As the applicant has not suggested that these records are not available to him, I find that AIT was justified in refusing access to appendix 5 under section 15(1)(i).

Do other relevant records exist?

It appears that the letter of 24 January 2011 to the applicant giving notice of the termination of his employment arose as a result of a reduction in demand for certain specified courses in which the applicant was an assistant lecturer. As such, Ms Lynch of this Office sought further information from AIT on 12 December 2018 as to whether additional records might exist based on her view that the letter of 24 January 2011 appeared to be a culmination of a process relating to the provision of the courses specified. For example, while the Labour Court submission of 4 May 2010 concerned the applicant's complaint that AIT had failed to acknowledge his entitlement to a contract of indefinite duration, it made specific reference to the reduction in demand for the courses at issue. This raises the question as to whether other relevant records might exist.

On 11 January 2019 AIT's legal advisers responded. They indicated that AIT had conducted a search for other records relating to the Labour Court proceedings and that no other relevant records were found. They stated that AIT had conducted manual searches in the HR Office in LRC box files, Labour Court box files, High Court box files, and the applicant's personnel file. They stated that the key word used in the search was the applicant's surname. They stated that relevant records would not be filed anywhere else in AIT and that AIT had asked "such relevant persons" to check their personal files for any meeting notes etc. and that those persons confirmed that no such notes exist. Finally, the legal advisers stated that they had been asked to conduct a search which was ongoing. Subsequently, on 13 February 2019, the legal advisers stated that their searches had concluded and that no additional records were found.

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable.

I have set out above the details of the searches undertaken by AIT in an effort to locate relevant records. The applicant's position it that nothing of substance has been provided to him, either in response to his FOI request or as part of discovery.

I have some concerns as to the adequacy of the searches undertaken in this case. As I have outlined above, the records identified by AIT as relevant are as follows:

  • The letter of 24 January 2011 giving notice of the applicant's termination of employment
  • The Labour Court submission of 4 May 2010 and two of five related appendices

While the Labour Court submission is concerned with the separate question of whether the applicant was entitled to a contract of indefinite duration, it contains relevant information concerning a developing and ongoing problem relating to the courses in which the applicant lectured and which resulted in the notice of termination of employment. It would appear, therefore that the issue relating to the reduced demand for the specified courses arose some time before the notice of termination issued.

AIT appears to have taken an unduly narrow interpretation of the applicant's request. Based on its description of the search terms used when looking for records and locations searched, it appears that it focussed solely on records relating to the applicant. It seems to me that the applicant's request extends to any records AIT might hold within the relevant time period that relate to the matter of the reduction in demand for the specified courses that led to the decision to terminate his employment. It is reasonable to assume that such records might exist, particularly given the extensive reference to such issues in the Labour Court submission of 4 May 2010. Indeed, the Labour Court submission contains considerable details about the reduced demand issue and its potential affect on the need for lecturing staff.

As such, I am not satisfied that AIT has taken all reasonable steps in an effort to locate all relevant records. I find, therefore, that AIT was not justified in refusing access to additional records apart from the two identified above under section 15(1)(a).

Part 2

Part 2 of the request was for all records from March 2011 to May 2011 relating to the decision by the Minister for Education and Skills that he had no function in relation to personnel matters such as the applicant's contract of employment.

In his submission of 2 February 2018 the applicant stated that he had asked his local TD to make enquiries to the Minister on his behalf in relation to his dispute with AIT over his contract of employment and that he received a letter dated 10 May 2011 from the Minister that he had no function in relation to such matters. AIT refused this part of the request under section 15(1)(a) on the ground that no relevant records exist or could be found.

AIT stated that it conducted both hard and soft copy searches in the Presidents Office and the Secretary/Financial Controllers Office, using relevant key words, and that searches of Department of Education incoming files for 2011 and TD's /Senators correspondence were carried out. It also identified a letter of 6 July 2012 from AIT to the Minister for Education and Science.  This letter of 6 July 2012 is outside the date scope of the request and the content is not relevant to the subject matter of this part of the request. No evidence has been presented to this Office to suggest that AIT engaged in correspondence with the Minister before he issued his response. Having regard to the searches undertaken, I am satisfied that section 15(1)(a) applies to this part of the request.

Parts 3 to 5

Part 3 of the request was for all records from January 2011 to June 2011 relating to not guaranteeing the applicant's employment as a result of a Labour Court judgment of June 2011 awarding him a contract of indefinite duration from January 2008. AIT refused this part of the request under section 15(1)(a). Part 4 was for all records from June 2011 to January 2012 relating to the appeal of the Labour Court decision to the High Court, while part 5 was for all records from June 2011 to December 2011 relating to the AIT disregarding the Labour Court decision which necessitated the applicant seeking an injunction against AIT. There is a degree of overlap between these parts of the request. In essence, they seek access to records relating to AIT's decision to appeal the Labour Court judgment to the High Court.

As with part 1, AIT refused these parts of the request under sections 15(1)(i) and 31(1)(b). Section 31(1)(b) of the FOI Act is a mandatory exemption that applies where the public body knows or ought reasonably to have known that disclosure of the record concerned would constitute contempt of court.

It is an accepted rule of law that a party obtaining the production of documents by discovery in an action gives an implicit undertaking to the Court that he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action. In EH and EPH v. the Information Commissioner [2001] 2 I.R. 463 (available on www.oic.ie), Mr. Justice O'Neill in the High Court stated as follows:

"Breach of the implied undertaking given in respect of discovered documents is a contempt of Court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the Court and like all undertakings given to a Court, breach of it is a contempt of the Court ...

True, in the case of the usual implied undertaking the party for whose benefit it is given i.e. the party making disclosure can waive the undertaking but in the absence of such waiver as in the present case the undertaking continues as an undertaking to the Court with all of the attending consequences of a breach of an undertaking to the Court ...

I have come to the conclusion that where a head of a public body or the Commissioner is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b)." (Section 22(1)(b) is now section 31(1)(b) of FOI Act 2014)

I understand that a number of records relating to the High Court proceedings were provided to the applicant under discovery during the course of the proceedings. I find that all such records, as described in the schedule of records appended to AIT's affidavit of December 2010 are exempt from release under section 31(1)(b).

AIT identified one email dated 20 June 2011 as relevant to parts 4 and 5 of the request and claimed that section 31(1)(a) applied to this record.  During the course of the review, AIT's legal advisers also identified a number of further relevant records.  One of these records is AIT’s High Court submissions dated 30 June 2011 relating to one set of High Court proceedings.  AIT’s legal advisors state that this record has been provided.  In any event, as the applicant was a party to the relevant proceedings, he would have received the record in that context and I do not need to deal with it further here.

AIT claimed that section 31(1)(a) applies to the following records identified:

  • The email of 20 June 2011 previously identified by AIT and two attachments
  • A Senior Counsel Opinion dated 27 September 2011
  • An email from Arthur Cox Solicitors to AIT dated 22 September 2011
  • An Email string between Arthur Cox Solicitors, AIT and others dated 17-19 June 2011 which includes the Labour Court determination and comments from a representative of the Higher Education Authority (HEA)

It seems to me that the Affidavit of Discovery of December 2011 is also of relevance to parts 4 and 5 of the applicant’s request

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

That section 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:

  • 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).

AIT's position is that these records are privileged as they relate to litigation ongoing at the time.

In the case of University College Cork – National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) the High Court held that the concept of "once privileged always privileged" applies only to claims of privilege based on legal advice privilege, and not to litigation privilege. Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied.

If the proceedings in which litigation privilege originally applied have finally concluded, the privilege may not continue to apply. It is important to note, however, that communications between a client and his/her professional adviser in the course of, or in anticipation of, litigation may also benefit from legal advice privilege. In such circumstances, the concept of "once privileged always privileged" applies. (Legal advice privilege lasts indefinitely, even where the advice pertains to concluded litigation, or litigation that did not proceed.)

Having examined the records, I am satisfied that the email of 20 June 2011 and attachments, the opinion of 27 September 2011 and the email of 22 September 2011 are communications between the client and its professional legal advisor, and that that these records attract legal advice privilege. I find that section 31(1)(a) applies to these records.

The email string dated 17-19 June 2011 contains 11 pages, of which 10 are the text of the Labour Court determination which is available on the website of the Labour Relations Commission. The first page does not contain legal advice, nor am I satisfied that the record continues to attract litigation privilege. I am also satisfied that the affidavit of discovery dated December 2011 no longer attracts litigation privilege. I find that section 31(1)(a) does not apply to these records.

Section 15(1)(a) - whether all records have been identified

AIT set out the searches it says it conducted in the HR Office of soft copies of relevant files, drives and email accounts of relevant personnel for records relevant to Part 3.  AIT states that it is satisfied that no such records exist.  From the information available to me, there is no indication that AIT did anything that can be described as "not guaranteeing" the applicant's employment in the relevant period to which the request relates. 

AIT has not specifically claimed that section 15(1)(a) applies to parts 4 and 5 of the request.  According to AIT and its legal advisors, the only relevant records are those set out above.  No details of searches conducted in AIT for records relevant to these parts of the request have been provided.

While it is reasonable to assume that any correspondence with the applicant in relation to his employment would be located in the HR Office, AIT's records retention schedule indicates that records relating to litigation or disputes may also be held in the Office of the Registrar, the Office of the Secretary/Financial Controller.  It is also the case that the President of the College was a party to correspondence from AIT's solicitors regarding the Labour Court determination, and therefore relevant records may be held in the Office of the President.  No information has been provided by AIT regarding searches carried out in these offices for records relevant to this part of the request. 

In view of the parties to the records listed above, it seems to me that further records should exist.  Furthermore, the applicant provided this Office with information on the costs to AIT of the High Court proceedings and steps taken by AIT with regard to funding of these costs.  It is difficult to accept that such a significant decision to appeal to the High Court with all its attendant risks and costs was made without significantly more records and evidence of decision making at a very senior level in AIT.  It is also reasonable to expect that there would be records of correspondence and notes of communications between AIT and its legal advisors on how to progress the case. 

Taking account of the evidence available, I cannot accept on the basis of the information provided by AIT that the records identified above represent the full extent of records relevant to the request.  In this regard, I annul the decision of AIT and direct it to undertake a fresh decision making process on parts 3, 4 and 5 of the request.  

In the circumstances, I am not satisfied that all reasonable searches have been conducted and I annul the decision and find that section 15(1)(a) does not apply this part of the request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of AIT.  I affirm the decision on part 2 and find that section 15(1)(a) applies; that section 31(1)(a) applies to three records and two attachments as set out above; and that that section 15(1)(i) applies to certain records as set out above.  I find that section 31(1)(b) applies to any records described in the schedule to AIT's affidavit of discovery which were provided to the applicant.   In so far as section 15(1)(a) is claimed or implied, I annul the decision on parts 1, 3, 4 and 5 and direct that AIT undertake a fresh consideration of the request, including conducting all reasonable searches.  I direct the release of those records to which no exemption was found to apply as follows:

  • Labour Court submission
  • Appendix 1 to Labour Court submission
  • Email string dated 17-19 June 2011. 
  • Affidavit of discovery dated December 2011

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.     

 

 

Stephen Rafferty

Senior Investigator