Case number: 180029
17 April 2019
On 14 November 2017 the applicant sought access to records showing the breakdown of the costs of the 10 most expensive cases on the CSSO's Costs Accounting database for the years 2014, 2015, 2016 and for 2017 to the date of his request. He also sought access to various records relating to cases settled in uncontested JR and habeus corpus proceedings.
The CSSO is a constituent part of the AG's Office. On 13 December 2017 the AG's Office refused the request under section 42(f) of the FOI Act on the ground that the records sought do not relate to general administration and that the FOI Act does not therefore apply to the records.
On 3 January 2018 the applicant sought an internal review of that decision, following which the AG's Office affirmed the original decision to refuse the request under section 42(f). On 24 January 2018 the applicant sought a review by my Office of the refusal of his request.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the AG's Office as set out above, and the communications between my Office and both the applicant and the AG's Office on the matter. I have also had regard to the contents of a sample of records that the AG's Office eventually made available to my staff for inspection for the purposes of the review.
During the course of the review the applicant stated he was seeking a review of the AG's Office's decision only in respect of the first part of his request. My review is therefore concerned solely with whether the AG's Office was justified in its refusal to grant access to records showing the breakdown of the costs of the 10 most expensive cases on the CSSO's Costs Accounting database for the years in question.
Before I address the substantive issues arising, I would like comment upon the manner in which the AG's Office engaged with my Office during the course of the review and which gave rise to significant delays in progressing the review.
Section 42 provides that the Act does not apply to records captured by the provisions of the section. However, the fact that a public body may consider a record to be captured by section 42 is not the end of the matter. I am entitled to review a decision to refuse to grant a request pursuant to section 42 (section 22(1)(a) refers).
In order to carry out such a review, I must consider the nature and, quite often, the contents of the records to determine if they are captured by the relevant provisions of section 42. While it is occasionally possible to progress a review without having sight of the records, by having regard to the description of the type of records sought, this is not always the case. Indeed, my Office has dealt with many cases where a body refused a request under section 42 and, following an examination of the records, decided that the section did not apply. The important point to note is that it must be open to me to examine records, if I deem such an examination appropriate, in circumstances where I am entitled to review decisions to refuse access to such records under section 42.
In this particular case, my Office first sought copies of the records at issue in order to progress the review on 29 January 2018. In response, the AG's Office argued that the information sought was "clearly" not general administration and that as the material sought was outside of the Act, it was prohibited from providing my Office with copies of the relevant records. Without prejudice to the entitlement of my Office to examine the records, the review proceeded. However, following receipt of two submissions, my Office considered that it was necessary to have sight of the records at issue and asked the AG's Office to provide them on 10 May 2018. On 25 May 2018 the AG's Office reiterated its position that it was prohibited from releasing the records sought.
In an effort to progress the review, my Office then offered the opportunity to the AG's Office to provide a sufficiently detailed description of the records at issue as it remained unclear exactly what information sought by the applicant could be extracted from the Costs Accounting database and precisely what information was being considered for release. In response the AG's Office argued that it had already given a detailed description of the information at issue and that it could not go any further. It again repeated its position that it was prohibited from releasing the information.
On 5 July 2018 my Office issued a formal notification under section 45 of the Act requiring the AG's Office to provide the subject records to allow the review to proceed. Section 45(1) provides that I may, for the purposes of a review under section 22, require any person who, in my opinion, is in possession of information or has a record in his or her power or control that, in my opinion, is relevant to the review to furnish to me any such information or record and, where appropriate, require the person to attend before me for that purpose.
On 11 July 2018, the AG's Office informed my Office that it refused to accept that my powers under section 45 apply, based on its view that the records at issue are excluded from the Act and it declined to comply with my Office's demand under section 45 to provide copies of the records at issue. Following a subsequent meeting between both Offices, the AG's Office forwarded a further submission wherein it provided some additional information relating to the information at issue. My staff then sought an opportunity to inspect the information on site which was, again, refused.
In a letter of 15 October 2018, the AG's Office stated that it has been the consistent view of the Attorney General through the years that the provisions of section 45 do not apply to it and that my powers did not apply in the circumstances of the case. In response, I wrote to the Attorney General on 22 November 2018 and informed him that I was left with no alternative but to pass the matter to my legal advisers with instructions to proceed with enforcement. On 6 December 2018, the AG's Office invited my staff to attend at its Offices to inspect a sample of the records at issue, some 10 months after my Office had first sought copies of the records. The inspection took place on 17 January 2019, during which previously undisclosed information concerning the records at issue was provided to my Office.
I would like to record my concern about the manner in which the AG's Office dealt with this matter. This was the first time since I took up Office that a public body refused to comply with a formal notification under section 45 of the Act, thus forcing me to consider instructing my legal advisers to proceed with enforcement to allow me to carry out a review. Had I accepted the position of the AG's Office, I would have essentially allowed that Office to throw a blanket over all of its records without external independent oversight. To do so would also have ignored the express intention of the Oireachtas as set out in section 22(1)(a) that my full review powers apply to decisions of FOI bodies to refuse requests pursuant to section 42.
I contrast the AG's position in this case with the view taken when a similar issue arose relating to the Central Bank of Ireland in 2015. At the time, the Bank argued that as a partially included agency, the internal and external rights of review did not apply to those records to which the Act did not apply and that I was not entitled to examine the records at issue. I took the view that while the Bank was entitled to refuse access to certain records, it must comply with the provisions of the FOI Act, which included offering rights of internal review and, subsequently, external review by my Office. It is my understanding that the AG's Office advised the Central Policy Unit of the Department of Public Expenditure and Reform at the time that my understanding of the matter was correct.
It is my strongly held view that the AG's Office is mistaken in its interpretation of the Act in this case. While my Office was eventually provided with sufficient information to allow this particular review to proceed, I would hope that a similar issue will not arise again in any future reviews.
The applicant sought records showing the breakdown of the costs of the 10 most expensive cases on the CSSO's costs accounting database for several years. The AG's Office stated that the costs accounting database is in fact a component part of the CSSO's case management database. It said that the information on the database relates to the legal costs awarded against the State and does not concern the State's own legal costs.
Before considering section 42(f) and the parties' arguments pertaining to that section, it is helpful to set out the CSSO's costs accounting processes and the type of breakdown that can be produced by the database.
CSSO costs accounting procedure
I understand from the AG's Office that the CSSO's procedure where legal costs are awarded against the State is as follows. When an order for costs is made, an itemised bill of costs is submitted to the CSSO by the opposing party's solicitor. A bill of costs may range from an informal bill which would list the costs on a couple of pages, to a formal bill of costs which may run to many pages and include hundreds of items. The CSSO Costs Accounting Unit sends the bill of costs to the National Treasury Management Agency (NTMA), which carries out the legal costs accounting work of negotiating and, if necessary, taxing the opposing party's costs. Upon completion of this process the NTMA provides a report to the CSSO in which it sets out the final total negotiated or taxed costs. The CSSO then forwards the NTMA report to the relevant client Department or state body and that Department pays the final negotiated or taxed costs.
The AG's Office stated that information relevant to the applicant's request is held in the costs section of the CSSO case management database. It stated that given the length of a bill of costs it is not practicable to record in the database the amounts sought and paid for every individual line item. Rather, the CSSO records the headline figures in each case, such as solicitors' fees sought and paid, and scans onto the database a copy of the marked bill of costs which shows the amount claimed and the amount allowed for each item. The AG's Office stated that although the NTMA's costs accounting process addresses every item set out in a bill of costs, the NTMA's report to the CSSO similarly does not record the information on a line by line basis.
The sample spreadsheet
The limited nature of the breakdown available to the CSSO from its database was evident when this Office inspected a sample spreadsheet produced from the database at the CSSO's offices. The spreadsheet provided details such as the year of the case, the case title, the amount sought by the solicitor, the amount paid to the solicitor and total bill amount sought and total bill amount paid. However, the spreadsheet did not indicate the amounts sought and paid to counsel, or other costs. The headings on the spreadsheet were also not an exact match to those previously provided to this Office. Furthermore, the CSSO stated that it was not possible to generate a breakdown of counsel fees from its database as they were not accurately recorded. However, the applicant specifically sought a breakdown from this database.
As mentioned above, section 42(f) provides that the Act does not apply to a record held or created by the AG's Office, other than a record relating to general administration. The AG's Office argued that the information sought is captured by section 42(f) as it does not relate to the general administration of the AG's Office, but rather refers to legal cases. It stated that the information is recorded by the CSSO onto its database for the purpose of managing the costs process and to allow for costs comparison and reference. It said that CSSO solicitors may refer to the database when attempting to settle a case in order to ascertain what a reasonable level of costs would be. It also argued that while the records relate to fees to be paid, there is a clear distinction between financial records concerning the operation of the AG's Office, which would relate to general administration, and financial records concerning legal proceedings in which it acted as solicitor for the State.
To the limited extent its database can produce a breakdown of the costs, it is clear that the CSSO holds at least some of the information sought by the applicant. The question I must consider is whether or not that information relates to "general administration". While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the AG's Office and its constituent offices, such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the AG's Office.
Of note in this case is that while the costs at issue clearly comprise financial information, they do not reflect payments by the CSSO or the AG's Office, and the AG's Office does not hold the information for the purpose of making such payments. Neither does the information reflect any service provided to the CSSO or AG's Office. Rather the information concerns the legal costs of other parties awarded against the State, and paid by client Departments/state bodies. It seems to me that the CSSO holds this information as a result of its statutory function to provide legal representation to the State, and uses the information in furtherance of that function. In particular, I note the database is used as a point of reference by CSSO solicitors when settling cases, an activity clearly falling within the CSSO's core business.
I accept that there is a distinction to be drawn between the information sought in this case and information concerning expenditure by the AG's Office or the CSSO for services rendered, be they legal or otherwise. It seems to me, for instance, that fees paid to counsel acting on behalf of the CSSO or the AG's Office could generally, but not without exception, be reasonably be described as relating to general administration. While the applicant rightly argued that the information relates to expenditure, it does not reflect expenditure on the part of the AG's Office that can reasonably be described as relating to general administration. Information concerning expenditure will not necessarily relate to general administration in every case. Given the particular characteristics of the information at issue in this case, as I have set out above, I am satisfied that the information sought does not relate to general administration.
Accordingly, I find that section 42(f) applies to the records sought in this case and I affirm the AG's Office's decision to refuse to release the records at issue.
Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the AG's Office in this case.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.