Case number: OIC-141119-W4T6W6

Whether the Department was justified in refusing access to further records on the REPS file relating to the applicant

 

20 February 2024

 

Background

This case has its background in a previous decision issued by this Office, case OIC-127985-W0N5T6. The decision in question related to a refusal by the Department of Agriculture to re – consider a request under section 15(1)(g). Originally, in 2015 the applicant had sought access to his file relating to the Rural Environment Protection Scheme (REPs) and a copy of the REPS inspection implementing directions. The Department part-granted the request. It released the REPS Inspection implementing directions and a copy of the relevant REPS file with the exception of six records that it withheld under section 37(1) of the Act and one record that it withheld under section 31(1)(a) of the Act.

On 8 May 2018, the applicant made a request to the Department for the withheld records. It refused that request, again under sections 37(1) and 31(1)(a). Following a request for an internal review, the Department affirmed its refusal of the request and also relied on section 35 as a further ground for its refusal. I understand that the applicant also sought the withheld records under the Data Protection Act 2018 in or around that time. On 13 January 2022, the applicant applied to this Office for a review of the Department’s decision on his FOI request of 8 May 2018. On the same date, this Office informed the applicant that his application had not been accepted in circumstances where it was made outside the six-month time limit and where the Department had advised the applicant of his right of appeal and of the time limits involved. We explained that one of the options open to the applicant was to submit a new request to the Department. He duly did so on 13 January 2022.  

In a decision dated 9 February 2022, the Department refused the request under section 15(1)(g) of the Act, on the ground that the request was part of a pattern of manifestly unreasonable requests. The applicant sought an internal review of that decision, following which the Department affirmed its refusal of the request. The applicant applied to this Office for a review in September 2022, when the Department refused the request under section 15(1)(g). In the decision which issued from this Office on 21 November 2022, the Senior Investigator annulled the Department’s decision and directed the Department to conduct a new decision making process on the applicant’s request for the six relevant records withheld under section 31(1)(a) and 37(1).

The Department issued its new decision on 13 December 2022. In its decision, the Department affirmed the original decision made and refused the request under sections 37(1) and 31(1)(a) of the FOI act on the grounds that records 92 – 97 requested contained personal information belonging to a third party, and that record 231 contained legal advice. The applicant sought an internal review of this decision on 12 January 2023 which was affirmed by the Department on 2 February 2023. On 1 August 2023, the applicant applied to this Office for a review of the Department’s 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 to date and to the submissions made by the FOI body in support of its decision. 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 solely with whether the Department was justified in its decision to refuse access to the records sought by the applicant on the grounds that they are exempt under sections 37(1) and 31(1)(a) of the FOI Act.

Preliminary Matters                                                                        

Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Secondly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.  

Analysis and Findings

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

Section 31(1)(a) of the FOI Act must be applied 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).

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. The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.

The record in question, record 231, is an email chain between an officer of the Department and the Department’s legal services division offering advice on a potential litigation. In the submissions, which the Department provided, it has stated that the request was made by an officer of the Department to undertake and seek an opinion in relation to a matter related to the file, the response provided states “privileged communication”.

While I must be circumspect in my description of the records, I can confirm that I have examined them and considered the Department’s arguments. The individual giving advice was employed in house as a legal advisor and it is clear from the record that the individual seeking advice was seeking his professional legal opinion. I should also note that records exempt under section 31(1)(a) do not have to be subject to legal proceedings for legal advice privilege to apply. On that basis, I am satisfied that the record attracts legal advice privilege and I find that it is exempt under section 31(1)(a) of the FOI Act.

Section 37(1) – Personal Information

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. This is commonly known as joint personal information.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, such as (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, (xiii) information relating to property of the individual.

Bearing in mind the requirements of section 25(3), I can say that the relevant records on their face, provide confidential information relating to concerns from a third party, including names and contact details, which was submitted to the Department by the individual. Record 96 was created by the Department in response to the third party, however, I am satisfied that the details within that record could be used to identify the individual concerned. In the circumstances, I am satisfied that the relevant details comprise information falling within the above mentioned categories. I am satisfied that they comprise personal information relating to the parties concerned and I find that section 37(1) applies.

In records 93 – 95 there are references made to the applicant, accordingly the records also contain personal information relating to him. However, given the nature of the records, I am satisfied that the applicant’s personal information is inextricably linked to that of the identifiable third party (joint personal information). Therefore, section 37(7) is relevant. Section 37(7) provides that, notwithstanding section 37(2)(a), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.

However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. In submissions provided by the applicant, he made reference to a number of considerations under section 37(2), such as information relating to him as a requestor which I have dealt with under section 37(7) above, in addition to consent from family members and the public being aware of the circumstances of the case. The records in question do contain some personal information relating to the applicant, however they do not appear to contain any personal information relating to any other member of his family, accordingly the consent of family members for release of the records, is not relevant. Secondly, the information in the records in question contain the personal information of a third party individual, the applicant has provided no evidence that the public would be aware of the particulars of this third parties engagement with the Department.

Finally, the applicant has stated that release of the information is necessary to avoid a serious and imminent danger to the life or health of an individual, he stated that his father expressed suicidal ideation at the time to which these records relate. While I acknowledge the applicants concerns and the seriousness of such a matter, I note that the relevant records which the applicant is seeking are over 10 years old, and that the applicant has been engaging with the Department since 2015 in terms of seeking these records, it is nonetheless not apparent to me that the records contain information, which could, if released either now or at the time of the original request have such an effect, particularly, considering that the information in the relevant records does not relate to the applicant’s father in anyway. Accordingly, I am not satisfied that the release of the records is necessary to avoid a serious and imminent danger to his life or health or anyone else’s. Accordingly, I find that section 37(2) does not apply in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of 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"). It is noted that a true public interest should be distinguished from a private interest.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to an applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, which are not relevant here, FOI is not about granting access to information to particular individuals only. Furthermore, as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that, in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned

In its submissions, the Department said that it refused access to records 92 to 97 as access to these records would involve the disclosure of personal information, and that in considering the public interest implications, it was the view of the Department that the over-riding public interest is in seeing that a person’s personal information will not be made public. It considered that the public interest factors in favour of granting release would be to ensure citizens may exercise their right under FOI and that there would be transparency in the operation of schemes. It stated that the public interest factors against release would be ensuring the efficient and effective operation and monitoring of schemes and the protection of data.

In submissions which were provided by the applicant, he provided a large amount of background detail concerning family matters, and alleged incidents which have taken place over the years in relation to the family farm. The applicant argues that the public interest lies with release of the information, considering what he states was significant damage caused to him and members of his family by lies and false reports to Gardaí, the Department and other State bodies through the years, in addition to stating that the principles of FOI (justice/fairness) should support the release of such information in circumstances such as these.

While I understand the applicant’s position and concerns surrounding this issue, and agree that transparency and justice are important public interest considerations, I do not consider that in the circumstances of this specific case, this outweighs the right to privacy of the third party individual involved. I also note that the applicant has received access to the full REPS file except a total of 7 records which the Department have withheld under mandatory exemptions. In the circumstances, I believe the Department have attempted to serve the public interest in transparency and accountability in relation to the circumstances of this case. Furthermore, while the applicant has identified some public interests which could be served by the release of the information, the information in general relates to disputes over inspections on the applicant’s private land.

As mentioned above, I am cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put. Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I do not consider the public interest in releasing the records containing the personal information of a private individual outweighs the right to privacy of the individual. I find therefore, that section 37(5)(a) does not apply. Consequently, I find that the Department was justified in refusing access to the withheld information under section 37(1) of the FOI Act.             

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified to refuse access to record 231 under section 31(1)(a) and to refuse records 92 – 97 under section 37(1).  

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Rachael Lord
Investigator