Case number: 170458

Whether the Department was justified, pursuant to sections 36(1) and 42(f) of the FOI Act, in refusing access to records relating to instances where the Office of the Director of Public Prosecutions (DPP) sought to increase the normal rates of fees paid to barristers and solicitors in court cases.

08/03/2018

This case was appealed to the High Court in April 2018

Background

On 6 July 2017 the applicant sought access to correspondence held by the Department where various named Offices sought to increase the normal rates of fees paid to barristers and solicitors in court cases, from 2013 onwards. It appears that he subsequently agreed to narrow the scope of his request to records relating to the Office of the Director of Public Prosecutions (the DPP). On 2 August 2017 the Department decided to refuse access to the 31 records it identified as coming within the scope of the request under sections 31(1) and 42(f) of the FOI Act. On the same day the applicant sought an internal review of that decision. The internal reviewer issued his decision on 7 September 2017.  He affirmed the original decision to refuse assess to the records, but no longer sought to rely on section 31(1)(a), except in the case of one record (Record 30).

On 21 September the applicant sought a review by this Office of the Department's decision. During the course of the review, the Department argued that section 36 (relating to commercially sensitive information) was also relevant on the ground that release of financial information relating to barristers and solicitors in receipt of payments for work undertaken on behalf of the State could adversely affect those individuals

In light of the Department's reliance on section 36, Ms Connery, Investigator, undertook a consultation process with the 23 legal counsel concerned having received confirmation of the various individuals involved from the DPP. Responses were received from three individuals with two indicating that they had no objection to the release of the relevant information relating to the payments sought and sanctioned and the other indicating that he was happy to abide by the position of the relevant public body. 

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 Department as set out above, and to the correspondence between this Office and the applicant, the Department, and the DPP on the matter. I have also had regard to the submissions of the three individuals referred to above, and to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule it provided to the applicant when processing the request.

Scope of Review

As Record 31 is an exact copy of Record 16, I have excluded Record 31 from the scope of this review. In addition, the DPP submitted that records 5 and 30 do not come within the scope of the request as neither Record is concerned with a request to increase the normal rates of fees paid to barristers and solicitors in a court case. Record 5 relates to an arbitration matter while Record 30 relates to legal opinion received in connection with a contractual dispute which was not heard before the courts. I agree with the DPP and I have excluded Records 5 and 30 from the scope of this review.

This review is therefore concerned solely with whether the Department was justified in its refusal to grant access to the remaining 28 records coming within the scope of the applicant's request, under sections 36(1) and 42(f) of the FOI Act.

 

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records at issue was justified.

Analysis and Findings

Section 42(f)

The records at issue comprise requests from the DPP to pay increased fees in particular court cases and the subsequent responses issued by the Department.  In some cases both the original request and sanction letter are included and in other cases only either the request or the letter sanctioning the request are present. 

Section 42(f) provides that the Act does not apply to a record held or created by the DPP, other than a record relating to general administration. The Department argued that the relevant records are captured by section 42(f) of the FOI Act as (i) they comprise either records that were created by the DPP or were sent to, and are now held by, the DPP, and (ii) they do not relate to the general administration of the Office but rather they refer to individual specific prosecution cases. The Department also argued that while the records relate to fees to be paid, in many cases the correspondence also touches on wider substantive issues relating to the cases such as possible prosecution strategies and issues which might be raised by the defence.

I am satisfied that those records or parts of records comprising the Department's responses to requests from the DPP to pay increased fees are not captured by section 42(f). Those records were not created by the DPP and are clearly held by the Department, not by the DPP. The fact that the DPP may also hold exact copies of those responses does not mean that the copies held by the Department are deemed to be held by the DPP.

However, the records or parts of records comprising the requests from the DPP are potentially captured by section 42(f), given that they were created by the DPP. The question I must consider is whether or not they relate 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 DPP 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 DPP. I accept that the records at issue in this case relate to an administrative matter, namely the fees to be paid to Counsel for the services provided in connection with court cases. However, I am satisfied that they also relate to matters concerning the core business of the DPP. I note that the correspondence from the DPP is case specific, and that the request for sanction to pay certain fees is based on the particular circumstances arising in each case including, for example, the complexity of issues arising and the amount of work involved. As such, I find that the records or parts of records in question do not relate to general administration and that section 42(f) applies.

The records or parts of records to which section 42(f) applies are Record 2 (page 1), Record 3 (pages 1 and 2), Record 4 (pages 1 to 3), Record 6 (page 2), Record 13, Record 14/15 (Page 1), Record 17 (page 1), Record 18, Record 19 (page 1), Record 20 (pages 1 to 4), Record 21 (page 1), Record 22 (page 1), Record 23 (page 1), Record 24 (page 1 and the email sent on 1 February 2016 on page 2), Record 25 (the email dated 16 March on page 1 and all of page 2), Record 26 (page 1), Record 27 (page 1 and the email sent at 13:17 on 7 September 2016 on page 2), Record 28 (pages 1 and 2), and Record 29 (page 1). For the avoidance of doubt, I find that section 42(f) does not apply to the remaining records or parts of records.

Section 36

In its submission to this Office the Department argued that the records at issue are also exempt from release under section 36. In light of my finding regarding section 42(f), I have considered the Department's arguments only in respect of the records or parts of records to which section 42(f) does not apply, namely the Department's correspondence in response to the DPP requests to pay increased fees.

The Department argued that the release of the records may impose adverse effects for the relevant parties. Specifically, it argued that in circumstances where one barrister/solicitor is paid significantly less than another for comparative senior/junior counsel or solicitor work, release may materially affect the ability of the solicitors and barristers mentioned to charge comparable rates in both the private and public sector. This would appear to be an argument for the protection of the records under section 36(1)(b). That section provides for the refusal of a request where the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.  

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. Where an FOI body relies on section 36(1), it should identify the potential harm specified in the relevant paragraph that might arise from disclosure and then consider the reasonableness of any expectation that the harm will occur. The body should show the link between granting access to the record concerned and the harm identified.

As outlined above, during the course of the review this Office Ms Connery of this Office afforded the various counsel mentioned in the records an opportunity to make a submission on the question of the release of the records. None of the parties concerned objected to the release of the relevant information relating to the payments sought and sanctioned as set out in the records at issue. In light of this I cannot accept the Department's arguments that the release of the records at issue could reasonably be expected to give rise to the harms identified in section 36(1)(b).

I should add that even if I had found section 36(1)(b) to apply, the public interest test as set out at section 36(3) would remain to be considered. Section 36(3) provides that section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. I accept that there is a public interest in protecting the commercially sensitive information of third parties and that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result.

On the other hand, the Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the Act provides that FOI bodies shall, in performing any function under the Act, have regard to a number of matters including 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. Where records relate to the expenditure of public money, this Office considers that there is a strong public interest in openness and accountability in the use of public funds. In this case, the DPP sought sanction to increase the fees to be paid to various solicitors and/or barristers for services provided.

I note that during the course of the review, the Department notified this Office of the fact that the DPP had released certain information to the applicant on foot of requests made to that Office for information. I understand that the DPP released a table containing details of cases where the Department approved an enhanced fee, including the year, the relevant court (i.e. Circuit, High etc.), and the fee sanctioned. The name of the recipients was not included. I accept that the release of such information serves to enhance transparency around the payment of enhanced fees. However, this does not mean that no further information should be released. Given their subject matter, I am satisfied that the public interest would, on balance, be better served by the release of the records at issue in this case.

The Department also argued that if details relating to legal fees paid to counsel were to be released, this would materially affect the State's ability to negotiate value for money rates in the future, to the detriment of the Exchequer. It seems to me this is an argument that release of the records could prejudice the conduct or outcome of contractual or other negotiations of the Department (section 36(1)(c) refers).

As a general principle, this Office considers that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. However, it is accepted that there is some uncertainty as to the position of FOI bodies under section 36. Depending on the circumstances of the case, it is also accepted that the FOI Act does not prohibit an FOI body from relying on the provisions of section 36. Nevertheless, I have some difficulty in accepting the Department's argument in this case. I note that the payment of fees to counsel is subject to delegated sanction limits given to the DPP. As I have outlined above, the arguments made for seeking sanction to exceed those limits in the records at issue are case specific and based on the particular circumstances arising in each case including, for example, the complexity of issues arising and the amount of work involved.

In such circumstances, I find it difficult to accept that the release of the records at issue could prejudice the outcome of future negotiations in relation to the level of fees to be paid. I would also suggest that the decision of the DPP to release details of cases where the Department approved an enhanced fee serves to undermine the Department's argument. I find that section 36(10(c) does not apply.

I would add, in any event, that section 36(1)(c) is also subject to the public interest balancing test set out in section 36(3). For the reasons I have outlined above, I am satisfied that the public interest would, on balance, be better served by the release of the records at issue in this case.

Section 37

Record 8 contains the name of a defendant. According to the relevant counsel, the Supreme Court determined that the identity of the defendant should be protected and not published. I am satisfied, in the particular circumstances that the name of the defendant is personal information and I find that it is exempt from release under section 37(1)

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department to refuse access to the correspondence held where the DPP sought to increase the normal rates of fees paid to barristers and solicitors in court cases, from 2013 onwards. I find that it was not justified in refusing access to the following records, or parts of records, under section 42(f) and/or section 36(1) and direct that they should be released:

Record 1, Record 2 (page 2), Record 3 (page 3), Record 4 (page 4), Record 6 (page 1), Record 7, Record 8 (subject to the redaction of the name of the defendant), Record 9, Record 10, Record 11, Record 12, Record 14/15 (Page 2), Record 16, Record 17 (page 2), Record 19 (page 2), Record 20 (page 5), Record 21 (page 2), Record 22 (page 2), Record 23 (page 2), Record 24 (page 2, apart from the email sent on 1 February 2016, and pages 3 and 4), Record 25 (page 1, apart from the email dated 16 March 2016), Record 26 (page 2), Record 27 (page 2, apart from the email sent at 13:17 on 7 September 2016, and pages 3 and 4), Record 28 (page 3), and Record 29 (page 2).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              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