Case number: 180434

Whether the Board was justified in its decision to refuse access to records relating to the applicant under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act

 

29 March 2019 

 

Background

 
On 29 November 2017, the applicant made an FOI request to the Board for access to:
 
1. All records which relate to the applicant and which are held on file or computer within the welfare, regulation or public relations sections of the Board from 1 January 2012 to 29 November 2017; 
 
2. All inspection reports and correspondence which relate to the applicant from 1 January 2015 to 10 May 2017;
 
3. All records in relation to search warrants issued against the applicant in November 2016;
 
4. Reasons why the applicant did not receive replies to letters sent to the Board’s Welfare and Racing Operations Manager.
 
On 26 January 2018, the Board granted the applicant’s request in part. The Board identified 29 records that fall within the scope of his request. It granted access to 20 records in full. It refused access to records 1, 5, 12, 18, 20 and 22 under section 31(1)(a) of the Act on the basis that they contain legally privileged information and it refused access to record 6 under section 35(1)(a) of the Act on the basis that it contains confidential information. Finally, the Board stated that records 9 and 25 concern third parties and it was required under section 38 of the Act to notify the third parties of the request and to provide them with an opportunity to make submissions in relation to access to the records.
 
On 1 February 2018, the applicant wrote to the Board and listed records which the Board had not released. On 16 February 2018, the Board informed that applicant that, following third party consultations, it was releasing further records to the applicant and it was also releasing certain records that the applicant referred to in his email of 1 February 2018. On 20 February 2018, the applicant wrote to the Board and listed further records which the Board had not released. On 7 March 2018, the Board released two further sets of records to the applicant. On 8 March 2018, the applicant again wrote to the Board arguing that further records ought to exist and on 23 March 2018, he requested an internal review of the Board’s decision. 
 
In its internal review decision of 13 April 2018, the Board released the balance of the third party records. The Board affirmed its decision to refuse access to records 1, 5, 12, 18, 20 and 22 under section 31(1)(a) of the Act and to refuse access to record 6 under section 35(1)(a) of the Act. Finally, the Board stated that as no further records exist or can be found after all reasonable steps to locate them have been taken, section 15(1)(a) applies to the applicant’s request. On 25 September 2018, the applicant applied to this Office for a review of the Board’s decision. 
 
This review was progressed as a non-section 38 case as the only records withheld were considered outside the section 38 process. It was not necessary to request submissions from third parties during the course of the review. Both the applicant and the Board were invited to make submissions during the course of the review. In his submissions to this Office, the applicant argued that the Board ought to hold further relevant records. In the course of the review, the Board, following further searches, located a small number of additional records which it released to the applicant. The Board also released record 12 and parts of records 18 and 22 to the applicant. Finally, the Board argued that records 1, 5, 18, 20 and 22 are also exempt under section 30(1)(a) of the Act and it argued that record 6 is exempt under section 37(1) of the Act. This Office informed the applicant of the Board’s reliance on sections 30(1)(a) and 37(1) of the Act and provided him with an opportunity to make a submission. In his reply, the applicant indicated that he would like the review to conclude by way of a formal binding decision.
 
In conducting this review, I have had regard to correspondence between the applicant and the Board, to correspondence between the applicant and this Office, to correspondence between the Board and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
 

Scope of the review

 
The scope of the review is confined to the following issues:
 
  • Whether the Board was justified in its decision to refuse access to further records under section 15(1)(a) of the FOI Act;
  • Whether the Board was justified in its decision to refuse access to records 1, 5, 20 and parts of records 18 and 22 on the basis that they are exempt from release under sections 30(1)(a) and/or 31(1)(a) of the FOI Act;
  • Whether the Board was justified in its decision to refuse access to record 6 on the basis that it is exempt under sections 35(1)(a) and/or 37(1) of the FOI Act.
 

Preliminary matters

 
The FOI Act provides for a right of access to records held by FOI bodies (section 11). Under section 12 of the Act, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. 
 
Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
 
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. The release of a record under the FOI Act is considered, effectively, as release to the world at large.
 

Analysis and Findings

 
Section 15(1)(a) - "Search" issues
As the applicant argues that further relevant records ought to exist, section 15(1)(a) of the Act is relevant in this case. Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is 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/her decision. The evidence in "search" cases consists of the steps actually taken to search for 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 records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner  [2002 No. 18 M.C.A.] (available on this Office’s website at www.oic.ie).
 
In his submissions to this Office dated 28 October 2018, the applicant argues that the Board ought to hold a list of records the details of which I will not repeat here. The records concerned certain specific events, correspondence and meetings identified by the applicant.
 
Following the applicant’s submissions, this Office requested the Board to respond to detailed queries in relation to searches undertaken to locate all relevant records, including those specifically mentioned by the applicant. It also sought information on the Board's record management practices. In its submissions to this Office, the Board addressed each specific record or classes of record identified by the applicant that he claims it holds. The Investigator communicated the Board's position to the applicant. In some instances, the Board said that the applicant already had certain records but the Board stated that its Regulation and Welfare Departments were searched as the issues relate to greyhound welfare. It stated that searches were carried out manually and on computer using the name of the applicant as well as specific addresses. 
 
Following his submissions, the applicant contacted this Office and raised further issues about records that he claimed were prepared by welfare officers of the Board during inspections of his premises and other specific records.
 
This Office raised those issues with the Board which stated that all records which relate to the applicant’s prosecution were released to him as part of disclosure during the case. As regards the other items identified, it provided explanations as to the searches conducted, whether the records existed and which records had already been given to the applicant.
 
It is clear from the applicant’s submissions to this Office that he is not satisfied with how the Board has carried out its functions. The applicant has requested “a full external review of the course of events towards myself”.  However, it is outside the powers of the Information Commissioner to adjudicate on how public bodies perform their functions generally. This review is confined to the Board’s decision on the applicant’s FOI request for records. The applicant has also complained about the failure of his local County Council and the Department of Agriculture to provide him with records. Again, these are not matters which can be considered in this review.
 
In his FOI request, the applicant requested reasons why he did not receive replies to letters sent to the Board's Welfare and Operations Manager. Parts of the applicant’s submissions to this Office also poses a series of questions. However, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record held that contains the answer to the question asked or the information sought. The FOI Acts do not provide for a right of access to records which ought to exist or require FOI bodies to create records where such records do not exist or are not held by it.
 
I accept that since the applicant made his request on 29 November 2017, a considerable effort was made by the Board to assist the applicant, including replies to a large number of emails and telephone queries. I also accept that substantial searches were undertaken by the Board to locate all relevant records and I note that the Board contacted its solicitor and other relevant parties in order to locate records. This resulted in a lengthy process after which a large number of records have now been released to the applicant. I am satisfied, on the basis of the information provided by the Board, that it has taken reasonable steps to locate all records relevant to the applicant’s request. I find, therefore, that section 15(1)(a) of the Act applies to the applicant’s request insofar as it relates to any further records, which in the applicant’s view, the Board ought to hold.
 
 
Sections 31(1)(a) Legal Professional Privilege
The Board refused to release records 1, 5, 20 and parts of records 18 and 22 on the basis that they are exempt under section 31(1)(a) of the Act. Section 31(1)(a) provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). 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). 
 
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The LPP exemption does not contain a public interest balancing test. In case number 020281 (Mr. X and the Department of Education and Science) (available at www.oic.ie) the former Commissioner considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. She referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]: 
 
“Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R.., 246, CA.] …[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings… There will be a continuum of communications and meetings between the solicitor and client…Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach.”
 
Records 1, 5, 20 and the parts of records 18 and 22 that the Board refused to release contain correspondence between officers of the Board and the Board’s solicitor. I have examined the records closely and I accept that they contain requests for and the provision of legal advice or a continuum of communications so that advice may be given. I find, therefore, that records 1, 5, 20 and the parts of records 18 and 22 that the Board refused to release are exempt under section 31(1)(a) of the Act. In light of this finding, it is not necessary to consider whether the records are also exempt under section 30(1)(a) of the Act.
 
Section 37 Personal Information 
The Board refused to release record 6 on the basis it is exempt under section 37(1) of the Act. Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides that a public 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, commonly referred to as joint personal information. 
 
The definition of "personal information" is contained in section 2 of Act: "personal information means information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information that is personal information, without prejudice to the generality of the foregoing definition. I consider the following categories to be relevant in this instance: (xiii) 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; (iv) the views or opinions of another person about the individual.
 
Records 6 is email correspondence between an officer of the Board and another individual(s). Records 6 contains personal information relating to both the applicant and the third party or parties. I am satisfied that the applicant's personal information is so closely intertwined with the personal information of another individual(s) that it is not practicable to separate the two. I find, therefore, that record 6 is exempt under section 37(1) of the Act. 
 
 
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances set out in subsection (2) arise in this case.
 
 
Section 37(5) The Public Interest
Section 37(5) provides that access to the personal information of a third party may be granted where (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. It has not been argued that releasing the records would benefit the person(s) to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. 
 
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates. The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. 
 
I consider that the public interest in enhancing the accountability and transparency of the Board been served to a significant extent by the release to the applicant of the majority of the information held. The question I must consider is whether the public interest in further enhancing that transparency and accountability is sufficiently strong to outweigh, on balance, the public interest in protecting the right of privacy of the individual(s) to whom the information relates. In my view, it is not. I find, therefore, that record 6 does not fall to be released under section 37(5)(a). 
 

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Board’s decision. I find that the Board has justified its refusal of access to additional records under section 15(1)(a) on the basis that additional records either do not exist or cannot be found after reasonable searches have been carried out. I find that section 31(1)(a) applies to records 1, 5, 20 and the parts of records 18 and 22 that the Board refused to release as these records would be exempt from production in proceedings in a court on the ground of legal professional privilege. I find that section 37(1) applies to record 6 on the basis that its release would involve the disclosure of third party personal information and the public interest that the request should be granted does not outweigh the public interest in upholding the right of privacy.
 

 

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.
 
 
Elizabeth Dolan
Senior Investigator