Case number: OIC-110588-Y0F6S4
9 September 2022
In 2019, DCU appointed an estate agent to handle the sale of certain land by the University. The land was offered for sale by tender. An entity, which according to the applicant is part of its property group, submitted the successful tender and paid a deposit to DCU. For ease of reference, I refer to that entity and the property group which it is part of as “the applicant” in this decision. The sale of the lands was not completed for reasons which are in dispute between the parties. DCU forfeited the applicant’s deposit. The applicant instituted proceedings seeking the return of its deposit. I understand that those proceedings are ongoing.
In a request dated 30 April 2021, the applicant requested copies of all records which are held by or on behalf of DCU in relation to the proposed sale of certain lands pursuant to a contract with a named company dated 10 December 2019 (“the lands”) for the period 1 October 2019 to 30 April 2021, including but not limited to:
On 14 May 2021, DCU part-granted the applicant’s request, releasing some records and refusing access to a number of other records under sections 29, 30, 31, 32, 36 and 40 of the FOI Act. The applicant sought an internal review of that decision, following which DCU affirmed its original decision. On 20 July 2021, the applicant sought a review by this Office of that 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 by the applicant and DCU. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.
DCU identified 85 records which it says fall within the scope of the applicant’s request. It released records 6, 7, 14, 16, 17, 21, 22, 24 and 25 to the applicant. It stated that the applicant already has access to records 33, 39 and 48, which consist of correspondence between the applicant and DCU. It released copies of these records to the applicant during the course of the review. This Office’s Investigator noted in correspondence with DCU that records 31, 36, 37, 41, 42, 45, 46, 49, 50, 51, 53, 55, 57, 58, 60, 65, 75, 77 and 78 also contain emails or attached correspondence sent between DCU/its legal advisers and the applicant/its legal advisers. In reply, DCU confirmed that it would release all communications sent between the parties, which are contained in these records.
In light of the above, the scope of this review is confined to whether DCU was justified in refusing access, in full or in part, to the following records on the basis that they are exempt under sections 29(1)(a), 30(1)(a), 31(1)(a) or (b), 32(1)(a)(iv) or 36(1)(b) or (c) of the FOI Act: 1-5, 8-13, 15, 18-20, 23, 26-32, 34-38, 40-47 and 49-85.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
It is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the FOI Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
In this case, DCU did not provide the applicant with a schedule of records. The Central Policy Unit of the Department of Public Expenditure and Reform (see www.foi.gov.ie) has published a Code of Practice on FOI for public bodies. The Code states a schedule should be included with decisions providing details of those records being released in full, of those to which partial access is being given, and of those being refused. A schedule should set out the reasons why access is not being granted in full or in part and reference relevant sections of the FOI Act where refusals are made. I see no reason why DCU could not have provided a schedule of records in this case. This would have allowed the applicant to make a more informed decision as to what records it wished to access. I expect DCU to have regard to the Code of Practice when processing requests in the future.
Section 31(1)(a) Legal Professional Privilege
Having regard to the content of the withheld records, I am satisfied that section 31(1)(a) of the FOI Act is the most appropriate exemption provision to consider first. DCU refused access in full or to parts of records 3-5, 9, 11-13, 15, 18-20, 23, 26-32, 34-38, 41-47 and 49-85 on the basis that they are exempt under section 31(1)(a) of the FOI Act. These records contain correspondence between DCU and its legal advisers regarding the sale of the lands and in relation to the litigation that arose as a result of the failed sale. A number of the records contain attachments which include documents in relation to the sale or court documents which were issued once the sale collapsed. The records also include a small number of Governing Authority minutes, which refer to legal advice received by DCU.
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
(a) 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
(b) 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).
It is important to note that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) of the FOI Act where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. In this regard, I note the following comments of 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;  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.”
It is also important to note that the concept of "once privileged always privileged" applies only to claims of privilege based on legal advice privilege, and not to litigation privilege. Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied. Nevertheless, communications between a client and his/her professional adviser in the course of, or in anticipation of, litigation may also benefit from legal advice privilege. In such circumstances, the concept of "once privileged always privileged" applies.
DCU states that it is claiming both types of legal professional privilege for the records it has listed as exempt under section 31(1)(a) of the FOI Act. It states that the records are confidential as they contain legal advice to DCU from its legal representatives regarding the sale of the land and the potential for litigation arising out of the failed sale and DCU’s legal strategy for defending the case. It states that the Governing Authority minutes (records 83, 84 and 85) also make reference to legal advice provided by its solicitors. DCU states that the applicant has instigated High Court proceedings against it in an attempt to reclaim their deposit which was forfeit when the sale fell through. DCU states that litigation was contemplated since 28 August 2020 in advance of it issuing a completion notice in respect of the contract for the sale of the lands. It states that the records from that date onwards refer to potential proceedings. Its states that following issuance of a completion notice, DCU received a letter from the solicitors for the applicant on 11 September 2020 reserving their client’s rights to take further action following the issuing a completion notice. DCU states that records of correspondence between DCU and its solicitors prior to 28 August 2020 are subject to legal advice privilege. It states that records created after that date are subject to litigation privilege and the dominant purpose for the creation of the records was preparation for contemplated/pending litigation. DCU states that legal advice privilege also applies to many of the records created after 28 August 2020.
The records contain requests for legal advice or the provision of legal advice by DCU’s solicitors in relation to title, boundaries, access to the land, preparation of the contracts, payment of the deposit and issuing a completion notice in respect of the contract. Once the completion notice was issued, the records deal with legal advice in relation to potential proceedings including specific performance proceedings and forfeiture of the deposit. A number of the records contain information passed between DCU and its solicitors so that legal advice may be sought or given. For example, the records contain a number of draft emails or proposed replies to the applicant, which contain the comments or observations of DCU or its solicitors.
I have carefully examined the records and I accept that they contain confidential communications or form part of a continuum of communications for the purpose of obtaining and/or giving legal advice. I am also of the view that the records which postdate 28 August 2020 (i.e. from record 29 onwards) attract litigation privilege. Record 29 contains an email from DCU’s Solicitors to DCU headed “legally privileged”. It contains advice in relation to issuing a completion notice and a reply by the DCU staff member which refers to the completion notice being issued and which anticipates a legal dispute. I accept DCU’s contention that the dominant purpose for the creation of the relevant records after 28 August 2020 was preparation for contemplated/pending litigation. The issue of serving a completion notice and the forfeiting of the deposit formed the background context for the 2021 proceedings involving DCU and the applicant and these proceedings are ongoing.
In conclusion, therefore, I find that DCU was justified in refusing access to the records described above under section 31(1)(a) of the FOI Act on the grounds that they would be exempt from production in proceedings in a court on the ground of legal professional privilege.
Section 36 – Commercially Sensitive Information
DCU refused access to records 1, 2, 8 and 10 under sections 29(1)(a), 30(1)(a), 32(1)(a)(iv) or 36(1)(b) or (c) of the FOI Act. These records include information in relation to the sales and marketing agreement for the lands and the parties who placed bids on the lands. In my view, section 36(1)(b) of the FOI Act is the most appropriate exemption provision to consider in relation to these records and in relation to record 40 which also refers to the sales and marketing strategy agreed between DCU and its estate agents for the property.
Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the 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.
The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
I should say that while section 36 of the FOI Act enables the protection of third party commercially sensitive information, I accept that the provision can also be applied to information concerning an FOI body's financial or other interests.
Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that access to a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.
DCU states that the records contain its financial information and if disclosed, would prejudice its position with regard to the sale strategy and price that it may expect to receive for the lands in question. DCU contends that releasing records relating to the failed sale of the land could prejudice a future sale.
The records at issue contain the names of previous bidders, the value of bids they submitted, the University’s sales and marketing strategy and details of its agreement with its estate agents. I am conscious that DCU is currently involved in Court proceedings in relation to the failed sale of these lands and I am conscious that these lands may be re-listed for sale in the future. I accept that if records relating to the failed sale are released into the public domain this could undermine a future sale process and result in DCU obtaining a lower price than might otherwise be obtained. I accept that release of the records could result in a material financial loss to DCU. I find therefore that section 36(1)(b) applies to the records at issue.
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.
Section 36(3) The Public Interest
Having found that section 36(1)(b) of the FOI Act applies to the records set out above, I shall now consider section 36(3) of the FOI Act.
In relation to the public interest test contained in section 36(3), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.
However, the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors  IESC 5 (the ENet judgment) held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. I should also say that I consider the Court’s comments in the above judgments relevant to the consideration of public interest tests generally.
Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.
In its application to this Office, the applicant says there is a statutory presumption in favour of disclosure under the FOI Act. It says it does not believe that the public interest test was correctly applied in accordance with Section 36 of the FOI Act and it contends that the balance lies in releasing the requested records in the interests of openness, accountability and transparency. The applicant says the Information Commissioner has confirmed (in other decisions) that refusal to disclose under the FOI Act can only be justified in ‘exceptional’ circumstances. It says based on the reasons set out in its decision letter, DCU has not met this standard. Finally, the applicant says that in two recent Supreme Court decisions in 2020, it was held that public bodies are required to meet very specific and strict criteria if refusing to disclose and in this case this standard has not been met by DCU.
DCU says that the FOI decision maker took into consideration the public interest in achieving greater openness and accountability in the activities of FOI bodies, improving the quality of FOI body decision making and informing scrutiny of the activities of FOI bodies. On the other hand, it says that the FOI decision maker considered that as DCU is funded by the public purse, it is in the public interest that it should obtain the best price possible for the land and thus the public interest would not be best served by releasing the records as that could result in DCU receiving a lower price.
In my view, release of the records would allow for an assessment of DCU’s decision making process in relation to the sale of the lands. I recognise that there is a public interest in such an assessment being possible. Having examined the content of the records at issue, I do not see any other public interest in favour of releasing the records. On the other hand, if the records were released, parties would become aware of the bids previously made and who made those bids. As outlined above, in my view this could prejudice a future sales process, and therefore shows a public interest in withholding these records. I also take the view that the release of information in relation to parties who submitted bids and the size of the bids that they submitted could prejudice the competitive position of the parties concerned, in particular, if these parties decided to bid on the property in a future sale process. Having considered the matter carefully, I believe that the public interest weighs in favour of refusing access to the records at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm DCU’s decision on the basis that the withheld records or parts of records are exempt under section 31(1)(a) or 36(1)(b) of the FOI Act.
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.