Whether RTÉ was justified in refusing access to records which contain information relating to the applicant under sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act
30 May 2018
The background to this FOI request is unusual in that it is grounded in a dispute between the applicant and an RTÉ employee in relation to property which they own jointly. The employee used her RTÉ email address for personal use. Many of the records at issue contain emails between the applicant and the RTÉ employee in relation to the jointly owned property or emails between the RTÉ employee and third parties, including her legal advisers in relation to the property dispute. RTÉ seems to have accepted that it held the records at issue.
On 23 September 2016, the applicant made an FOI request to RTÉ for any records which were sent or received through the employee's RTÉ email address which relate to the applicant or to certain properties. On 10 November 2016, RTÉ informed the applicant that its IT Department searched the employee's mailbox and had identified 578 records that responded to the search terms contained in his request. RTÉ informed the applicant of its right to refuse a request where, by reason of the number of records concerned, the examination of such records would cause an unreasonable interference with its work (section 15(1)(c) of the Act). RTÉ requested the applicant to narrow the scope of his request.
On 16 November 2016, the applicant narrowed the scope of his request to records created between 1 January 2013 and 8 November 2016. RTÉ applied that time parameter which reduced the number of records to 372. On 2 February 2017, RTÉ proposed processing an amended request for "all personal information (of the applicant) held by RTÉ for the period 1 January 2013 to 8 November 2016." On 28 February 2017, the applicant agreed to RTÉ's proposal. In its decision of 28 April 2017, RTÉ refused 45 records on the basis that they were duplicates or not relevant to the amended request; it refused 154 records on the basis of legal professional privilege (section 31(1)(a) of the Act). RTÉ released 66 records in full and 106 records in part, redacting information which falls outside the scope of the applicant's request.
In his internal review request of 24 May 2017, the applicant stated that following a separate FOI request to another public body, he had received emails from the RTÉ employee which were not included in the records identified by RTÉ. The applicant asked RTÉ to explain how the information identified as relevant to his FOI request was filtered to arrive at the final pack of records and what RTÉ employees were involved in "compiling" his FOI request. In its internal review decision of 13 June 2017, RTÉ stated that it was unaware of any other records such as those referred to by the applicant in his internal review request. It stated that the only people involved in the applicant's FOI request were the FOI Officer and Internal Review Officer in RTÉ and it affirmed its original decision. On 7 December 2017, the applicant applied to this Office for a review of RTÉ’s decision.
During the course of the review, the applicant provided this Office with records obtained under a separate FOI request which he argued that RTÉ ought to hold. This Office wrote to RTÉ and requested that it provide details in relation to searches carried out to locate relevant records and in particular the records identified by the applicant. In reply, RTÉ provided additional information which this Office outlined to the applicant.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and RTÉ, to correspondence between the applicant and this Office, to correspondence between RTÉ and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of the review
RTÉ refused access to 154 records on the basis of legal professional privilege. I have examined these records closely and I am satisfied that records 3, 8, 24 and 26 do not contain any personal information of the applicant and fall outside the scope of his request. The remaining 150 records contain communications with legal advisers concerning the jointly owned property and I consider these records under section 31(1)(a) of the Act in this decision.
RTÉ granted partial access to 106 records. It redacted information which it decided is not the applicant's personal information and falls outside the scope of his narrowed request. I have examined these records closely and I am satisfied that the information redacted from ten of the records (6, 10, 11, 12, 16, 17, 18, 21, 63 and 71) is not personal information relating to the applicant and falls outside the scope of his request. However, the information redacted from the remaining 96 records concerns property which the applicant and the RTÉ employee own jointly as tenants in common. The definition of personal information includes information relating to property of the individual (section 2 of the Act refers). I am satisfied that the information redacted from the remaining 96 partially released records falls within the scope of the applicant's request and I consider these records under section 37 of the Act in this decision.
The scope of this review is therefore confined to the following issues:
- Whether RTÉ was justified in deciding that section 15(1)(a) of the Act applies as no further records exist or can be found which are relevant to the applicant’s request;
- Whether RTÉ was justified in refusing access to 150 records on the basis of section 31(1)(a) of the Act;
- Whether RTÉ was justified in refusing access in part to 96 records on the basis of section 37(1) of the Act.
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).
Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
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
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).
The applicant states that following a separate FOI request to another FOI body, he received emails from the RTÉ employee concerning property which he has a legal interest in. He states that while the employee's email address was redacted from each of these emails, one of the emails, dated 31 July 2015, contains the RTÉ disclaimer at the end of the email. He argues that the presence of this disclaimer indicates that the employee used her RTÉ email address at least once when contacting the other FOI body. The applicant argues that this email was not located by RTÉ and that this indicates that it did not conduct reasonable searches. The applicant provided this Office with a copy of the email at issue.
Following the applicant’s submission, this Office wrote to RTÉ and requested further information in relation to the email identified by the applicant and in relation to searches conducted to locate all relevant records.
In its reply, RTÉ states that following receipt of correspondence from this Office, it carried out further searches of the employee's mailbox using the name of the other FOI body in an effort to find the emails which the applicant identified. According to RTÉ, this search identified 100 emails. It states that one of the emails is dated 31 July 2015 and was sent from the employee's personal mailbox to her RTÉ mailbox. RTÉ states that the email does not contain any of the search terms referred to by the applicant in his original FOI request so that it would not have been responsive to the original searches conducted by RTÉ. RTÉ states that the email contains an attachment which refers to the applicant. However, it states that the attachment is a picture/scan of a letter and a text search of the employee's mailbox would not have picked up the reference to the applicant's name in a picture/scan. RTÉ states that typically, the only way to search for images is through the parent email or text within a document. It states that as the parent email did not contain the original search terms requested by the applicant, the email would not have been identified when the original search was carried out.
RTÉ states that it searched all emails that were present in the employee’s mailbox including any emails that were in the “deleted items folder”. According to RTÉ, its IT Department has confirmed that the searches would have captured all emails where the search term was contained in either the header or the body of the email.
I note that in his application to this Office, the applicant expressed a concern that the search for records may not have been dealt with independently by RTÉ and he questioned whether the RTÉ employee whose mailbox was searched had a role in compiling the final pack of records pursuant to his request. RTÉ states that during the course of its search for records, it became clear that the RTÉ employee had been liaising with her legal advisers by email in relation to the property dispute. It states that the employee was asked to provide the names of her legal advisers so that email exchanges between the employee and her legal advisers could be identified. However, RTÉ states that the decisions taken in compiling the records were taken by RTÉ's FOI Officer and by its Internal Review Officer who operated independently in fulfilling their statutory duty.
There is no information before me to suggest that the RTÉ employee had any role in arriving at the final set of records. I accept that the records specifically identified by the applicant referred to property in which he has an interest. However, I also accept as reasonable RTÉ's explanation that these records were not captured as they did not respond to the specific search phrases which the applicant used in his original request and its submission that records which are scans or photos would not be captured by a text search of a mailbox. I accept that RTÉ has taken reasonable steps to locate relevant records. 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 RTÉ ought to hold.
Sections 31(1)(a) Legal Professional Privilege
RTÉ refused to release 150 records on the basis that they are subject to legal professional privilege and are exempt under section 31(1)(a) of the Act. Section 31(1)(a) provides that a head shall refuse to grant an FOI request 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 Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. With some limited exceptions, disclosure of a record to a third party generally amounts to a waiver of privilege.
RTÉ states that during the course of its search for records, it became clear that the RTÉ employee had been liaising with her legal advisers by email in relation to this dispute and it refused access to these records on the basis that they are exempt under section 31(1)(a) of the Act on grounds of legal advice privilege.
I have examined the records closely and I am satisfied that any concern that the applicant might have that the RTÉ employee was notified of his request and subsequently forwarded emails to her legal advisers is unfounded. The records predate the applicant's FOI request. It is clear from the records that that there was a legal dispute between the applicant and the RTÉ employee and it is also clear that the employee requested and was provided with legal advice in relation to this legal dispute by her professional legal advisers.
I note however, that records 56, 109, 113, 118, 119, 142, 144 and 146 contain correspondence between the employee's solicitors and the applicant's solicitors. LPP applies to ‘confidential communications’. Where records are of communications which are not confidential, e.g. records of communications with the opposing party in a legal dispute, legal professional privilege does not attach to them. I find that records 56, 109, 113, 118, 119, 142, 144 and 146 are not exempt under section 31(1)(a) of the Act.
Records 40, 41, 42, 59, 76, 79, 83, 84, 87, 88, 98, 99, 100, 101 and 106 contain draft correspondence which was sent to the employee by her legal advisers for feedback before being sent to the applicant's legal advisers. Many of the letters contain paragraphs which are highlighted with queries attaching and contain requests for information from the employee. I am satisfied that these drafts contain confidential information passed between legal adviser and client so that advice may be sought and given and I find that they are exempt under section 31(1)(a) of the Act. The remaining records contain email communications between the employee and her legal advisers which contain either requests for or the provision of legal advice or information passed between the employee and her legal advisers so that advice may be sought and given. I find that the remaining records are also exempt under section 31(1)(a) of the Act under legal advice privilege.
Section 37 Personal Information
As outlined above, information redacted from 96 of the partially released records falls within the scope of the applicant's request and falls for consideration under section 37 of the Act. Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. 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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.
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, and, without prejudice to the generality of the foregoing, includes – (ii) information relating to the financial affairs of the individual; (xiv) 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 (including the nature of the individual's title to any property); (xiv) the views or opinions of another person about the individual.
The partially released records contain strings of emails which include emails sent between the applicant and the RTÉ employee, which RTÉ has released, and emails sent between the RTÉ employee and third parties, which RTÉ has redacted. The redacted emails were created in the context of a property dispute and contain financial, title, planning enforcement, tenancy and taxation information. The applicant's personal information is mixed with the personal information of third parties in these records. I am satisfied that the applicant's personal information is so closely intertwined with the personal information of third parties that it is not practicable to separate the two. I find, therefore, that the redacted information is exempt from release on the basis of section 37(1), subject to the provisions of section 37(2) and section 37(5) which I examine below.
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case
Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals concerned. I am satisfied that section 37(5)(b) does not apply in this case.
The Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to take note of the obiter comments of the Supreme Court in the Rotunda case. Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest." Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Thus, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.
According to the applicant, RTÉ's status as Ireland's national broadcaster gives added weight to correspondence emanating from an RTÉ email address. He argues that an RTÉ email address was used to provide inaccurate information to government departments and state agencies in relation to his property interests and this information was subsequently acted on by these bodies. The applicant argues that it is imperative that RTÉ fully releases the requested records so that he can obtain and correct any inaccurate information that has been provided from the RTÉ email address to various third parties in order to protect his property interests and his reputation.
The Commissioner does not consider it open to him as Information Commissioner to determine that further personal information should be provided to an applicant, in the public interest under section 37(5)(a) of the FOI Act, as a means of remedying any actual or suspected wrongdoing. This is reflected in the High Court decision in FP v The Information Commissioner [2014 No. 114 MCA] where McDermott J stated:
"It is clear that "private" as opposed to "public" interests are not a sufficient basis upon which to exercise the discretion in favour of the appellant under s. 28(5)(a) [now s. 37(5)(a)]. Thus the suggestion that access to the records might assist in some way in determining whether he had a cause of action against any of the parties or in advancing such a claim or might provide the basis for making a criminal complaint or mounting a judicial review... do not qualify as matters of public interest in that respect."
The fact that release of the redacted information might assist the applicant in some way in protecting his property interests and his reputation is not a matter that can be taken into consideration in determining where the balance of public interest lies. I am not satisfied that the public interest in the release of redacted information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find that the redacted information is exempt from release on the basis of section 37(1) and that none of the exceptions under section 37 apply.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the Department's decision. I find that section 15(1)(a) applies to the applicant’s request insofar as it relates to further records. I find that section 31(1)(a) applies to the records which RTÉ refused to release under section 31(1)(a) of the Act with the exception of records 56, 109, 113, 118, 119, 142, 144 and 146 which I direct RTÉ to release to the applicant. I find that section 37(1) applies to the partially released records on the basis that release of the redacted information would involve the disclosure of personal information of individuals other than the applicant and the public interest that the request should be granted does not outweigh the public interest that the right of privacy of those individuals should be upheld.
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.