Decision
Mr. A and An Bord Pleanála (ABP)
From Office of the Information Commissioner (OIC)
Case number: OIC-152187-G2H0P6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152187-G2H0P6
Published on
Whether ABP was justified in refusing access, under sections 30(1)(a), 30(1)(b), 31(1)(a), 36(1)(b), and/or 37(1) of the FOI Act, to invoices and correspondence in relation to an investigation conducted by a named barrister
3 September 2025
In a request dated 22 May 2024, the applicant submitted a five-part request to an ABP for records in relation to an investigation being conducted by a named Barrister (Barrister A) into governance issues at ABP:
• Part 1 concerned details of expenses and any invoices incurred by ABP in relation to the investigation;
• Parts 2 to 4 concerned correspondence between Barrister A, the Chairman of ABP, and/or the Department of Housing, Heritage, and Local Government (the Department) in relation to the investigation;
• Part 5 related to the minutes of any discussions of the board of ABP in relation to the investigation since 01 January 2024.
On 18 July 2024, ABP issued its decision to refuse the applicant’s request. It identified 17 records relevant to Part 1 of the request, all of which were refused under section 36(1)(b) of the FOI Act. It identified 47 records relevant to Parts 2 to 4 which were refused under section 30(1)(a). Part 5 of the applicant’s request was refused under section 15(1)(a) on the grounds that it holds no relevant records. On 18 July 2024, the applicant sought an internal review of ABP’s decision in respect of Parts 1 to 4 of his request. ABP issued its internal review decision on 08 August 2024 in which it affirmed its refusal of the request. The applicant applied to this Office for a review of ABP’s decision on 20 September 2024.
During the review, ABP argued that the records relevant to Parts 2 to 4 of the applicant’s request were further exempt under section 30(1)(b) of the FOI Act. It also asserted that certain aspects of these records were exempt under sections 31(1)(a) and 37(1). It also argued that aspects of the records related to Part 1 were exempt under sections 31(1)(a) and 37(1) of the FOI Act. The applicant was put on notice of these new material issues and was invited to provide a submission in response, which was duly received on 07 May 2025.
Considering the nature of the information at issue, this Office notified certain third parties of the review and provided them with an opportunity to make submissions. Submissions from all three affected third parties were received on 06 June 2025.
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 all the relevant parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, ABP indicated that in the interests of promoting transparency regarding the use of public funds, and noting that the investigation has now concluded, it was proposing to release to the applicant the cumulative cost of the investigation to January 2025. In response, in communications with this Office’s Investigator, the applicant said he still wanted access to the breakdown of the payments but that bank information, VAT numbers, mobile phone numbers, address information, email addresses, and the names/initials of subjects/interviewees could be removed from the scope of the review. In relation to records coming within Parts 2 to 4 of the request, he indicated that he wanted the names/initials of the subjects/interviewees in the records to remain within the scope of the review but was happy to exclude mobile phone numbers, address information, email addresses, and information relating to holidays/annual leave.
Accordingly, this review is solely concerned with whether ABP was justified in refusing access to the remaining parts of the records at issue under sections 30(1)(a), 30(1)(b), 31(1)(a), 36(1)(b) and/or 37(1) of the FOI Act.
Part 1 of the Applicant’s Request
The records identified as relevant to Part 1 of the request consist of 17 invoices from three different third parties for services provided to ABP in relation to the investigation. Records 1 to 15 are invoices for stenography services provided by a named company (Company A) with some internal correspondence arranging for payment, while records 16 and 17 are invoices for legal services provided by Barrister A and a second Barrister (Barrister B). All 17 records were refused under section 36(1)(b) of the FOI Act. ABP also argued that aspects of the records were exempt under sections 31(1)(a) and 37(1) of the FOI Act, respectively.
Section 36(1)(b)
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 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 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 that could occur must be specified with a reasonable degree of clarity.
In its submissions to this Office, ABP said the requested invoices contain detailed financial information including the rates charged by the Senior Counsel and others providing legal or investigative services, and specific itemized billing entries reflecting the nature and extent of the work performed. It said the disclosure of these details would expose commercially sensitive information, particularly the professional rates charged and operational methodologies of the service providers. It argued that revealing such rates and internal cost structures could undermine the competitive position of the individuals concerned in future engagements, both with ABP and others and in future procurement processes. It said it sources its legal advisers by way of competitive tender. It said the costing of any tender proposal is a crucial aspect of that and disclosure of the time entries or hourly rates would disclose commercially sensitive information which would give competitors an advantage in any future tenders undertaken by ABP or any other public sector bodies.
The stenography services provider said its invoices include commercially sensitive information in the nature of the rates charged and argued that the release of that information could reasonably be expected to result in a material loss to the company or could prejudice its competitive position in its business as a stenography service. Both barristers said the invoices contain commercially sensitive information. One of the barristers said that the release of commercially sensitive information could reasonably be expected to result in a material loss to her or could prejudice her competitive position in the conduct of her profession as a Senior Counsel.
The key commercial information at issue in the stenographer invoices comprises (i) the details of the unit attendance rate and rate per page, (ii) the quantity of pages for which a charge was made, (iii) the VAT charged (in circumstances where VAT is charged against the unit attendance rate only), and (iii) the invoice total. The key commercial information in the Barrister invoices comprises (i) the number of hours of service provided, (iii) the hourly rate, and (iii) the invoice total. I accept that the release of that information could prejudice the competitive position of Company A and the barristers concerned. It seems to me that the release of the records would provide competitors with access to a detailed breakdown of their pricing structures which could be used to undermine any future bids for the provision of services by the parties concerned. I find, therefore, that section 36(1)(b) applies to the records. However, that is not the end of the matter as section 36(1) is subject to sections 36(2) and 36(3).
Section 36(2) and (3)
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) arises in this case. Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
In its original and internal review decisions, ABP acknowledged that the public interest in transparency and the public interest in the expenditure of public funds must be weighed against the potential harm caused by the release of the information. In its submissions, it said it formed the view that the public interest would not be better served by the release of the detailed invoices. It said it considered a number of factors, including:
• The public interest in protecting commercially sensitive information and the ability of individuals and businesses to compete fairly, and
• The potential harm to the competitive position and earning capacity of the Senior Counsel and other service providers if their confidential financial information were disclosed,
It said, however, that in the interests of promoting transparency regarding the use of public funds, and noting that the investigation has now concluded, it proposed to release the cumulative cost of the investigation to January 2025. It argued that disclosing this figure would promote an appropriate balance between the public interest in transparency regarding the expenditure of public funds and the need to protect sensitive financial and commercial information as intended by section 36 of the Act. It said it proposed a proportionate response by providing the overall cost figure, without causing prejudice to the competitive position of the individuals concerned.
The applicant said the question of fees and the cost of the inquiry is a matter of public interest. He said there are many precedents for the publication by public bodies of the professional fees they pay and the beneficiaries. He rejected ABP’s offer to provide him with the cumulative cost of the investigation, instead of the invoices at issue. He argued that there was a public interest in seeing the details of the fees paid in this case.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.
However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case ”), the Supreme Court found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure ”. It also stated that “…the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents .”
Section 36(1)(b) is an express recognition of the fact that there is a public interest in private companies or individuals being able to do business with FOI bodies without harming their competitive position or their ability to carry out their business. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. In its submissions, ABP argued that release of the detailed financial information contained in the invoices would disadvantage the service providers in future procurement processes and would impact its ability to run tender competitions. As such, I believe it is worthwhile considering public policy in relation to public procurement and tender competitions. The Government’s National Public Procurement Policy Framework, available on the website of the Office of Government Procurement (OGP), sets out the overarching policy framework for public procurement in Ireland, including the procurement procedures to be followed by Government departments and state bodies under national and EU rules. The OGP has produced guidelines to promote best practices and consistency in the application of public procurement rules in relation to the purchase of goods and services. These are available at https://www.gov.ie/en/publication/c23f5-public-procurement-guidelines-for-goods-and-services. . The Guidelines refer to the FOI Act and provide as follows:
“Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016 :
• procurement policies
• a link to all current tender competitions on the eTenders website
• public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts”
Although the amounts charged in the various invoices at issue are not in excess of €25,000, it is clear that the OGP Guidelines and the FOI Publication Scheme reflect a government policy of ensuring a certain degree of transparency in relation to the expenditure of public funds. I do not believe that invoices are subject to release or exemption as a class. When it comes to pricing information, the disclosure of the amount paid by a public body for a particular service would appear to be a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption, and to preventing the waste or misuse of public funds. I do not consider, however, that this means that all pricing information should necessarily be released.
Considering the above, I find that the public interest would, on balance, be better served by granting access to the invoice totals in invoices 1 to 5 and 7 to 17. In so finding, it seems to me that the release of such information, without more, could not possibly give rise to the harms set out in section 36(1)(b). The release of the invoice total would not enable competitors to determine, with any reasonable degree of accuracy, the pricing structures of the parties concerned without access to the details of the unit attendance rate and rate per page, the quantity of pages for which a charge was made, the number of hours of service provided or the hourly rate. In my view, the release of such a high-level overview of the fees charged by each service provider in relation to the investigation is a proportionate response that fulfils the public interest in transparency and accountability surrounding the expenditure of public funds, without jeopardising the competitive positions of individuals concerned or causing any material loss. On the other hand, record 6 is an invoice solely relating to stenographer attendance. I am satisfied that the release of the invoice total could prejudice the competitive position of Company A by disclosing the unit price charged and I find that the public interest would, on balance, be better served by withholding this information.
For the remainder of the parts of the records within scope, I find that the public interest would, on balance, be better served by refusing access. This information involves a detailed breakdown of the costs, including the details of the unit attendance rate and rate per page, the quantity of pages for which a charge was made, the VAT charged, the number of hours of service provided, and the hourly rate.
In conclusion, I find that section 36(1)(b) applies to the following information only:
Records 1 to 5 and 7 to 15:
• The figures included in the invoices under the headings “Quantity”, “Unit Price”, “Net Amount” and “VAT Amount”
• The “Total Net Amount” and the “Total Tax Amount”.
Record 6:
• The figures included in the invoices under the headings “Quantity”, “Unit Price”, “Net Amount” and “VAT Amount”
• The “Total Net Amount”, the “Total Tax Amount”, and the “Invoice Total”.
Record 16:
• The figures included under the heading “Hours”, the Total Hours” and the “Hourly Rate”
Record 17:
• The times and hours contained in the text under the heading “Description” and the figures included under the heading “Fee”
Section 37 – Personal Information
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 third party personal information. Personal information is defined in section 2 of the FOI Act as 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. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that the definition does not include the name of an individual who is or was a member of staff of an FOI body, or information relating to the position held or its functions or the terms upon and subject to which the individual occupies or occupied that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions of the position. The exclusion at Paragraph (I) does not provide for the exclusion of all information relating to staff members of FOI bodies. Essentially it is intended to ensure that section 37 is not used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions or information relating to the terms, conditions or functions of positions. The exclusion does not deprive staff of FOI bodies of the right to privacy generally. Paragraph (II) of section 2 also serves to exclude the names of individuals who are or were a service provider of an FOI body from the definition of personal information. A service provider is defined under section 2 as “a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person. ”
In its submissions, ABP said that the records contain several direct references to individuals which would make them identifiable as witness, subject, or participant in the investigation. However, as the applicant has agreed to remove the names/initials of individuals who were witnesses, subjects, or participants in the investigation from the scope of the records relevant to Part 1, I am not required to consider this claim for exemption.
Although not identified by ABP, it is apparent to me that there are numerous references throughout the records to individuals who are or were employees of a legal services provider. The exclusion at Paragraph (II) of section 2 does not serve to exclude the names of individuals who are or were employees of a service provider. Therefore, I find that the names of any individuals who are or were the employees of a legal services provider to fall within the definition of personal information and that section 37(1) applies. By contrast, records 16 and 17 are invoices from Barristers A and B with their names at the top of the respective record. For the avoidance of doubt, I consider Barristers A and B to be service providers of ABP and, therefore, that their names fall within the exclusion to personal information at Paragraph (II) of section 2. I find that section 37(1) does not apply to the names of Barrister A and B in records 16 and 17.
Section 31(a) – Legal Professional Privilege
Section 31(1)(a) of the FOI Act 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). It does not require the consideration of the public interest.
LPP enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and their professional legal adviser for the purpose of obtaining and/or giving legal advice (advice 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 Commissioner takes the view that privilege may, in certain circumstances, 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. The concept of "once privileged always privileged " applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
In its submissions, ABP wrote that the invoices commentary on the duties performed by the two barristers and that this commentary is legally privileged as it discloses the nature of the work done and advice sought. It argued that this content is subject to LPP and, therefore, exempt from disclosure under section 31(1)(a).
Having examined the records, I am satisfied that the information on the tasks performed by the legal professionals in the context of the investigation is not subject to LPP under section 31(1)(a). For legal advice privilege to apply, the communication must be made between the client and their legal adviser for the purpose of giving or obtaining legal advice. I am satisfied that the information identified by ABP does not qualify as confidential communications between a client and a legal adviser for the purposes of obtaining legal advice. I am also satisfied that the disclosure of this information does not disclose any legal advice sought by ABP, as alleged in its submissions. The information merely discloses a series of tasks that one would expect to be carried out in the course of an investigation. As such, I find that section 31(1)(a) does not apply to information in the records relating to the details or description of work underdone by the two barristers during the course of the investigation.
Parts 2 – 4 of the Applicant’s Request
ABP identified 47 records as being relevant to Parts 2 – 4 of the applicant’s request, all of which are correspondence between Barrister A, the Chairman of ABP, and/or the Department in relation to the investigation. These records were refused in full under sections 30(1)(a) and 30(1)(b) of the FOI Act. It also argued that parts of these records were exempt under sections 31(1)(a) and 37(1) of the FOI Act, respectively. To avoid any uncertainty, I wish to clarify that the pages referred to below relate to the combined 76-page document provided to this Office by ABP in which it identified highlighted information which it wished to withhold from these records.
As ABP has relied on sections 30(1)(a) and (b) to refuse all 47 records in full, it seems to me that these are the appropriate exemptions to consider first.
Section 30(1)(a) – Prejudice to Tests, Examinations, Investigations, Inquiries, etc.
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
In refusing access to all 47 records under section 30(1)(a), ABP said that while the investigation has concluded, release of the records could reasonably be expected to prejudice the effectiveness of similar investigation procedures in the future. It said it is necessary to ensure that any investigation is conducted independently, confidentially, and in a manner that protects the integrity of the process. It said that releasing these sensitive communications would undermine the confidentiality and integrity of investigative processes. It said that as they relate to the management and conclusion of the investigation, release of the records would inhibit necessary communications in future investigations by hindering the openness of discussions with senior officials and key stakeholders. Its position is that releasing these records would compromise the effectiveness of future investigations, even if the investigation has since concluded.
In his submissions to this Office, the applicant noted that the report has been finalised and argued that ABP cannot claim for exemption under section 30(1)(a) on the basis that the investigation was ongoing, as per the reasoning in ABP’s internal review decision.
Considering the context of the records, I am satisfied that ABP has identified a relevant function for the purposes of section 30(1)(a), being its procedures for conducting investigations/inquiries which it asserts relies on cooperation from stakeholders. The harm it has identified is prejudice the effectiveness of similar investigation procedures in the future. I must now consider the reasonableness of ABP’s expectation of this harm arising as a result of the release of the records at issue in this case.
Firstly, while ABP has claimed that its procedures for conducting investigations/inquiries would be impaired from the release of the records, it has not tied this harm to the specific contents of the records. Moreover, based on my examination of the records, it is not clear to me how such harms might reasonably be expected to occur as a result of release. I cannot identify any material in the records the release of which I consider harmful to ABP’s procedures for conducting investigations/inquiries, nor do I see how release could harm the general conduct of any such functions. Indeed, in my opinion, the vast majority of records at issue could be accurately described as administrative in nature and relate to discussions and updates around the timing and finalising of the investigation and the publication of the investigation report. Several of the records also involve requests for information or for access to certain documentation. I cannot envisage a way in which the release of any this information might harm the procedures employed for future investigations or the conduct thereof. I do not accept ABP’s argument that release of the records would inhibit discussions with relevant stakeholders and senior officials. I have not identified any information of such significance or confidentiality in the records the release of which might impact the effectiveness or openness of discussions with relevant stakeholders in future investigations. It seems to me that ABP has sought to withhold all records under section 30(1)(a) based solely on the fact that they relate to the investigation, regardless of their specific contents. This position is not sustainable for the purposes of section 30(1)(a), a claim for exemption under which must be made considering the specific contents of each record. Accordingly, I find that the records at issue are not exempt from release under section 30(1)(a) of the FOI Act.
Section 30(1)(b) – Significant Adverse Effect on Management Functions
Section 30(1)(b) of the Act provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Like section 30(1)(a), section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. An FOI body seeking to rely on section 30(1)(b) should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. Again, a claim for exemption under these provisions must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect " requires stronger evidence of damage than, for example, "prejudice " (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of significant.
In his submissions, the applicant disagreed with ABP’s application of section 30(1)(b) to the records concerned which he said amounted to an attempt to impose a blanket exemption. He also disagreed that release would inhibit engagement by stakeholders and noted that ABP has powers to ensure compliance with its investigations.
In essence, ABP’s argument under section 30(1)(b) is effectively the same as that under section 30(1)(a) outlined above, which I do not intend to repeat. I accept that ABP has identified an appropriate function in relation to management, specifically its investigatory function as a planning oversight body and its ability to manage investigations into planning matters. As a general proposition, I am willing to accept that damage to ABP’s ability to manage investigations may constitute a significant, adverse effect on the performance of those functions. However, having examined the contents of the records, I am not convinced that such an effect could reasonably be expected to arise from their release. It seems that ABP has asserted the existence of this harm without tying its concerns to the contents of the records. I have examined the records carefully and cannot identify any specific information therein that, in my view, could reasonably be expected to result in such harm. Specifically, it is not apparent to me how the release of the information could reasonably inhibit discussions with stakeholders to such an extent that ABP’s managements of its investigatory functions would be seriously, adversely impacted. Again, it seems to me that ABP has effectively sought to exert a blanket exemption for the records on the basis of section 30(1)(b), which is not sustainable under this provision of the FOI Act. Accordingly, it is not clear to me how the release of the information in the records could reasonably be expected to result in a serious, adverse effect on the performance of the ABP’s functions in its management of investigations. I find that the records at issue are not exempt from release under section 30(1)(b) of the FOI Act.
Section 37 – Personal Information
This Office’s Investigator asked ABP for its views on the applicability of section 37 to the 47 records identified as being relevant to Parts 2 – 4. In response, it said that these records contain direct references to individuals who participated in what it described as a sensitive, internal investigation. It also said that in the records individuals are not mentioned by name but are clearly readily identifiable, given context of the communications and the publicly available information on issues within ABP. Although these individuals are or were employees of ABP, it said that it considered an individual’s participation in the investigation to not fall within the exception to personal information at Paragraph (I) of section 2. It said that the disclosure of a person’s participation in the investigation was clearly prejudicial to and an infringement of the privacy of the individuals in question. ABP provided a copy of the records which included information it wished to exempt under section 37(1). This included the names of individuals who are or were employees of ABP, the names of individuals who are employees of a service provider, specific references to several individuals who were subject to the investigation, as well as other information which it said would make the subjects of the investigation readily identifiable.
Section 25(3) of the FOI Act requires that I take precautions to not disclose information contained in an exempt record. However, I believe it would not be in breach of section 25(3) to state that the records contain multiple references to individuals which would disclose that they had been subject to the investigation. It is apparent from the definition of personal information that a record does not have to specifically name a particular individual for the information in the record to comprise personal information. ABP has said that certain information in the records would allow individuals to be identified, given the well-documented and publicly available information on the controversies surrounding ABP. Having regard to the information identified by ABP, I accept that the records contain extensive information that directly identifies individuals and information which indirectly identifies individuals in that it would allow them to be easily identified as subjects of the investigation.
Having regard to the definition of personal information, I am satisfied that an individual’s participation in the investigation as a subject, witness, or participant could reasonably be described as the personal information of such individuals. As outlined above, the exclusion to the definition of personal information in Paragraph (I) of section 2 is not designed to deprive employees of FOI bodies of the right to privacy. I am satisfied that the information at issue is not information that relates to them in the ordinary course of their functions as employees of an FOI body and, therefore, falls outside the exemption to personal information in Paragraph (I) of section 2. I find that section 37(1) applies to any information in the records which either directly identifies an individual in their capacity as a subject, witness, or participant of the investigation or any information through which the identity of an individual in their capacity as a subject, witness, or participant of the investigation could be easily inferred, given publicly available information and knowledge.
The exclusion set out under Paragraph (I) of section 2, however, is quite clear in that the name of an employee of an FOI body, where it relates to the performance by them in the ordinary course of their functions, does not constitute personal information. ABP has identified three individuals, who are or were employees of an FOI body, which it wishes to withhold under section 37(1), such as on pages 5, 9, and 32. I am satisfied that the references to the individuals on pages 5 and 9, and throughout the records, refer to the performance by them of the ordinary course of their functions and, therefore, do not fall within the exemption to personal information set out under Paragraph (I) of section 2. I find that section 37(1) does not apply to such information. By contrast, ABP has confirmed that the individual named on page 32 did participate in the investigation as a witness. For the avoidance of doubt, I find that this does constitute personal information and that section 37(1) applies to this person’s name, given the circumstances.
The exclusion at Paragraph (II) of section 2 serves to exclude individuals who are or were service providers to an FOI body from the definition of personal information. However, where a service provider is a company, the exclusion at Paragraph (II) does not serve to exclude the employees of a service provider. Therefore, I find that the names of any individuals who are or were the employees of a legal services provider, such as on page 71 and elsewhere throughout the records, fall within the definition of personal information. I find that section 37(1) applies to such information.
As outlined above, for information to qualify as personal information it must relate to a readily identifiable individual. It follows that if an individual is not readily identifiable, then the information does not qualify as personal information. Included in the information which ABP was proposing to withhold under section 37(1) was such information relating to individuals who are not readily identifiable, in my opinion. For example, page 31 of the records refers to the possibility of an unnamed individual seeking an extension. Similarly, page 35 refers to waiting on a response from an unnamed individual. There is also a sentence on page 40 that refers to correspondence that was received from two, unnamed individuals. Page 15 also refers to the timing of an interview with an unnamed witness. Such information does identify these individuals, nor is it apparent to me how such individuals could be identified given such information. Therefore, I find that section 37(1) does not apply to any such information in the records which does not allow individuals to be directly or indirectly identified, given the context of the information or using any publicly available information or knowledge.
Having found that section 37(1) applies, I must also consider the other provisions of section 37 which section 37(1) is subject to.
Section 37(2) and 37(5)
Section 37(2) provides for a number of circumstances in which section 37(1) will not apply. No argument has been made that any of the provisions of section 37(2) apply in this case and I am satisfied that they do not.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request 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 person to whom the information relates. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in the Enet case. In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
With respect to the public interest, ABP said that there is a public interest in maintaining the privacy of personal information, particularly where disclosure of such information may prejudice the giving of similar information in the future. It said that it considered the public interest in openness and transparency in the exercise of its functions as factors in favour of release, but that it was of the view that withholding the records, and protecting the privacy of the individuals concerned, outweighs the public interest in disclosure. It said that it had regard to the decision of the Supreme Court in the Enet Case, where the court found that the public interest is not the broad public interest in transparency but an interest in the contents of the record. It said there were no public interest factors of the nature identified by the Supreme Court to outweigh the public interest in withholding the records. It said that this was particularly given the individuals' right to privacy and their engagement in a confidential process on a voluntary basis.
As outlined above, in his submissions to this Office, in support of the public interest arguments in favour of release of the records, the applicant referred at length to the background surrounding issues at ABP that gave rise to the investigation, which I do not intend to repeat here. With respect to the disclosure of the identity of any individuals subject to the investigations, he wrote that the nature and number of individual allegations investigated should be released. He said that the possible disclosure of personal information is not sufficient to outweigh the scrutiny of prominent matters. He wrote that withholding this information was not in the public interest and only serves the interests of those wishing to obscure issues at ABP.
I accept the applicant’s argument that there is a significant public interest in any ongoing governance issues in ABP that might favour disclosure of the information at issue, given the ongoing housing crisis and the well-known issues within ABP. In light of these background circumstances, I also accept that there is a valid public interest in accountability, transparency, and facilitating the scrutiny of ABP. I must note that, while the investigation has concluded, the report has not been published and that the precise scope, findings, or subjects of the investigation are not publicly known. Therefore, the question I must consider is whether those public interest factors in favour of release of the records outweighs, on balance, the privacy rights of the relevant individuals. In my view, they do not.
The FOI Act recognises the public interest in the protection of the right to privacy in both the language of section 37 and the Long Title of the Act (which makes it clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore only be set aside where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
Having considered the matter carefully, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the individuals in question. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Section 31(a) – Legal Professional Privilege
ABP argued that “portions ” of the records are exempt under section 31(1)(a) of the FOI Act. It said these records consist of confidential communications between ABP and its legal advisers for the purposes of seeking and receiving legal advice about the investigation. However, it was not precise in identifying which parts it wished to apply this exemption to, despite being asked to do so by this Office’s Investigator. It referred to one paragraph in an email from Barrister A to the Chairman of ABP on page 18 which it said constituted the provision of advice on a matter of procedural propriety in the context of the investigation. It also cited references in correspondence between the Chairman and the Department on pages 47, 53, 60, 67, and 73 which disclose the fact that the Department was seeking legal advice on a matter from the Attorney General’s Office (AGO).
In his submission, the applicant stated that the investigation was carried out under instruction from the Chairman of ABP and noted there were uncertainties around the precise relationship between the Chairman and Barrister A. As such, he questioned whether ABP could cite client privilege over correspondence between Barrister A and the Chairman. He asked how the public could have confidence in a barrister’s unpublished report if client privilege is asserted over correspondence between the Chairman and Barrister A. He said it would be also difficult to see how client privilege could be asserted for any correspondence between the head of an organisation and their employees. Similarly, he argued that any correspondence between the Chairman of ABP, the Department, or the Minister must be considered differently from correspondence between the Chairman and his legal advisers, as the Chairman is not a client or legal adviser of the Minister, nor is the Minister a legal adviser to the Chairman.
Having examined the records, I am not satisfied that section 31(1)(a) applies to any of the information identified by ABP. It seems to me that the information identified by ABP comprises Barrister A’s views, as Investigator, on a procedural matter that arose, as opposed to comprising legal advice given, as well as information in communications between the Chairman and the Department which simply refer to the Department seeking legal advice from the AGO on a matter. With respect to the communications between the Chairman and the Department, while this Office accepts that advice privilege can attach to communications between non-legal advisory staff, I am not satisfied that this applies in this instance. The information identified by ABP does disclose that legal advice was being sought but, in light of the information which I have already found is exempt under section 37(1) above, it does not disclose any details of the legal advice nor does it form part of a continuum of communications arising from an initial request for legal advice.
In accordance with the above, I am not satisfied that the information at issue is subject to legal advice privilege. I find that section 31(1)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary ABP’s decision. I find that ABP was justified in withholding certain information under sections 36(1)(b) and 37(1) of the FOI Act. I find that it was not justified in withholding records and some information under sections 30(1)(a), 30(1)(b), 31(1)(a), and 37(1).
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