Cinneadh
Mr. X & Cork City Council (the Council)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156660-C4D9F6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156660-C4D9F6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to records relating to two incidents which occurred and the subsequent communications regarding these incidents, under sections 15(1)(a), 15(1)(i), 30(1)(b), and 31(1)(a) of the FOI Act.
3 June 2026
On 4 November 2024, the applicant, who is an employee of Cork City Council (the Council), made the following request for records to the Council under the FOI Act:
“I request any records relating to me personally where my name is mentioned or in ref to the traffic warden in [named area] in any doc or email. This is in relation to the events that happened in the Council yard, [named area] Council Car Park and any other correspondence leading up to the WRC case on 8 October 2024.
I request a copy of any other email/letter she ([named individual 1]) may have sent out to any other party both within Cork City Council or any other outside agency.
I also request a copy of any email/letter sent to [named individual 1] making such claims and by whom.
I request a copy of any letter/email sent to or from [named individual 2], [named individual 3], and [referenced individual 4], where my name is mentioned or [named area] Traffic warden. I do not request anything from the Traffic Warden Supervisor.
I also request the same from [named area] district supervisor [named individual 5] and the Engineer [named individual 6].
I also request the same from City Council general operative [named individual 7]. I want from him the dates and times he claims these events happened, a copy of the jpegs showing when these photos were taken, and any reports he may have submitted in email or document with my name on it or [named area] traffic warden.”
On 8 November 2024, the Council wrote to the applicant to inform him that the FOI Act requires that a requester provides ‘sufficient particulars’ to enable the FOI Body to identify the records they require. The Council stated the FOI Body is then required to take ‘reasonable steps’ to identify and locate those records. It stated that section 12(1)(b) of the Act was the relevant section at issue in this case. As such, the Council stated that it was requesting clarification from the applicant regarding what specific records he was seeking. The Council stated that from the applicant’s request it had identified records it believed he was seeking. It stated that the applicant had referred to two incidents which occurred in 2022.
“1. An incident happened in [named area] in the council yard behind the [named establishment] on 31 August 2022. [An incident occurred]. I got blamed for it wrongly. I made out a complaint to the local [named area] office and also to [named individual] Traffic Management.
2. On 5/12/2022 I was assaulted in the council car park in [named area] by council worker [named individual]. Matter reported to the council and also gardai.”
The Council asked the applicant, in reference to the above parts of his initial request, to identify the incident he was referring to in order for the records to be identified and also asked him to provide a timescale. The Council went on to state that in the first paragraph of his request, as referred to above, the applicant requested “any records relating to me personally where my name is mentioned or in ref to the traffic warden in [named area] in any doc or email.” The Council noted that no timescale was provided and asked the applicant to specify a reasonable timescale otherwise this part of his request alone would be deemed as voluminous as it would include any record/email since the applicant’s employment began. The Council went on to state that it considered 2 years of emails/records from the date of the incidents to the date of his request would be unreasonable. It asked the applicant to provide the information it required to identify more specifically the records he sought and advised that if he was unable to do so, it may not be able to proceed with consideration of his request.
On 17 November 2024, the applicant provided a revised request to the Council. His request letter spanned three pages. He began by identifying the 7 individuals whom he believed would hold records relating to his request. The applicant then responded to the Council’s assertion that ‘two years of emails/records from the date of the incidents to date would be unreasonable’. The applicant stated that, to his knowledge, in the two years following the incidents which occurred the staff members he had identified in his request were communicating not only within the Council with other staff members, but also with outside agencies. He stated that, during this time, these staff members had made allegations against him, allegations which the applicant stated he was only made aware existed on the date of the Workplace Relations Commission (WRC) hearing, 3 minutes before the hearing began. The applicant questioned whether such an approach was reasonable or fair to him, and he queried whether the Council had considered highlighting these allegations to him and offering him a right to reply.
In addition, the applicant stated that of the 7 individuals he had identified in his request, he believed that email and/or letter communications would have taken place, whereby the individuals would have explained to each other what happened in the incidents, made allegations about him etc. The applicant stated that he wanted to know where the individuals he had identified got their information from to make such allegations against him, and whether any of the named individuals had sought to hear his side of the events.
As such, the applicant stated that, to his knowledge, for any of the 7 individuals he had mentioned to submit a report making such allegations against him they would have had to be informed from another individual on the list he provided. He went on to provide a 6-part request identifying the specific records he was seeking:
“1. [Named individual 1] would have had to make a complaint to the [named area] office in ref the incident on 31 August 2022 and also the ref assault in the council car park. 5/12/2022. I want a copy of these reports that he submitted and also any photos with dated jpegs. anything submitted from him with my name on it or the words [named area] traffic warden.
2. The two staff in the [named area] office [named individual 2] and [named individual 3] would have had to submit reports up the line to their own Line Managers and also to HR. I want a copy of those emails / reports. anything that had my name on it or [named area] traffic warden on it. I am in [named area] over 20 years and not one of them called me aside to ask what’s going on.
3. Cork City [named division] officer [named individual 4] had to have got her information from somewhere. I would like a copy of the email / doc where she got her information from. anything that contains my name or [named area] traffic warden. The email she sent to the HSA on the 13 July 2023. Where did she get her information and proof to back up what she emailed about. How did she check that such information she got was correct and not false.
4. The [named division] officer at that WRC meeting made an accusation that [….]. That never happened so I want to know where she got her information to make such a comment. I want a copy of any proof she has to back up her comment and any email or document that with my name or [named area] traffic warden on it.
5. [named individual 6] also made comments ref me [….]. This I have never done. I want a copy of any email ref [‘…..]. Where my name is mentioned or the words [named area] traffic warden are mentioned.
6. I also request the same of [named individual 7].”
The applicant also provided additional contextual information regarding the allegations made against him. He stated that he was seeking openness and transparency from the Council. Furthermore, in relation to the Council’s assertion that requesting records for a 2-year period would be unreasonable, the applicant stated that, in his opinion, the records only date back as far as that due to the Council’s unwillingness to engage with him and its delays in answering his queries. The applicant also stated that he wanted the individuals he had identified to withdraw their allegations against him and issue a written apology.
On 13 December 2024, the Council wrote to the applicant to confirm it had received the revised wording of his request. It informed the applicant that, due to the number of requests on hand and the number of records involved, it was extending the timeframe for replying to his request under section 14(1) of the Act, and that he could now expect to receive his decision by 15 January 2025.
On 15 January 2025, the Council issued its original decision, in which it refused the applicant’s request. The Council identified three records as falling within the scope of the applicant’s request. It refused access to records 1 and 2 under section 31(1)(a) of the Act, and refused access to record 3 under section 15(1)(i) of the Act. The Council stated it was refusing parts 1 and 2 of the applicant’s request under section 31(1)(a) of the FOI Act, on the basis that such records would be exempt from production in proceedings in a court on the ground of legal professional privilege. It refused parts 3 and 5 of the applicant’s request under section 15(1)(i) of the Act, on the basis that the record had been previously provided to the applicant. In relation to part 3 of the request, the Council stated that it had been advised the email sent to the HSA on 13 July 2023 had been previously provided to the applicant at the relevant WRC hearing, contained within Appendix 13 of the documentation provided to the applicant for said hearing. In relation to part 5, the Council stated that the record which referred to the incident which occurred on 31 August 2022 was the email sent to the HSA on 13 July 2023. The Council reiterated that this record had been previously released to the applicant, and as such stated part 5 was refused under section 15(1)(i) of the Act. Finally, the Council refused parts 4 and 6 of the applicant’s request under section 15(1)(a) of the Act, on the basis that no such records existed. The Council stated that it had been advised that the statements made by the applicant in parts 4 and 6 of his request were factually incorrect. It stated that the individuals referenced in parts 4 and 6 refuted making any such accusations at the relevant WRC hearing. As such, the Council stated that as the individuals had made no such statement, no records existed.
On 19 January 2025, the applicant applied for an internal review of the Council’s decision. The applicant stated that, in his opinion, serious false accusations were made against him, yet when he requested access to these emails and/or comments under the FOI Act he had been denied access to them. He questioned what individuals were hiding if they were not in a position to provide the emails which they had sent. Furthermore, in relation to the Council’s refusal of part 4 and 6 of his request on the basis that these parts were “factually incorrect”, the applicant stated that he disagreed with this statement. He stated that the individual he had identified in part 4 of his request had been sitting directly across from him when she made the comment which he had referenced in part 4 of his request. The applicant stated that two union officials had also been present, and also the WRC Officer. The applicant also provided additional contextual information regarding his employment with the Council and his family circumstances.
On 10 February 2025, the Council issued its internal review decision, in which it affirmed its original decision. The Council began by stating that the review conducted was solely in relation to the previous decision which it had issued, and that any additional issues raised in the applicant’s appeal letter were outside the scope of the review and were not considered. In its decision letter, the Council referred to the applicant’s reference to a specific individual, and informed him that, based on the context of his request, it has assumed he was referring to the individual which held [named title]. The Council stated that this individual stated that they did not make any reference to or allegation during the WRC hearing. The Council also stated that comments and/or discussions made at a meeting/hearing do not form part of a record. The Council stated that the applicant had been made aware at original decision stage that there was no record of any such accusation. It stated that, as part of the internal review process, the officer in question had advised again that they did not make any reference or allegation during the WRC hearing. As such, the Council stated that no record existed and therefore the applicant’s request was refused under section 15(1)(a) of the Act. The decision maker concluded that, having reviewed the matter and re-considered the applicant’s FOI request, they were satisfied that the correct decision was made in respect of his request, and as such they were affirming the original decision made by the Council to refuse the applicant’s request. The Council did not make reference to its refusal of parts 1, 2, 3, or 5 of the applicant’s request at internal review stage.
On 18 February 2025, the applicant applied to this Office for a review of the Council’s decision. The applicant began by providing an overview of the contextual information surrounding the circumstances which had occurred. The applicant went on to state that he believed from the time the incidents in question occurred (August and December 2022), and for word of the incidents to get to the Personnel Officer, various emails must have been sent and received. He stated that, to his knowledge, at each stage the individuals in question would have reported the incidents to a higher ranked staff member. He stated that he was not aware of this chain of communications occurring until the day of the WRC hearing, and he reiterated that he was strongly requesting a copy of any email that the individuals involved in this chain of communications had submitted in reference to him and the incidents identified. The applicant stated that he was simply seeking openness and transparency, and that these circumstances had been ongoing from 31 August 2022.
During the course of this review, the Council located one additional record. In relation to this record (Record 4), the Council stated that it deemed part of the record as outside the scope of the applicant’s request, and that it considered the remaining part of the record, which it deemed as falling within the scope of the request, was exempt under sections 31(1)(a) and 30(1)(b) of the Act. The Investigating Officer provided the applicant with details of the Council’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no such records exist or can be found, as well as providing the applicant with an overview of the Council’s reasons for refusing access to the 4 records located under sections 15(1)(i), 30(1)(b), and 31(1)(a) of the Act. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did.
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 correspondence outlined above and to the submissions made by both the Council and the applicant during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
As noted above, during the course of the review the Council located an additional record which it stated it considered partly fell within the scope of the applicant’s request. Record 4 is an email sent between Council staff members which refers to the same topic of welfare facilities provision as discussed in Record 3. Record 4 is an email comprising of an addressee line, 6 substantive paragraphs, and a two-line email sign off. In its submissions to this Office, the Council has stated that it believes the addressee line and paragraphs 1, 2, and 6 are outside the scope of the applicant’s request. Furthermore, it has stated that it believes a significant portion of paragraph 3 is outside the scope of the request, and finally it has stated that 3 words from paragraph 4 are outside the scope. The Council has indicated the remaining parts of the record are deemed as falling within the scope of the applicant’s request but fall to be refused under sections 30(1)(b) and 31(1)(a) of the Act.
As noted above, the Council have stated that portions of record 4 are outside the scope of the applicant’s request as they do not relate to him. On this point, whilst I acknowledge that the email does not refer to the applicant by name, it does appear to be related to him insofar as it appears to relate almost entirely to the complaint he submitted to the HSA. Furthermore, in part 3 of the applicant’s request, he states that he is seeking the following:
“Cork City Health and Safety Officer [named individual] had to have got her information from somewhere. I would like a copy of the email / doc where she got her information from. anything that contains my name or [specified location] traffic warden. The email she sent to the HSA on the 13 July 2023. Where did she get her information and proof to back up what she emailed about. How did she check that such information she got was correct and not false.”
I note that in its original decision, the Council refused access to part 3 of the applicant’s request under section 15(1)(i) of the Act on the basis that the email sent to the HAS on 13 July 2023 had been provided to the applicant during the WRC hearing. However, as demonstrated above, the applicant clearly states he would like a copy of the email and/or document where the Council’s Health and Safety Officer received the information which informed her email to the HSA of 13 July 2023. Based on the evidence before me, it is my understanding that record 4, an email dated 12 July 2023, is in its entirety within the scope of the applicant’s request. The email appears to be directly linked to the subsequent email sent by the Council’s Health and Safety Officer, which is borne out by the content of the records. As such, I believe that record 4 in its entirety falls within the scope of part 3 of the applicant’s request and I will proceed accordingly.
I also note that in its most recent submissions to this Office dated 21 April 2026, the Council has said for the first time that section 32 may be of relevance with respect to record 4. However, beyond this statement the Council has not indicated which particular sub-section of section 32 it considers to be of relevance, nor has it provided any detailed arguments in support of its position. In the absence of such detailed arguments, and for reasons which will be apparent in the course of this decision, I do not consider it necessary to examine the Council’s reliance on section 32 as part of this review.
This review is therefore concerned solely with whether the Council was justified in refusing access to four records relating to two identified incidents which occurred involving the applicant and records of the subsequent communications which took place thereafter, under sections 15(1)(i), 30(1)(b), and 31(1)(a) of the Act, and whether the Council was justified in refusing access to any further records relating to the applicant’s request under section 15(1)(a) of the Act, on the basis that no further records exist or can be found.
Before I address the substantive issues arising in this case, I wish to make a number of preliminary comments.
First, I note that the applicant has raised a number of concerns, both in his original and internal review requests and his correspondence with this Office, regarding the manner in which the incidents he has identified were dealt with by the Council. I also note the applicant has stated on multiple occasions that he believes Council staff members have made false allegations against him, which he believes the Council cannot substantiate. I wish to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. To this end, I note that part of the background of this case involves a disagreement between the applicant and the Council regarding welfare facilities, an issue which I understand the applicant has taken to the Workplace Relations Commission and the Labour Court. I wish to make clear that I have no jurisdiction to consider the substantive dispute between the applicant and the Council with respect to these issues, except insofar as they relate to the exemption provisions relied on by the Council to refuse access to the records concerned.
Second, it should be noted that section 13(4) of the FOI Act provides that, subject to the legislation, 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Third, section 25(3) of the Act requires me to take all reasonable precautions in the performance of my functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Accordingly, I am limited in the extent to which I can describe the content of the refused records concerned.
Finally, it is important to note that a review by this Office is considered to be ‘de novo’, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
As noted in the background section above, the Council has sought to rely on several administrative and exemption provisions to refuse access to the four records it has located which it has deemed as falling within the scope of the applicant’s request.
Mindful of the provisions of section 25(3) of the Act, the records at issue can be categorised as follows:
(1) Records 1 and 2 relate to an incident which occurred on 5 December 2022. Both these records have been refused under section 31(1)(a) of the Act.
(2) Record 3 relates to an email sent from the Council’s Health and Safety Officer to the Health and Safety Authority (HSA) on 13 July 2023. This record has been refused under section 15(1)(i) of the Act, on the basis that it was previously released to the applicant during the WRC proceedings
(3) Record 4 is linked to Record 3. Record 4 is the email pre-dating Record 3, whereby the information included in Record 3 was provided to the Health and Safety Officer by another Council staff member. This record has been refused under sections 30(1)(b) and 31(1)(a) of the Act
Furthermore, this review also involves a section 15(1)(a) element, as the applicant has asserted in his application to this Office that he believes further records should exist beyond those scheduled and refused.
As noted above, the applicant’s request includes 6 parts. In its decision letters the Council refused the 6 parts of his request as follows:
>(1) It refused parts 1 and 2 of the applicant’s request under section 31(1)(a) of the Act, on the basis that the records would be exempt from production in proceedings in a court on the ground of legal professional privilege.
(2) It refused part 3 of the applicant’s request under section 15(1)(i) of the Act, on the basis that record was already available to the requester as it had previously been provided to him by the Council during the WRC proceedings.
(3) It refused parts 4 and 6 of the applicant’s request under section 15(1)(a) of the Act, on the basis that no records exist. It stated that it had been advised that the points raised by the applicant in parts 4 and 6 of his request were factually incorrect, and that the officials mentioned in these parts of his request refuse making any such allegations. As such, it stated as these individuals had made no such statement, no record exists.
(4) It refused part 5 of the applicant’s request under section 15(1)(i) of the Act, on the basis that the incident referred to by the applicant in this part of his request was Record 3, which had previously been released to him during the WRC hearing.
I propose to structure my review as follows. First, I will include a summary the applicant’s submissions provided during the course of the review. The applicant did not provide specific submissions regarding each exemption provision applied, but instead provided overarching submissions regarding his request in full. I will then proceed to address the Council’s submissions in the following manner: I will address the records as grouped above, providing an overview of the submissions supplied by the Council and analysing whether the Council was justified in refusing the record(s) at issue under the provision(s) of the Act applied. I will move on to assess the Council’s reliance on section 15(1)(a) of the Act in reference to its position that no further records exist beyond those already located, and I will assess whether the Council has conducted all reasonable steps to ascertain the whereabouts of the records requested.
In his submissions to this Office, the applicant stated that he has requested records which relate to two identified incidents which occurred on 31 August and 5 December 2022. He stated the timeframe of his request was from 31 August 2022 to 8 October 2024. The applicant also outlined that he was seeking all records which referred to him by name or where ‘Traffic Warden [named area]’ was mentioned. As way of background, the applicant stated that he has worked in the Council for over 20 years, and outlined that, in his opinion, during the WRC case which he brought against the Council, a number of Council staff made accusations about him which he was never previously made aware of. The applicant explained that he had specific family circumstances and he stated that he was simply seeking openness and transparency regarding the situation. He expressed concern at the manner in which he believed the Council had acted and stated that he believed he had a right to his good name and therefore was seeking a copy of any record that the Council sent referring to him and the specified situations of 31 August 2022 and 5 December 2022, and any communications regarding these events that took place thereafter. Finally, the applicant stated that he believes certain members of management have sought to undermine or discredit him because he reported on certain work-related matters. The applicant says because of these actions, he initiated the internal grievance process and these matters are now the subject of external proceedings with the WRC. The applicant says he wishes to obtain copies of these records in connection with the WRC proceedings. It is important to reiterate here that, as noted above, this Office has no remit to investigate or adjudicate on complaints or disputes.
Records 1 and 2
Record 1 is a handwritten diary entry and is recorded on the schedule of records released to the applicant as ‘Note of complaint about [applicant’s name].’ It is 1 page and has been refused in full by the Council under section 31(1)(a) of the Act. Record 2 is an email sent from a Council staff member to other Council staff members, recounting the incident that is recorded in the diary entry, and is recorded on the schedule of records released to the applicant as ‘Email [named individual], CCC to multiple recipients in CCC 6-12-2022’. It is 1 page and has been refused in full by the Council under section 31(1)(a) of the Act.
Section 31(1)(a) of the Act provides for the mandatory refusal of a request if the record concerned would be exempt from production in court proceedings on the ground of legal professional privilege (LPP). This mandatory exemption does not require a consideration of the public interest test. There are two types of LPP:
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).
The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. 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.
The Council has argued that litigation privilege is the relevant type of LPP to be considered in this case. Litigation privilege attaches to confidential communications made between a 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. In Silver Hill Duckling v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516 (“the Silver Hill Duckling case”), O' Hanlon J. held:
"once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege."
For litigation privilege to apply, there must be contemplated or pending litigation. While it will generally be straightforward for a public body to show that litigation is pending, demonstrating that litigation is contemplated may be somewhat more complicated. This Office takes the view that the mere possibility of proceedings is not sufficient. The particular facts and circumstances of the case will be relevant.
In addition, in order for litigation privilege to apply the records must have been created for the dominant purpose of contemplated/pending litigation. The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. in the Silver Hill Duckling case referred to above. In the judgement of the High Court in University College Cork – National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) Finlay Geoghegan J. stated:
"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."
While in many cases the determination of dominant purpose will be straightforward, this will not always be the case, particularly where there is more than one obvious purpose for the creation of the record. Where there is a doubt as to the dominant purpose for the creation of a record, the FOI body should explain the basis on which it considers that the dominant purpose for the creation of the record was in preparation for contemplated or pending litigation as opposed to any other purpose for which the record was created. FOI bodies should also be aware of the provisions of section 22(12)(b), outlined above. As noted above, if the FOI body cannot satisfy the Commissioner that the dominant purpose of the creation of the relevant records was preparation for contemplated/pending litigation, then the public body has not justified its decision to refuse access under section 31(1)(a) of the Act.
In its submissions to this Office, the Council argued that litigation privilege attaches to records 1 and 2 as the dominant purpose for the creation of these records was in contemplation of expected litigation. It stated that the clients were staff in the [named Office], and that the communications were to the Head of Industrial Relations, People, and Organisation Development. It stated that the records at issue were prepared in contemplation of a prospective claim/legal action. The Council stated that record 1 comprises of a diary entry recorded by a member of the [named Unit] staff in relation to a complaint, and that record 2 comprises of an email sent by a Council staff member to the People and Organisation Development Unit, subsequent to the complaint submitted.
When asked to provide details of the litigation which was contemplated or pending, the Council stated that a WRC hearing which the applicant had lodged against it took place on 8 October 2024, which it first received notice of on 19 March 2024. The records at issue were created on 5 and 6 December 2022, respectively. When queried whether the dominant purpose for the creation of records 1 and 2 was the preparation of litigation, the Council simply stated that the records were created on the date of and the next day after the incident referred to in the records occurred, and that the records were not created for any other purpose barring the preparation of litigation.
In further submissions to this Office, the Council stated that the individuals who authored the records did so in order to ensure they had a note of the incident, and so that, in case litigation were to occur at some point in the future, they would have a note of what occurred and would not be forced to rely simply on their memory of an event which occurred in the past. On the point of whether litigation was contemplated, the Investigating Officer queried with the Council whether any other information or factors informed its position that litigation was contemplated as soon as the incident occurred and the records were created. In response, the Council’s FOI Office stated that it did not know the individuals involved in the case personally and therefore was not able to provide a detailed account of the relationship between the individuals involved, nor a detailed account of the circumstances surrounding the incidents which occurred. However, the Council stated that, to its knowledge, the applicant and the Depot involved in the incident had a history of some previous ‘run-ins’ with each other. The Council provided no further information on this matter, nor did it provide any evidence to support this assertion. In addition, the Council also stated that the individuals who authored records 1 and 2 did not work with the applicant and had never had any interaction or correspondence with him. It stated that their only involvement with the applicant was via their colleague who had contacted them regarding the applicant and his alleged behaviour in the Council yard. The Council provided no further detail on this matter.
When asked to indicate whether the Council had any prior indication that the applicant intended to bring legal proceedings against the Council, the Council stated that an employee does not have to notify their employer of their intention to bring a case to the WRC. It stated that, however, it would usually be aware of an employee’s intention to do so if all discussions and/or interactions between the employee and their representative had been to no avail. The Council stated that in this case, it was not aware of the applicant’s intention to pursue legal action until it received notice of the case from the WRC on 19 March 2024.
I have considered the arguments of the Council in light of the contents of the records and find as follows. As noted above, in order for litigation privilege to apply to a record, it must have been created in preparation for legal proceedings which are either pending or contemplated. The Commissioner takes the view that litigation is contemplated where it is reasonably anticipated or regarded as probable, but that the mere possibility of proceedings is not sufficient. In addition, in order enjoy litigation privilege, a record must have been created for the dominant purpose of such proceedings, and must comprise confidential communications between relevant parties.
The questions I must therefore consider in this case are, firstly, whether the records at issue were created in preparation for legal proceedings which were contemplated or pending; secondly whether they were created for the dominant purpose of such proceedings; and thirdly whether they comprise confidential communications between relevant parties in the context of the preparation for such proceedings.
In relation to the first of these questions, I would note first that both Record 1 and 2 were created over a year prior to the issuing of the WRC proceedings on 19 March 2024. Therefore, it is straightforwardly the case that when the records were created on 5 and 6 December 2022, no litigation was pending. I must therefore consider, at the time the records were created, whether litigation was contemplated.
As noted above, Record 1 was created on the day the incident referred to in the record occurred, and Record 2 was created the day after the incident, i.e. 5 and 6 December 2022, respectively. Record 1 is a diary entry taken by a Council staff member, recounting a version of the incident which occurred. Record 2 is an email sent from another Council staff member to two other Council employees and provides additional information regarding the incident which occurred. Based on the rather limited submissions provided by the Council in relation to its reliance on section 31(1)(a) of the Act, it would appear to me that the Council’s position is that as soon as the incident occurred on 5 December 2022, litigation was contemplated.
As to whether this is sufficient to ground a finding that proceedings were contemplated from that point, the test set down by O’Hanlon, J in the Silver Hill Duckling case referenced above is that litigation must be “apprehended or threatened”. The view of this Office is that the mere possibility of legal proceedings is insufficient to engage litigation privilege. Generally, our approach is that, in order for litigation privilege to attach to a record, there must be a definite prospect, apprehension or threat of litigation, as opposed to a mere possibility of proceedings.
Based on the information before me, and in the absence of any evidence to the contrary, I do not consider that litigation was threatened as soon as the incident occurred on 5 December 2022. The diary entry and the subsequent email sent neither explicitly mention nor, in my view, do they necessarily imply any definite, concrete intention on the part of the applicant to bring legal proceedings in relation to the events which are detailed in the records. I am satisfied that litigation was therefore not threatened at the date of creation of these records i.e. 5 and 6 December 2022.
As to whether litigation was “apprehended”, the Oxford English Dictionary defines “apprehend” as “understand or perceive”. The Council stated to this Office that litigation was apprehended on the date the incident occurred i.e. 5 December 2022. As noted above, the Council made a reference to the fact that, to its knowledge, the applicant and the individual involved in the incident on 5 December 2022 had a previous history of ‘run-ins’ with each other. The Council did not provide any evidence of such prior dealings which it referred to, beyond stating that it had heard that the individuals involved in the incident had prior dealings with each other before the incident in question occurred, and that as such the individual who authored the records believed court proceedings may follow at some point in the future. The Council also stated that the individuals who authored records 1 and 2 do not work with the applicant and never had any interaction or correspondence with the applicant. It stated that their only involvement with the applicant was through their colleague, who was involved in the 5 December 2022 incident.
The Council was also asked during the course of the review whether the applicant had taken any previous legal action against it, which may have led to the Council’s belief that legal proceedings could occur. In response, the Council stated that the applicant’s complaints began in mid-2020. It stated that as he was not satisfied with the outcome of those complaints, he subsequently lodged a complaint to the HSA in 2023, the WRC in 2024, and most recently the Labour Court. It is worth noting that the three named instances above whereby complaints and/or legal proceedings were brought against the Council to outside authorities i.e. the HSA, the WRC, and the Labour Court, all post-date the creation of the records at issue and as such I do not consider them relevant in determining whether the Council had reasonable grounds to believe litigation was apprehended on 5 and 6 December 2022, as none had taken place at the time the records in question were created. In relation to the reference made by the Council to complaints beginning in mid-2020, the Council has provided this Office with no further information on this point, including no details about the nature and/or number of complaints made, nor has it provided copies of these complaints or any submissions which demonstrate that the individuals who authored records 1 and 2 were (a) aware of these complaints, and (b) if aware of the complaints, that this awareness informed their belief that litigation could reasonably be expected to occur directly following the incident which occurred on 5 December 2022. In the absence of any such submissions to substantiate the arguments made by the Council, it is very difficult for this Office to take into consideration the points it has raised regarding complaints made by the applicant from mid-2020 onwards, as there is no way for this Office to assess the impact any such complaints may have had on the Council’s understanding that litigation may occur, in circumstances where this Office has been provided with no details of said complaints.
As noted above, the Commissioner’s view is that litigation is contemplated (a term which, in context, I consider to have essentially the same meaning as the term “apprehended” that was used in the Silver Hill Duckling case) where it is reasonably anticipated or regarded as probable. It seems to me that, following the approach taken in the Silver Hill Duckling case and by the Commissioner in previous decisions of this Office, the Council has not sufficiently justified its position that litigation was pending instantaneously upon the alleged incident occurring. As noted above, the Council have provided this Office with very limited information regarding its reliance on section 31(1)(a), beyond general claims that previous complaints had been made by the applicant. The Council did not provide any submissions arguing that the individuals who authored records 1 and 2 were aware of such complaints, nor that such individuals took into consideration these complaints when forming the view that litigation may occur. I acknowledge that, based on the limited submissions before me, it appears that the Council may have had previous dealings with the applicant which informed its opinions, however, without any substantive evidence before this Office outlining such reasoning, this Office simply cannot consider evidence which has not been put before it.
In the absence of any further information from the individuals who authored the records to further contextualise the relationship between the applicant and the Council and their reasoning for believing litigation could reasonably occur the moment the incident occurred on 5 December 2022, it is difficult for this Office to find that the Council has adequately demonstrated that litigation was actively contemplated the moment the incident occurred and the records were created. It is important to note that when relying on section 31(1)(a) of the Act the particular facts and circumstances of the case are relevant, and in this case, I do not believe the Council has provided sufficient evidence to justify its claim that litigation was apprehended on the dates the records were created i.e. 5 and 6 December 2022. The possibility that an event will occur at some unspecified point in time does not mean that it will happen on the balance of probabilities, and without further evidence from the Council to substantiate its claim that litigation was apprehended, I find that the Council has not met the first requirement of section 31(1)(a), and has not sufficiently demonstrated that litigation was apprehended or contemplated on the date the records were created.
As the Council has not satisfied the first aspect of the test for litigation privilege, it is not necessary for me to consider the second and third part of the test i.e. whether the records were created for the dominant purpose of such proceedings, and whether they comprise confidential communications between relevant parties in the context of the preparation for such proceedings. I find that, in relation to Record 1 and 2, the Council was not justified in refusing access to the records sought under section 31(1)(a) of the Act.
However, this is not the end of the matter. Having examined the records at issue, it would appear to me that section 37(1) and 37(7) apply. As section 37 of the Act is a mandatory exemption provision, it is necessary for this Office to review its applicability to the records at issue in circumstances where it would appear such an application is necessary.
Having reviewed the content of records 1 and 2, this Office is of the view that the information contained in records 1 and 2 falls to be refused under section 37 of the FOI Act, on the basis that it constitutes personal information of third parties, or joint personal information. Section 37 of the FOI Act is a mandatory exemption, and the effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Section 37(7) provides that, notwithstanding subsection (2)(a) (which provides that section 37(1) does not apply where the information relates to the requester), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. This is often referred to as ‘joint 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 would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines personal information 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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
Mindful of the provisions of section 25(3) which requires the Commissioner to take all reasonable precautions to prevent the disclosure of information in an exempt record, I cannot provide a detailed description of the records in question. However, I can say that the records contain several references to the applicant and comprise mainly of a named individual’s opinion and recounting of their interactions with the applicant.
Furthermore, I am satisfied that it would not be possible to anonymise the records as to attempt do so would in my view still disclose the personal information of the relevant third parties. It is also worth noting here that section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent. Being ‘practicable’ necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Having examined the withheld information, I am satisfied that it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of the records at issue, even in redacted form, would involve disclosure of personal information relating to individuals other than the applicant. I find that section 37(1) of the Act applies.
However, the matter does not end there, as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under subsection (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 person to whom the information relates. No argument has been made that the release of the records to the applicant would benefit the other individuals, nor is it apparent to me how release would do so. I find that section 37(5)(b) 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, 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 Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
During the course of the review the applicant was put on notice of the fact this Office considered section 37 may apply to the records at issue, and was invited to make submissions on this point if he so wished. In his submissions to this Office, the applicant did not make any specific public interest arguments in favour of the release of the records at issue. Based on the submissions provided by the applicant throughout the review, I am satisfied that his reasons for requesting the records- namely to defend his good name- could be considered as a private interest, rather than a public one. As noted above, the Council did not rely on section 37 of the Act, and as such provided no submissions on this provision.
The FOI Act provides a right of access to information in the possession of public bodies to the greatest extent possible consistent with the public interest and the right to privacy. The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes 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 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. 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).
I have considered the contents of the records carefully and I am satisfied that the public interest is best served by refusing access to these records. I find that the protection of the privacy rights of the third parities at issue outweighs the public interest in release of the records at issue. I find, therefore, that section 37(5)(a) does not apply. Consequently, I find that records 1 and 2 fall to be refused under section 37(1) and 37(7) of the Act.
Record 3 is an email from the Council’s Health and Safety Officer, sent to the HSA on 13 July 2023. The record broadly refers to welfare facilities and the provision of such facilities. As noted above, the Council refused access to this record under section 15(1)(i) of the Act, on the basis that the applicant had already been supplied with a copy of this record as part of the relevant WRC hearing. The Council stated that this record was provided in Appendix 13 of the hearing documents. It stated to this Office that if the applicant believes he is no longer in possession of the record, that it would be willing to re-release it to him.
During the course of the review the applicant was provided with an update letter, in which he was advised of the Council’s position in relation to record 3. The applicant was invited to make submissions on this point, however, he did not provide any submissions in relation to section 15(1)(i), nor did he provide any submissions to suggest that he was not in possession of record 3. As such, I am satisfied that the Council was justified under section 15(1)(i) of the Act in refusing access to record 3, on the basis that the applicant has already been provided with a copy of the email in question.
As set out above, this record was identified by the Council in the course of the review by this Office. In its submissions to this Office, the Council said that it is seeking to refuse access to this record under sections 30(1)(b) and 31(1)(a) of the Act, on the basis that the record, if released, would (1) have a significant, adverse effect on the performance by the FOI Body of any of its functions relating to management (including industrial relations and management of its staff), and (2) that the record would be exempt from proceedings in a court on the ground of legal professional privilege. In addition, as referred to above, in correspondence with this Office dated 21 April 2026, the Council for the first time made reference to section 32 with respect to this record; albeit without any indication as to which sub-section of section 32 it considered to be of relevance.
For context, and I do not believe it would be in breach of section 25(3) of the Act for me to say, Record 4 is dated 12 July 2023, and it is an email from a Council staff member to the Council’s Health and Safety Officer. The email comprises of a Council staff member providing the Council’s Health and Safety Officer with a response to correspondence received from the HSA. It would appear to me, based on the content of the records, that Record 3 was substantially based on the information provided to the Council’s Health and Safety Officer from another member of staff in Record 4. This is borne out by the fact that large portions of the Record 3 appear to have been taken from Record 4. Record 3 is dated 13 July 2023, and it is an email from the Council’s Health and Safety Officer to the HSA. The letter comprises of the Council’s Health and Safety Officer relaying the information she has been given in Record 4 (email from Council staff member to the Health and Safety Officer) to the HSA.
In its submissions to this Office, the Council stated that it wishes to refuse access to record 4 under section 30(1)(b) of the Act. It stated that the applicant is a staff member of the Council, and that he lodged a complaint with the HSA on 30 June 2023, which it received on 12 July 2023. The Council stated that, as such, this matter required investigation, and that the applicant additionally took a case to the WRC on this matter. The Council stated that its staff members need to be able to prepare reports for management in relation to the management of personnel and industrial relations, and as such, the record falls to be refused under section 30(1)(b) of the Act.
Section 30(1)(b) of the FOI Act provides for the refusal of a request where the FOI body 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). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the FOI Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. Section 30(1) is subject to a public interest balancing test at section 30(2).
As noted above, the Council stated that the applicant is a staff member of the Council, and that he lodged a complaint with the HSA on 30 June 2023. The Council stated that, as such, this matter required investigation, and that the applicant additionally took a case to the WRC on this matter. The Council stated that its staff members need to be able to prepare reports for management in relation to the management of personnel and industrial relations, and as such, the record fell to be refused under section 30(1)(b) of the Act. The Council also stated that it depends on staff coming forward with issues and these staff need to feel they can come forward in confidence. The Council did not provide any further details regarding its reliance on section 30(1)(b).
I accept that, as the Council has stated, the record relates to the management of personnel and industrial relations, as it comprises of an email between two Council staff members, and relates to a complaint submitted by the applicant and subsequent correspondence from the HSA to the Council notifying it of said complaint. It would appear that record 4 is an email from a Council staff member in response to a request for information sent by the Council’s Health and Safety Officer. However, that is not the end of the matter. The Council has not, in my opinion, explained how the release of the specific information in the record could have a significant adverse effect on this particular function i.e. industrial relations and personnel management. On this point, I note that there is an inherent understanding that release of records relating to personnel matters, particularly in circumstances where an individual has submitted a complaint regarding their employer, could, in certain circumstances, be reasonably be expected to have an effect on the ability of managers to manage their units and issues which they encounter in managing their team and their ability to make considered and appropriate decisions on those matters. However, the situation is complicated in this instance by the fact that record 3, which has been released to the applicant in full previously, essentially comprises very similar- and in some cases identical- information as the email which constitutes record 4. I note that in further submissions to this Office the Council has stated that it believes the entirety of record 4 differs from the records, such as record 3, which were provided to the applicant during the WRC case. However, having reviewed the records at issue, I cannot see how the records differ. In this scenario, it is very difficult to see how the Council can successfully argue that the release of the information held in record 4 could be expected to have a significant adverse effect on its management functions in circumstances where the applicant has already had sight of very similar, and for the most part identical, information i.e. in the form of record 3. For this reason, I do not accept that the Council has sufficiently justified its belief that the release of record 4 would cause a significant adverse effect on its management functions and therefore I find it was not justified in refusing access to record 4 under section 30(1)(b) of the Act.
That is not the end of the matter, as the Council have also relied on section 31(1)(a) of the Act to refuse access to record 4.
As set out above, section 31(1)(a) of the Act provides for the mandatory refusal of a request if the record concerned would be exempt from production in court proceedings on the ground of legal professional privilege (LPP).
In its submissions to this Office, the Council has argued that litigation privilege attaches to record 4 as the record was solely brought into existence in relation to litigation or expected litigation. The Council stated that the record was prepared by a member of staff in response to an email from its Health and Safety Officer. It stated that its Health and Safety Officer had received communication from the HSA regarding a complaint it had received from the applicant. It stated that litigation subsequently did take place.
I have considered the arguments of the Council in light of the contents of the record and find as follows. As noted above, in order for litigation privilege to apply to a record, it must have been created in preparation for legal proceedings which are either pending or contemplated. The Commissioner takes the view that litigation is contemplated where it is reasonably anticipated or regarded as probable, but that the mere possibility of proceedings is not sufficient. In addition, in order enjoy litigation privilege, a record must have been created for the dominant purpose of such proceedings, and must comprise confidential communications between relevant parties.
The questions I must therefore consider in this case are, firstly, whether the records at issue were created in preparation for legal proceedings which were contemplated or pending; secondly whether they were created for the dominant purpose of such proceedings; and thirdly whether they comprise confidential communications between relevant parties in the context of the preparation for such proceedings.
In relation to the first of these questions, I would note first of all that the record pre-dates the issuing of the WRC proceedings against the Council on 19 March 2024. Therefore, it is straightforwardly the case that when the records were created, no litigation was pending. I do not accept that a complaint submitted to the HSA constitutes legal proceedings.
I must therefore consider whether, at the time the records were created, litigation was contemplated by the Council.
In this regard, the only supporting document provided by the Council to this Office in relation to its reliance on section 31(1)(a) of the Act to refuse access to record 4 is the notification letter it received from the HSA on 12 July 2023, which notified the Council that it had received a complaint against it and includes the complaint form and details the next steps to be taken.
The letter from the HSA does not make any mention of legal proceedings, and simply states that a complaint has been received, details the nature of that complaint, and asks the Council to provide a response. The Council did not provide any additional supporting documentation and therefore it seems to me that the Council’s position is that immediately upon receipt of the letter from the HSA on 12 July 2023 the Council had formed the view that proceedings could potentially be brought against it by the applicant. As noted above, the Council alluded to the fact that the applicant had made prior complaints to the Council starting in mid-2020, however it provided no evidence of these complaints, nor did it provide any context as to the nature or number of complaints received. As such, without such evidence before me, it is difficult for this Office to place much weight on the Council’s allusion to prior complaints when assessing whether it had a reasonable basis for forming the belief that litigation was contemplated or apprehended, as I can only consider the evidence before me at the time of writing.
As to whether this is sufficient to ground a finding that proceedings were contemplated from that point, the test set down by O’Hanlon, J in the Silver Hill Duckling case referenced above is that litigation must be “apprehended or threatened”. The view of this Office is that the mere possibility of legal proceedings is insufficient to engage litigation privilege. Generally, our approach is that, in order for litigation privilege to attach to a record, there must be a definite prospect, apprehension or threat of litigation, as opposed to a mere possibility of proceedings.
I do not consider that litigation was threatened when the Council received notification of the complaint submitted by the applicant to the HSA. This letter neither explicitly mentions, nor in my view, does it necessarily imply any definite, concrete intention on the part of the applicant to bring legal proceedings against the Council. Instead, the letter simply indicates that a complaint has been submitted by the applicant. As such, I am satisfied that litigation was therefore not threatened at this point.
As to whether litigation was “apprehended”, the Oxford English Dictionary defines “apprehend” as “understand or perceive”. As noted above, the Council have provided very limited submissions to this Office in relation to its reliance on section 31(1)(a) of the Act in relation to Record 4. In its submissions to this Office in relation to Record 4 it has simply stated that its position is that the record- an email from a Council staff member to the Council’s Health and Safety Officer- was brought into existence solely in relation to litigation or expected litigation. After further queries from this Office, the Council also provided a copy of the letter it received from the HSA notifying it of the complaint which had been submitted. As noted above, when providing submissions in relation to its reliance on section 31(1)(a) of the Act to refuse access to records 1 and 2, the Council also alluded to the fact that the applicant had made complaints from mid-2020 onwards. The Council did not provide this Office with any information regarding these complaints, such as the number or nature of the complaints. It simply stated that the applicant’s “complaints began in mid-2020, he was not satisfied with the outcome of those complaints and went to the HSA, the WRC, and the Labour Court.”
As noted above, as neither the WRC nor the Labour Court proceedings had been initiated, nor is there any evidence before me that these proceedings were threatened or apprehended at the time the HSA complaint was received, I do not believe that these proceedings can constitute evidence of potential legal proceedings which would have informed the Council’s position on whether litigation was apprehended, based on the fact that neither proceedings had occurred, or appear to have been threatened, at the time the HSA complaint was filed. Furthermore, having considered the fact that complaints to the HSA do not constitute legal proceedings as the HSA is not a court of law, I do not accept that the applicant’s complaint to the HSA could be considered as legal proceedings against the Council.
However, as is the case with records 1 and 2, I acknowledge that the Council may have taken into consideration prior complaints made by the applicant when determining whether or not litigation was apprehended. However, crucially, as noted above in relation to records 1 and 2, the Council has provided this Office with no substantive evidence regarding any such previous complaints which the applicant may have submitted prior to the HSA complaint, nor has it provided any substantive submissions which demonstrate that said previous complaints informed the staff member’s opinion that litigation could reasonably occur. It has provided general assertions about complaints submitted, but no specific examples of (1) the complaints submitted, or (2) that these complaints led to the authors informed opinion that litigation was apprehended or contemplated. As such, in the absence of any further information regarding the number or nature of complaints submitted to the Council prior to the HSA complaint being received, I simply do not have enough evidence before me to conclude that, as of 12 July 2023 when it received notice of the HSA complaint, the Council can be said to have anticipated the probability of legal proceedings being brought against it. As noted above, this Office takes the view that the mere possibility of proceedings is not sufficient to justify reliance on section 31(1)(a) of the Act.
As noted above, the Commissioner’s view is that litigation is contemplated (a term which, in context, I consider to have essentially the same meaning as the term “apprehended” that was used in the Silver Hill Duckling case) where it is reasonably anticipated or regarded as probable. It seems to me that, following the approach taken in the Silver Hill Duckling case and by the Commissioner in previous decisions of this Office, it is not reasonable to conclude, based on the evidence currently before me, that the Council can be said to have understood or perceived from the date the HSA notified it of the complaint submitted, that litigation was likely. I am not satisfied that proceedings can be said to have been contemplated by the Council (such as would satisfy the test in the Silver Hill Duckling case) from that point on i.e. from 12 July 2023 on. It is worth noting here that my finding on this point has largely been informed by the lack of evidence provided by the Council to this Office.
All of this means that the record at issue- Record 4- was not, in my view, created in preparation for legal proceedings which the Council can be said to have contemplated, and therefore does not satisfy this aspect of the test for litigation privilege. As the Council has not satisfied this aspect of the test for litigation privilege, it is not necessary for me to consider the further two aspects of the test.
However, whilst it is not necessary for me to do so, I believe it is worth noting that, even if I were to accept that the Council could be said to have contemplated litigation based on the fact that the applicant had submitted prior complaints, based on the submissions provided by the Council to date, it does not appear to me that it has satisfied the dominant purpose test either. The Council stated in its submissions to this Office that Record 4 was solely brought into existence in relation to litigation or expected litigation. As noted above, record 4 is an email from a Council staff member to the Council’s Health and Safety Officer, providing a response to the HSA complaint received by the Council. It would appear to me that, whilst the content of the email relates to topics which the Council has said eventually came before the WRC, the Council has not adequately explained its reasoning for arguing that the sole and/or dominant purpose for the creation of this email was in preparation for litigation or expected litigation. It would appear to me, based on the content of the record, that the dominant purpose of the record was to provide the Council’s Health and Safety Officer with an overview of the Council’s position in relation to the complaint received, in order to allow the Health and Safety Officer to provide an informed response to the HSA. I accept that a secondary use for the record may have been that it could have been relied on if litigation occurred in the future, which it ultimately did, however based on the submissions before me it does not appear to me that the dominant purpose for the creation of such a record could be said to be in preparation for litigation of expected litigation in circumstances where no such litigation appears to have been threatened or initiated at the time.
As such, I find that the Council has not adequately justified its reliance on section 31(1)(a) of the Act in respect of its refusal of Record 4.
Prior to making a determination on the record, I believe it is worth restating that Record 4 appears to be an almost exact copy of Record 3. For example, of the 22 lines which comprise the substance of the email in Record 4, only 3 ½ lines are not exact copies of the lines included in Record 3. In light of the fact that Record 3 has already been released to the applicant previously and that the Council has stated that it would be willing to re-release Record 3 to the applicant if he stated he did not have access to it, I find it very difficult to see how the parts of Record 4 in common with Record 3 could not, and should not, be released to the applicant. As such, I direct the release of those parts of Record 4 which are a direct copy of Record 3.
With regard to the remaining parts of Record 4, as set out above, in the most recent correspondence from the Council, for the first time it made reference to the potential applicability of section 32 to this record. The Council has not provided any further detail in relation to this claim. In the circumstances, I consider that it is not appropriate that this Office should be a first instance decision-maker to determine whether the remaining information in Record 4 qualifies for exemption under one of the sub-sections of section 32. Instead, it seems to me that the most appropriate course of action to take is to annul the decision of the Council to refuse access to the remaining information in Record 4, other than the information which is common to Record 3, and to remit the matter for further consideration by the Council to determine whether it deems this information suitable for release.
In his submissions to this Office, the applicant has argued that he believes further records should exist, beyond the four records located by the Council to date. As such, this case involves a search issue under section 15(1)(a) of the Act. Additionally, the Council also refused access to parts 4 and 6 of the applicant’s request under section 15(1)(a) of the Act.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. My role in a case such as this is to review the decision of the FOI body and to decide whether that decision was 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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The Council provided this Office with the reasons for its refusal of the applicant’s request under section 15(1)(a) of the Act, including details of the searches it undertook for records falling within the scope of the applicant’s request. The Investigating Officer provided a summary of the Council’s submissions to the applicant, and the applicant provided submissions in response. While I do not propose to repeat the submissions from the applicant nor the Council in full here, I confirm that I have had regard to them for the purposes of this review.
In its submissions to this Office, the Council stated that its position is that no further records falling within the scope of the applicant’s request exist or can be found beyond the four records which it has located to date.
In its submissions to this Office, the Council stated that this request involved four directorates of the Council: Operations- Traffic Division, Operations- Roads, Area Office, People & Organisation Development- Industrial Relations & Welfare Division, Community, Culture & Welfare- Health & Safety Division. The Council stated that searches for records relating to the applicant’s FOI request were conducted within each of these sections by relevant staff members.
When seeking submissions from the Council, the Investigating Officer highlighted that the applicant had identified seven key individuals which he believed may hold records relevant to his FOI request and provided the names of these seven individuals. The Investigating Officer queried whether these individuals had conducted searches for records falling within the scope of the applicant’s request, and if so, what the outcome of those searches were.
In response, the Council stated the following in its submissions to this Office:
The Council stated that this individual is an outdoor worker and as such does not have access to an email account. Consequently, it stated that this individual did not carry out any email searches for records falling within the scope of the applicant’s request. Additionally, the Council stated that this individual does not hold any paper records, it stated that when the incident occurred this individual spoke to their supervisor, who then recorded details of this meeting.
The Council stated that both these individuals carried out electronic and hard copy searches for relevant records when the WRC case arose. It stated that diary notes were found and were recorded on the schedule. It stated the applicant’s name was only mentioned in these records.
The Council stated that this individual conducted both electronic and hard copy searches for records falling within the scope of the applicant’s request. It stated that, following receipt of a letter from the HSA in 2023, upon investigating this individual received an email from Council staff member 2, providing background information relating to the HSA complaint (Record 4). The Council stated that this individual also located Record 3, which was an email sent by them to the HSA in relation to the complaint received. The Council stated that neither of these records contained the applicant’s name and/or [named area] Traffic Warden. It stated no further records were located. This individual originally returned only record 3 after conducting searches, but upon further queries from this Office the Council stated this individual also returned Record 4.
The Council stated that this individual carried out electronic and paper record searches for relevant records when the WRC case arose. The Council stated that this individual, due to her role within the Council, would have dealings with all traffic wardens from time to time regarding operational matters. The Council stated that no additional records were found that came within the scope of the request. The Council stated that in his request the applicant specifically stated that Council staff member 5 made an accusation about him during the WRC meeting. It stated that the applicant had said he wanted to know where this individual got the information to make such a comment, as well as any proof she had to back up her comment. In response, the Council stated to this Office that this individual never made such a statement, and as such no record exists. The Council stated that this individual would be aware of details of the WRC case as she was involved in discussions and would have seen the Health and Safety Officer’s email to the HSA. The Council provided no further information on this point, and did not explain in what format this individual would have had sight of the Health and Safety Officer’s email i.e. was it forwarded, in which case she would hold a copy, or was it shown in person etc.
The Council stated that following searches the only record falling within the scope of the request within his directorate was the email (Record 2) to two of his staff by Council staff member 3.
The Council stated that this individual worked with Council staff member 5 in a named section of the Council. It stated that, similar to Council staff member 5, this individual would have reason to deal with traffic wardens as part of their duties regarding operational matters. The Council stated that emails containing the applicant’s name and [named area] Warden were located but were outside the scope of the request.
The Council reiterated that it believes the applicant’s request centres around the WRC case he brought against the Council and welfare facilities available to him. It stated that the majority of internal communications relating to the WRC case took place in person or over the telephone, with any relevant staff attending the WRC to provide evidence. It stated that it is satisfied that it has carried out adequate searches to respond to the applicant’s request. It is worth noting here that, whilst the majority of the applicant’s request does appear to be centred around the welfare facilities issues he ultimately brought to the WRC, it is also the case that the applicant clearly states in his FOI request that he is also seeking records in relation to the incident which occurred on 5 December 2022- and he specifically states the timeline of his request is from 31 August 2022 until 8 October 2024. As such, his request is not solely confined to the WRC case and relevant welfare issues adjudicated on during that case.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that are known to have existed cannot be found. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
However, this Office does require an FOI body to provide sufficient details to demonstrate that it has conducted all reasonable steps to ascertain the whereabouts of records falling within the scope of an applicant’s request. In this case, I do not believe the Council has met this threshold. I will outline my reasoning for reaching this conclusion below.
Firstly, in relation to the adequacy of the searches carried out, the Council has not provided this Office with any indication of the manner in which it carried out its electronic and physical searches, for example it has not stated whether key word searches were carried out, whether electronic files and folders were searched, whether staff email accounts were searches etc. Additionally, the Council has not stated the type or location of records searched i.e. would there be a dedicated HR folder that may perhaps hold relevant records, would any files be held centrally by the Council relating to the applicant’s request, did the individuals consulted conduct searches of their work email account, would there be any shared mailboxes which may hold records etc. Instead, the Council has simply stated that the individuals identified by the applicant carried out ‘electronic and paper searches’ for records falling within the scope of the applicant’s request. It may well be that these individuals did conduct key word searches in multiple locations across various file types, however, without submissions before this Office stating so it is difficult to find that the Council has adequately demonstrated that it conducted all reasonable searches for records falling within the scope of the applicant’s request.
Furthermore, the adequacy of the searches conducted by the Council is called into question by the additional record located during the course of the review. Considering this Office has found that Record 4 is within the scope of the applicant’s request, it calls into question whether the individuals conducting searches for records falling within the scope of the applicant’s request had a sufficient understanding of what constituted a record which fell within the scope of the applicant’s request. In addition to this, the adequacy of the searches conducted by the Council and/or the understanding of the scope of the request by those conducting searches is called into question by the fact that Record 4 does not appear to have been located by either Council staff member 2 or 3 despite the fact that Council staff member 2 authored the email and Council staff member 3 was cc’d on the email. The Council stated to this Office that both staff members conducted searches for records falling within the scope of the applicant’s request, and that only records 1 and 2 were located by these staff members. However, it has provided no explanation as to why record 4 was not located by either of the staff members. In its submissions to this Office, the Council stated that Council staff member 2 and 3 carried out both electronic and hard copy searches, and the only records they located were records 1 and 2, which were scheduled and refused. The Council has provided this Office with no explanation as to why Council staff members 2 and 3 did not locate Record 4, and in the absence of any such explanation it would appear to this Office that adequate searches were not conducted, as at least one email record sent by and received from these individuals was not located by them when carrying out their relevant searches.
As noted previously, the Council may have an adequate explanation as to why this is the case, however, in the absence of any such explanation, at present it would appear that Council staff members conducting searches for records falling within the scope of the applicant’s request did not locate and/or consider all records which exist.
Additionally, record 2 appears to be a reply email, as does Record 4, which is borne out by the subject line title “RE:”. Owing to the fact the reply emails were deemed as falling within the scope of the applicant’s request, it appears reasonable to suggest that the original email correspondence may also fall within the scope of the applicant’s request. I accept that it may also be the case that such correspondence, or at least part of such correspondence, may be deemed outside the scope of the applicant’s request. However, in the absence of any submissions from the Council on this point, this Office is not able to make a determination on whether or not such records (1) were within the scope of the applicant’s request, and (2) whether the Council was justified in refusing them. It would appear to me, based on the limited search details provided by the Council, that it simply did not consider the original email correspondence in the identified email threads, and this again calls into question the adequacy of the searches which were carried out by the Council. Again, I wish to note that I acknowledge this may not be the case, and the Council may have considered such records, however, it has provided this Office with no submissions on the matter, and in the absence of any such submissions, this Office cannot find that the Council conducted adequate searches and considered all potential relevant records for release.
Finally, in its submissions to this Office, the Council makes reference to the fact that a “majority of internal communications around the WRC case took place in person or over the telephone”. The Council has not provided any further information to this Office on this point, and as such this Office is not aware of whether records might exist in relation to these internal communications, such as any minutes of meetings or phone notes. Again, I acknowledge that it
may be the case that the Council may wish to advise that it does not record meeting minutes or phone notes, in which case this would explain the reasoning as to why no records may exist in relation to these discussions, however, in the absence of any such submissions explaining its record management practices in relation to these discussions, this Office cannot determine whether adequate searches were carried out by the Council for all records falling within the scope of the applicant’s request.
Having considered the factors outlined above, it is not possible for this Office at present to find that the Council were justified in refusing access to further records relating to the applicant’s request under section 15(1)(a) of the Act. Section 15(1)(a) requires an FOI Body to demonstrate it has conducted all reasonable searches for records falling within the scope of an applicant’s request, and as noted above, the Council at present have not provided this Office with sufficient information regarding the searches carried out. As such, it seems to me that the most appropriate course of action to take at this stage is to annul the decision of the Council to refuse access to further relevant records relating to the applicant’s request under section 15(1)(a) of the Act. The effect of this is that the Council must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision; I annul the Council’s decision to refuse access to records 1 and 2 under section 31(1)(a) of the Act, however I do not direct release of these records owing to the fact that I have found section 37 applies to the information contained in the records. I affirm the Council’s decision to refuse access to record 3 under section 15(1)(i) of the Act, on the basis that the record has previously been released to the applicant. I further annul the Council’s decision to refuse access to record 4 under sections 30(1)(b) and 31(1)(a) of the Act, and I direct release of those parts of the record which are identical to the information in record 3. I also direct the Council to consider afresh the remaining parts of record 4 in line with the provisions of the FOI Act. I also annul the Council’s reliance on section 15(1)(a) of the Act to refuse access to any further records relating to the applicant’s request on the basis that no further records exist or can be found, having found that the Council has not conducted all reasonable searches to ascertain the whereabouts of records, and I remit this portion of the request back to the Council to consider afresh.
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
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Mary Connery
Investigator