Cinneadh
Company X & Wexford County Council (the Council)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154345-K0Z7X7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154345-K0Z7X7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access, under sections 15(1)(a), 31(1)(a) and 36(1) of the FOI Act, to records relating to the paving surface of a specified street junction in Wexford
13 November 2025
This review has its background in an incident that occurred in Wexford in 2015 (“the incident ”), arising from which personal injury proceedings have been brought against the Council. The applicant – an engineering company – has been retained by the complainant (the injured party) in those proceedings. In that context, the applicant submitted an FOI request to the Council on 24 September 2024, seeking access to information and records relating to the paving surface at a specified junction in Wexford. The request was in seven parts and sought access to the following:
1) the date on which a specified street was paved
2) copies of the specification for the paving brick and drainage channels
3) details of all reports in relation to similar incidents made to the Council on this street since it was opened
4) details of investigations by the Council and/or consultants retained on behalf of the Council in relation to the skid resistance properties of the paved surface to include any design and tests conducted in relation to same
5) details of any alterations made to the surface as a result of these investigations
6) details of all correspondence between any consulting Engineers retained to investigate this accident and the Executive Engineer, a named individual, and any internal reports generated by the named individual in his investigation of this incident
7) details of any abrasive treatment prescribed or carried out to the surface of the relevant road between the specified dates.
In a decision dated 23 October 2024, the Council identified a total of 42 records (26 numbered records and 16 attachments) as coming within the scope of the FOI request and refused the request in full under section 32(1)(a)(iv) of the FOI Act. It said that as legal proceedings are in process, the release of the records during the legal proceedings could impair the fairness of the proceedings. On 7 November 2024, the applicant sought an internal review of the Council’s decision. In its internal review decision, the Council upheld its original decision. On 4 December 2024, the applicant applied to this Office for a review of the Council’s decision.
A number of issues arose during the course of this review that I wish to address. Firstly, it should be noted that, in the course of the review, the Council informed this Office that it no longer sought to rely on section 32(1)(a)(iv) of the FOI Act to refuse the request and instead indicated that was relying on section 31(1)(a) to withhold all of the records. The applicant was informed of the Council’s revised position and invited to make any further submissions. No such further submissions have been received on this point.
Secondly, in the course of conducting this review, I formed the view that section 36(1) (relating to commercially sensitive information) was of potential relevance to certain of the records. As a result, I considered it necessary to contact three third parties, as well as the applicant, to put each on notice of the potential applicability of that provision of the FOI Act, and to invite them to make any submissions that they wished. The applicant subsequently reverted to confirm that it did not wish to make any submissions in relation to section 36(1). In addition, two of the third parties I contacted reverted to indicate that they had no objection to the release of the material in the records that related to their organisations. No submissions were received from the remaining third party.
Thirdly, in the course of conducting this review, I formed the opinion that the Council’s decision in relation to part 1) of the applicant’s request amounted to an effective refusal of that aspect of the request under section 15(1)(a) of the FOI Act (relating to the refusal of an FOI request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them). I therefore sought submissions from the Council on section 15(1)(a), and put the substance of same to the applicant and invited it to make any further submissions that it wished. No further submissions on section 15(1)(a) were received from the applicant.
Finally, I also wish to note that in the course of this review the applicant confirmed to this Office that it had no difficulty with the removal from the scope of the review of personal information of individual staff members of companies who provided services on contract to the Council. Any such information can therefore be withheld from release, and I am not required to consider if further as part of my review.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Council and to the comments of the applicant in its application to this Office for a review, and the comments received from the relevant third parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
I wish to note in respect of record 17 that, having considered the contents of the record and sought submissions from the Council, I take the view that it relates to a separate matter to the incident and as such does not come within scope of the FOI request. The basis for my view in this regard is that, as confirmed by the Council in its submissions, the record relates to legal proceedings arising from a separate accident than the one at issue in this case. Moreover, although part 3 of the applicant’s FOI request sought access to records relating to any similar incidents at the same location, the accident referred to in record 17 took place at a different location. I am therefore satisfied that record 17 requires no further consideration as part of this review.
Accordingly, this review is solely concerned with whether the Council was justified, under sections 15(1)(a), 31(1)(a) and 36(1) of the FOI Act, in refusing access to the remaining within-scope records sought by the applicant.
In advance of the substantive analysis in this case, there are a number of preliminary points that I wish to make. Firstly, in the circumstances of this case, it is relevant to note that a review by this Office is considered to be “de novo ", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Secondly, it should be noted that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body concerned shows to the satisfaction of the Commissioner that the decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the records at issue was justified.
Finally, I wish to note that, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of some of the records in my analysis is limited.
The records at issue
As outlined above, there are 41 records at issue in this review. Some of the records, comprising emails and attachments to those emails, were split into separate parts with each part being given a separate record number (eg. record 10, record 10a, etc). For the ease of reference of all parties, I will use the numbering system used by the Council when referring to the records.
Record 1 is an undated preliminary report into the incident (the Council subsequently confirmed that this record was created between 26 January and 29 January 2016). The remaining records comprise emails (either internal to the Council or between the Council and various external parties) dated between 9 September 2015 and 7 February 2017, and attachments to those emails.
Information outside the scope of this review
As outlined above, the applicant in this case has confirmed that it is amenable to excluding from the scope of this review personal information that appears in the records. The relevant information comprises the name, postal addresses, email addresses, telephone numbers and any other identifying information relating to individual staff members of contractors whose engagements with the Council are documented in the records. Accordingly, any such information in records that are directed for release on foot of this review should be redacted in advance of release.
Section 31(1)(a)
Section 31(1)(a) of the FOI Act provides for the mandatory refusal of access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).
LPP enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The Council argued that litigation privilege was 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).
In its submissions to this Office, the Council argued that litigation privilege attaches to each of the records at issue in circumstances where court proceedings arising from the incident which underpins the applicant’s FOI request had been instituted and were ongoing, and it provided documentation to support this assertion. The Council stated that it had lodged a defence in the High Court to the relevant legal proceedings on 23 March 2022. The Council stated that each of the records at issue was prepared for the dominant purpose of litigation, in anticipation of it being required to defend a legal claim. The Council stated that none of the records was created for any other purpose besides the preparation for litigation. The Council noted that, while it had lodged a defence to the proceedings, no hearing date had as of yet been provided.
The Council also advised that the incident took place on 2 August 2015. Although the personal injury proceedings were served on the Council on 11 January 2018, the Council stated that the incident was first brought to its attention by way of an email of 5 August 2015 from the injured party (a copy of which it provided to this Office), and that at that point it had formed the view that litigation arising from the incident was likely. The Council noted that, consequently, by way of an email dated 11 August 2015 (a copy of which it also provided to this Office), its insurance section had informed the District Engineer of the incident, with the latter subsequently carrying out the preliminary report into the incident which comprises record 1. The Council also provided this Office with a copy of a second email from the injured party, dated 24 September 2015, outlining the full extent of the injuries she had suffered in the incident. The Council stated that it had taken this correspondence as notification of intention to seek compensation. The Council also provided this Office with a copy of a letter, dated 17 February 2016, received from solicitors acting on behalf of the injured party, advising that its view was that the Council was liable for the injuries suffered, and calling on the Council to admit liability within 10 days of the letter. This correspondence goes on to state that, in the absence of such an admission from the Council:
“…our client’s claim for damages will be the subject of an application to [what was then the Personal Injuries Assessment Board (PIAB), now the Injuries Resolution Board ].
In the event that it becomes necessary to issue proceedings against you and if in those proceedings our client is successful, then this letter will be used to apply to the court for an order for costs ”.
Finally, the Council also provided this Office with a copy of a letter from what was then the PIAB, dated 21 June 2017, notifying it of receipt of a claim from the injured party and further stating:
“Having considered the application, pursuant to section 17 of the Personal Injuries Assessment Board Act 2003, we have decided it would not be appropriate to make an assessment, due to the complexity of the medical issues to be addressed .
In the circumstances, we have today issued an Authorisation to [the injured party], which authorises her to bring legal proceedings in connection with this claim, should she so wish ”.
I have considered the arguments of the Council in light of the contents of the records, and the supporting documents it provided, 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 each of the records pre-dates the issuing of the personal injury proceedings on 11 January 2018. Therefore, it is straightforwardly the case that when the records were created, no litigation was pending. I must therefore consider whether, at the time the records were created, litigation was contemplated by the Council.
In this regard, the email of 5 August 2015 (from the injured party, bringing the incident to the Council’s attention), the second email from the injured party of 24 September 2015 (outlining the full extent of the injuries suffered), the email of 11 August 2015 (from the Council’s insurance section, notifying the District Engineer of the incident), the letter from the injured party’s solicitor of 17 February 2016 (advising the Council of its view that liability for the incident lay with the Council) and the PIAB letter of 21 June 2017 are all relevant. In the case of the email of 5 August 2015, I note that the injured party states that she wishes to bring to the Council’s attention the purportedly unsafe surface of the road in question, and to request a copy of any report into the condition of the road surface. The email does not make any mention of legal proceedings. However, in the Council’s email of 11 August 2015, the District Engineer is advised that, in the view of the Council’s insurance section, it is facing a potential legal claim. It therefore seems to me to be clear that, very shortly after receipt of the email of 5 August 2015, the Council had formed the view that proceedings could potentially be brought against it. Furthermore, while the injured party’s second email of 24 September 2015 again contains no explicit reference to bringing proceedings against the Council, based on the contents of the email I consider that it was reasonable for the Council to have anticipated that a claim for compensation might follow.
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 injured party emailed the Council on 5 August 2015 to complain about the road surface, or when she emailed the Council on 24 September 2015 to outline the full extent of the injuries suffered. These emails neither explicitly mention nor, in my view, do they necessarily imply any definite, concrete intention on the part of the injured party to bring legal proceedings. 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 ”. I note that the email from the Council’s insurance section to the District Engineer of 11 August 2015 expressly states that the Council is potentially facing a legal claim. Moreover, it seems reasonable for me to conclude that, as of 5 August 2015 when it received the email from the injured party notifying it of the incident, or at the latest from 24 September 2015 when it received the second email from the injured party, the Council can be said to have anticipated the probability of legal proceedings being brought against it.
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 reasonable to conclude that the Council can be said to have understood or perceived from 5 August 2015 that litigation was likely. I am 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.
I would also note that the letter of 17 February 2016 from the injured party’s solicitor contains a very clear and explicit statement of intent to bring legal proceedings, should the Council fail to admit liability for the injuries suffered. I therefore take the view that there can be no doubt but that litigation can reasonably be said to have been threatened from the date of this letter. The letter of 21 June 2017 from the PIAB, in my view, reinforces the proposition that a claim for personal injuries arising from the incident was extremely likely.
All of this means that each of the records at issue, all of which post-date receipt of the email from the injured party of 5 August 2015, were created, in my view, in preparation for legal proceedings which the Council can be said to have contemplated, and therefore satisfy this aspect of the test for litigation privilege.
As to the question of whether the records were created for the dominant purpose of preparing for such proceedings, I find as follows. I would first of all note that several of the records comprise very basic email communications from a private contractor, either attaching quotations to carry out anti-slip work, or invoices for anti-slip work carried out, on surfaces in Wexford. I cannot accept that these were created with the dominant purpose of preparing for the contemplated litigation arising from the incident. The dominant purpose of the creation of these records, it seems to me, is very clearly (in the case of the quotations) an attempt by the contractor to secure work, or (in the case of the invoices) the securing by the contractor of payment due for work carried out on behalf of the Council. Similarly, other records comprise communications to the Council from the same contractor either attaching price lists for various pieces of cleaning equipment, discussing the details of particular pieces of cleaning equipment, or seeking confirmation of whether proposed contracted work is to go ahead. While the purpose of the creation of these records is somewhat unclear, it seems to me to be reasonable to describe that purpose as either bringing to the Council’s attention the cost of acquiring certain equipment, advising it as to the desirability of acquiring certain equipment, or seeking confirmation of contracts for certain work to be carried out on the Council’s behalf. In any case, it certainly seems to me to be the case that these records were not created with the dominant purpose of preparing for the contemplated litigation.
The records I have described above – emails to the Council from a contractor, attaching quotations, invoices or price lists, or discussing particular pieces of equipment – reveal nothing of the Council’s preparations for the contemplated litigation, and indeed do not seem to me to be particularly relevant to the proceedings at all. I therefore do not accept that they were created for the dominant purpose of the contemplated litigation, and as such they do not benefit from litigation privilege. I make this finding in relation to the following records:
• record 8
• record 8a (attachment to the email comprising record 8)
• record 10
• record 10a (attachment to the email comprising record 10)
• record 11
• record 11a (attachment to the email comprising record 11)
• record 12
• record 13
• record 19
• record 19a (attachment to the email comprising record 19)
• record 23
• record 23a (attachment to the email comprising record 23)
• record 25a (attachment to the email comprising record 25)
The same finding applies to records 16 and 20, which are internal Council emails simply passing on details of the contractor and the services it provides, and record 16a, which is an attachment to the email comprising record 16. Similarly, record 22 is an email to the Council from the contractor regarding its insurance details, which are set out in the attachment which comprises record 22a, and I make the same finding in relation to these records. Furthermore, I make the same finding in relation to record 3, which comprises email correspondence internal to the Council and with an external contractor in relation to a discussion of road service solutions in Wexford generally, and record 3a, which is an attachment to the aforementioned email comprising a data sheet in relation to a product manufactured by the contractor.
The matter is somewhat less straightforward in relation to the remaining records at issue. A number of these records comprise emails exchanged between the Council and contractors who provided slip-testing services of road surfaces at various locations in Wexford, and/or trials of various types of surface generally. Certain of the emails themselves discuss the results of the tests or trials, while other records are attachments to the emails comprising reports outlining the test/trial results, and/or annotated photographs of various surfaces that were tested. In addition, a number of the remaining records contain internal emails documenting conversations between staff members of Wexford County Council discussing the test/trial results, while other records contain emails between the Council and contractors discussing cleaning solutions for road surfaces in Wexford.
It seems to me reasonable to state that the reason for the slip-testing/trials that are documented in these records is to establish whether, and the extent to which, the various surfaces tested are liable to contribute to slip-and-fall-type accidents. Furthermore, I would certainly be prepared to accept that, insofar as slip-testing was carried out at the location at which the accident took place, the results of such tests may inform the approach of the Council to its defence of the proceedings (which, at the time of the testing, were contemplated, and which are now in train).
However, I find it more difficult to accept that the Council’s preparation for the legal proceedings at issue can be said to have been the dominant purpose for the creation of these records. It seems to me that, at a minimum, an equal (if not greater) purpose for the creation of these records was to ascertain the slip resistance of various road surfaces and examining various anti-slip solutions, with a view to reducing the occurrence of accidents in Wexford more generally. There is no indication in the records that the tests were carried out, or that the reports and descriptions of test results that arose from the tests were created, with a view to defending or otherwise addressing the relevant litigation. Furthermore, the majority of the test and trial results documented in the records relate to road surfaces at locations other than the one where the incident took place. In addition, insofar as the testing might relate to the surface at the location at which the incident occurred, it seems to me that the discussions disclosed in the records are concerned almost exclusively with improving the slip resistance of the road surface generally (and not, in other words, with the Council’s preparation for the contemplated proceedings). In those circumstances, I am not satisfied that the dominant purpose of the creation of the records was the Council’s preparation for the contemplated legal proceedings. I make this finding in relation to the following records:
• record 2
• records 2a and2b (attachments to the email comprising record 2)
• record 4
• records 4a and 4b (attachments to the email comprising record 4)
• records 5 to 7
• record 9
• records 14 and 15
• record 18
• record 18a (attachment to the email comprising record 18)
• record 21
• records 24 and 25
• record 25b (attachment to the email comprising record 25)
• record 26
• records 26a and 26b (attachments to the email comprising record 26).
In circumstances where I have found that the above records were not created for the dominant purpose of preparation for the contemplated legal proceedings at issue, I am not required to consider in detail the question of whether such records also meet the confidentiality requirement of the test for litigation privilege. However, for the sake of completeness, I would note that in any case I am not entirely satisfied that this requirement (ie. that the records comprise 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) is met in the case of the relevant records.
The remaining record to consider is record 1, which comprises the preliminary report into the incident, which as outlined above was created between 26 and 29 January 2016. The report contains an analysis of the relevant road surface, as well as points considered relevant by the author arising from an examination of CCTV footage of the incident. In addition the report refers to previous tests of the road surface and makes a recommendation in relation to further testing. I am satisfied that this record was created with knowledge of the incident, and the fact that litigation would likely follow from the incident. It is directly focussed on the possible causes of and contributory factors to the incident, and the purpose of the recommendation of further testing of the relevant road surface seems to me to be the making of more definite findings in relation to the slip resistance of the surface. In these circumstances, I am satisfied that record 1 was created for the dominant purpose of the contemplated litigation, and it therefore meets these criteria of the test for exemption under section 31(1)(a) of the FOI Act.
In relation to the question of whether the final requirement for exemption under section 31(1)(a) (that the record must comprise 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) is met in respect of record 1, I would first of all note that the question of communications exchanged between a client and a legal adviser does not arise in respect of this record – the report that comprises the record was authored by an engineer (at the behest of the Council) and is addressed from the engineer to an individual at the Council. Therefore, it cannot be said that the report comprises communications between a client and a legal adviser, or a legal adviser and a third party.
However, I am more satisfied that the record takes the form of communications between a client (the Council) and a third party (the engineer who authored the report). It is clear on its face that the report is directly addressed from its author to the relevant Council representative. In addition, although it is not explicitly stated to be confidential, in the circumstances I am satisfied that it has the necessary quality of confidence. Accordingly, I take the view that record 1 fulfils this criteria for exemption under section 31(1)(a) (ie. it takes the form of confidential communications between a client and a third party). Having also found that record 1 was created for the dominant purpose of contemplated litigation, it follows that it is legally privileged and exempt from release under section 31(1)(a) of the FOI Act.
In relation to the other records at issue which I have found not to be exempt under section 31(1)(a), the matter does not end there. As noted above, in the course of conducting this review, I formed the opinion that the release of certain of the records at issue may potentially affect the commercial interests of a number of third parties. I must therefore go on to consider the extent to which section 36(1) might apply to exempt those records from release.
Section 36(1)
Based on the contents of the records at issue and the requirements of section 36(1) of the FOI Act, I am satisfied that subsection (b) of section 36(1) is the relevant provision to consider in this case. Section 36(1)(b) provides a mandatory exemption to the release of a record where it contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. It should be noted that the essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release.
The harm test in the first part of subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain ”. The test in this regard is not a question of probabilities or possibilities, but rather whether the FOI body’s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate the nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record at issue.
The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position ” of the person in the conduct of his or her profession or business or otherwise in his or her occupation. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, in invoking the phrase "prejudice ", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.
As noted above, in circumstances where I considered that section 36(1)(b) was potentially applicable in this case, I contacted three third parties – each a private company – to advise them of the existence of this review, and of the requirements of section 36(1), and to invite them to make any submissions that they wished. As I have stated, two of the three companies reverted to indicate that they had no objection to the release of the material in the records that related to them. Accordingly, I am satisfied that section 36(1)(b) is not applicable to the information in the records that relates to either of these companies, on the basis that neither objects to its release. I make this finding in respect of records 7, 8, 8a, 10, 10a, 11, 11a, 12, 13, 16, 16a, 18, 18a, 19, 19a, 20, 21, 22, 22a, 23, 23a, 24, 25, 25a and 25b, which contain information relating to the first company; and records 3, 3a and 21, which contain information with regard to the second company.
This leaves the third company which, as referenced above, did not respond to my invitation to make submissions. The information that relates to this company is contained in records 2, 2a, 2b, 4, 4a, 4b, 5, 6, 26, 26a and 26b. I have examined the relevant material in each of these records and find as follows.
Records 2, 2a and 2b respectively comprise email correspondence exchanged between the Council and the company, along with attachments to that correspondence. The correspondence itself (contained in record 2) seems to me to comprise a discussion of various surface testing methods trialled by the company on behalf of the Council. There is nothing in the discussion which I consider could reasonably be expected to lead to the harms provided for by either test in section 36(1)(b). In relation to the attachments to the relevant email (ie. records 2a and 2b), these are photographs of surface materials tested by the company, with some minimal notation. Again, I cannot envisage a manner in which the harms identified in either test in section 36(1)(b) could reasonably be expected to follow from the release of this information. Furthermore, I note that the information in records 2, 2a and 2b that relates to the company is duplicated in records 4, 4a, 46, 5, 6, 26, 26a and 26b. I therefore make the same finding in respect of these remaining records.
Based on the foregoing analysis, I am satisfied that section 36(1)(b) does not apply to exempt from release any of the records at issue.
Section 15(1)(a)
As noted above, in the course of conducting this review I formed the opinion that section 15(1)(a) of the FOI Act was of potential relevance in relation to part 1) of the applicant’s FOI request (in relation to the date on which the junction where the incident occurred had been paved). Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In its decision on the applicant’s FOI request, the Council did not specifically address part 1) of the request. In subsequent correspondence with this Office, the Council outlined its position that it did not hold records containing the date on which the relevant junction was paved. In communications later received from the applicant, it stated that this element of its FOI request might have been misunderstood, and provided information clarifying the junction to which it referred, as well as outlining its view that the Council should hold the information sought. I put this to the Council for a response. The Council reverted to confirm its position that it did not hold records containing the information sought. It went on to outline details of the steps it had taken to try and locate relevant records.
In particular, the Council noted that paving work in question had been carried out by its predecessor, Wexford Borough Council, which was abolished in June 2014 under the Local Government Reform Act 2014. The Council stated that all records of Wexford Borough Council would have been transferred to its control, and that the office of the Borough District of Wexford (one of the Council’s Municipal and Borough District Offices) would now hold any records that did exist in relation to the paving of the junction. The Council advised that the records of the Borough District of Wexford were searched manually and electronically for any information relating to the date on which the junction paved. The Council stated that all records for this project were recalled from the Archive and that the District Manager searched same. It advises that no record containing the information requested was found. The Council further advised that, due to the passage of time, it was not possible to ascertain which individuals would have knowledge of the paving project. It stated that many staff have retired since 2006 or moved to other roles. The Council stated that its Insurance Risk Management section searched its file manually, and no relevant record was found.
In relation to its record retention practices generally, the Council advised that its retention policy that was in place from 2002 until 2021 was the National Retention Policy for Local Authority Records 2002, which provided that memos, reports, correspondence, accounts, maps, case files and agreement should be retained for 10 years and then sent to archive. The Council states that the date that a particular junction was paved may not have been included in the records that were sent to archive.
As noted above, I put the above account of the Council to the applicant and invited it to make any further submissions that it wished. No further submissions were received.
I have considered the information provided by the Council in relation to the searches it carried out to attempt to locate records containing the relevant information, and find as follows. First of all, I would note that, for the purposes of section 15(1)(a), the test is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location or existence of records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist or cannot be found.
In this case, the Council has argued that it does not hold records containing the information sought by the applicant, and has provided details of the searches it made in its attempt to locate relevant records. On the basis of the information provided by the Council, I consider that there is nothing to suggest that all reasonable steps or relevant searches were not carried out in relation to the information sought. My view is that the account from the Council as outlined above constitutes a clear and sufficiently detailed explanation of the systems and processes that account for its inability to locate records containing the relevant information. I am satisfied that all reasonable steps appear to have been taken by Council in attempting to locate relevant records. There is no information or evidence available to me that would suggest that the information sought by the applicant is held by the Council, or that the searches carried out by the Council were in any way deficient. In the absence of any such information, I find that the Council was entitled to refuse this aspect of the applicant’s request under section 15(1)(a) of the FOI Act, on the basis that it does not hold records containing the information sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that the Council was entitled to refuse part 1) of the applicant’s FOI request under section 15(1) of the FOI Act. I further find that the Council was justified under section 31(1)(a) in withholding access to record 1. However, I find that the remaining records are not exempt from release under either section 31(1)(a) or section 36(1)(b) of the FOI Act, and I direct the release of those records, with personal information in the records redacted as outlined above.
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 requester 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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Neill Dougan
Investigator