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Whether the Council was justified in its decision to refuse access to certain records under section 22(1)(a)of the FOI Act. (the Act).

Review application under the Freedom of Information Acts 1997 & 2003 (the FOI Act) to the Information Commissioner

Background

On 26 July 2012 the applicant submitted an FOI request to the Council for copies of records containing information relating to the design and operation of trash screen at Ballybrack Stream, Douglas, Cork. The request was set out under 25 separate headings. In its decision the Council identified five records as coming within the scope of the request and refused access to the records under sections 21, 22 and 23 of the FOI Act. Following a request for an internal review, the Council, on 24 October 2012, released one of the records (Record No. 5) and upheld its original decision in relation to the other four records. On 30 October 2012 the applicant sought a review by this Office of the Council's decision.

I note that Ms Anne O'Reilly of this Office conveyed her preliminary views to the Council on 25 March 2013 that the records should be released and invited the Council to comment on her views. A response has been received from the Council disagreeing with Ms O'Reilly's view and I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to details of the submissions of the Council, to correspondence between the applicant and the Council and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

Preliminary Matters

During the course of this review Ms O'Reilly asked the Council to provide a detailed schedule of records which would identify what records it held in relation to each of the 25 specific items outlined in the applicant's original request. The Council provided this schedule which clarified that the Council's position was that it held no records in relation to some of the items requested, which in effect was a refusal under section 10(1)(a) of the Act, and four records relating to the remaining items outlined in the request. The schedule was copied to the applicant by this Office and the applicant accepts the Council's claim that it does not hold certain records.

In addition, during the course of this review, the Council withdrew its claim to exemption under sections 21 and 23 of the Act. It relies totally on its claim to exemption under section 22(1)(a) of the Act for its refusal to grant access to the four records at issue.

Scope of the Review

Accordingly, this review is concerned solely with the question of whether the Council was justified in refusing access to records numbers 1 to 4 on the basis that they are exempt from release under the provisions of section 22(1)(a) of the Act.

Analysis and Findings

Section 22(1)(a)
The Council refused access to the records on the basis of section 22(1)(a) of the FOI Act which provides:

"A head shall refuse to grant a request under section 7 if the record concerned -

(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications between a professional legal adviser and a client in the course of a professional legal relationship, made for the purpose of giving or receiving legal advice; and
• confidential communications between a professional legal adviser and either a third party or the client; or between the client and a third party; or between the client and professional legal adviser, the dominant purpose of which is the preparation for contemplated or pending litigation.

In its submission to this Office the Council states that it is "on notice of Claims for damages in respect of a flooding event on June 28th 2012. It is the Council's intention to defend all actions. The causation of the flood will undoubtedly be subject of much analysis as part of these legal actions and the documents requested are likely to form part of these proceedings."

I have examined each of the four records for which the Council claims exemption under section 22(1)(a) in order to decide whether this exemption was justified on the basis of the understanding of legal professional privilege set out above.

It is clear from my examination of the records that they relate to the planning, design and operation of the proposed trash screen and all predate the installation of the screen and more importantly the flooding event on June 28th 2012, referred to by the Council. There is no doubt that all of the four records were created prior to June 2012, it is clear that at the time of creation of these records no litigation was either contemplated or pending, and none of the records were prepared for the purpose of obtaining or giving confidential legal advice. Therefore, I agree with Ms. O'Reilly that these records are not exempt by virtue of section 22(1)(a) of the Act and, accordingly, I find that all records should be released.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Council in this case and direct that records numbers 1 to 4 should be released in full to the applicant.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Fintan Butler
Senior Investigator
27 June 2013