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Whether the Department was justified in its decision to refuse a request for access to records relating to a meeting with the Minister for Finance which the applicant attended in accordance with sections 22(1)(a), 27(1) and 28 of the FOI Act.

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

Background

On 22 January 2013, the applicant made a Freedom of Information (FOI) request to the Department seeking access to records of "all correspondence between the Minister for Finance and Department of Finance with both EBS ltd and AIB ltd from our meeting with the Minister on 13 April 2012 at Strand Hotel, Limerick that included a number of agents and myself". The Department issued its decision in February 2013, releasing part of one record and refusing access to three others. The applicant requested an internal review of this decision in a letter which was received by the Department on 25 March 2013. On 17 May 2013, the Department issued a late decision on the internal review which amended the original decision and granted access in full to record no. 1 and partial access to record no. 2. Access was refused to records nos. 3 and 4.

The Information Commissioner received a letter from the applicant on 13 May 2013 in which he requested a review of the Department's decision as he had not, at that stage, received the Department's internal review decision. I note that Ms Rachel Dunn, Investigator, wrote to the Department on 15 August 2013 setting out her preliminary views on the matter and inviting the Department to submit any further comments that it considered relevant to the review. In response, the Department forwarded a copy of record no. 4 with certain information redacted but did not provide any accompanying comments. Therefore I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the wording of the original request and to the submissions which were provided by the Department and the applicant. I have also carefully examined the records which have been provided to this Office by the Department for the purposes of this review. While I do not intend to address every comment which each party has made in their submissions, I have taken them all into account in conducting this review.

Scope of the Review

As record no. 1 has now been released in full, this review is concerned with whether the Department was justified in refusing access (either in full or in part) to records nos. 2, 3 and 4. The Department contends that the records at issue are exempt from release pursuant to the provisions of sections 22(1)(a), 27(1) and 28 of the FOI Act.

Analysis and Findings

Section 22(1)(a) of the FOI Act
The Department has claimed exemption under section 22 of the FOI Act in respect of records nos. 3 and 4. While it did not state which part of section 22 it deemed to apply, the Department's internal reviewer considered the records to contain legally privileged information. Accordingly, I am satisfied that section 22(1)(a) is the relevant provision to consider. That section provides as follows:

"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 a client to maintain the confidentiality of two types of communications:
confidential communications made between a client and his/her professional legal advisors for the purpose of obtaining and/or giving legal advice, and
confidential communications made between a client and a professional legal advisor or the legal advisor and a third party or between a client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

Legal professional privilege is a fundamental feature of the administration of justice which protects confidential communications and exists to ensure that a client may fully instruct their lawyer freely and openly, safe in the knowledge that what is said to the lawyer in confidence will never be revealed without specific consent. In considering whether the correspondence in question would be exempt from production in a court on the ground of legal professional privilege, the Information Commissioner has to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides only with the client. The question comes down to whether the client would, in the event of court proceedings, succeed in withholding the correspondence on the grounds of legal professional privilege.

I have examined the records in this case and I am satisfied that records nos. 3 and 4 do not comprise correspondence between a client and his/her legal advisors. Record no. 3 comprises emails between various banking institutions and the Department while record no. 4 is a consultant's report. These records cannot be considered to contain correspondence between a client and its legal advisor which constitutes legal advice that, of its nature, is confidential to the parties and has potential relevance to court proceedings. I note that the Department has made no argument as to why it considers section 22(1)(a) to apply. Therefore, having regard to the provisions of section 34(12)(b) of the FOI Act which places the onus on the Department of satisfying this Office that its decisions to refuse access is justified, I find that the Department was not justified in relying upon the provisions of section 22(1)(a) of the FOI Act to refuse access to these records.

Section 27(1) of the FOI Act
The Department has claimed that records nos. 2, 3 and 4 are exempt (in full or in part) from release pursuant to the provisions of section 27(1) of the FOI Act. Section 27(1) of the FOI Act provides that a request shall be refused if "the record concerned contains -

(a) trade secrets of a person other than the requester concerned,

(b) 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, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Section 27(1)(a) protects records containing the trade secrets of a person other than the requester. The Department has not argued that the records at issue contain trade secrets, nor do I consider that they contain such information. I find, therefore, that section 27(1)(a) does not apply.

Section 27(1)(b) protects 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 is clear from the information already released to the applicant that the records at issue relate generally to matters involving EBS tied agents and that one of the records in particular comprises a report prepared by Farrell Grant Sparks (FGS) following a "review of agents". While the Department claims that the records at issue contain commercially sensitive information, it has not explained how any of the harms identified in section 27(1)(b) might arise if this information were to be released under FOI. In the absence of any arguments or reasons being put forward by the Department, it is not clear to me how the release of the records could reasonably be expected to result in a material financial loss or gain to the EBS or to any particular tied agents or could prejudice the competitive position of any of those parties. Indeed, I note that the redacted version of the report which the Department agreed to release following its consideration of Ms Dunn's preliminary views does not appear to seek to withhold any information which could be described as commercially sensitive. Accordingly, having regard to the provisions of section 34(12)(b) of the FOI Act, I find that section 27(1)(b) does not apply in respect of records nos. 2, 3 and 4.

Section 27(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The Department has neither provided any information regarding contractual/other negotiations nor put forward any specific arguments as to how the release of the information could give rise to harm in this regard. Under the circumstances, I cannot accept that release of the records could prejudice any ongoing contractual/other negotiations of the parties involved. Therefore, having regard to the provisions of section 34(12)(b) of the FOI Act, I find that section 27(1)(c) does not apply in respect of records nos. 2, 3 and 4.

The Public Interest
Section 27(3) provides that a public body cannot refuse access to a record under section 27(1) where the public interest would, on balance, be better served by granting access. Given my finding that section 27(1) does not apply to these records, it is not necessary for me to consider where the balance of the public interest lies.

Section 28 of the FOI Act
The Department claimed that record no. 2 is exempt from release in part as it contains the personal information of third parties. In her preliminary views letter, Ms Dunn provided details of those parts of record nos. 2, 3 and 4 which she considered to be exempt from release under section 28(1). In its response, the Department provided a redacted copy of record no. 4 which it was prepared to release. While the redacted copy sought to withhold the information identified by Ms Dunn, it also sought to withhold the names of various individuals, including the names and titles of various employees of EBS and FGS. Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Personal information is defined in section 2(1) of the FOI Act as" information about an identifiable individual that - (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 a public body on the understanding that it would be treated by it as confidential,". The Act goes on to provide twelve examples of information which comprises personal information.

It seems to me that the release of the names and titles of the individuals on question would not constitute the release of personal information in this particular case, given that the information in question is publicly available. I find, therefore, that such information is not exempt from release under section 28(1). However, for the reasons set out below, I agree with Ms Dunn's preliminary view in relation to the applicability of section 28(1) to the remaining parts of the records as outlined to the Department in her preliminary views letter.

Section 28(1)
Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information (including personal information relating to a deceased individual). Having regard to the definition of personal information as set out in the Act and to the twelve examples provided, I am satisfied that parts of records nos. 2, 3 and 4 contain personal information relating to third parties other than the applicant. The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2) or 28(5).

Section 28(2)
Section 28(2) provides that section 28(1) does not apply in certain circumstances. Having examined records nos. 2, 3 and 4, I am satisfied that section 28(2) is not relevant because the personal information contained in the records does not relate to the applicant, the third parties did not provide consent to the release of the records to the applicant, the information is not of a kind that is available to the general public nor does it belong to a class of information that might be made publicly available, the third parties were not informed prior to the information being given that it might be made available to the general public, and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual. I do not consider that release of the personal information in records nos. 2, 3 and 4 would "benefit the individual" to whom it relates (i.e. the third parties) as envisaged by section 28(5)(b) of the FOI Act.

Turning to Section 28(5)(a), there is a public interest in optimising openness and transparency in relation to how public bodies carry out their functions and in requesters being able to exercise their rights under the Freedom of Information Act. Weighing against the release of personal information of third parties, on the other hand, is the very strong public interest in protecting privacy rights, which is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). 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. Section 28 expressly provides for the protection of personal information relating to third parties. Accordingly, I am satisfied that the public interest in upholding the right to privacy of the third parties outweighs, on balance, the public interest in granting access to the personal information of third parties in this case. I find that section 28(1) of the FOI Act applies to the personal information which is contained in records nos. 2, 3 and 4 in relation to named third parties and that this information should be redacted as follows:

• Record No. Information which is exempt from release under section 28(1) of the FOI Act and should therefore be redacted
• Record 2 The entire table on the pages numbered 2 and 3 of this record which gives details of third parties
• Record 3 The entire table starting at the bottom of the page numbered 3 and continuing onto pages numbered 4 and 5 of this record which gives details of third parties
• Record 4

Page numbered 3 - Item no. 4 under the "Terms of Reference" heading.

Page numbered 4 - Paragraph no. 4 under the section entitled "3.1 Meetings Held".

Pages numbered 10 to 13 - Items nos. 28 to 30 inclusive.

Page numbered 15 - Item no. 7.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department in this case and direct that records nos. 2, 3 and 4 should be released to the applicant subject to the redaction of the personal information of third parties which is set out in the table above.

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.

Stephen Rafferty
Senior Investigator
24 September 2013