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Whether the IDA was justified in its decision to refuse access to records regarding the development or compulsory purchase of the applicant's lands on the basis of sections 10(1)(a), 22(1)(a) and 27(1)(b) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 7 March 2013, the applicant submitted a Freedom of Information request to the IDA for access to two broad categories of records; namely:-

(a) All records pertaining to any consideration given by the Industrial Development Authority to the acquisition of the lands at Hedsor House, Blakestown, Maynooth, County Kildare, (the Property) either compulsorily or otherwise; (Category A)

(b) All records demonstrating any interest of a Third Party expressed to or within the IDA's knowledge in developing the said lands for industrial or other purposes. (Category B)

By way of letter dated 18 April 2013, the IDA granted access to 42 records coming under Category A of the application. Two records coming under this category were withheld on the basis that they are subject to legal professional privilege and are thus exempt under section 22(1)(a) of the FOI Act. Two further records were released, subject to redactions under sections 21(1)(c), 22(1)(a) and 27(1) of the FOI Act, on the basis that the records contained information the release of which could prejudice the functions and negotiations of the public body, information that is subject to legal professional privilege, and commercially sensitive information. Access was refused to records coming under Category B under section 10(1)(a) of the FOI Act, on the basis that these records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts had been taken.

The applicant sought an internal review of this decision by way of letter dated 29 April 2013. The internal reviewer upheld the decision to refuse access pursuant to section 10(1)(a) of the FOI Act. She also uphheld the decisions to refuse access to records under section 22(1)(a), and to release records subject to redactions. In relation to the latter, she based her finding on sections 22(1)(a), 27(1)(b) and 27(1)(c) of the FOI Act only, and did not make any reference to section 21(1)(c). The outcome of the internal review was communicated to the applicant by way of letter dated 28 May 2013. On 10 September 2013, the applicant sought a review by this Office of the IDA's decision.

I note that Mr. Niall Mulligan of this Office indicated to the applicant that the decision of the IDA was justified in his view. The applicant did not offer any further submission to this Office, but indicated in a telephone call that he wished to pursue his appeal, notwithstanding Mr Mulligan's views. I therefore 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 the IDA's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the IDA. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the questions of whether the IDA was justified in its decisions to refuse access to records 41 and 42 of the Schedule of Records, coming under Category A of the applicant's request, on the basis that they are subject to legal professional privilege and are thus exempt under section 22(1)(a) of the FOI Act; to grant access to records 43 and 44 of the Schedule, also coming under Category A of the applicant's request, subject to redactions under sections 21(1)(c), 22(1)(a), 27(1)(b) and 27(1)(c) of the FOI Act; and to refuse Category B of the applicant's request pursuant to section 10(1)(a) of the FOI Act, on the basis that the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

Records 41 and 42
These records consist of legal opinions. Record 41 was prepared by the IDA's in-house counsel, while Record 42 was prepared by an external legal advisor. Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts that legal professional privilege 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).

This Office accepts that legal professional privilege can attach to communications by or to in-house professional legal advisors (e.g. Case 080216 AB & Co. Solicitors on behalf of Mr X & The Department of Agriculture, available from www.oic.ie). Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Both Records 41 and 42 clearly consist of legal advice furnished by a professional legal advisor acting in such capacity, and in my view are subject to the first limb of legal professional privilege: advice privilege. Therefore, I am of the view that the exemption contained at section 22(1)(a) of the FOI Act was correctly applied in relation to these records. I find accordingly.

Records 43 and 44
These records consist respectively of a PowerPoint presentation relating to a meeting where consideration was given by the IDA to acquiring the Property, and a record relating to the consideration by the Board of the IDA of a potential conflict of interest on the part of a Board member.

A section of Record 43 referred to the presentation of legal advice by external legal professionals. This was redacted pursuant to section 22(1)(a). I am of the view that similar considerations apply in this regard as applied to Records 41 and 42, which are set out in more detail above, and that the exemption was correctly applied in relation to this redaction. I find accordingly.

The redaction to record 44 also related to a reference to legal advice received by the IDA. Again, I am of the view that the exemption contained at section 22(1)(a) was properly applied in this instance. I find accordingly.

Record 43 also contained redactions to the prospective amount of fees payable to legal professionals in relation to this matter. In its decision, the IDA referred to both sections 27(1)(b) and 27(1)(c) of the FOI Act. In my view, section 27(1)(c) is the more appropriate exemption to consider. This section requires the refusal of a request for a record containing "information whose disclosure could prejudice the outcome or conduct of contractual or other negotiations of the person to whom the information relates." A record to which this provision applies may be released if the public interest in its release outweighs the public interest in withholding it (section 27(3) refers).

The IDA confirmed that negotiations are ongoing with legal professionals in relation to their fees, and submitted that the release of the estimates contained in Record 43 could prejudice their position in relation to these negotiations. While some of the fees that were redacted had been finalised, others consisted of prospective figures. The IDA argues that disclosing any of these amounts could prejudice its negotiating position with regard to agreeing the levels of fees that remain outstanding in relation to this matter, as it will be to its advantage to deal with each disbursement on an individual basis. On that basis, I am satisfied that the IDA has established that section 27(1)(c) of the FOI Act applies with regard to these redactions.

Applying the public interest test contained at section 27(3) of the FOI Act, I am mindful that the release of the figures may prejudice the IDA in the expenditure of public funds, and I also take cognisance of the comments of Fennelly J in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26, where, in an obiter statement, he held that where requests are made, "by a private individual for a private purpose ... was not made in the public interest." Having carefully considered the matter, it does not appear to me, on balance, that the public interest would be better served by the the release of these figures than by their redaction. I am therefore of the view that these redactions were properly made under section 27(1)(c) of the FOI Act. I find accordingly.

It should be noted that my finding under section 27(1)(c) in relation to this redaction is contingent upon the fact that negotiations are ongoing, and that this exemption is unlikely to apply once all fees relating to this matter have been finalised. The decision maker also invoked section 21(1)(c) of the FOI Act, although this section was not referred to on internal review. Given my findings in relation to section 27(1)(c) of the FOI Act, set out in the preceding paragraphs, I do not consider it necessary to address section 21(1)(c) in this decision.

Category B
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the public 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 his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner.

In correspondence with this Office, the IDA set out in detail the searches that had been carried out. These involved emails being sent to six senior members of staff, and searches of paper files being carried out on foot of same. This was followed by electronic searches of records held by four departments, with the aid of an Assistant FOI Officer with the IDA. The IT department of the IDA carried out searches of electronic records based on two key words relating to the Property. The IDA submits that there were also "numerous" meetings between the Assistant FOI Officer and members of staff in relation to this request. The IDA submits that the Assistant FOI Officer "spent at least 9 full working days searching for records and assisting other staff members to search for relevant records." Furthermore, it is submitted that "other [IDA] staff members spent time searching for records ... [a] conservative estimate of this would be circa 17 people spending 1 to 2 hours each searching for relevant records."

In the course of this review, it emerged that a particular project name had been used by the IDA in correspondence with a third party. Mr Mulligan sought clarification from the IDA of the scope of this project name. In response, the IDA clarified that it related to a general project for the identification of sites for development, and that the applicant's property did not form part of this project. However, the IDA submitted that, "the [project] title was migrated over during the initial assessment period in relation to the Blakestown lands for the purposes of maintaining confidentiality within the organisation and with external stakeholders." I have no reason to doubt these submissions.

The applicant had raised an issue as to the provenance of a Land Registry map which had been appended to a record that was released to him pursuant to his request. He claimed that this map must have been acquired from a named third party solicitor, and pointed to correspondence in his possession between that third party and the IDA, purporting to enclose the said map. The IDA submitted that, while the relevant Folios had been released to the applicant, the cover letters had not been released to the applicant, as they did not fall within the scope of his request. The IDA furthermore claimed that the folios were sent by Kildare County Council to the IDA but were not requested by the IDA. The IDA stated that County Councils regularly provide unsolicited information to it, and that it has regular dealings with County Councils throughout Ireland in relation to potential foreign direct investment and future requirements in relation to matters such as infrastructure. In any event, having carefully considered the content of these letters, I am satisfied that they neither demonstrate a third party interest nor form part of the IDA's consideration in relation to this matter.

The applicant, in his submissions, also raised various collateral matters which, in his view, would tend to suggest that the IDA had received representations from third parties in relation to the Property. In implementing the terms of the FOI Act with regard to access to requested records, the Information Commissioner is concerned only with ensuring access to extant records in accordance with the provisions of the Act. The FOI Act does not provide for a right of access to records which ought to exist. It should be noted that the fact that one might expect that such records should exist, and that the absence of such records might suggest inadequate record keeping practices on the part of the IDA, is not an issue in this review.

The position of the IDA is that it cannot find any further records relevant to the applicant's FOI request. Having considered the matter, in the circumstances of this case, I am satisfied that the IDA has taken reasonable steps to locate the records sought and that section 10(1)(a) of the FOI Act applies in relation to Category B. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of IDA in this case.

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