Whether the Board was justified in refusing access to records contained in a legal file concerning judicial review proceedings taken by the applicant, and any further records relating to the applicant, her property, her case, her planning appeal or her judicial review proceedings

18 December 2019

Background

This review has its origins in an appeal made to the Board in relation to a planning permission granted by Limerick City and County Council for the retention of an extension to the applicant’s property. The Board decided to refuse permission for retention. The applicant later issued judicial review proceedings challenging the Board’s decision.

From the date of her original FOI request to the Board, the applicant has been represented by her solicitors.  Accordingly, all references to communications with the applicant in this decision include communications with her solicitors.

In a request dated 19 March 2019, the applicant sought access to all documents concerning herself, her property, and her judicial review proceedings. In a decision dated 12 April 2019, the Board stated that it held no relevant records other than those on the public decided case file, apart from records relating to the judicial review proceedings which it refused under section 31(1)(a) on the ground of legal professional privilege.

On 24 April 2019, the applicant sought an internal review of the Board’s decision, wherein she argued that all relevant records were not on the public case file and that the mere fact a record was on a legal file did not mean it gained the benefit of legal professional privilege. On 14 May 2019 the Board varied its original decision, releasing a number of further records relating to the planning appeal, and affirming its refusal of the records relating to the judicial review proceedings under section 31(1)(a). On 21 May 2019, the applicant sought a review by this Office of the Board’s decision wherein the applicant maintained that further relevant records should exist.

During the course of the review, Mr O’Gorman of this Office informed the applicant of the searches undertaken by the Board to locate all relevant records and of its responses to queries raised by the applicant relating to specific categories of records she believed should exist. The applicant, by return, stated her unhappiness with the manner in which the Board creates and retains records, and argued that the Board should be compelled to bring in IT experts to confirm that it was not possible to restore records not retained by the Board. She also argued that Board staff members should be asked to create a memo of their recollection of the records not retained to the extent their memories permit.

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 between the Board and the applicant as set out above, and to the correspondence between this Office and both the Board and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of this review, the Board provided this Office with copies of 85 records consisting of its legal file relating to the relevant judicial review proceedings. As records 55-85 were created after the date of the applicant’s request, they therefore fall outside the scope of the request and of this review. The applicant also clarified in correspondence with this Office that where records from the Board’s legal file concerned legal fees/payments, she was not seeking access to the monetary sums contained in those records.

Consequently, the scope of this review is confined to whether the Board was justified in refusing access to records 1-54 of the legal file under section 31(1)(a) and whether it was justified in refusing to grant access to any further relevant records under section 15(1)(a) on the ground that no further records exist or can be found.

Preliminary Matters

It should be noted 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). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, I am 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.

I would also note that this Office's remit does not extend to commenting on the manner in which a public body performs its functions generally, or to investigating complaints against a public body.

Finally, regarding the applicant's contention that records ought to exist, the Commissioner is concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for a right of access to records which ought to exist, nor does it oblige FOI Bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the 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. The role of this Office in such cases 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 the 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 the 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 v. the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

It is the Board's position in this case that no further relevant records exist, other than the records released, the records held on the publicly available file, and the records held on the legal file. I note that the applicant is of the view that several categories of records should exist. Among other things, the applicant argued that the Board should hold;

• records relating to the decision to accept the appeal to the Board made on 1 May 2018 as an appeal from one individual alone,
• records of correspondence with other persons the applicant described as appellants,
• records of the Board’s planning inspector,
• records concerning the Board’s agenda and notes for its meeting of 31 July 2018, and
• records of notification of the decision to refuse permission to the appellant(s).

In a submission to this Office dated 13 September 2019, the Board provided details of the searches it undertook in an effort to locate all relevant records coming within the scope of the applicant’s request. Furthermore, the Board, in response to each of the specific categories of records the applicant contended should exist, explained why it does not hold or did not create the records sought. As I have outlined above, Mr O’Gorman has provided the applicant with details of those searches and explanations. Therefore, while I do not propose to repeat all of those details in this decision, I confirm that I have had regard to them for the purposes of this decision.

In essence, the Board stated that as it determines 2,500 cases a year, it has developed its internal systems to strike the appropriate balance between administrative efficiency and proper record keeping. It stated that this means not every administrative decision or step is formally recorded. The Board stated that all material documents relating to an appeal are filed on the public appeal file, as is its standard procedure. It also stated that it asked all staff to whom the case had been assigned to search for any other relevant records and none had been located. I accept the Board's explanation of its procedures relating to appeals in respect of the creation and nature of records held. I find that the Board has taken all reasonable steps to locate relevant records and that it was therefore justified in its decision to refuse to grant access to further relevant records under section 15(1)(a) of the FOI Act on the ground that no such records exist or can be found.

Section 31(1)(a)

Section 31(1)(a) is a mandatory provision which provides for the refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. In deciding whether section 31(1)(a) applies, I must consider whether the record concerned would be withheld on the ground of legal professional privilege in court proceedings.

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

(a) 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

(b) 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, in certain circumstances, litigation privilege will also apply to internal communications, not involving a legal adviser, provided such communications arise in the course of dealing with litigation, contemplated or pending. In his judgment in Silver Hill Duckling Limited, Ronald Stuart Steele and Elizabeth Patricia Steele v The Minister for Agriculture, Ireland and the Attorney General [1987 I.R 289] O'Hanlon J. held that the defendants in that case were entitled to claim privilege in respect of internal documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the plaintiffs.

The Board argued that section 31(1)(a) applies to records 1-54 from its legal file, contending that they were subject to litigation privilege. The Board stated that as its legal file on a case was only opened once proceedings had been commenced, the records on the file were created with the dominant purpose of preparing for pending litigation.

It seems to me that the Board sought to claim a blanket exemption for all records held on its legal file regardless of their contents. Such an approach was not appropriate. I have considered each of the records for which a claim for exemption under section 31(1)(a) was made.

Records 1, 14, 26 and the attachments to record 54 comprise legal papers that the applicant served on the Board in connection with the judicial review proceedings. The Board also confirmed that the statement of opposition and affidavit attached to record 41 was provided to the applicant during the course of the legal proceedings. While I am not certain that the applicant requires copies of these records, I am satisfied that they do not attract litigation privilege. I find that section 31(1)(a) does not apply to records 1, 14 , 26 or to the relevant attachments to records 41 and 54.

Record 39 comprises a number of invoices for various sets of legal proceedings while record 52 is concerned with withholding tax in relation to payments made in respect of various sets of proceedings. In both cases, the proceedings concerning the applicant are included.

I am satisfied that the descriptions of the legal work carried out for the Board by its solicitors in the invoice in record 39 could reasonably disclose information regarding the Board’s preparation for the litigation brought by the applicant. On that basis, I find that section 31(1)(a) applies to those descriptions. I also satisfied that section 31(1)(a) does not apply to the remainder of the two records. However, the applicant specified that she was not seeking access to the monetary amounts in these records, and the information concerning the other legal cases is clearly outside the scope of the applicant’s request. Having regard to the level of redaction that would be required to the records at issue, I am of the view that it is not practicable for the Board to provide a redacted version of the records without them being misleading.

Having carefully examined the remainder of the records on the legal file, I accept that they, and the relevant attachments, comprise confidential communications, the dominant purpose of which is the preparation for pending litigation.

In conclusion, therefore, I find that the Board was justified in refusing to grant access to the records held on its legal file apart from records 1, 14, 26 and the attachments to records 41 and 54.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Board. I affirm its decision to refuse to release further records relating to the planning appeal on the basis that no further records exist or can be found. I direct the Board to release records 1, 14, 26 and the attachments to records 41 and 54 held on its legal file on the basis that section 31(1)(a) does not apply. I affirm the Board’s decision to refuse the remainder of the relevant records on the legal file under section 31(1)(a) of the Act.

Right of Appeal

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.

 

 

Stephen Rafferty

Senior Investigator