Mr M and Dún Laoghaire-Rathdown County Council

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 24 July 2015
• Case Outcome: The Senior Investigator varied the decision of the Council and directed the release of one further record, subject to the redaction of personal information. He affirmed the Council's decision on the remainder of the records
• Court: Information Commission
• Record Number: 150090
• Respondent: Dun Laoghaire-Rathdown County Council

Whether the Council was justified in its decision to partially refuse a request for access to records relating to the applicant and relating in particular to the seizing of two dogs, on the basis that the information contained in the parts refused is exempt from release under sections 22 and 28 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

The applicant applied to the Council on 18 August 2014 for access to all personal records relating to him including all information concerning the confiscation of two dogs by the Council's dog warden. In its decision dated 14 October 2014, the Council part-granted the applicant's request. Access to certain records was withheld under sections 22(1)(a) and 28 of the FOI Act. The applicant sought an internal review of that decision on 16 October 2014. In doing so he referred to a particular record that had not been included in the records considered for release.

In its internal review decision of 7 November 2014, the Council varied its original decision and released one further record which had previously been refused. It also explained that the omission of the record identified by the applicant was an oversight and it decided that the to refuse access to the record concerned. The applicant wrote to this Office on 24 March 2015 seeking a review of the Council's decision.

In conducting this review, I have had regard to the correspondence between the applicant and the Council and to the correspondence between this Office and both the applicant and the Council. I have also had regard to the records in question, copies of which have been provided to this Office by the Council for the purposes of this review. In referring to the records at issue I have adopted the numbering system used by the Council in the schedules provided to the applicant during the processing of his request.

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 Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access records 1, 7, 8, 10, 13, 16, 17 18, and 19 from Schedule 1 and records 3, 4, 6 and 7 (in part) from schedule 2 on the basis that they are exempt from release under the provisions of the Act.

Preliminary Matters

While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited.

At the outset I should explain 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. The scope of the review is as outlined above

Analysis and Findings

Section 22(1)(a)
With the exception of record 7 on schedule 2, the Council refused access to all remaining records under section 22(1)(a) of the FOI Act. That section 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 maintaining the confidentiality of two types of communication:

i. 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
ii. 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...