Mr X and Department of Environment, Climate and Communications

CourtInformation Commission
JudgeSenior Investigator
Judgment Date30 Aug 2021
Case OutcomeThe Senior Investigator varied the Department's decision. She found that it was justified in refusing access to certain records under section 31(1)(a). She annulled its decision on the remaining records and directed their release.
RespondentDepartment of Environment, Climate and Communications
Record NumberOIC-106434-K3P3J5
Whether the Department was justified in refusing access to records relating to the transposition of Directive 2014/61/EU under sections 29, 30(1)(c) and 31(1)(a) of the FOI Act

30 August 2021


On 24 September 2020, the applicant made an FOI request to the Department for specified records regarding S.I. No. 391/2016 - European Union (Reduction of Cost of Deploying High-Speed Public Communications Networks) Regulations 2016 and Directive 2014/61/EU. The Department issued its decision on 23 October 2020. It granted access to some records and refused access to the remaining records on the grounds that they were exempt under sections 29 and 30(1)(c) and that sections 15(1)(a) and 15(1)(d) applied to other records. On 28 October 2020, the applicant applied for an internal review of the decision to refuse access to Records 10, 11, 13-28. The Department issued an internal review decision on 18 November 2020, in which it affirmed the original decision. On 19 April 2021, the applicant sought a review by this Office of the Department's decision on Records 14-28.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records provided to this Office by the Department for the purposes of this review.

Scope of this Review

For reasons given below, I consider it appropriate to address section 31(1)(a) in relation to certain records. Accordingly, the scope of this review is confined to whether Records 14-28 are exempt under sections 29, 30(1)(c) and 31(1)(a) of the FOI Act.

Preliminary Matter

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is 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.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege

Records 17, 18, 20, 22, 23, 27 and 28 contain email correspondence which is titled “legally privileged” and Record 24 refers to legal advice. The Department says that the records contain confidential correspondence with a legal adviser from Comreg. It also says that Records 19 and 21 are attachments to Record 20 and Record 25 is an attachment to Record 24. I therefore believe that it is appropriate to consider whether section 31(1)(a) applies to the records.

The Investigator drew this point to the applicant’s attention during the review and invited his submissions. In summary, the applicant queries whether the records meet the criteria of legal professional privilege. In particular, he asks whether Comreg...

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