Mr X and Meath County Council

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 19 November 2015
• Case Outcome: The Senior Investigator varied the Council's decision. She accepted that some records attracted "legal advice privilege" and were exempt under section 22(1)(a) of the FOI Act; she affirmed the decision in relation to these. As regards records to which she found section 22(1)(a) not to apply, but which had been provided to the applicant on foot of Discovery, she directed the Council to identify these to the applicant and to withhold them under section 22(1)(b). She did not accept that the Council had justified any contention that the withheld records continued to attract "litigation privilege". She found third party personal information to be exempt under section 28. She directed the release of the remaining records. Under section 34(13) of the FOI Act, the Senior Investigator specified the period of time within which effect shall be given to her decision as within 10 working days of the expiration of the time for the bringing of an appeal to the High Court.
• Court: Information Commission
• Record Number: 150155
• Respondent: Meath County Council

Whether the Council was justified in refusing to release records held by its legal advisors concerning Planning Enforcement Notices

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

Background

This review arises on foot of a previous application for review made to this Office by the applicant (Case Number 120210 refers). That case concerned the applicant's request to the Council, dated 8 May 2012. The applicant had requested records concerning Enforcement Notices issued to him in 2004 and 2009 (including records concerning legal costs arising from the 2004 notice) as held by the Council and its legal representative, Regan McEntee, Solicitors. The Council confirmed to this Office in the course of the previous review that it did not "request Regan McEntee's legal file in relation to these two enforcement files". Accordingly, the Commissioner's decision on that review, dated 9 October 2014, found that the Council had not justified its effective refusal of records relevant to the request as held by Regan McEntee. He annulled the Council's effective refusal of such records, and directed the Council to undertake a fresh decision making process regarding the records concerned.

The Council issued its decision in relation to the Regan McEntee records on 4 December 2014. According to the schedules of records, it refused to release some of them on the basis that they were exempt under section 22(1)(b) of the FOI Act. Although this exemption is concerned with records that, if released, would result in a contempt of court, the Council's schedules said it was refusing the records on the basis that they attracted "legal advice privilege" (one of the limbs of legal professional privilege, which is covered by section 22(1)(a) of the FOI Act). The Council refused to release other records on the basis that their release would disclose personal information, or disclose the identity of persons who had complained to the Council, in which regard it relied on sections 28(1) and 23(1)(b) of the FOI Act.

The applicant sought an internal review of this decision on 22 December 2014, and the Council affirmed its decision on 20 January 2015. That internal review decision referred to sections 22(1)(a) and (b), 23(1)(b) and 28(1) of the FOI Act.

On 22 May 2015, the applicant sought a review by this Office of the Council's decision on the relevant records, saying he had "very good reasons to believe that some records that were refused/part granted should have been granted, in particular, those refused/part granted on the basis of legal professional privilege."

In carrying out my review, I have had regard to the records considered by the Council in the above decision-making process (which were provided to this Office for the purposes of my review); to correspondence between the Council and the applicant as set out above; to contacts between Ms Anne Lyons, Investigator in this Office, and the Council and the applicant. I have had regard also to the provisions of the FOI Act.

This review is being 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 confined to the issue of whether the Council has justified its refusal of access to those records of relevance to the applicant's request of 8 May 2012 as held by its legal advisor, Regan McEntee.

It does not extend to whether or not the Council itself should hold additional records. In this regard, the applicant has argued that further records should exist relating to a document ("record 101") that the Commissioner directed be partially released in his decision on Case Number 120210.

The only document numbered 101 in Case Number 120210 that was directed for release (in part) concerned a Court Attendance on 19 October 2010 (Council file UD 09/*** refers). The applicant maintains that the record's contents should have "cancelled [the] Council's case against [him]" and that it is not "credible that [that] record did not generate other internal meetings and documents". As in any case where this Office directs the release of records, causing an applicant to question if further related records exist, it is open to him to make a fresh request to the Council. Such a request is subject to the usual rights of review. I also note that, although the applicant contends that the record in this case that corresponds to record 101 on Council file UD 09/*** has not been released to him, the record concerned (Record 26 on File M 4***) has been released in part.

Attached to this decision is an Appendix. Part One lists the relevant records which, according to the schedules of records provided by the Council to this Office, have not been released to the applicant.

Findings

Preliminary Matters
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. This provision is of particular significance in this review. While I am required to give reasons for my decisions, I am also required by section 43(3) not to disclose information that is claimed to be exempt.

The Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of my review, rather than by reference to the facts and circumstances that applied at an earlier date.

Records Created after the Request
The original request in this case was made on 8 May 2012. The following records were created in June 2012, and in 2013 and 2014:
File M 4***: Records 269; 272; 273; and 274; and
File M 3****: Records 2; 3; 4; and 5.

The above records post-date the applicant's original request and are not encompassed by it. While I note that the Council released certain records from the files which were created after the FOI request, I do not have jurisdiction to consider these.

Section 22

I am disappointed to note that the level of engagement by the Council with this Office was no better than it had been in the related review in Case Number 120210, which the Commissioner noted was "not ideal". Although invited to do so by this Office, the Council has not clarified its position on which sub-section of section 22 of the FOI Act it considers applicable, or why. Rather than delay the review further, I have decided to proceed on the basis of the information before me.

Section 22(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption is not subject to a public interest test. 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 legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

Internal records can attract legal professional privilege. In Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289, O'Hanlon J. held that the defendants were entitled to claim privilege in respect of "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". Furthermore, previous decisions from this Office have accepted that legal professional privilege also attaches to records, including internal records, where they are part of a continuum of correspondence arising from an original request for legal advice (Case Number 020281 - Mr. X and the Department of Education and Science - available on our website oic.ie).

Section 22(1)(b) of the FOI Act is a mandatory exemption that must be applied to records that, if released, would result in a contempt of court. Again, it does not include a public interest test.

Section 22(1)(a): Litigation Privilege
Unlike in Case Number 120210, the Council's decisions did not specifically claim litigation privilege for any of the records at issue in this case. The Investigator invited it to make submissions on this and other issues but it did not do so. It is open to me, therefore, to proceed on the basis that the Council is not claiming that litigation privilege is relevant in this case, and not to consider further whether section 22(1)(a) applies on the basis of this limb of legal professional privilege.

However, for avoidance of doubt, I find that the Council has not justified its reliance on section 22(1)(a) in so far as it might contend that litigation privilege applies.

The Commissioner considered the Council's claim in respect of litigation privilege at length in his decision in Case Number 120210. I do not consider it necessary to repeat that analysis in detail in this decision other than to say that the Commissioner had particular regard to the High Court judgement of Finlay Geoghegan J. in University College Cork - National University of Ireland -v- Electricity Supply Board [2014] IEHC 135, and to the requirements of section 34(12)(b) of the FOI Act.

The Council has not made any specific claim that litigation privilege applies...