Whether the Council was justified in refusing access to records relating to lands at Belleek, Ballina known as the Athletic Track and Clubhouse on the basis that no further records or can be identified, and in refusing access to parts of the records on the basis of sections 31(1)(a) and 37(1) of the FOI Act.

23 March 2023

Background

This request has as its background in a Management Agreement between Ballina Athletic Club and Mayo County Council relating to the management of the Athletic Track and Clubhouse in Ballina referred to as -�the Track-�.  It would appear that issues which have arisen between the parties in relation to the management of the facility.

In a request dated 2 February 2021, the applicant, who is a member of Ballina Athletic Club, sought access to records relating to lands at Belleek, Ballina, known as the Athletic Track and Clubhouse and referred to as -�the Track-�, which are the subject of a Memorandum of Agreement between the Council and Ballina Athletic Club.  The applicant sought records from 21 April 2015 to the date of her request.  A similar request was made by another applicant (Case OIC-116323) and I am also issuing decision on this separate matter today.

In a decision dated 12 April 2021 the Council part-granted the applicant-�s request.  It identified a total of 700 pages of records as falling within the scope of the applicant-�s request, broken into Part 1 (records 1-441) and Part 2 (records 442-700).   It is noted that due to an administrative error there is no page 477 in the relevant records.

The original decision-maker granted access to the relevant records, with the exception of certain records which were refused in full or in part.   The decision listed, at Table A, records to which access was granted in part, with certain information in the records redacted on the basis of sections 29, 31(1)(a), 32(1)(a), 35, 37 and 42(m).   Table B listed records to which access was being refused on the basis of sections 15(1)(i)(i), 29, 31(1)(a), 32(1)(a), 35, 37 and 42(m).  

On 7 May 2021 the applicant appealed the matter and in doing so indicated that she believed that further records relevant to her request existed which had not been identified.  The applicant provided examples of the types of records which she believed existed and which had not been identified. 

In a decision dated 28 May 2021 the internal reviewer affirmed the original decision, with the exception of pages 50-51 and 303-305 which were now granted to the applicant, and pages 366-367 of the records which were now part-granted to the applicant.  In addition, the internal reviewer identified a further 44 pages of records (set out at Table C) as being relevant to the applicant-�s request and access to these records was granted, with the exception of pages 703, 706, 719-723(a), 724-727, 728-730 and 731-744 which were part-granted, with certain information refused on the basis of section 37.  The internal reviewer also addressed the specific records which the applicant believed existed and had not been identified.    In a number of cases the internal reviewer indicated that records which had now been identified in Table C corresponded to those outlined in the applicant-�s internal review appeal.  In other cases the internal reviewer indicated that no corresponding records had been identified.  

On 23 November 2021 the applicant applied to this Office for a review of the Council-�s decision specifically limiting her appeal to those records which she believed existed and which had not been identified. 

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 applicant-�s comments in her application for review and to the submissions made by the Council in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council-�s position is that it has released, in whole or in part, all relevant records coming within the scope of the applicant-�s request. This is, in essence, a refusal of any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

As indicated above, the applicant in her appeal to this Office referred only to what she termed -�missing records-�.  I am therefore satisfied that the applicant does not wish this Office to examine the information which has been refused in the initial tranche of records identified on the basis of various exemptions in the FOI Act.  I therefore consider, with the exception of what I will refer to further below, that this review is limited to examining whether the Council has identified all relevant records coming within the scope of the applicant-�s request. 

Following engagement with this Office, the Council identified a number of additional records as falling within the scope of the applicant-�s request.   On 19 January 2023 it released a further 132 pages of records to the applicant.   The Council granted access to pages 1-109, 114-121, 123-125 and 128-132 of these records, with the exception of what it considers to be personal information in these records.  The Council refused access to pages 110-113, 122 and 126-127 on the basis of section 31(1)(a) relating to legal professional privilege.

As set out above, the applicant has limited her appeal to what she has termed the missing records and has not asked this Office to examine the applicability of the various exemptions relied on by the Council to refuse access to the parts of the initial tranche of records.  With this in mind, I contacted the applicant to see if, with regard to the tranche of records released on 19 January 2023, she required this Office to examine the applicability of sections 31(1)(a) and 37(1) to these records.    In response, the applicant provided further commentary in relation to the records which she believed existed but had not been identified, but did not address the point with regard to sections 31(1)(a) and 37(1).  Therefore, while it I accept that the applicant-�s position is unclear, I will examine the applicability of these sections to the records at issue.  

The scope of this review is therefore concerned with whether the Council was justified in refusing access to any other records apart from those already identified during the processing of the request on the ground that no further relevant records exist or can be found, and in refusing access to parts of the records released on 19 January 2023 on the basis of sections 31(1)(a) and 37(1) of the FOI Act. 

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

In addition, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI 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. In such cases, the role of this Office is to review the decision of the FOI 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 and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In her correspondence with this Office, the applicant argued that further records relevant to her request exist and should have been released to her. She provided details of the types of records which she believed existed. 

During the course of the review, the Council provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, it said that following the applicant-�s request, relevant staff who had been dealing with Ballina Athletic Club or lands in the ownership of Mayo County Council at Belleek where Ballina Athletic Club is located, were contacted and asked to conduct searches to identify relevant records.  The Council further indicated that these individuals conducted searches of their email (Microsoft Outlook) using relevant word searches for records relevant to the applicant-�s request.  In addition, the Council indicated that searches were conducted on electronic drives relating to -�Parks Q157 Ballina Synthetic Track-�, -�Roads-�, -�Active Travel-� and -�NOM-� and as well as -�Agresso-� files relating to financial payments and -�Supplygov.ie-� files relating to procurement/tenders.  The Council also indicated that technical staff who had been involved in the project were also consulted and their records requested. 

The Council also made specific reference to what was referred to as the -�Mayo County Council Architects Drive-�.    The Council have indicated that following the applicant-�s request, relevant searches were conducted on this electronic drive and all information relevant to your request identified.  That said, the Council also indicated that on 10 May 2021 the Architects X drive was moved to a bigger server by the ICT Unit in the Council.  However, it subsequently transpired that not all files were transferred and over the past 12 months efforts have been underway to retrieve missing files.  Despite this it would appear that a large number of files remain missing.  In light of this the Council have indicated that it cannot say if any records relevant to the applicant-�s request are amongst the missing files. 

In light of this information, I sought further details from the Council in relation to the matter.  In response, the Council indicated that searches were conducted of Mayo County Council-�s Backup Solution using the architect-�s reference number supplied and staff also searched hard copy files.    In addition, the Council indicated that members of its architectural staff were consulted and undertook searches of individual file storage and emails. 

In conclusion, it is the Council-�s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant-�s request have been identified. 

When I supplied details of the searches undertaken by the applicant to the Council to the applicant, she responded and raised a number of further queries in relation to the records which she considered to exist which had not been identified.   I subsequently provided the applicant-�s comments to the Council.  As the Council-�s responses were provided directly to the applicant I do not consider it necessary to repeat them here.    I also note that following the release of the additional records to the applicant, and as referred to above, I had contacted the applicant with regard to certain information which had been refused in the records on the basis of sections 31(1)(a) and 37(1) in these records.    In the course of her response the applicant made a number of additional comments with regard to the records which she believes to exist and which have not been identified. 

It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. The question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of relevant records.

The piecemeal manner in which the Council released records in this case is unfortunate and clearly gave good cause for the applicant to have concerns as to the completeness of the information released.  However, the fact that further records were located during the course of the review does not prevent me from finding that the Council have now undertaken all reasonable searches to locate relevant records.   

Having considered the matter carefully, and bearing in mind the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the Council has taken all reasonable steps to ascertain the whereabouts of any remaining relevant records.  I have also considered the Council-�s specific submissions with regards to what is termed the Architect-�s X drive.  I consider it unfortunate that owing to the issues which have arisen, it is not possible for the Council to confirm that no files relevant to the applicant-�s request are amongst the missing files.  However, as I have outlined above, the question I must consider is whether the Council has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the searches undertaken by the Council in this case and in the absence of evidence to suggest that further specified searches are warranted, I am satisfied that it has. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for further relevant records on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 31(1)(a)

The Council relied on section 31(1)(a) to refuse access to pages 110-111, 112-113, 122 and 126-127 of the records released on 19 January 2023. 

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. 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).

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.   We have adopted this approach having regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

 "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." 

Having examined the records at issue, I am satisfied that they constitute a confidential communication made between a professional legal advisor (the Council-�s solicitors) and a client (the Council) for the purpose of obtaining and/or giving legal advice.  As such, I am satisfied that the records attract legal advice privilege and I find that the Council was justified in refusing access to pages 110-111, 112-113, 122 and 126-127 of the records released on 19 January 2023 on the basis of section 31(1)(a).

Section 37

The Council has refused access to information on pages 17, 18, 22, 25, 29, 53, 60, 61, 75, 78, 89, 91 and 92 of the records released on 19 January 2023 on the basis of section 37(1).  

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition.

The information redacted on pages 17, 18, 22, 25, 29, 53, 60, 61, 75, 78, 89 and 92 relates to email addresses, addresses and mobile phone numbers of individuals other than the applicant.    In addition, the signatures of individuals other than the applicant have been redacted on pages 60 and 91.   Having reviewed the relevant records, I am satisfied that the information redacted in these records relate to the personal information of individuals other than the applicant and that section 37(1) applies to this information.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.  

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.  

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individual to whom the information in question relates.

I find, therefore, that the Council was justified, under section 37(1) of the Act, in refusing access to information on pages 17, 18, 22, 25, 29, 53, 60, 61, 75, 78, 89, 91 and 92 of the records released on 19 January 2023.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to any other records apart from those already identified during the processing of the request on the ground that no further relevant records exist or can be found.   I also affirm the decision of the Council to refuse access to parts of the records released on 19 January 2023 on the basis of sections 31(1)(a) and 37(1) of the FOI 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
 

Mary Connery
Investigator