Mr X and Office of Public Works [2024] IEIC 144902 (19 September 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Background

On 4 October 2023, the applicant made a four-part FOI request for various specified records relating to Castletown House, a national heritage site operated by the OPW. He did not receive a decision on the request within the statutory four-week period, and on 16 November 2023 sought an internal review of that effective refusal. As the OPW did not issue an internal review decision within the statutory three-week period, on 12 December 2023 the applicant applied to this Office for a review of the deemed refusal of his request. Following communications with this Office, on 21 December 2023 the OPW issued a decision refusing the request in full. It refused parts one and three of the request under section 15(1)(i), referring to records previously released further to another FOI request. It refused part two of the request on the basis that it did not hold the records sought and said that it may be appropriate to direct this part of the request to the Department of Public Expenditure, NDP Delivery and Reform (DPENDR). In relation to part four of the request, it identified eight records which it refused to release under, variously, sections 31, 37, and 40. On 22 December 2023, the applicant applied to this Office for a review of the OPW's decision.

During the review, the OPW revised its position in respect of records 4 and 5. It said that section 42(f) was more appropriate than section 31.

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 submissions made by the OPW and by the applicant. 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

In this submissions, the applicant stated that he was not seeking a review of the OPW's decision on part one of his request. This review is therefore concerned with whether the OPW was justified in refusing access to records relevant to parts two to four of the request under sections 15(1)(a), 15(1)(i), 31, 37, 40 and 42(f).

Preliminary Matters

The OPW did not issue an original decision or an internal review decision on the applicant's FOI request within the statutory time limits. An effective position was only communicated to the applicant after he applied to this Office for a review. While I appreciate that FOI bodies are under various pressures, and that the OPW has been dealing with a high volume of requests relating to Castletown House, compliance with the FOI Act is a statutory obligation. It is incumbent on FOI bodies to put the resources in place to ensure that they process FOI requests and reviews properly and in a timely manner.

A review by this Office is considered to be de novo, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision, and is not confined to the basis upon which the FOI body reached its decision.

I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material.

Analysis and Findings

Section 15(1)(a) - records do not exist or cannot be found

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.

Part two of the FOI request was for "communications to and from the Minister and/or the Department of Public Expenditure, NDP and Reform in relation to the proposed purchase of lands adjoining Castletown House (Folio no. KE3071F) between 1st January 2020 to the date of this request". The OPW refused this on the basis that it did not hold relevant records, and that DPENDR might hold them. This is, effectively, a refusal under section 15(1)(a).

In seeking submissions from the OPW, I noted that it appeared that the OPW had interpreted the request as being for third party communications to and from DPENDR. However, in submissions to this Office, the applicant stated that the records sought were correspondence between the OPW and the DPENDR. I do not consider the OPW's interpretation of the request to be unreasonable, given the wording used. However, the OPW said that having received clarification from the requester, it had commenced searches for relevant records.

In the circumstances, I will annul this part of the decision and direct the OPW to complete its search for records and to make a decision on them. The normal rights of internal review and review by this Office will apply to the new decision.

Section 15(1)(i) - records previously released

Section 15(1)(i) provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. For the section to apply, the public body should be able to show that (i) the records sought were already released and (ii) they are available to the requester.

Part three of the applicant's request was for "a copy of any valuations carried out by or on behalf of the OPW in relation to the proposed purchase of the lands adjoining Castletown House (Folio no. KE3071F) Scope of request: 1st January 2020 to the date of this request". The OPW refused this part of the request under section 15(1)(i), on the basis that the records had already been released further to FOI request FOI/0066/2023, and were available to him.

In his submissions to this Office, the applicant said that while he did receive records further to another request, including a valuation record, he said that the OPW had not provided a schedule of those records in order to confirm that no further records existed. He said that he believed that more than one valuation had been carried out by or on behalf of the OPW.

In requesting submissions from the OPW, I asked it to point to the specific records released under FOI-0066-2023 which corresponded to part 3 of this request. I also asked it to comment on the applicant's assertion that further valuation records exist. While the OPW made a submission, it did not provide a response to these two questions. On a further request for clarification on these two points, the OPW said "this was released under FOI-0066-2023/ OCE-144138-L8X2M3". [This second reference is an appeal to Office of the Commissioner for Environmental Information further to an AIE request].

As the OPW's decision on request FOI-0066-2023 has also been appealed to this Office [OIC-144143-Z1V3R9] and I am in the process of investigating it, I have access to the Schedule of Records for this request and note that it lists record 14 as "Report & Valuation of Lands". This record was initially refused on the grounds of commercial sensitivity but I understand that it has since been released to the applicant. It seems to me that this does fall within the scope of part 3 of the request, and I am satisfied that it has been released to the applicant on foot of request FOI-0066-2023. As such, and in light of the de novo nature of this review, I find that the OPW is justified in refusing access to this specific record under section 15(1)(i).

However, the OPW has not responded to the applicant's contention that further valuations were carried out and that, accordingly, further records falling within the scope of part 3 should exist. Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, the onus is on the OPW to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified. In this case, based on the limited submissions from the OPW, I simply am not in a position to make a finding as to whether or not further relevant records exist, and whether or not they have already been released. In these circumstances, I find that the OPW was not justified, under section 15(1)(i), in refusing to release further records containing valuations of the land in question from 1 January 2020 to 4 October 2023, as it has not shown that all relevant records have been released to him.

It seems to me that the most appropriate course of action to take is to annul this part of the OPW's decision and to direct it to consider afresh part 3 of the applicant's request. The normal rights of internal review and review by this Office will apply to the new decision. It is a matter for the OPW, when considering this part of the request afresh, to ensure that it takes all reasonable steps to ascertain whether or not further records exist. If it decides that they do not, then it should explain the basis on which this conclusion is reached.

Section 37: Personal information

The OPW refused access to records 1, 2, 3, 6, 7 and 8 under section 37(1). Section 37(1) of the FOI Act 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.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. This includes (ii) information relating to the financial affairs of the individual and (xiii) information relating to property of the individual (including the nature of the individual's title to any property).

The records in question all contain email threads with correspondence between the OPW and a named individual (who is not the applicant). Having carefully considered the content of the records, I am satisfied that they contain information falling within the definition of personal information as set out above, and that section 37(1) applies. That is not the end of the matter, however, as section 37(1) is subject to the other provisions of section 37.

Section 37(2) provides that section 37(1) does not apply in five specified circumstances, set out in (a) to (e). No arguments have been made in respect of these subsections and I am satisfied that they do not apply in this case.

Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I am satisfied that section 37(5)(b) does not apply.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

In this case, neither the OPW nor the applicant made submissions on the public interest. Notwithstanding that, it is the role of this Office to adjudicate the merits of a decision to refuse a request with reference to the contents of the records and the interests engaged, which might suggest either disclosure or refusal of records, in the public interest. Taking into account the wider context, I note that since land adjoining Castletown House changed ownership in 2022, access to the site has been the subject of controversy, protest and media coverage. There is clearly significant interest from members of the public in matters relating to Castletown House and the OPW's engagements and actions in respect of the site. It has been the subject of many FOI requests and the OPW has set up a dedicated webpage to provide a centralised repository of relevant information. Having regard to the specific contents of the records at issue, it seems to me that their release would add somewhat to the understanding of the public of the OPW's actions and negotiations in respect of Castletown House. However, I believe that, in light of the significant amount of information that has already been released and is publicly available, that additional transparency would be minimal. It is not apparent to me that there is anything specific in the records whose release in the public interest would outweigh the public interest in upholding the right to privacy of the individuals concerned and I find that section 37(5)(a) does not apply. Accordingly, I find that that the OPW was justified in refusing records 1, 2, 3, 6, 7 and 8 under section 37(1).

For completeness, I should note that I considered section 18 and whether a redacted version of the records could be released such that personal information would not be disclosed. The OPW submitted that to redact names/contact details would not be sufficient to remove the link between the information at issue and the individual(s) to whom it relates. Having carefully examined the records, I accept this to be the case.

As I have found the records to be exempt under section 37(1), there is no need to consider the applicability of section 40, which the OPW had also claimed in respect of these six records only.

Section 42(f): Restrictions of the FOI Act

Section 42(f) provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General (AG) or the Director of Public Prosecutions (DPP) or either of their Offices, other than a record that relates to general administration. The Chief State Solicitor's Office (CSSO) is a constituent part of the Office of the Attorney General; thus, section 42(f) also applies to such a record held or created by the CSSO.

As stated above, the OPW originally withheld records 4 and 5 under section 31 but later said that section 42(f) was appropriate.

The records are described on the Schedule as "OPW letter to private landowner's legal representative". The records appeared to me to contain essentially the same letter, albeit one is on OPW headed paper (record 4), however having queried this with the OPW, it clarified that record 5 is a revised version of the letter after a correction was made by the CSSO.

The OPW has not disputed that it holds the records. It is possible that the CSSO also holds a copy of the records, although this has not been argued by the OPW. In any event, this Office does not accept that the fact that a copy of a record might also be held by the CSSO, means that section 42(f) serves to put the record outside the scope of the FOI Act, unless the record was actually created by the CSSO (and does not relate to general administration).

The records consist of a letter from the OPW to the legal representative of a private landowner. It is signed "For and on behalf of the Commissioners of Public Works in Ireland". While I accept that the letter may have been drafted with considerable assistance from the CSSO, I cannot accept that a letter sent and signed by the OPW can reasonably be deemed to have been created by anyone other than the OPW. The OPW said that a correction was made by the CSSO in record 5. Having examined record 5, one date has been amended, with the amendment initialled by a member of staff of the OPW (rather than by a member of staff of the CSSO). While I accept that this amendment may have been made further to advice from the CSSO, I cannot reasonably deem it to have been 'created' by the CSSO.

I find that records 4 and 5 are not held or were not created by the CSSO and I therefore find that section 42(f) does not apply.

Section 31(1)(a) - legal professional privilege

As previously stated, the OPW originally refused to release records 4 and 5 under section 31(1)(a). While it later stated that section 42(f) was a more appropriate exemption in respect of these records, it did not explicitly state that section 31(1)(a) did not apply. As it is a mandatory exemption, I will examine it.

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest.

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).

In the Schedule of Records and submission, the OPW said the records were subject to advice privilege.

As described above under section 42(f), the records contain a letter from the OPW to the legal representative of the private landowner, with one amendment to a date being the only substantive difference between the records.

Having regard to the content of the records, I am satisfied that they do not contain confidential communication between a client and his/her professional legal advisor for the purposes of giving/receiving legal advice; rather they contain communication between an FOI body and the legal representatives of a third party. I find that that they are not subject to legal advice privilege. Nothing has been put forward to suggest that litigation privilege might apply and nor is it evident to me from an examination of the records.

I am not satisfied that records 4 or 5 are subject to legal professional privilege and I find that section 31(1)(a) does not apply to them.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the OPW's decision. I find that it was not justified in refusing parts two and three of the request under section 15(1)(a) and 15(1)(i), respectively, and I direct the OPW to make a fresh decision in respect of these parts of the FOI request. In relation to part four of the request, I find that it was justified in refusing to release, under section 37(1), records 1, 2, 3, 6, 7 and 8. However, I find that it was not justified, under section 31(1)(a) or 42(f), in refusing to release records 4 and 5, and I direct their release.

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.

Emer Butler

Investigator

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and Office of Public Works [2024] IEIC 144902 (19 September 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/144902.html Cite as: [2024] IEIC 144902

Irish Information Commissioner's Decisions

Mr X and Office of Public Works