Whether Irish Water was justified in its decision to refuse access to records in a file concerning the applicant under section 31(1)(a) of the FOI Act

31 October 2018

Background

On 7 February 2018, the applicant requested access to all records held by Irish Water relating to his property. The request included access to documents, reports and surveys carried out on his property following notification by him to Irish Water of a possible water leak near his property. Irish Water granted access to a number of records and refused access in full and in part to others on the basis of section 31(1)(a) (legal professional privilege) and section 37(1) (Personal Information) of the FOI Act. Following a request for an internal review, Irish Water released a small number of additional records and affirmed its decision on the remaining records. On 1 May 2018, this Office received an application for review of Irish Water's decision from the applicant on the basis on the decision of Irish Water to withhold information in records on the basis of section 31(1)(a) of the Act.

During the review, in July 2018 Irish Water released nine additional records in part and in full. Irish Water has since indicated that additional records have been located. If those records are within scope, they have effectively been withheld. However, I do not consider that this Office should be required to make a first instance decision on the records recently identified by Irish Water or, indeed, embark on a further investigation as to whether all the records held have now been identified and considered. I am satisfied that in this case it is appropriate to annul any decision of Irish Water in respect of any additional records held and to direct that it conducts a fresh decision making process under section 13 of the FOI Act. Irish Water has already undertaken to do this. 

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from Irish Water and the applicant and to correspondence between the applicant, Irish Water and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. 

Scope of Review

In correspondence to this Office the applicant referred to records that were created after the request he made to Irish Water in February 2018. It is important to note that any records created after the date of that request are not included in the scope of this review.

The applicant's application for review made it clear that his concern was the refusal to release the "privileged" documents. I am taking it that he has no issue with the redaction of the personal information of individuals other than himself under section 37 of the Act. 

This review is concerned solely with whether Irish Water was justified in deciding to refuse access to the remaining records within the scope of the review on the basis of section 31(1)(a) of the FOI Act. 

Preliminary Matters

In his submission, the applicant explained why he wanted access to the records. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. In this case, however, requests falling to be refused under section 31(1)(a) are not subject to a public interest balancing test.

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 in this case, the onus is on Irish Water to satisfy the Commissioner that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Both the applicant and Irish Water made substantial submissions; although I do not comment on each of the arguments made, I have considered them all carefully. 

Findings

Section 31(1)(a) - Legal Professional Privilege
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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 
(b) 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).

Irish Water refused access to the records under section 31(1)(a) of the FOI Act on the basis of litigation privilege. Irish Water claimed that litigation privilege applies to the following records listed in its decision schedule: Nos. 11-22 (inc 12a), 27, 29, 30, 33 and 37.

Litigation Privilege
For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation.  In the judgment of the High Court in University College Cork -� National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) (the ESB case) Finlay Geoghegan J. stated -

"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation".

She also noted that the "onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action."

As such, a body claiming the exemption must satisfy the Commssioner, on balance, that litigation is apprehended or pending and consideration must be given to the purpose or purposes for which the records were created. However, while it will generally be straightforward for a public body to show that litigation is pending, the Commissioner takes the view that the mere possibility of proceedings is not sufficient. The particular facts and circumstances of the case will be relevant. In this particular case, the parties' understanding of the circumstances differ significantly. This is not to say however that either party does not genuinely hold its view as to the circumstances and status of the records at issue.

The applicant said that he permitted access to his property for inspection and investigations on the understanding that he would receive results of those investigations. He said it was his belief that matters related to his notice to Irish Water were to be negotiated and settled without legal advice. He said that a letter from Irish Water's insurers in April 2017 invited him to consider either to negotiate directly with the insurers, or to appoint a solicitor to act on his behalf. The applicant said that he did not possess any record of correspondence which expressed his preferred option to the insurers but notes that in May 2017 he informed Irish Water's insurers that he was anxious "not to duplicate expenses and investigations into this matter, including instructing [his] solicitor".  In correspondence to this Office the applicant referred to a conversation with Irish Water on 18 April 2017 during which he said he was told by Irish Water that there were "legislative provisions that completely and explicitly exempted Irish Water from any liability for damage caused by water main leaks to private property". He noted that a letter which issued to him on 28 November 2017 was signed on behalf of a 'Pre-litigation' team.

Irish Water stated that litigation was reasonably comprehended from the date the applicant emailed the body in April 2017 and that "almost immediately" its insurers were notified. It said that the applicant alleged that damage was caused by Irish Water. Irish Water said that on that basis it prepared "for litigation that might result from these allegations" and from that point onwards it proceeded to engage with the applicant on that basis.

Irish Water said that most of the records were created by its insurance department which carries out investigations and deals with claims. It said that it has no legal responsibility or liability for claims relating to losses that arise in respect of private pipework. It said that many of the records at issue were created with a subject title relating to a 'claim'. It also said that several of the records refer to a "reserve" which is a contingency against a claim that may be pursued when liability is denied. It argued that this is the situation in the present case.

In Silver Hill Duckling v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516 O' Hanlon J. held: "once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege."

In Case 010420 (on www.oic.ie) the Commissioner referred to the Silver Hill Duckling case and took the view that case law suggests that litigation is -�contemplated-� where there is a definite prospect, apprehension or threat of litigation and not a mere anticipation of it.

It is a reasonable assumption that the applicant took it that the matter was being progressed on the basis of settlement without legal proceedings at least during the earlier stages of the process. On the other hand, Irish Water stated that it had contemplated legal proceedings from the beginning. In correspondence with this Office, the applicant acknowledged that Irish Water had informed him that it had no record of "earlier commitments" that the applicant understood he had been given. In addition, while the applicant is unhappy with the approach of Irish Water in dealing with his complaint about leaks, he acknowledged that "Irish Water apparently always intended that liability would be disputed". Irish Water stated to this Office that the letter from a 'Pre-Litigation' team "demonstrates that the prospect of litigation was directly contemplated" at the time of the correspondence. Irish Water also confirmed that as of the date of this decision "[the applicant's] claim remains open".

The question that I must address is whether the dominant purpose of the records created was apprehended litigation. In some circumstances, it seems to me that it is almost inevitable that a public body sees litigation as the expected outcome and thus takes measures during the course of its enquiries in the event that litigation materialises. I have carefully examined the content and circumstances of the records (created from April 2017) in and around the reporting of the water leak which, from a certain stage, seem to have been treated by Irish Water as a "claim". I have had regard to the jurisprudence on litigation privilege which indicates that assertions regarding the dominant purpose of a document are not sufficient and that, generally, inspection of the content and consideration of the circumstances are necessary to determine the matter.

I note that the language used in some of the records tends to support Irish Water's position that it apprehended legal proceedings from an early stage. I accept that most of the records were created for the dominant purpose of defending a claim in litigation. Even though such litigation had not been "threatened" by the applicant, it seems to me that in the majority of instances, the dominant purpose test is met. I say this in circumstances where the content supports Irish Water's position that it has no liability in respect of losses caused by issues with private pipework. In this regard, the reports commissioned and correspondence issued were handled by an insurance department. The "Pre-litigation" team apparently handled matters before formal legal proceedings were initiated.

Having carefully examined the records, I am satisfied that the following records qualify for legal professional privilege and I find that Irish Water has justified its refusal under section 31(1)(a): Record nos 11-22, 29, 30 and 33. 

Records 12a (part), 27 and 37 
In light of the High Court's findings in the ESB case referred to above, I looked at whether any of the records might be deemed to have "two equal purposes", one of which was apprehended litigation.

Record 12a
Without disclosing its content, parts of record 12a comprise the initial reporting of the leak and an account of certain actions taken before the matter was treated as a potential claim. I consider that, even if one of the purposes of the emails of 18-19 April 2017 was to deal with apprehended litigation, a second purpose was simply the reporting of the situation in circumstances where a position had yet to be adopted as regards liability for any "claim". Therefore, having regard to the fact that apprehended litigation was not the sole purpose of those emails in parts of record 12a dated 18 and 19 April 2017 (and not the later emails), I find that they are not exempt under section 31(1)(a).

Record 27
Record 27 is entitled 'Site Investigation Report - Phase 1'. It seems to me that record 27 differs from two other reports (records 17 and 30) held by Irish Water in relation to the applicant's request.

Record 27 was created on foot of a visit to the applicant's house in October 2017. The applicant was present during the visit and the report contains photographs of the drainage system in his house. Record 27 states that it is a preliminary site investigation into the nature and condition of the drainage system. It also sets out its purpose to be in response to potential building structural problems and its scope to be an examination of the serviceability of the drainage system. 

The other reports refer to a "Liability Claim", and to claims of structural damage as a result of leaks in the public water main. Their focus is on the nature and the extent of the claim/damage and the content includes advice as to the claim. I am prepared to accept that the other records did not have a purpose other than that of apprehended litigation.

In relation to record 27, while I accept that litigation was contemplated, or apprehended by the time of the site investigation report, the examination of the drainage system as described above, was at least another "equal purpose", as envisaged by the ESB case. I do not accept that the dominant purpose test has been met with respect to it. 

Record 37
In addition, based on its particular content, I am not satisfied that record 37 which relates to a separate matter was prepared solely for the purposes of apprehended or threatened litigation in line with the ESB judgment. I consider that this record falls to be released subject to the redaction of the names of individuals where those comprise personal information under section 2 of the Act.

Summary of Findings

Accordingly, I find that Irish Water was not justified in withholding access to records 12a (part), 27 and 37 under section 31(1)(a) of the FOI Act but was justified in its refusal of access to the remaining records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of Irish Water.

• I affirm its decision to refuse access to the records detailed earlier in this decision under section 31(1)(a) of the Act on the basis of legal professional privilege.
• I annul its decision to refuse access to information in records 12a (part) and 27 and direct their release. 
• I annul its decision to refuse access to information in record 37 and direct its release subject to the redaction of third party personal information.
• I annul its decision to effectively refuse access to records identified during the course of this review and I direct it to undertake a fresh decision making process on those records.

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.

Elizabeth Dolan
Senior Investigator