Whether the Department was justified in refusing access to further records relating to its decision in the applicant’s case under sections 15(1)(a) and 31(1)(a) of the FOI Act

19 June 2020

Background

This case arises from a long-running dispute the applicant has with the Department. While the details of the dispute are not relevant for the purposes of this review, the core of the contention is that the applicant disagrees with the Department’s finding that Restricted Stock Units (RSUs), which he received in the course of his employment and the value of which he collected after his retirement, are subject to PRSI. It is the applicant’s position that the Department deducted PRSI in error. The Department’s position is that RSUs are subject to PRSI and the applicant is not entitled to a refund of PRSI deducted from the RSUs.

On 30 April 2019, the applicant wrote to the Department. While he stated he was seeking access to records, his request comprised, in large part, requests for information or answers to questions. The request can essentially be broken down into four parts:

1. All records of how a decision to refund deducted PRSI (as per letters from the Department to the applicant dated 3 December 2015 and 11 July 2016) was arrived at, to include reference to the Social Welfare Consolidation Act 2005;
2. All records regarding the Department’s response to what the applicant described as “discredited Revenue input” into his dispute with the Department;
3. Specific questions relating to the Department’s consideration of the applicant’s case and all records relating to its responses to those questions;
4. All records of the Department’s input into the applicant’s case with the Office of the Ombudsman from October 2017 to March 2019.

On 28 May 2019, the Department part-granted the request. It released 21 records and refused access to one record under section 31(1)(a) of the FOI Act, on the ground that it contained legal advice. It stated that no records existed relating to the specific questions posed (part 3 above). The applicant sought an internal review of that decision on 23 June 2019. He argued that records evidencing the Department’s consideration of his case ought to exist.

On 9 July 2019, the Department affirmed the decision to refuse any additional relevant records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist. On 16 December 2019, the applicant sought a review by this Office of the Department’s decision.

During the course of the review, the Department located and released to the applicant two further records coming within the scope of the original request. It also provided this Office with details of the searches it carried out to locate all relevant records. Ms Whelan of this Office outlined the details of those searches to the applicant and informed him of her view that the Department was justified in deciding that no further relevant records exist or could be found. The applicant subsequently provided further submissions to this Office and having regard to those submissions I consider it appropriate to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing the applicant’s request for further records coming within the scope of his request for certain information relating to his dispute with the Department under section 15(1)(a) on the ground that no further relevant records exist or can be found and whether it was justified in refusing access to one relevant record under section 31(1)(a).

Preliminary Matters

In light of correspondence received from the applicant, I wish to make a number of preliminary comments in this case.

First, at a late stage in this review, the applicant made the argument that his original request ought to have been treated by the Department as a request for a statement of reasons under section 10 of the FOI Act. Section 10 provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act or to which it relates can apply for a statement of the reasons for the act.

Is it clear, however, from the wording in his original request, request for internal review and application to this Office that the applicant was originally seeking records relating to his case. A review by this Office cannot have regard to any matters which were not originally requested and as such, this review will not examine the issue of the applicant’s entitlement to a statement of reasons. It is open to the applicant to make a fresh section 10 application to the Department for a statement of reasons. He should note, however, that an application under section 10 must generally be made within 12 months after the date on which the person who is affected by the act becomes aware of it.

Secondly, I note that much of the applicant’s argument is concerned with the manner in which the Department dealt with the substantive issues relating to his dispute. 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. As such, while it is clear that the applicant is dissatisfied with the manner in which the Department dealt with the substantive issues of his case, this Office has no role in examining the appropriateness of those actions or any decisions taken on foot of those actions.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In its submissions to this Office, the Department provided details of the searches conducted to locate the records sought by the applicant. As this Office has already provided the applicant with those details I do not propose to repeat them in full here. In short, the Department outlined that it holds and maintains five separate files relating to the applicant’s case. It also maintains a dedicated Outlook folder containing all correspondence relating to the matter. The Department explained that no records which ought to exist were unaccounted for and no relevant records had been destroyed. It stated that the relevant files were searched. It also stated that a number of key staff members were consulted and asked to search for further records. The Department also searched the REP system for records held in the Minister’s Office and the Secretary General’s Office. The Department’s position is, in essence, that the applicant has been provided with all relevant records relating to his case and that no further records exist.  

In his submissions to this Office the applicant argued that records outlining the Department’s consideration of relevant legislation, advice and correspondence from the applicant should exist. He suggested that a complex and lengthy dispute such as his ought to have generated more records than those he had been provided with. He argued that the Department’s assertion in its internal review decision that its examination and justification of its decision was shown in records previously released to the applicant was incorrect, as the records released do not show that the Department considered particular provisions of the Social Welfare Consolidation Act 2005.

The general thrust of the applicant’s argument is that additional records should exist which underline the Department’s decisions in his case. According to the Department no further relevant records exist apart from those already released. It is important to note that the FOI Act is concerned with access to records held by public bodies. If the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that the record ought to exist based on his or her views as to what constitutes good administrative practice. 

Having considered the details of the searches undertaken by the Department and its processes, I am satisfied that the Department has carried out all reasonable steps in an effort to ascertain the whereabouts of the records sought in this case. I find, therefore, that the Department was justified in refusing access to additional relevant records on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 31(1)(a)

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought 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:

(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).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

Having carefully examined the withheld record, I accept that it contains confidential communications, or forms part of a continuum of communications, for the purpose of obtaining and/or giving legal advice or arising from an initial request for legal advice.

I find, therefore, that the Department was justified in refusing access to the record concerned, under section 31(1)(a) on the basis that the record attracts legal professional privilege.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant’s request for certain additional records relating to his dispute with the Department under section 15(1)(a) and section 31(1)(a) 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.

 

Stephen Rafferty

Senior Investigator