Harold J. Gannon (appellant) and The Information Commissioner (respondent).
Administrative law - Information Commissioner - Appeal on a point of law - Refusal of access to written records of Legal Aid Board relating to application made by a third party for free legal aid - Whether documents in question provided in confidence - Whether they enjoyed the exemption - Whether decision to deny access was irrational and unreasonable - Whether disclosure of documents would be likely to prejudice the provision of similar information in the future - Whether there was a lack of fair procedures contrary to natural and constitutional justice. - The Freedom of Information Acts, 1997 (No. 13) - 2003 (No. 9), s.6, 7, 8, 14, 22, 23, 26, 32, 34, 41, 42, 43; - The Civil Legal Aid Act, 1995 (No. 32) ss.3, 24, 26, 29. - Civil Legal Aid Regulations, 1996 (S.I. 273 of 1996)
The High Court (before Mr Justice Quirke); judgment delivered January 31st, 2006.
There is no doubt but that when a court is considering only a point of law it is in accordance with established principles confined as to its remit in the manner following:- it cannot set aside findings of primary fact unless there is no evidence to support such findings; it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw; it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision. It is well settled that the courts will not intervene with the decisions of administrative bodies on grounds of unreasonableness or irrationality unless satisfied either:- that there was no relevant material before the decision-maker which could reasonably have given rise to the impugned decision, or that the decision-maker wholly failed to take into account relevant material or that the impugned decision flies in the face of fundamental reason and common sense. Whether information is "given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential" is a question of fact.
The appropriate exercise by the respondent of the jurisdiction conferred upon her by the 1997 Act requires a balancing exercise between competing interests. That exercise was entirely within the jurisdiction of the respondent.
The High Court so held in dismissing the appeal.
The appellant represented himself; Niall Michel, solicitor (for the respondent).
Mr Justice Quirke commenced his judgment by outlining that the matter had come before him as an appeal on a point of law from the decision of the respondent delivered to the appellant by letter dated December 23rd, 2004. The decision of the respondent affirmed the decision of a the Legal Aid Board ("the board") to refuse access to certain written records within the Board's possession relating to an application made on behalf of a third party for free legal aid..
Mr Justice Quirke then set out the relevant facts. By letter dated May 14th, 2004, the appellant made a request to the board pursuant to the Freedom of Information Act for access to any and all documents (records) submitted by a third party and/or his legal or personal representative(s) to the board explaining that the decision of the board to grant legal aid to the third party had adverse consequences on his pending legal action and he was unclear how the decision was reached. By letter dated May 24th, 2004, the Deciding Officer refused the appellants request under Section 26 of the 1997 Act i.e. information obtained in confidence. The appellant sought a review of the decision and written submissions were made to the board's Freedom of Information Unit. By letter dated August 13th, 2004, the board's Director of Human Resources stated he had reviewed the records relating to the request and the decision and affirmed the decision. By letter dated August 13th, 2004, the appellant requested a review by the respondent of that decision. By letter dated September 1st, 2004, the appellant was advised that the respondent had agreed to conduct a review. By letter dated November 17th, 2004, Ms Burns, an investigator for the respondent, indicated she had examined the correspondence between the appellant and the board and the appellant's submissions to the board. She noted that the appellant having been invited to make submissions to the respondent chose not to do so. She advised that it was her preliminary view that s. 26(1)(a) applied to the records - which provides for refusal if the record contains information given to the public body in confidence. Referring to s. 26(3) she stated that:
"it is my preliminary view that the public interest in release does not outweigh the public interest in the right to privacy of individuals and their right to correspond in confidence, with their legal advisors." She concluded that all of the records being reviewed were exempt and there was no public interest in their release.
By letter dated December 7th, 2004, the board wrote to Ms Burns advising inter alia that the records furnished by the third party were furnished in confidence and that was self-evidently both the understanding of the third party and the board's understanding generally. The board further indicated that the relationship between the board's solicitors and its clients was acknowledged to be a solicitor/client relationship which attracted "the badge of confidentiality so that the imparting of information by a client such . . . (the third party) . . . to the board and its solicitors will, unless the contrary were capable of being shown, be considered to have been effected in confidence".
In her decision delivered by letter dated December 23rd, 2004, the respondent adopted the view of Ms Burns and her interpretation of the term "confidence" for the purposes of s. 26(1)(a) of the Act of 1997. She considered that the disclosure would prejudice the giving to the body of further similar information from other persons in the future and that it is important to the board that such further similar information should continue to be given to it. She found that s.26(1)(a) applied to the records.
She also declared that she was aware of no public interest in this case which would justify the loss of privacy of the individual in question and the consequent erosion of the expectation that recipients of legal aid would be treated in the same way as those who were in a position to pay for legal services. By notice of motion dated February 28th, 2005, the appellant appealed to the High Court against the respondent's decision.
Mr Justice Quirke stated that it was acknowledged that the respondent's decision resulted from the exercise of her jurisdiction to conduct a review of the decision of the board to refuse the appellant access to the documents sought. Mr Justice Quirke further stated that for the purposes of the review the appellant enjoyed the presumption that the decision of the board was not justified. Mr Justice Quirke set out the relevant legislative provisions. Section 43(3) of the 1997 Act (as amended) provides that, in the performance of his or her functions, the Commission shall take all reasonable precautions to prevent the disclosure to the public or to a party of information specified to be an exempt record. Section 42(1) of the 1997 Act (as amended) provides for an appeal to the High Court on a point of law. Section 6(1) of the 1997 Act (as amended) provides that every person has a right to and shall, on request therefore, be offered access to any record held by a public body. Section 8(4) of the 1997 Act (as amended) provides that, in deciding whether to grant or refuse to grant a request any reason that the requester gives for the request and any belief oropinion as to what are the reasons for the requester for the request shall be disregarded. Section 26(1)(a) of the 1997 Act (as amended) provides that a head shall refuse to grant a request if the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information should continue to be given to the body. Section 26(3) of the 1997 Act provides that the exemption in Section 26(1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned the public interest would, on balance, be better served by granting than by refusing to grant the request.
Mr Justice Quirke then stated that during the course of the proceedings the appellant stated he wished to confine his claim for access to documents he described as "financial documents" i.e. preliminary documentation provided by the third party to the board in support of his application for legal aid and argued that those documents were not provided in confidence and thus the decision to deny access was irrational and unreasonable. He further contended that nothing on the face of the documents provided by the board to applicants for legal aid suggested it would deal with the information on a confidential basis and stated that there was no duty on the State to treat information received from applicants for such State assistance in confidence. Thus the documents sought did not enjoy the exemption of s. 26(1)(a) of the Act of 1997. He further stated there was no reason to believe that the disclosure would be likely to prejudice the provision of similar information from future legal aid applicants. Finally, the appellant argued that the respondent failed to apply any appropriate standard to the review and erred in finding that the documents attracted solicitor/client privilege and that he was denied fair procedures contrary to natural and constitutional law and justice.
Mr Justice Quirke stated that the principles applicable to appeals pursuant to s. 42(1) of the Act of 1997 are as set out by McKechnie J. in John Deely v The Information Commissioner 3 IR 439:
". . . when a court is considering only a point of law . . . it is in accordance with established principles confined as to its remit in the manner following:-
it cannot set aside findings of primary fact unless there is no evidence to support such findings;
it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
it can, however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally
if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision."
Mr Justice Quirke then looked at the question of irrationality and did not accept that the respondent's decision was unreasonable or irrational. Mr Justice Quirke stated that there was adequate material before the respondent to enable her make the determination she did and it couldn't be said to fly in the face of fundamental reason and common sense. Mr Justice Quirke stated that the court had the opportunity of examining the documents. Mr Justice Quirke stated that it was well settled that the courts will not intervene with the decisions of administrative bodies on grounds of unreasonableness or irrationality unless satisfied either:-
that there was no relevant material before the decision-maker which could reasonably have given rise to the impugned decision, or
that the decision-maker wholly failed to take into account relevant material or
that the impugned decision flies in the face of fundamental reason and common sense.
As none of those considerations applied Mr Justice Quirke was satisfied that the decision was not irrational or unreasonable to render it unlawful or invalid for the purposes of the appeal. Mr Justice Quirke was of the view that the respondent correctly applied a presumption of non-justification to the decision of the board not to grant access to the documents sought. The respondent's decision to refuse access was based upon her finding that s. 26(1)(a) applied to the documents.
Mr Justice Quirke stated that the respondent adopted the preliminary view of her investigator and concluded the documents and the information therein had been provided by the third party to the board in confidence on the understanding that they would be treated as confidential by the board. In arriving at that decision the respondent interpreted "confidence" for the purpose of s. 26(1)(a) by referring to a decision of the Information Commissioner in Queensland: B v Brisbane North Regional Health Authority (1994) 1 QAR 279 which stated:
"A confidence is formed whenever one party ("the confider") imparts to another ("the confidant") private or secret matters on the expressed or implied understanding that the communication is for a restricted purpose."
Mr Justice Quirke was satisfied that the respondent was correct in adopting that definition of confidence for the purposes of s. 26(1)(a) of the Act of 1997. Mr Justice Quirke stated that whether information is "given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (s. 26(1)(a)) is a question of fact and that undisputed evidence that the information was regarded and treated as confidential by and between supplier and recipient public body could ground a lawful decision that the information was communicated in confidence. Mr Justice Quirke pointed out that when making the finding of fact that the documents were provided to the board in confidence on the understanding that it would be treated by the board as confidential the respondent had before her a number of documents including the board's letter dated December 7th, 2006, stating the records had been furnished in confidence and on the understanding they would be treated as confidential. Mr Justice Quirke stated that the respondent did not base her decision on the solicitor/client relationship between the third party and the solicitor provided to him by the board though she did take that relationship into account. He stated she also had the opportunity to consider all of the other relevant documents and their contents. Mr Justice Quirke was of the view that the respondent was entitled to reach the conclusion she reached and the court would not interfere with her finding.
Mr Justice Quirke stated that the review conducted by the respondent pursuant to the provisions of s. 34 of the Act of 1997 correctly comprised a de novo review of the appellant's request for access. Mr Justice Quirke then addressed the requirement of s. 26(1)(a) of the formation of an opinion as to whether access to documents would be likely to cause prejudice. The respondent in her letter dated December 27th, 2004, indicated she formed the opinion that disclosure would prejudice the provision of further information and it was important that such further similar information should continue to be given to the board. Mr Justice Quirke stated the formation of that opinion was entirely within the jurisdiction of the respondent and that the courts would not interfere in the exercise of that jurisdiction in the absence of irrationality and there was adequate relevant material before the respondent to enable her to form that opinion. Mr Justice Quirke stated that the board is a body corporate with perpetual succession established by the Oireachtas pursuant to the provisions of s. 3 of the Civil Legal Aid Act 1995 which is described in its preamble as "an Act to Make Provision for the Grant by the State of Legal Aid and Advice to Persons of Insufficient Means in Civil Cases" and the provisions of the act (including ss.24, 26 & 29) and the provisions of the Civil Legal Aid Regulations 1996 have the combined effect of empowering the board to carry out assessments of the financial eligibility of applicants for legal aid by reference to their disposable income, disposable capital and general means. Mr Justice Quirke was of the view that it was open to the respondent to form the opinion (1) that it was of importance to the board that such information should be given, on an ongoing basis, to the board from applicants for legal aid, and (2) that the provision of public access to such personal, private and sensitive information would be likely to inhibit and discourage applicants for legal aid from providing that information to the board in the future. Mr Justice Quirke said it followed that the respondent lawfully formed the requisite opinion pursuant to the provisions of s. 26(1)(a) of the Act of 1997 and that the respondent correctly found that the documents sought were documents to which s. 26(1)(a) applied.
Mr Justice Quirke did not accept the appellant's contention (based on s. 26(3) of the Act of 1997) that the public interest (the right of the public to know how public funds were being disbursed) was better served by granting access to the documents than by refusing it. The documents had been lawfully found to have been provided in confidence on the understanding that they would be treated by the board as confidential and that although there is a valid public interest in ensuring the proper distribution of public funds there was and is also a right vested in the third party to have his privacy and the confidential character of his private personal information respected and protected. Mr Justice Quirke stated that the appropriate exercise by the respondent of the jurisdiction conferred upon her by ss. 26(1)(a) and 26(3) of the Act of 1997 required a balancing exercise between competing interests. Mr Justice Quirke went on to say that exercise was entirely within the respondent's jurisdiction and there was adequate material before her to enable her to decide as she did and the court would not interfere with her conclusion.
Mr Justice Quirke addressing the appellant's contention that in arriving at her decision the respondent denied him fair procedures contrary to the provisions of natural and constitutional law and justice, held that that argument could not be sustained. Mr Justice Quirke stated that the procedures provided for the benefit of applicants for access to records under the Act of 1997 are those contained within the Act itself. They were applied and followed scrupulously by the board and by the respondent throughout all phases of the appellant's requests and inquiries. Mr Justice Quirke said at each stage during the process the appellant was acquainted with the remedies available to him under the Act and was provided with ample opportunity to be heard and to make submissions. Further he stated the appellant was provided with the decisions of the appropriate persons together with reasons for those decisions within the time limits provided by the Act.
Mr Justice Quirke was satisfied that the appellant was not denied fair procedures and that the decision of the respondent was made in accordance with the provisions of natural and constitutional law and justice and the appeal was dismissed.
Solicitors: Mason Hayes & Curran (Dublin) for the respondent.
Joan Kelly, barrister