IC protects audit office’s need for confidentiality

(CNS): The information commissioner has pointed to the need for the auditor general to be able to assure people that sensitive information they give to him willremain confidential so that he can properly conduct the affairs of his office. In her 26th ruling and her second decision relating to an FOI request regarding the RCIPS internal enquiry, Operation Tempura, Jennifer Dilbert sided with the public authority on this occasion and upheld the partial denial of information. However, while the commissioner pointed to the need to protect free and frank discussion and to prevent prejudice against the audit office, she pointed out, not for the first time, an incorrect application of the legal privilege exemption.

Setting out the background of the hearing, Dilbert said it related to an FOI request about the controversial Operation Tempura police corruption investigation made to the governor’s office and transferred to the Office of the Auditor General, since it related to the report that the OAG conducted into the expenses and spending on the costly enquiry.

The request was for correspondence or any other written records relating to theproduction of the OAG’s report into Operation Tempura from any official who was involved, or attempted to be involved, in the format and contents of the final report.

The OAG’s information manager provided access to 31 documents but some information was redacted based on exemptions under the FOI Law relating to legal privilege, free and frank exchange and the potential prejudice of the effective conduct of public affairs.

The applicant requested an Internal Review, and while the auditor general upheld the majority of the IM’s decisions, he made some limited changes to two of the redacted documents and released a third in full. However, the applicant appealed to the Information Commissioner’s Office (ICO) for a review of the decision to deny full access to the records.

Although the commissioner upheld the auditor’s decision, she pointed out in her ruling that the use of legal privilege in connection with one of the exemptions was wrong. The OAG applied the exemption found in 17(a) to the contents of an email from George McCarthy, who was chief secretary at the time, to Attorney General Sam Bulgin.

Pointing to her comments about the use of this exemption in other hearings, she said that the content of the email was not seeking, formulating or giving of legal advice. Dilbert also found that it had not been demonstrated that litigation privilege was attached to the records.

“I am not convinced that they were created for the dominant purpose of preparing for, advising on, or conducting litigation that is either underway, or was a reasonable prospect at the time the records were created.”

Nevertheless, the commissioner did find that other exemptions applied and she agreed with the auditor general’s redactions.

In connection with another document, Dilbert pointed out that because a memo from the solicitor general to the auditor general was labelled “confidential and privileged” did not mean to say it was.

"Simply marking a document ‘Confidential and Privileged’ does not mean that legal professional privilege automatically attaches to it,” she said. However, as the redacted part of the memo offered legal advice, professional privilege did attach to that exemption.

Dilbert upheld several other redactions as she agreed with the auditor general’s position that the release of some information could “jeopardize his office’s future operations” and the need for “free and frank discussions” in order for his staff to get the information they need to conduct an audit. The office contended that individuals will not communicate with it in an open manner if they believe the information communicated would become public.

“The FOI Law must … protect the Auditor General’s ability to conduct investigations and obtain the free and frank testimony of relevant public servants, even where this may deny the general public access to the ensuing records via the Office of the Auditor General,” Dilbert found.

The commissioner added in her decision that, given the role of the auditor general, it would not be in the public interest to disclose records that could prejudice the affairs of his office.

“In this case the public interest in allowing the Auditor General to conduct his affairs unhindered outweighs any public interest in the disclosure of the redacted information,” she stated before upholding all of the redactions made.

See the commissioner’s 26th decision here.

See related story here.