Whether the Department was correct to refuse access to records held by the Department relating to the Old Age Contributory Pension claim of the applicant's deceased brother

Conducted in accordance with section 34(2) of the FOI Act, by Fintan Butler, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

Your request was for access to records held by the Department relating to the Old Age Contributory Pension claim of (the applicant's deceased brother) covering the period January 2002 to the date of your request. You stated that you did not require copies of correspondence between yourself and the Department. I understand that a number of records concerning the issue of his pension were released to (the applicant's deceased brother) in 1998 and to yourself in 2000 in response to previous FOI requests.

In this case, the Department refused access to the records identified as being within the scope of your request. This decision was upheld in the Department's internal review decision of 23 October 2002. In carrying out this review I have had regard to the records, copies of which have been made available to this Office, to the Department's decision and to its submissions, to your submissions and to the provisions of the FOI Act generally.

Scope of the Review

This review is concerned solely with the question of whether or not the Department is correct in refusing you access to the withheld records on the basis that they are exempt from release under the provisions of the FOI Act. It is not the function of the Information Commissioner to comment upon, or draw any conclusions about, your brother's pension entitlements or about the subsequent handling of the matter by the Department.

Findings

Preliminary Matters
The records in question are all internal memoranda prepared by officers of the Department arising from the position taken by it that an overpayment of pension arrears is due to be repaid. The records have been numbered by the Department as TAB 151- 165. Several are duplicates and some have, as attachments, copies of previous correspondence with you concerning your brother's case which it is not necessary to consider in this review. Most of the records at issue contain personal information relating to you and to your late brother. I take it, from its release of records to you in the past, that the Department accepts in the circumstances that you belong to one of the classes of requester to whom personal information relating to a deceased individual may potentially be released, as provided for in the relevant regulations (S.I. No. 47 of 1999). You are aware that, in its letters to you dated 30 July 2002 and 2 August, 2002, the Department notified you of its decision not to take civil legal proceedings against you.

Before dealing with the exemption claimed by the Department, I wish to make the point that, while the Information Commissioner is required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that he take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited.

Section 22(1)(a)
The Department refused access to the records in question under section 22(1)(a) of the FOI Act on the grounds that it considered them to be exempt on the basis of legal professional privilege. It takes the view that some of the records were created in connection with legal advice sought and given within the Department concerning the matter of the alleged overpayment. Its position in relation to the remaining records is that the dominant purpose in creating them was preparation for litigation threatened or apprehended. In its submission to this Office, the Department drew attention to the fact that all of the records at issue were created within, or copied to, its Central Prosecutions Unit. The Department appears to be arguing that, given the purpose of this Unit, all records held on its files are by definition protected by legal professional privilege. If this is the Department's argument then it is one which I cannot accept. I am satisfied that in this context the FOI Act requires that each individual record be considered in its own right and that the tests for legal professional privilege be applied on a record by record basis.

Section 22(1)(a) of the FOI Act provides that:

"A head shall refuse to grant a request under section 7 if the record concerned ­

(a) would be exempt from production in proceedings in a court on

the ground of legal professional privilege,"

In considering whether the records in question would be exempt from production in a court on the grounds of legal professional privilege, the Commissioner has to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the Department, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege. Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

The Commissioner summarised the law in relation to legal professional privilege in Case Number 99017 - Mr ABM & others and the Office of the Revenue Commissioners as follows:-

"I am advised that the scope of legal professional privilege covers two separate matters. The first limb of the rule covers confidential communications between lawyer and client (which would include the seeking and giving of legal advice). The second limb of the rule covers documents prepared in contemplation of litigation apprehended or threatened provided the dominant purpose of the communication or the coming into existence of the document, was in preparation for litigation, apprehended or threatened".

Frequently, there will be a fine line of distinction between a situation in which legal advice is sought and a situation in which litigation is anticipated.

While the issue of legal professional privilege is a complex one it is possible to say, in general terms, that :

the purpose of the privilege is to aid the administration of justice, and,
the Courts will only grant such privilege where to do so supports the public interest in the proper conduct of the administration of justice and where this outweighs the disadvantage arising from a restriction on the disclosure of all the facts, and,
legal professional privilege protects confidential communications.

In order for communications regarding legal advice to be privileged, it is not necessary that the legal advice be given in contemplation of legal proceedings. The advice must, however, be given by a lawyer acting in a legal capacity.

Records TAB 157 and 158
I note that records TAB 157 (including background note) and 158 are communications between an officer of the Department and that Department's legal advisor. I am satisfied that these are confidential communications for the purpose of obtaining and giving legal advice, including the provision of additional information to assist in formulating legal advice. Section 22(1)(a) is a mandatory exemption and provides that access "shall" be refused where the record would be exempt from production in court on the grounds of legal professional privilege. Accordingly, I must hold that the Department is entitled to claim exemption in respect of records TAB 157 and 158.

Records TAB 162-165
These four records comprise instructions and authorisations which, it is clear, were prepared for the Department's legal advisors and which, due to their content, could only have been created for the purpose of preparing for litigation, apprehended or threatened. I find, therefore, that they would be exempt from production in court on the grounds of legal professional privilege and that the Department is entitled, under section 22(1)(a), to refuse access to records TAB 162-165.

Records TAB 151, 152, 153,154, 155,156, 159, 160 and 161
The records within the scope of your request under TAB 151, 152 (duplicate of record of 20 May 2002 under TAB 151 except for annotation on last line), 153, 154, 155 (duplicate of record of 20 May 2002 under 151), 156 (duplicate of 151),159, 160 and 161 comprise internal memoranda of which neither the authors nor the addressees are legal advisors to the Department. I have examined the records and find that the following records or parts of records paraphrase or summarise the legal advice sought and obtained from the Department's legal advisor (and contained in records TAB 157 and 158 as described above) and are, accordingly, exempt under section 22(1)(a):

TAB 159 - note dated 2 August 2002 and the second paragraph of the e-mail dated 6 August 2002 (document 037316 on the Department's system)
TAB 160 - e-mail dated 6 August 2002 (document 037320 on the Department's system)
TAB 161 - e-mail dated 6 August 2002 (document 037324 on the Department's system).

It is clear from an examination of these records that, while they were created mainly in the context of discussing the legal options available, only those identified immediately above come within the first limb of the rule on legal professional privilege as set out earlier in this decision. The other records are not confidential communications between lawyer and client. However, the Department has argued that the dominant purpose in creating these records was preparation for apprehended or threatened litigation. Accordingly, I must address whether the remaining records come within the second limb of the rule on legal professional privilege.

In considering whether the internal records at TABS 151 - 156 and the remaining parts of TAB 159 would qualify for exemption , I have had regard to the judgment in Silver Hill Duckling Limited, Ronald Stuart Steele and Elizabeth Patricia Steele v The Minister for Agriculture, Ireland and the Attorney General [1987 I.R 289] in which O'Hanlon J. held that the defendants in that case were entitled to claim privilege in respect of internal documents prepared in connection with the claim, and for the primary purpose of dealing with the claim, which was being formulated on behalf of the plaintiffs. I have also had regard to the judgment in the case of Blaise Gallagher (A Minor) suing by his mother and next friend, Avril Gallagher v Joseph Stanley and the National Maternity Hospital ([ 1998] 2 I.R. 267) in which it was held that the test in relation to privilege was whether the dominant purpose for which the documents came into being was in apprehension or anticipation of litigation.

In the case of record TAB 153, dated 27 May 2002, it is clear that it was created as part of the Department's on-going assessment of how it should proceed in relation to the litigation it was then contemplating, i.e., litigation to recover the overpayment on your late brother's pension claim. In this context, I am satisfied that the dominant purpose in the creation of record TAB 153 was "in preparation for litigation, apprehended or threatened". Therefore, I find this record to be exempt under section 22(1)(a) of the FOI Act.

As regards the remaining records at TABS 151-152, 154-156, I am not satisfied that "preparation for litigation, apprehended or threatened" was the dominant purpose for which they were created. I accept that preparation for litigation may have been one of the purposes for which these records were created; but I am not satisfied that preparation for litigation was the dominant purpose in their creation. In my view, in the case of these particular records, the dominant purpose of their creation was either as briefing material (setting out the background to the case and querying which options were available) or as purely administrative cover notes on the progress of the file. The content does not disclose any actual preparation for the anticipated litigation. While the authors of the records were officials who were regularly involved in decisions as to the taking of proceedings to recover debts, neither this nor the fact that the records were held on particular files dealing with proposed prosecutions, is in my view sufficient for the Department's claim of legal professional privilege to be upheld.

The Department has not relied on any other exemptions in refusing access to these records and I find that, with the exception of the records and parts of records identified above, the remainder of the records under this heading are not exempt and should be released.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Department to refuse access to the records identified as TAB 153, 157, 158, part of 159 (comprising the note dated 2 August 2002 and the second paragraph of the e-mail dated 6 August 2002), 160 - 165.

I hereby vary the decision in relation to the remainder of the records and direct that the records identified as TAB 151- 152, 154-156 and part of 159 (except for the note dated 2 August 2002 and the second paragraph of the e-mail dated 6 August 2002, which is document 037320 on the Department's system) be released to the requester.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Fintan Butler