Case 040333. Request for access to medical reports created following threat of litigation - whether an exception to the legal professional privilege rule may apply - section 22(1)(a)

Case Summary

Facts

The requester was a plaintiff in litigation against the Defence Forces in relation to an alleged work-related accident. He sought access to all records relating to him, including his Central Medical File LA30. The Defence Forces granted the request in part, but refused access on the basis of legal professional privilege to certain records, including medical reports consisting of or relating to the preparation of a Medical Legal Report that was created in response to the legal action. The requester argued that legal professional privilege cannot cover a report relating to his own medical situation, because the report and any related medical documents should not have been furnished by his doctors without his consent.

Decision

The Commissioner's authorised official found no evidence of any unethical, dishonest, or fraudulent conduct on the part of the Medical Officer who prepared the Medical Legal Report. He therefore found no basis for applying an exception to the legal professional rule. He also took note of the judgment in McGrory v. Electricity Supply Board [2003] IESC 45 (24 July 2003), in which the Supreme Court (Keane C.J.) found that a defendant in an action where the plaintiff claims damages for personal injuries has the right to have the plaintiff medically examined, to have access to his medical records and to interview his treating doctors. Keane C.J. stated: "The plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy which he would otherwise enjoy in relation to his medical records."

In the circumstances, the Commissioner's authorised official accepted that the records at issue would be exempt from production in a court on the grounds of legal professional privilege. Accordingly, he was satisfied that section 22(1)(a) applied.

Date of Decision: 01.03.2006

Our Reference: 040333

01.03.2006

Mr. X

Dear Mr. X

I refer to the review of the decision taken by the Defence Forces on your request on behalf of your client, Mr. X, for access under the Freedom of Information Acts, 1997 and 2003 ("the FOI Act") to all records relating to Mr. X and in particular his Central Medical File LA30. I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

I have now completed my review of the decision by the Defence Forces in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to your application for review and to the submissions made by you and the Defence Forces. I have also examined the records at issue.

I note that, on 1 December 2005, Ms. Melanie Campbell, Investigator, wrote to you explaining her preliminary view on the matter. Having noted the contents of your written reply, I have decided to conclude the review by issuing a binding decision.

Scope of Review

In her preliminary view letter to you, Ms. Campbell individually identified the documents falling with the scope of the review, which the Defence Forces grouped together as records number 1 to 11. As you know, the primary issue arising in this case is whether the records are exempt under section 22(1)(a) on the basis of legal professional privilege. Included at records 1, 2, and 9 were copies of correspondence from you and/or the requester, which Ms. Campbell did not accept were exempt. The Defence Forces has recently confirmed that it does not wish to claim privilege with respect to the copies of correspondence from you and/or the requester. Accordingly, this review is concerned solely with the question of whether the decision of the Defence Forces to refuse access to records 1 to 11, apart from the copies of correspondence from you and/or the requester, is justified.

Findings

Section 22(1)(a) provides that access shall be refused to records which 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:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between the client and a professional legal adviser or the 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.

In considering whether a record 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 public body, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege.

I further note that the second limb of the legal professional privilege rule, commonly referred to as the dominant purpose test, was adopted by High Court in Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289. In rendering his judgement, O'Hanlon J. held that "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." The Silver Hill Duckling Limited v. Minister for Agriculture case involved a claim for compensation under the Diseases of Animals Act, 1966. O'Hanlon found that litigation was apprehended or threatened from the date of receipt of a letter from the plaintiffs' solicitors in which a claim was advanced that was so far in excess of the amount that the Department was willing to pay that it must have become apparent that the claim would ultimately have to be resolved by means of litigation. He further found that "the Defendants are entitled to claim privilege from that time forward in respect of communications passing between the Minister for Agriculture and his legal advisers relating to the claim, and also in respect of 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."

In this case, you expressly threatened in a letter dated 4 August 1999 to issue legal proceedings against the Minister for Defence in relation to an alleged accident involving your client in 1998. Your letter is stamped as having been received by the Minister's Office on 10 August 1998 and by the Claims Section the following day. I accept that all of the documents at issue consist of confidential communications and were created for the purpose of obtaining/giving legal advice or for the dominant purpose of preparing for the threatened litigation. It is apparent that they were generated in investigating your client's claim in response to the threatened litigation and in dealing with issues that occurred in the course of the proceedings, such as your request for discovery.

In her preliminary view letter, Ms. Campbell confirmed that the only medical reports at issue consist of or relate to the preparation of a Medical Legal Report that was created in response to the legal action. In your reply, you state that the records at issue include correspondence between the Department and your client's doctors relating to his medical condition and "that emanates from examination of his medical records". You describe the doctors as "his personal doctors in that they have been treating him for various illnesses". You maintain that, in the circumstances, "the doctors concerned are bound by professional privilege and professional ethics in that they should have obtained the consent of their patient before they engaged in any correspondence." As such consent was not obtained, you argue that it was "totally unethical and in breach of their professional responsibilities" for your client's doctors to have furnished a medical legal report. In your view, the "fact that they were employed by the Department of Defence and that they were requested by the Department of Defence to obtain this information does not waive our client's right to confidentiality", which "has been breached in relation to this matter." In sum, you argue that legal professional privilege cannot cover a report relating to your client's own medical situation, because the report and any related documents should not have been furnished without your client's consent.

I note that in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds. For instance, as noted by Ms. Campbell, privilege may not attach to communications in furtherance of a criminal offence. In this case, the Defence Forces have explained that Lt Comdr Z prepared the Medical Legal Report dated 10 December 1999 in his capacity as Medical Officer to the Naval Service. It is not disputed that, prior to the litigation, Lt Comdr Z saw your client on two occasions, but he does not consider either occasion as constituting treatment of your client in relation to matters which are subject to the litigation. According to a statement by Lt Comdr Z, he saw your client on 22 September 1998 in connection with a road traffic accident and again on 18 May 1999, when he noted that your client was awaiting appointment with another doctor. Lt Comdr Z's statement and the contents of the Medical Legal Report itself indicate that the report was based on a review of your client's medical files and an examination by Lt Comdr Z that took place on 8 December 1999. However, I find no evidence of any unethical, dishonest, or fraudulent conduct on the part of Lt Comdr Z that would give rise to an exception to the legal professional privilege rule.

On the contrary, in McGrory v. Electricity Supply Board [2003] IESC 45 (24 July 2003), the Supreme Court (Keane C.J.) found that a defendant in an action where the plaintiff claims damages for personal injuries has the right to have the plaintiff medically examined, to have access to his medical records and to interview his treating doctors. Keane C.J. stated:

 "The plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy which he would otherwise enjoy in relation to his medical condition. The law must be in a position to ensure that he does not unfairly and unreasonably impede the defendant in the preparation of his defence by refusing to consent to a medical examination. Similarly, the court must be able to ensure that the defendant has access to any relevant medical records and to obtain from the treating doctors any information they may have relevant to the plaintiff's medical condition, although the plaintiff cannot be required to disclose medical reports in respect of which he is entitled to claim legal professional privilege." 

I further note that, 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. In the circumstances, I accept that the records at issue would be exempt from production in a court on the grounds of legal professional privilege. Accordingly, I am satisfied that section 22(1)(a) applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Defence Forces.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner