Whether the Department is justified in its decision (in reliance on sections 22(1)(a) and 28(1) of the FOI Act) to refuse access to records sought in a request under section 7 of the FOI Act.

Case Summary

The Senior Investigator found that the Department had properly applied sections 22(1)(a) and 28(1) to the withheld records and, accordingly, affirmed the Department's decision. 

Date of Decision: 14.12.2009

Review Application under the Freedom of Information (FOI) Acts 1997 & 2003 to the Information Commissioner.

Background:

On 21 May 2008, the Applicant (via his legal advisors) sought all files, notes, papers and records of the Department in relation to its dealings with him under the appropriate legislation for the buying and selling of livestock, particularly the purported cancellation of his agent number (specified in the request), along with notes and various records concerning the Department's monitoring of his undertaking or otherwise. On 11 July 2008, the Applicant's solicitors sought an internal review of the Department's decision of 3 July 2008 to partially grant the request. On 12 August 2008, the Department issued its internal review decision, which released further documents in full and in part (the records being held variously on seven separate files). The Applicant's solicitors made an application to this Office for review on 4 September 2008.

In conducting my review, I have had regard to the contacts between this Office and the Department; to the contacts between this Office and the Applicant's solicitors; to copies of the records at issue (provided to this Office for the purposes of the review); and to the provisions of the FOI Act, as amended. While the FOI Act requires me to provide reasons for my decisions, section 43 of the FOI Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This is in order to preserve any party's right of appeal to the High Court on a decision I might make that particular records are not exempt. Thus, I can only give a limited description of the records at issue in this case.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner (who is referred to as "the Commissioner" in this decision) to conduct this review.

Scope of the Review

My review is confined to the sole issue of whether or not the Department's refusal to fully release all records it holds of relevance to the request is in accordance with the provisions of the FOI Act.

Ms Anne Moran, Investigator in this Office, drew the attention of the applicant's solicitors to the fact that there are many copies of records on the seven files at issue and thus there is a smaller core number of records than the existence of seven files of relevance to their client might suggest. However, I concur with her view that it is not necessary for her (or this decision) to list the records concerned, given the findings set out hereunder.

Submissions

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Findings

Section 22(1)(a)

Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. This provision does not require the consideration of the public interest.

As explained to the Applicant's solicitors in previous correspondence with this Office, the Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between a client and 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 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 or pending litigation.

The Commissioner, in considering whether a record would be exempt from production in a court on the grounds of legal professional privilege, must ignore whether or not proceedings took place and bear in mind that legal professional privilege resides with the client. She must simply consider whether the public body, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege. I have adopted the above in arriving at my decision in this case.

The Department claims that the documents fall into the second category of confidential communications listed above, in light of the letter received from the Applicant's solicitors on 21 September 2007, which makes various serious allegations against the Department and states that, if the "matters complained of recur proceedings as may be necessary to protect the legal and constructional rights of [its] client will be pursued". That letter also told the addressee, a Department official, that he and the Department would be named as defendants in any such necessary proceedings. A further letter of 9 October 2007 advised that if no response to that letter was received within seven days, the authors intended to "pursue the matter by Court proceedings".

Both Mr Sean Garvey, Senior Investigator in this Office, and Ms Moran advised the Applicant's solicitors that they accepted the Department's view that it considered litigation to be in contemplation from 21 September 2007.

Mr Garvey, by way of letter dated 9 January 2009, referred the Applicant's solicitors to the Department's statement that all records on the Applicant's case created since 21 September 2007 were created in contemplation of litigation. He referred the Applicant's solicitors to the fact that correspondence since the above date was routed through its Legal Division, and to the Department's explanation that "... all subsequent interaction between Legal Services Division and the line Division was predicated on the likelihood that legal proceedings against the Minister were being contemplated by [the Applicant] and/or imminent. With regard to litigation privilege the dominant purpose of the communications between the line Division concerned and Legal Services Division was to defend potential proceedings and to avert proceedings if at all possible". Mr Garvey then went on to advise the Applicant's solicitors that he considered only some of the records to have come into existence for the purpose of the Department's preparation for the threatened litigation. He said he considered those to have been created in order to provide relevant background information to Legal Division, to keep that Division informed of progress on the Applicant's case, and thus to form part of the Legal Division's on-going assessment of how it should proceed in relation to the litigation threatened in the letter of 21 September 2007.

Mr Garvey also said that he considered that the remaining records concerned legal advice sought and received from the Department's professional in-house legal advisor, and thus fell into the first limb of legal professional privilege set out above. He explained why the Commissioner accepts that privilege applies to advice sought or received from an in-house legal advisor, referring in particular to the Commissioner's decision in Case No. 020281 (Mr X and the Department of Education and Science, available on www.oic.ie).

Ms Moran's letter of 30 October 2009 advised the Applicant's solicitors that she considered the letter of 21 September 2007 to be an express threat that legal proceedings would issue if the matters complained of recurred and that she considered the Department to have been justified, from that date, in considering that it should prepare for the litigation that appeared to be contemplated by Applicant's solicitors, arising from the allegations made therein. She also told the Applicant's solicitors that there was no indication from the records that the Department had reason to consider that the express threat of litigation had been subsequently withdrawn, or that it had ceased to exist. She told the Applicant's solicitors that, having examined all the records, she was of the view that the dominant purpose for their creation was preparation for any such litigation that may arise and considered them to fall into the second category of documents that attract legal professional privilege.

Ms Moran also outlined that she considered the records to comprise advice sought, and received, by the Department from its internal legal advisor arising from the allegations made in the letter of 21 September 2007, or to be part of a continuum of correspondence arising from that request for advice. She said that, thus, she considered the records to fall into the first category of documents that attract legal professional privilege.

The Applicant's solicitors' letter of 10 November 2009 contended that there was, in fact, no actual or threatened litigation contained in the letter of 21 September 2007 and would "emphasize that the threat arose in relation to any recurrence of the matters complained of" i.e. that should any of the matters complained of recur, proceedings would be pursued.

The matters complained of were, in my view, of a broad nature, including allegations of a "history of unfair dealing by [the] Department with [its] client" and "the suggestion at [the Department's] end that [its] client does not have a herd number", along with details of alleged assault and alleged unlawful seizure of materials. Firstly, it is important to note that it is not this Office's role to determine the legality of any administrative actions of the Department or determine the veracity of the other allegations made. However, it seems to me to be reasonable for the Department to have understood the letter of 21 September 2007 to mean that if it continued along the lines of previous administrative actions (which I assume it considered to be in accordance with the law), legal action would ensue. Accordingly, I am of the view that the Department was justified in presuming that litigation was contemplated as and from 21 September 2007. I consider all the withheld records to have come into existence with the purpose of the Department's preparation for such litigation. I do not consider that the eight month period between 21 September 2007 and the date of the request is such a length of time that I should question whether the Department should have considered the threat of litigation to have lapsed. As such, I concur with Ms Moran's views that the records at issue fall into the second category of legal professional privilege.

I also accept her view that the records comprise advice sought, and received, by the Department from its internal legal advisor arising from the allegations made in the letter of 21 September 2007, or are part of a continuum of correspondence arising from that request for advice. I thus consider the records to also fall into the first category of documents that attract legal professional privilege.

The Applicant's solicitors' letter of 10 November 2009 referred to the European Court of First Instance judgment, in the case of Akzo Nobel v European Commission which "determined that communications between an in-house lawyer and a client do not benefit from legal professional privilege". Although both Mr Garvey and Ms Moran had stated that the party from whom the Department sought legal advice was an in-house legal advisor, the Applicant's solicitors claimed that the party from whom legal advice was sought had not been identified but suggested that if it was an in-house legal advisor, legal professional privilege does not attach further to the ruling in the Akzo Nobel case.

The Akzo Nobel case is concerned with the powers of the European Commission to demand certain documents under provisions of the EU treaty relevant to its investigation of alleged anti-competitive practices, and the extent to which it is necessary to restrict legal professional privilege to enable the Commission utilise its specific powers of investigation in this regard. It seems to me, therefore, that the judgment has limited effect in that, in principle, it applies only to the exercise by the European Commission of specific powers under European Competition Law. Furthermore, I understand that the judgment recognises that information obtained at European level may only be used for the purpose it was obtained (i.e. the investigation of anti-competitive behaviour) and that the authorities concerned are prohibited from using or disseminating this information for any other purpose. Thus, I have no reason to consider that the Akzo Nobel judgment requires me to find that records of advice received, or sought, from an in-house legal advisor cannot attract legal professional privilege. I am happy to adopt the position as explained in the Commissioner's decision in Case No. 020281.

I also note, in response to Mr Garvey's letter of 9 January 2009, the Applicant's solicitors argued that the various communications comprise legal assistance, having regard to the judgments in the Smurfit Paribas and Miley v Flood cases. Ms Moran's letter outlined the Department's views on this contention, namely that the comments of Finlay CJ. in the Smurfit Paribas case ("there are many tasks carried out by a lawyer for his client and properly within the legal sphere, other than the giving of advice, which could not be said to contain any real relationship within the area of potential litigation") were intended to illustrate that communications which do not result in the provision of legal advice, such as those surrounding the drafting of contracts or conveyancing documents, would not attract privilege from disclosure. Ms Moran's letter outlined why the Department considered the Miley v Flood judgement not to be relevant to this case, given that it was concerned with whether privilege extended to the identity of a solicitor's client, rather than to advice sought or given by that solicitor to that client. However, Ms Moran noted that said judgment had regard to the findings in the Smurfit Paribas judgement, particularly that when a communication was made between a person and his lawyer "for the purpose of obtaining from such lawyer legal advice", such a communication "should in general be privileged or exempt from disclosure, except with the consent of the client". She advised that the Department was not prepared to waive privilege over the records at issue.

I concur with Ms Moran's views that the content of the records at issue is not confined to matters of legal assistance and I note that the Applicant's solicitors did not rebut those views in their letter of 10 November 2009.

Having found the records at issue to fall into both categories of documents that attract legal professional privilege, I find them to be exempt under section 22(1)(a) of the FOI Act.

The Applicant's solicitors have made a lengthy submission as to why "in cases involving a citizen on the one hand and state authority on the other hand the scale should tilt against the state authority claiming and being allowed hide under the claim of privilege". It also has argued that the "contractual relationship" that the Department has with its client (pursuant to statutory obligations, according to the submission) and the entire farming community means that there is less public interest or common good to be secured and protected by a claim for privilege or its grant to the Department. I am taking these comments as arguments that I should consider whether or not the public interest warrants the disclosure of those records that I have found to be privileged.

The fact remains that the FOI Act does not provide for the consideration of the public interest test in relation to the section 22(1)(a) exemption which, unlike many in the Act, is a mandatory provision. As I must interpret the FOI Act as it stands, I cannot consider the arguments made in this regard.

Section 28

A small number of records contain details about parties other than the Applicant. His solicitors have not disputed the views put to them that such details are exempt from release under section 28(1) of the FOI Act - the exemption providing for the withholding of personal information of a party other than a requester - and that there is no public interest in their release. I concur with those views and find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department in this case.

Right of Appeal

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 decision.

Elizabeth Dolan

Senior Investigator

14 December 2009