Whether the Board was justified in refusing the applicant's request for access to the files of her late husband.

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

Background

In a request dated 27 September 2011, the applicant sought access under the FOI Act to the files of her late husband held by the Board. The Board refused the applicant's request under section 26(1)(b) (duty of confidence) and 28(1) (personal information) of the FOI Act. The Board also referred to section 32 of the Civil Aid Act 1995, which relates to the relationship between a lawyer and a person who is in receipt of legal aid or advice; the Board thus indicated that it considered that section 22(1)(a) of the FOI Act, the legal professional privilege exemption, was of relevance in this case. By letter dated 15 November 2011, the applicant applied to this Office for a review of the Board's decision.

At an early stage of the review, Mr. Sean Garvey, Senior Investigator, wrote to the applicant in an effort to resolve the matter informally. He explained that, in his opinion, the Board's decision was correct on the basis of the claim for legal professional privilege. He also noted that the applicant had not provided any evidence to show that her late husband would have consented to the release of the requested files to her if he were still living.

In a submission made on 27 February 2012, the applicant contested Mr. Garvey's opinion on the matter. The case was then was transferred to Ms. Melanie Campbell, Investigator, for further processing. On 11 October 2012, Ms. Campbell wrote to applicant explaining her preliminary observations on the matter. Briefly stated, Ms. Campbell's view was that the files were exempt under section 22(1)(a) and section 28 of the FOI Act. The applicant was given a period of three weeks in which to reply.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have examined a sample of the records at issue. I have also had regard to the submissions made by the Board and the applicant. However, no further submissions in response to Ms. Campbell's preliminary view letter of 11 October 2012 have been received to date. Therefore, I have decided to conclude the matter by way of a binding decision on the basis of the information now before me.

Scope of the Review

This review is concerned solely with the question of whether the decision of the Board to refuse the applicant's request for access to the files of her late husband was justified.

Findings

Section 22(1)(a)
Section 22(1)(a) states 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 legal adviser for the purpose of obtaining and/or giving legal advice, and
confidential communications made between the client and a 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.
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 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."

Section 32 of the Civil Aid Act 1995 provides, in essence, that a recipient for legal aid or advice is entitled to the protection of legal professional privilege in the same way a client of a solicitor or barrister who is not in receipt of legal aid or advice. Moreover, as noted by the Commissioner in Case 000137, N.McK and a Dublin Hospital (19 May 2006), legal professional privilege normally endures after the client who is entitled to the privilege is deceased.

In this case, the Board has described the records at issue as the legal files of the late Mr. XZ relating almost entirely to a long-running case involving his son, Mr. YZ, who is also the son of the applicant. The sample of records provided to this Office by the Board confirm that Mr. XZ brought a legal action against Mr. YZ over a disputed piece of property and an alleged assault. I am therefore satisfied that the vast majority of the records at issue in this case were prepared for the dominant purpose of contemplated or pending litigation.

I note that, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds. For instance, as the applicant has pointed out, privilege may not attach to communications in furtherance of a criminal offence or fraud. However, I do not accept that there is a sufficient basis in this case for finding any unethical, dishonest, or fraudulent conduct on the part of the applicant's late husband or the Board that would give rise to an exception to the legal professional privilege rule.

Section 28

Section 28 provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information, including personal information relating to a deceased individual. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. While personal information can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates, unless under section 28(5) of the FOI Act:
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(xi) information relating to the property of the individual (including the nature of the individual's title to any property)".

In this case, I accept that the records at issue in this case relate almost entirely to a legal action brought by the applicant's late husband over a disputed piece of property and an alleged assault. According to the Board, it also holds one small file relating to family law matter that had been initiated by the applicant's late husband but was not ultimately pursued. I am satisfied that the records at issue contain personal information about the applicant's late husband that is held by the Board on the understanding that it would be treated by it as confidential. Given the nature of the records, it may be more accurate to describe them as containing joint personal information relating to the Z family; nevertheless, I am satisfied that section 28(5B) operates to protect the information concerned.

Public Interest

As Mr. XZ is deceased, I find no basis for considering that granting the request in this case would be to his benefit within the meaning of section 28(5)(b) of the FOI Act. In relation to the question of where the public interest lies under section 28(5)(a), I note that I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

I further note that the FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the right to privacy. Moreover, the protection of legal professional privilege is also a well-established public policy that is given further recognition by the exemption provided for at section 22(1)(a) of the FOI Act.

On the other hand, the FOI Act also recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. In this case, the applicant apparently seeks information about the Board's handling of her late husband's case against Mr. YZ, her son, because she considers that a fraud may have been committed. The applicant's supporting evidence in relation to the alleged fraud, however, relates to an application for an old age pension that was made by her late husband prior to the legal action that he took against her son with the assistance of legal aid. In the circumstances, I do not accept that the release of the files of the applicant's late husband would enhance the public interest in openness and accountability with respect to the functions of the Board to a sufficient extent to outweigh the public interest in protecting the right to privacy and legal professional privilege. I therefore find that section 28(5) does not apply.

Section 28(6)(b) and the 2009 Regulations
I have also considered the provisions of section 28(6)(b) of the FOI Act and the associated 2009 regulations, S.I. No. 387 of 2009. The 2009 regulations were issued by the Minister for Finance under section 28(6)(b) to provide for a right of access to records of deceased persons to certain specified categories of requester. The 2009 regulations state at article 4(1)(b)(iii) that, subject to the other provisions of the FOI Act, a request for access to records of a deceased individual shall be granted to "the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request".

The Minister also published Guidance Notes which must be considered by decision makers in applying the regulations. The Guidance Notes specify certain factors to be taken into consideration in determining whether the public interest would be better served by granting than by refusing the request, including:

The confidentiality of personal information as set out in section 28(1)of the Act

Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death. If, however, the deceased had refused to release the records during his/her lifetime or had left written instructions in a will or other document that the records were not to be released, there would have to be compelling reasons for overturning the deceased's expressed wishes.

The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased.

The nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing.

Having regard to the circumstances of the applicant's request as identified in her submissions and the submissions of the Board, I do not consider that it would be appropriate to release the files requested to the applicant under the 2009 Regulations. The applicant has not disputed that she and her late husband had been separated for a number of years prior to his death and that another family member has been named as her late husband's personal representative in his will. Moreover, as noted by Ms. Campbell, it is apparent that the applicant does not support her late husband's interests in relation to the legal action taken against her son. Indeed, the applicant's own statements regarding the nature of the family dispute strongly indicate that her late husband would not have consented to the release of his confidential legal files to her. In the circumstances, I am satisfied that the Board's decision to refuse the applicant's request for access to her late husband's files was justified in the circumstances.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Board 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 after notice of the decision was given to the person bringing the appeal.

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Stephen Rafferty
Senior Investigator
22 November 2012