Whether the Defence Forces was justified in refusing the applicants' request for the notes taken by two army officers of the proceedings of the Coroner's inquest into the death of their son under section 22(1)(a) of the FOI Act.

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

Background

On 11 April 2013, the applicants made an FOI request for "the notes of the proceedings of the inquest taken by those two officers at the time....". The inquest referred to is the Coroner's inquest into the death of their son, a cadet with the Defence Forces. The two officers referred to attended the Coroner's inquest in their official capacity as legal officers of the Office of the Director of the Defence Forces' Legal Service. The Defence Forces' decision of 05 June 2013 refused the request in its entirety and it relied on section 22(1)(a) of the FOI Act for its refusal. The applicants made an internal review application on 13 June 2013 and the Defence Forces' internal review decision of 02 July 2013 affirmed its original decision. On 06 December 2013, the applicants sought a review by this Office of the Defence Forces' decision on the request.

Two records were provided to this Office for the purposes of this review. These records comprised notes taken by the two officers, containing 29 and 18 pages of handwritten notes respectively (to which I will refer in this decision as Records A and B). On 07 February, 19 March and 07 April 2014 Ms Mary Byrne, Investigator, wrote to the Defence Forces outlining her preliminary views on the matter and providing it with an opportunity to make any further comments which it wished to have taken into account before this Office reached a final decision.

In its responses, the Defence Forces contended that a small number of the pages in the records at issue do not fall within the scope of the FOI request (i.e. pages 1 to 3 and 10 of Record A and pages 1 to 4 and 10 of Record B) as they are notes of consultations that took place on 2 May and 3 May 2012, and not notes of the Coroner's inquest of 3 May and 4 May 2012. The Defence Forces continue to contend that the remainder of the records are exempt in line with section 22(1)(a).

Ms Byrne contacted the applicants with regard to the notes of consultations and they agreed that they did not form part of their FOI request to the Defence Forces. Having examined them, I am satisfied that the notes in question are not "the notes of the proceedings of the inquest taken by those two officers at the time...." and therefore, I agree that these records do not form part of this application for review.

As the Defence Forces do not accept Ms Byrne's view on the notes of the Coroner's inquest, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In carrying out my review, I have had regard to the contents of Records A and B; to correspondence between the Defence Forces and the applicants in relation to the decision on the details concerned; to communications between my Office and the applicants; and to details of various contacts between my Office and the Defence Forces, particularly the "preliminary views" letters sent to it by Ms Byrne. I have also had regard to the relevant provisions of the FOI Act.

During the course of this review the Defence Forces was asked to provide transcripts of the details at issue as some of the handwriting was unclear. The Defence Forces did not accede to this request. Accordingly, my decision is based on an examination by this Office of the handwritten details in Records A and B.

Scope of the Review

The scope of this review is confined to assessing whether or not the Defence Forces has justified its refusal of the remainder of Records A and B on the grounds that section 22(1)(a) of the FOI Act applies.

Analysis and Findings

Section 22(1)(a)
As set out in the preliminary views letters to the Defence Forces, section 22(1)(a) of the FOI Act provides for the withholding of a record where it would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). I accept that LPP 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 (advice privilege), 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/pending litigation (litigation privilege).

The records withheld under section 22(1)(a) comprise notes taken by two army officers in their official capacity as legal officers of the Defence Forces' Legal Service of witness testimonies, directions of the Coroner and the outcome of the inquest into the deaths of the applicants' son. The Defence Forces stated that these records were withheld as the dominant purpose for their creation was for impending litigation which was initiated on 02 November 2011. While I understand that the Circuit Court made a ruling on 27 February 2014 in respect of this litigation, I also understand that there are still related civil proceedings pending in this matter, to which the Defence Forces argue the records at issue are relevant.

In arriving at my decision in this case, I have had regard to the High Court judgment given in the case of MFM v PW [2001] 3 IR 462, which concerned an application for discovery of notes taken by the Plaintiff's legal representative in an earlier related hearing. The plaintiff in that case (to which I will refer to as the "MFM judgment") argued that the notes were covered by LPP on the basis that they were prepared to draw to the attention both of the Plaintiff and his Counsel certain elements of the evidence for discussion, advice and highlighting, and not simply as a transcript of the proceedings. The Plaintiff also claimed privilege over the documents on the ground that they contained material prepared by the solicitor for the purpose of giving legal advice in the course of the proceedings.

In granting the discovery sought, Finnegan J. noted that "no distinction [was] to be drawn between a shorthand note and a note taken by a parties solicitor".He said that "the solicitors note of the evidence and proceedings is not privileged. Insofar as it contains other material designed to assist the plaintiff in the prosecution of the action, it is privileged". Furthermore, his judgment noted the comments of Cozens Hardy M.R, at p90 of the latter's judgment in the case of Lambert v Home (1914) 3 K.B.86. That case concerned an application for discovery of a shorthand note taken for the purposes of an appeal in that action and also for the purposes of defending the claim of Lambert which was anticipated. Cozens Hardy M. R., in granting discovery, said "[n]ow the proceedings in the County Court were public. Anyone present could listen and take a note of what the witnesses said. The transcript did not involve any such "professional knowledge, research and skill" as Bowen L.J. referred to in Lyell -v- Kennedy (1884) 27 Ch. D. 1. There is no original composition in the document. It is a mere transcript of that which was publici juris. A defendant who has obtained at his own cost a copy of a document, not in his possession, which is not itself privileged, cannot decline to produce the copy, although he obtained it in anticipation of future litigation. So here a mere reproduction in a physical form of material which was publici juris cannot, I think, be privileged".

It is evident that Finnegan J. had regard to the "practice of the Courts" in other cases involving applications for discovery of notes taken of proceedings. He stated that "insofar as there is a note which is an admixture, being in part a note of the proceedings and/or evidence and in part notes made by a solicitor for the purpose of the litigation, the practice of the Courts has been to allow production with the latter parts covered up".

Having regard to the MFM case, Ms Byrne informed the Defence Forces of her view that the notes of the proceedings, including all of the relevant witness evidence recorded by the two officers, are not privileged and accordingly, section 22(1)(a) could not apply to the records. She asked the Defence Forces to examine the relevant notes of the proceedings and to identify the records/parts of records, which in its view, comprise solicitor/barrister notes of the evidence and the proceedings. The Defence Forces was also requested to identify the parts of the records, which in its view, contain "other material designed to assist the plaintiff in the prosecution of an action..." as referred to by Finnegan J.

In its reply, the Defence Forces stated that the judgment given in the case of MFM was "averring to the fact that in any case there must be a balancing exercise in what was in that case a discovery process". The Defence Forces went on to argue that all of the notes in this case are privileged both as advice privilege and in contemplation of civil proceedings, saying that "[t] he records and notes were generated.... for the express purpose of facilitating and informing confidential communications or a continuum of communications as might be expected to arise from such an incident". It made particular reference to the notes taken in relation to the witness testimony of Brigadier General Fry, General Officer Commanding the Air Corps. It stated that the records taken of the witness testimony of Brigadier General Fry were taken with a view to forming legal advice and guidance in respect of the civil action which had been instigated by the applicants. The Defence Forces further stated that the notes in relation to Brigadier Fry's witness testimony would have been designed to assist in the overall defence of the civil claim.

While the two officers in question may have attended the Coroner's inquest in their official capacity, this, of itself, does not in my view render their notes subject to LPP. In this regard, the Defence Forces has not explained what it considers to be the "balancing exercise" I should carry out. To the contrary, it appears from the MFM judgment, and the comments of Cozens Hardy referred to therein, that the relevant question to be addressed is whether, as a matter of fact, the notes of the Coroner's inquest contains any "original composition" or if it is a "mere transcript of that which was publici juris" (the inquest being an inquiry held in public by a Coroner, with witness testimony given on oath).

Although invited to, the Defence Forces did not provide any explanation as to how it considered the information at issue to be confidential. Nor did it identify details of any legal advice or "original composition" contained in the records at issue, and therefore it has not in my view demonstrated that the records are anything more than a "transcript of that which was publici juris". Having examined the handwritten details in the records at issue (including the notes of the witness testimony given by Brigadier General Fry), I do not see anything therein that could in my view be described as legal advice. Neither do the records at issue appear to point to, or contain, details of any subsequent communications between the Defence Forces and its legal advisors that took place on foot of the inquest.

The matter of confidentiality of privileged information was dealt with by the High Court in its decision in Woori Bank and Hanvit LSP Finance Limited -v- KDB Ireland Limited [2005] IEHC 451. In that case (to which I will refer to as the "Woori judgment"), Finlay Geoghegan J. stated "[t]he purpose and effect of a claim to legal professional privilege in a litigation context is to preserve as confidential to the party to the litigation, as against the other party, confidential communications either with its lawyer or third parties. It does not appear to form any part of the general principle to render confidential to the party claiming privilege communications either with its lawyer or third parties which are not already confidential to it. Such would be the consequence of accepting the plaintiffs' submissions".

The records withheld appear to be communications not already confidential to the Defence Forces and, in line with the judgment in the Woori case, I am satisfied that the records are not confidential communications and accordingly, a claim for LPP cannot be upheld.

Accordingly, having regard to the provisions of section 34(12)(b) of the FOI Act, which places the onus on the Defence Forces of satisfying this Office that its decision to refuse access was justified, I find that the Defence Forces was not justified in relying upon the provisions of section 22(1)(a) of the FOI Act to refuse access to these records.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Defence Forces' decision to refuse access to the remainder of Records A and B and I direct that they be released to the applicants. In line with the provisions of section 12(1) of the FOI Act, I also direct that, if the applicants so require, the Defence Forces provide a transcript of the remainder of Records A and B to the applicants.

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 on which notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner