Whether the HSE was justified in its decision to refuse access to redacted portions of a released record on the basis of section 22(1)(a) of the FOI Act.

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

Background

The applicant made a Freedom of Information request on 26 April 2013 to the HSE for access to "all my notes held by you". In its original decision of 31 May 2013 the HSE informed the applicant that her request for records was being refused under section 28(3)(a) and (b) of the Freedom of Information Act. The applicant, through her legal representatives, requested an Internal Review of this decision on 24 July 2013 in relation to one specific record. In its Internal Review decision of 9 September 2013 the HSE upheld its original decision to refuse access to the record on the basis of section 22(1)(a) of the FOI Act rather than section 28(3) as cited in the original decision. However after further consideration of the matter the HSE released a redacted copy of the relevant record to the applicant on 29 November 2013.
The applicant was not satisfied with this and applied through her legal representative to this Office for a review on 13 December 2013. The application for review to this Office is confined solely to the partially redacted record provided by the HSE to the applicant's legal advisors during the course of the HSE's internal review of the original decision in this matter.
I note that Mr David Logan of this Office advised the applicant that the decision of the HSE was justified in his view. The applicant did not accept this and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:

• the HSE's decisions on the matter and its communications with this Office;
• the applicant's communications with this Office and the HSE,
• the provisions of the FOI Act
• the record in question

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.

Scope of Review

This review is confined to the sole issue of whether or not the refusal by the HSE to release the redacted portions of the record which is the subject of the application for review to this Office is justified on the basis of section 22(1)(a) of the FOI Act. It is important to note that this Office can not consider issues outside the scope of the FOI Act.

Analysis and Findings

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 the Preliminary View, 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. He 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.

In this particular case the HSE released a redacted copy of the record in question to the applicant. This record comprises of a statement made by a senior medical professional about the medical situation of the applicant with particular regard to an incident recorded therein. The redacted portion of the record is a note detailing contact between the HSE and its legal advisers seeking legal advice regarding the treatment of the applicant and the legal advisers subsequent advice on the matter.

I have noted the comments in the submission to this Office from the representatives of the applicant and their view that the record is not a confidential communication made between a client and his/her professional legal adviser, rather it is a medical record relating to the applicant. However having examined the redacted portion of the released record I am satisfied that it is a record of a confidential communication made between the HSE and its professional legal adviser for the purpose of obtaining and/or giving legal advice. Therefore I find that the redacted portion of the records are exempt from release under section 22(1)(a) of the FOI Act.

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

Sean Garvey
Senior Investigator