Whether the Department was justified in its decision to refuse access to records, concerning the hosting of American Football events in Ireland, under various provisions of the FOI Act

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

Background

On 15 January 2014, the applicant made an FOI request to the Department for:

"1. All documentation and records which mention or concern, the Irish American Football Association, between 1 June 2013 and the current date.

2. All documentation concerning (i) the Department's policies regarding the interaction/involvement of Irish National Governing Bodies of Sport in visiting sporting events (ii) individual instances where the Department has become involved in such matters and (iii) any correspondence received or issued on this topic in general or on any individual events hosted by Ireland. This can be time limited to documentation in the past 6 years.

3. All documentation relating to American Football events proposed, previously held, previously proposed or due to be held in Ireland. This can be time limited from 13th March 2013 to the present day."

In its decision of 13 February 2014, the Department identified 75 records which fell within parts 1 and 3 of the applicant's request. The Department stated that it did not hold any records within part 2(i) of the request, and it refused access to the records sought under parts 2 (ii) and (iii) on the basis that complying with these requests would cause an unreasonable interference with its work. The Department invited the applicant to amend part 2(ii) and (iii) of his request. The applicant, in a letter dated 4 March 2014, clarified elements of his request; however, the Department wrote to him stating that the clarification provided did not assist it in narrowing the scope of the request. The applicant sought an internal review of the Department's decision. In its internal review decision, the Department decided that, in relation to parts 1 and 3 , it would release 54 records, release one record in part and refuse to release 18 records. The Department upheld its decision to refuse access to the records in parts 2(ii) and (iii).
On 5 June 2014, the applicant applied for a review of the Department's decision and made submissions in support of his application. Both the applicant and the Department made further submissions in the course of the review. At this stage, I must bring the review to a close by issuing a formal, binding decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue. Finally, I have had regard to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the review

This decision is concerned with (i) whether section 10(1)(c) of the FOI Act applies to certain records sought by the applicant; (ii) whether the Department was justified in its decision to refuse to release record 69 on the basis that section 20(1) of the FOI Act applied; (iii) whether the Department was justified in its decision to refuse access to records 42, 46, 47, 48, 58, 59, 60, 63, 64, 65, 66, 67, 68, 73 and 75 on the basis that section 22(1)(a) applied.
Preliminary matters
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description that I can give of the records at issue is limited.

The release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of O'Caoimh J. in Minister for Education and Science v Information Commissioner [2001] IEHC 116.

Finally, the applicant has made submissions in relation to the inadequacy of the Department's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the Department's practices and procedures, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act, while this review, conducted pursuant to section 34 of the FOI Act, must be confined to reviewing whether the Department has justified its refusal of the request under the FOI Act. The applicant complains about many issues concerning the Department's handling of the FOI request and the background to the records themselves. While I have taken his submissions into account insofar as they are relevant to the review, I do not comment on every element of them.

Analysis and Findings

Section 10(1)(c)
The Department has refused to release the records sought by the applicant under part 2 (ii) and (iii) of his request on the basis that section 10(1)(c) of the FOI Act applies to these records. Section 10(1)(c) provides:

"A head to whom a request under section 7 is made may refuse to grant the request if - in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned."

In accordance with section 10(2) of the Act, the Department, as outlined in the background section of this decision, invited the applicant to amend his request so that it would no longer cause a substantial or unreasonable interference with its work. Based on the information provided, I agree with the Department that, even with the clarification submitted, the granting of the request involves the retrieval and examination of a large amount of material covering its role in regard to various sporting events. I accept that the effect of complying with the request would represent a substantial and unreasonable interference with the work of the Department especially in its Tourism Division. The fact that the applicant is not seeking all documentation on each file would not, in my view, be likely to mitigate this in any substantial way. I am satisfied, on balance, that the Department has justified its refusal of part 2(ii) and (iii) of the applicant's request on the basis that section 10(1)(c) of the FOI Act applies to these parts of the request and I find accordingly.

Record 69
The Department refused to release part of record 69 on the basis that is exempt under section 20(1) of the FOI Act which provides for refusal of a request if the record concerned contains a matter relating to the deliberative processes of a public body. The withheld part of the record relates to this Office's review under section 34 of the FOI Act of the Department's decision in one of the applicant's previous FOI requests. Thus, the Act does not apply to this record as provided for in section 46(1)(c)(i) of the Act.

Records 16, 17 and 32
Records 16 and 17 are identical to records A and B in a previous review under Case Number 130272 which has already been determined by this Office. It is therefore appropriate to discontinue this review in respect records 16 and 17 in accordance with section 34(9)(a)(iii) of the FOI Act, which provides that a review may be discontinued if the matter to which the application relates is, has been or will be, the subject of another review under section 34 of the FOI Act. I also note that, in its submissions to this Office, the Department agreed to the release of record 32 and I direct record 32 should be released to the applicant if this has not already been done.

Section 22(1)(a)
The Department refused to release records 42, 46, 47, 48, 58, 59, 60, 63, 64, 65, 66, 67, 68, 73 and 75 and the attachments to these records, on the basis that they are all covered by section 22(1)(a) of the FOI Act. Section 22(1)(a) provides:

"A head shall refuse to grant a request under section 7 if the record concerned would be exempt from production in proceedings in a Court on the grounds of legal professional privilege".

Submissions of the parties on legal professional privilege(LPP)
The applicant submits that there is no basis for the Department's claim that the records are exempt under section 22(1)(a) of the Act. He argues that the fact that a person working in a Government Department as a qualified lawyer does not mean that all correspondence with him or her is considered to be lawyer/client correspondence. The applicant says that Government Departments can only receive legal advice from the Chief State Solicitor's Office or the Attorney General. The applicant says that correspondence passed from the internal legal adviser to a party who no longer worked for the Department and claims that once the correspondence passes outside the lawyer to client relationship it loses privilege.

The Department submits that the records contain requests for legal advice to and legal advice received from its in-house legal adviser. The Department says that recent legal advice confirms its position that the attachments to the records are also privileged. The Department states that the attachments form part of a chain of correspondence regarding legal advice sought and received. The Department points out that there was an allegation of wrongdoing made against it and that, in these circumstances, it was entitled to secure legal advice and it should have complete confidence that communications between it and its legal adviser will be kept secret. It says that releasing attachments exposes the Department's confidential communication with its lawyer for the purpose of obtaining legal advice on what should be prudently and sensibly done in relation to a chain of correspondence. According to the Department, that correspondence can only be included by way of attachment to the request and must therefore form part of the request. It argues that to release the attachments exposes the very essence of the legal advice sought and denies the Department the confidentiality it is entitled to rely on.

The law on legal professional privilege
In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the ground of LPP in court proceedings. 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)
• 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).

 

LPP belongs to the client who has the right to waive this privilege if he or she so wishes. Waiver may also be implied in certain circumstances. There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice; and, communications in furtherance of a criminal offence. The LPP exemption contains no public interest balancing test.

The former Commissioner has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. In Case 020281 (Mr. X and the Department of Education and Science available at www.oic.ie), she referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:
"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

I have adopted this approach and take the view that privilege applies to records that form part of a continuum of correspondence that results from the original request for advice.

In his internal review request, the applicant cited the European Court of Justice Case C 550/07P Akzo Nobel Chemicals Limited v. The Commission as authority for the proposition that advice privilege does not apply when in house legal advisers are used in seeking legal advice. I do not accept that, when the ingredients of the relevant type of LPP (legal advice privilege or litigation privilege) are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser operates to prevent the client from being able to assert the privilege over the communications at issue. In Case 020281 referred to above, the former Commissioner found that the fact that a professional legal adviser may be employed as an in-house legal adviser did not prevent privilege being attached to the communications at issue given that possession of a professional legal qualification entails being either a member of the Law Society (for solicitors) or the Honourable Society of King's Inns (for barristers). In Case 080216, my predecessor found that the judgment in Akzo Nobel has limited effect in that, in principle, it applies only to the exercise by the European Commission of specific powers under European Competition Law. Accordingly, I am satisfied that LPP may attach to confidential communications between the Department and its legal adviser in the circumstances of this case.

The applicant points out that the emails contained in records 58, 59 and 60 were forwarded to an official who had moved from the Department of Transport, Tourism and Sport to another Department. The applicant argues that LPP exists between the lawyer and immediate client and if a document is passed to a third party who is not the direct client, it permanently loses its privilege. As I understand it, this is an argument that there is a implied waiver of privilege over those records. I note that the correspondence at issue was directed to the official while he was still in the Department of Transport, Tourism and Sport. In my view, disclosure of the records to the official concerned constitutes "limited disclosure for a particular purpose, or to parties with a common interest", as per the judgment of the Supreme Court in the case of Redfern Limited v O'Mahony[2009] IESC 18. I am satisfied that the official was within the lawyer/client relationship so that records 58, 59 and 60 did not lose their privilege by virtue of being passed to him.
In the light of all this, I am satisfied that records 42, 46, 47, 48, 58, 59, 60, 63, 64, 65, 66, 67, 68, 73 and 75, contain either legal advice or requests for legal advice and are legally privileged.

However, this finding is not the end of the matter since, with the exception of records 48, 58, 59, 60 and 67, all of these records contain one or more attachments. The attachments include records which pre date the Department's request for legal advice by a number of months and were created for purposes other than seeking legal advice. They include records which were created by the applicant and records which have already been released to the applicant. On the question of the purpose of the confidential communications and whether certain attachments are privileged, according to McDonagh in "Freedom of Information Law", Thompson, 2015, at p.356:

"The communication must have been made for the purposes of the giving or receiving of legal advice. Heffernan explains the rationale for this requirement in the following terms; the condition of legal advice reflects a tension in the law of privilege between the need to balance the public interest in favour of the disclosure of relevant evidence with the competing public interest in maintaining the confidentiality of the lawyer-client relationship. Conscious that the gradual expansion of legal professional privilege has led to a corresponding diminution in the principle of disclosure, the courts have strictly enforced the limitation that the communication passing between the client and her lawyer must be made for the purpose of receiving or giving legal advice."

As part of the strict enforcement of this condition, it is my understanding that legal advice privilege is not extended to pre-existing documents which do not themselves attract privilege, but which are attached to requests for legal advice. According to Heffernan in "Legal Professional Privilege", Bloomsbury, 2011, at p.40-41:

"During the course of a consultation, a client may furnish her lawyer with one or more documents relevant to the matter on which legal advice is sought. Whether the document in question is a privileged communication depends upon the purpose for which the document was created. Because protected communications are firmly grounded in the exchange between the lawyer and the client, it follows that privilege will extend to a document prepared by the client for the purpose of obtaining legal advice. In contrast the law will not protect a so-called 'pre-existing document', i.e. a document created for some other purpose prior to the client seeking legal advice."

As regards the argument that the records are part of a continuum of communications between the client and its legal adviser, I note that while some of the records might form part of such a continuum, I am not satisfied that all of the attachments forwarded to the lawyer in this case resulted from the original request for legal advice or involved protracted dealings of the kind described in the case of Balabel v Air India referred to above

In Case 020281 referred to above, the former Commissioner found that, in general, LPP would not apply to an attachment to a request for legal advice unless it was a copy of a document that would not ordinarily be in the possession of the client (i.e. a copy of a document, the original of which was not held by the client, that the client had to take certain steps to acquire, possibly for the purposes of collecting evidence in anticipation of litigation) or unless release would result in the disclosure of legal advice previously received.

It seems to me that certain attachments cannot be treated as confidential communications to which LPP applies. I have examined each attachment in its own right to determine whether or not it is subject to LPP and set out my conclusions as follows:-

Two attachments to Record 42 (a request for legal advice) are not legally privileged and should be released to the applicant
Record 46 (a request for legal advice) contains four attachments; the first three are not legally privileged and should be released to the applicant. Attachment four is legally privileged

• Record 47 (discloses legal advice received) contains one attachment which is privileged
• Records 48, 58, 59 and 60 contain no attachments
• Record 63 (a request for legal advice) contains one attachment which is privileged.
• Record 64 (legal advice) contains one attachment which is privileged.
• Record 65 (legal advice) contains one attachment which is privileged.
• Record 66 (a request for legal advice) contains one attachment which is privileged.
• Record 67 contains no attachments.
• Record 68 (discloses legal advice received) contains five attachments. The first attachment is privileged, the second, third, fourth and fifth attachments are not legally privileged and should be released to the applicant.
• Record 73 (discloses legal advice received) contains one attachment which is not privileged and should be released to the applicant. Record 75 contains one attachment which not privileged and should be released to the applicant.

 

There are circumstances, in which I might consider annulling the Department's decision in respect of the attachments to which it had applied section 22(1)(a) and remitting that part of the decision back to it for a fresh consideration of whether any of the other exemptions in the FOI Act might apply to those records. However, in this particular case, the attachments at issue comprise copies of records already released to the applicant under the FOI Act or are otherwise in his possession.
Decision
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department. I direct that the Department release record 32 to the applicant. I direct that the Department release attachment one and two of record 42, attachments one, two and three of record 46, attachments two, three, four and five of record 68, attachment one of record 73, and attachment one of record 75. I affirm the Department's decision in relation to the remaining records.

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.

Elizabeth Dolan
Senior Investigator