Whether the Department was justified under sections 19(1)(a) and 22(1)(a) of the FOI Act in its decision to refuse access to records sought by the applicant, comprising of correspondence concerning access to General Register Office information

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

Background

On 30 July 2014, the applicant requested various records from the Department, comprising of correspondence concerning access to General Register Office information. The Department issued its decision on 2 September 2014, granting access to some records, but refusing access to others under sections 19(1)(a) and 22(1)(a) of the FOI Act. On 9 September 2014, the applicant sought an internal review of this decision. The internal reviewer issued his decision on 7 October 2014, affirming the original decision, but also identifying two further records as coming within the scope of the applicant's request, one of which was released to her, while access was refused to the other under section 22(1)(a) of the FOI Act. On 23 December 2014, the applicant sought a review by this Office of the Department's decision.

I note that, in correspondence with Mr Niall Mulligan of this Office, the Department has furnished submissions relating to the matters at issue. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting my review, I have had regard to the Department's decisions on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Department, and to the records at issue, a copy of which has been furnished to this Office for the purpose of this review. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the questions of whether the Department was justified under section 19(1)(a) of the FOI Act in refusing access to one record, on the basis that it is a record which was submitted to government, and whether it was justified under section 22(1)(a) of the Act in refusing access to further records on the basis that the records are subject to legal professional privilege.

Analysis and Findings

Section 34(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This means that the onus is on the Department of satisfying this Office that its decision to withhold the relevant information at issue was justified.

Section 19(1)(a)
This section provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for its consideration, by a Minister of the Government or the Attorney General, and was created for that purpose.

Section 19(3)(a) provides for the release of factual information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".

Finally, section 19(6) provides that the term "record" includes a "preliminary or other draft of the whole or part of the material contained in the record".

In this case, the record at issue is the second page of the first record set out in the first schedule furnished to the applicant. The first page of this record has been released. The Department described the second page as the observations of the Minister for Social Protection brought to Government in December 2012 by the Minister for Arts, Heritage and the Gaeltacht. I am satisfied that the record was, or was proposed to be, submitted to the Government for its consideration, by a Minister of the Government or the Attorney General, and was created for that purpose. I am also satisfied that the record does not contain factual information relating to a decision of the Government. Accordingly, I find that section 19(1)(a) of the FOI Act applies to this record.

Section 22(1)(a)
The Department refused access to records 4, 5, 6 and 11 of the first schedule and record 2 of the second schedule under section 22(1)(a) of the FOI Act.

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. The Commissioner accepts that legal professional privilege 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).

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 Department has not made the case that litigation privilege applies to these records. Record 6 of the first schedule consists of correspondence sent by the Department's internal legal advisor for the purpose of giving legal advice. I therefore find that advice privilege applies to this record, and that section 22(1)(a) of the FOI Act thus applies to it.

The remainder of the records at issue do not consist of correspondence between a professional legal advisor and client. I note that Mr Mulligan informed the Department of his view that these records do not attract legal professional privilege, and that the Department did not dispute that view. Accordingly, I find that section 22(1)(a) of the FOI Act does not apply to these records.

I therefore direct that records 4, 5 and 11 of the first schedule, and record 1 of the second schedule should be released to the applicant.

Decision

Having carried out a review under section 34(2) of the FOI Act, as amended, I hereby vary the decision of the Department in this case. While I affirm the Department's decision to refuse access to record one of the first schedule under section 19(1)(a) of the FOI Act, and its decision to refuse access to record 6 under section 22(1)(a) of the FOI Act, I annul its decision to refuse access to records 4, 5 and 11 of the first schedule, and record 1 of the second schedule under section 22(1)(a) of the FOI, and direct the release of those 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.

Stephen Rafferty
Senior Investigator