Whether the Department was justified, under section 31 of the FOI Act, in refusing to grant access to records evidencing consideration of the payment or non-payment of compensation to certain parties in connection with the introduction of standardised packaging for tobacco products

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

By letter dated 29 January 2015, the applicant submitted a request to the Department for access to certain records, including "All records [created after 1 June 2012] which evidence consideration of the payment or non-payment of compensation to the tobacco companies and/or other Property owners in respect of the deprivation and/or expropriation and/or restriction of the Property [as a result of the introduction of standardised packaging for tobacco products]."

On 15 May 2015, the Department refused to confirm or deny the existence of relevant records under section 31(4) of the FOI Act. On 12 June 2015, the applicant sought an internal review of the Department's decision. On 7 July 2015, the Department affirmed its original decision. On 20 August 2015, the applicant sought a review by this Office of the Department's decision.

On 17 November 2015, Simon Noone, Investigator, informed the Department of his view that it had not justified its decision to refuse to confirm or deny the existence of records. On 19 November, the Department stated that it was willing to concede that it had not met the public interest test set out in section 31(4), and that it was agreeable to this Office proceeding to examine the records it had identified as coming within the scope of the applicant's request.

In conducting this review, I have had regard to the submissions of the parties, and to the contents of the records at issue.

Scope of the Review

In its submissions to this Office, the Department identified and furnished 56 records which it considered relevant to the request. Having carefully inspected the records, I am satisfied that only ten of these records come within the scope of the request; i.e. record numbers 1, 2, 4, 5, 7, 8, 9, 11, 14 and 15. I consider that records 3, 6, 10, 12 and 13 are outside scope as they do not evidence consideration of the payment or non-payment of compensation. Records 16 - 56 (inclusive) do not come within the scope of the request as they were created subsequent to the date on which the request was submitted, i.e. 29 January 2015. Therefore, the scope of this review is concerned with whether the Department was justified in refusing access to those records that fall within the scope of the request.

Findings

It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited. Furthermore, while section 18(1) of the Act allows for the partial release of records, subsection (2) states that such partial release shall not be directed if the redacted records would be misleading.
The Department refused access to records 1, 2, 4, 5, 7, 9, 11, 14 and 15 under section 31(1)(a). It refused access to record 8 under sections 28(1)(a) and 31(1)(a).

Section 31
Section 31(1)(a) is a mandatory exemption which protects records which would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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

(b) 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 applicant has sought access to records which evidence consideration of the payment or non-payment of compensation as a result of the introduction of standardised packaging for tobacco products. The Public Health (Standardised Packaging of Tobacco) Act 2015 was enacted in March 2015. Upon commencement, the Act will mandate that all tobacco products shall have standardised, plain packaging. In its submission to this Office, the Department stated that a legal challenge to the Act has been commenced by Japan Tobacco Ireland Limited (JTI) against the State. It explained that there are currently questions before the Court of Justice of the European Union (CJEU) on related matters that were referred by the UK Courts and that a final decision in the JTI case will await the CJEU ruling in the UK case. The Department further stated that it has also received correspondence from the applicant solicitors, on behalf of Philip Morris International Inc., informing the Department that its client was challenging the legality of the new Act, and reserving the right to commence its own proceedings against the State. I would add that it is clear from media reports on the matter that the Government anticipated that legal action would be initiated by the tobacco producers once the legislation was signed into law.

The proposal to legislate for the introduction of standardised packaging for tobacco products was clearly a matter of significant contention, particularly within the tobacco industry. Based on the Department's submissions, I believe it is reasonable to conclude that the possibility of litigation was contemplated by the Department during the preparation and drafting of the proposed legislation. Indeed, as stated above, the Department has referred to communications received by it from the applicant, as well as other solicitors, on behalf of tobacco companies, which made reference to the potential threat of litigation.

Consequently, having regard to the contents of the records before me, I find as follows:

Record 1 - Request for legal advice to Department's legal adviser - exempt under legal advice privilege and litigation privilege.

Record 2 - Legal advice from Department's legal adviser - exempt under legal advice privilege and litigation privilege.

Record 4 - Internal email within Department - exempt under litigation privilege.

Record 5 - Legal advice to Department Management Advisory Committee - exempt under legal advice privilege and litigation privilege.

Record 7 - Legal advice from Department's legal adviser - exempt under legal advice privilege and litigation privilege.

Record 8 - Draft memorandum for Government - Observations of Attorney General exempt under legal advice privilege and litigation privilege; remainder of the record is outside of scope.

Record 9 - Legal advice from Attorney General - excluded from FOI Act under section 42(f).

Record 11 - Legal advice from Office of the Attorney General - excluded from FOI Act under section 42(f).

Record 14 - Legal advice from Office of the Attorney General - excluded from FOI Act under section 42(f).

Record 15 - Letter from Chief Medical Officer to Office of the Attorney General - exempt under legal advice privilege and litigation privilege.

Therefore, I am satisfied that the Department was justified in refusing access to records 1, 2, 4, 5, 7, 8 and 15 on the grounds of section 31(1)(a). I am further satisfied that records 9, 11 and 14, being records created by the Attorney General and/or her Office, are excluded from the provisions of the FOI Act on the basis of section 42(f).

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Department to refuse access to the relevant records 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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator