Whether the refusal of access by the Department to records concerning the implementation of Article 24 of the EU Services Directive is justified under sections 28 and 31(1) of the FOI Act

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

Background

On 23 February 2015, the applicant made an FOI request to the Department for records relating to the implementation of Directive 2006/123/EC (EU Services Directive) insofar as such records relate to solicitors, barristers, the Bar Council of Ireland or the Law Society of Ireland. By letter dated 25 March 2015, the Department refused access to most of the records on the basis that they were exempt from release under sections 15(1)(d), 29(1) and 42(f) of the FOI Act. On 14 April 2015, the applicant applied for an internal review in respect of the withheld records. By letter dated 9 October 2015, the Department issued its internal review decision, in which it affirmed its original decision. On 15 October 2015, the applicant applied to this Office for a review of the Department's decision.

I should note at the outset that this Office received a request for a review of an FOI decision by the Department of Jobs, Enterprise and Innovation (Department of Jobs) in relation to records concerning the same subject matter. A separate decision on that will issue (Case Number 150336). As the Department of Jobs' observations in that case pertain to this matter, given that one of the records was created by that Department, I refer to its submissions in this decision.

I should also note that the applicant acted through their solicitor in their dealings with the Department and this Office in this FOI request.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the submissions of the Department and the Department of Jobs; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Finally, I must comment on the Department's delay in dealing with the applicant's request for an internal review decision. Over five months elapsed between the internal review request and the Department's internal review decision. This is a clear breach of the statutory requirement (three weeks). By letter dated 19 October 2015, this Office asked the Department to explain this delay, but did not receive any explanation. In view of the Department's obligations under the FOI Act, I find this unacceptable. I would remind FOI bodies that it is incumbent on them to ensure that sufficient resources are in place to facilitate compliance with their duties under FOI legislation.

Scope of the Review

In its original decision, the Department relied mainly on section 29(1) of the FOI Act, on the ground that deliberations about the Legal Services Regulation Bill 2015 were ongoing. In the course of this review, this Office asked the Department if it would release the records over which it claimed this exemption on the basis that those deliberations were now over.

The Department subsequently released the majority of the records to the applicant by letter dated 2 February 2016. It withheld the remaining records under sections 15(1)(d), 28, 31(1) and 42(f) of the FOI Act. In correspondence with this Office, the applicant agreed to treat the matter as settled regarding the records over which the Department claimed section 15(1)(d) (records 1, 2, 8, 9 and 38) and section 42(f) (records 19 and 20).

Therefore, the scope of my review concerns the three records which remain withheld from the applicant: records 21, 33 and 34. This is with the exception of Annex 1 to record 34 (which I have examined and consider to fall outside the scope of the applicant's FOI request) and the guidelines and Annexes 3 and 4 to record 34 (which the Department of Jobs released in Case Number 150336). The Department claims section 31(1)(1)(a) in respect of records 21 and 33 and section 28 for record 34. The applicant requires a formal binding decision on these records.

Analysis and Findings

In correspondence with this Office, the applicant submitted that the Department was not entitled to rely on section 28 in respect of record 34 or section 31(1)(1)(a) in respect of records 21 and 33, when it had not done so at the time of its original decision. However, as noted above, my jurisdiction is to make a new decision. Under section 22(2) of the FOI Act, I have the power to affirm, vary or annul the Department's decision. I am therefore entitled to consider these exemptions in relation to the three withheld records.

Section 28(1) - Meetings of the Government

The Department submits that record 34 was generated by the Department of Jobs and that section 28(1) applies to it. In Case Number 150336, the Department of Jobs stated that the aide-memoire dated 15 July 2015 was an aide-memoire to Government. I note that the first three pages of record 34 are copies of this aide-memoire. For section 28(1)(a) to apply, three requirements must be met. The record must have been submitted, or have been proposed to be submitted, to the Government; it must have been or have been proposed to be submitted by a Minister of the Government or the Attorney General; and it must have been created for the purpose of submission to the Government for its consideration. I have reviewed the aide-memoire and the Department of Jobs' submission and I accept that it fulfils these criteria. I therefore find that the Department is justified in withholding access to this part of record 34 on the basis that it is exempt under section 28(1).

However, the position is different as regards the attachment to record 34. In Case Number 150336, the Department of Jobs specifically stated that the addendum to the aide-memoire "was not specifically created for the purposes of advising Government". The remaining part within the scope of this review is annex 2. I find that the Department is not justified in withholding access to annex 2 under section 28(1) and I direct its release.

Section 31(1)(a) - Legal Professional Privilege

The Department claims this exemption over records 21 and 33. Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP).
In deciding whether section 31(1)(a) applies, I must consider whether 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:
(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 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 confidential communications regarding the giving or receiving of legal advice. In Case Number 020281, the former Commissioner 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."

The Commissioner has adopted this approach and taken the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

In relation to records 21 and 33, the Department submits that its correspondence with advisory counsel in the Office of the Attorney General falls within section 31(1)(a).
I have examined the records. I should emphasise that I do not accept as a general principle that all correspondence between a Government Department and the Attorney General's Office is covered by section 31(1)(a) of the FOI Act. As the Commissioner has previously found, each individual record must be considered in its own right and the tests of LPP applied on a record by record basis.
In the circumstances, I am satisfied that section 31(1)(a) applies to both records. This is on the basis that they are confidential communications between the Department and its legal adviser, the Office of the Attorney General, which form part of a continuum of seeking and receiving legal advice in relation to the transposition of the EU Services Directive and the dealings with EU institutions in this regard. I therefore find that the Department is justified in withholding records 21 and 33, under section 31(1)(a) of the FOI Act.
Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm its decision to refuse access to records 21 and 33 under section 31(1)(a) of the FOI Act. I affirm its decision to refuse access to the three pages of record 34 which constitute the aide-memoire to Government, under section 28(1) of the FOI Act. I annul its decision to refuse annex 2 and direct the release of that part of record 34.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator