Case Number: 150368

Whether the Department was justified in its decision to refuse access to certain records, in whole or in part, in connection with the applicant's request for access to records concerning the social insurance classification of certain proprietary company directors

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

On 3 August 2015, the applicant made a request to the Department for access to certain records relating to the employment status and social insurance classification of proprietary company directors and relating to the enactment of Section 16 of the Social Welfare (Miscellaneous Provisions) Act 2013.

On 8 September 2015, the Department decided to part grant the request. Of the 125 records it identified as coming within the scope of the request, it released 29 records in full and the remainder in part, redacting information on a number of grounds, including that parts of some records were outside the scope of the request, and that parts of others were exempt or excluded from release under various provisions of the Act.

On 11 September 2015, the applicant sought an internal review of the Department's decision to refuse access to those parts of the records containing legal advice. Having considered its position in respect of all of the records originally considered, the Department issued an internal review decision on 9 October 2015, wherein it varied its original decision and released additional parts of certain specified records. On 22 October 2015, the applicant sought a review by this Office of the Department's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties and to the provisions of the FOI Act. In referring to the records at issue, I have adopted the numbering system used by the Department in processing the FOI request.

Scope of the Review

As I have indicated above, when seeking an internal review of the Department's original decision, the applicant restricted his request for review to those parts of the redacted records that contain legal advice. Notwithstanding the fact that the Department went on to reconsider all the redacted records and that all were considered by this Office during the course of this review, it seems to me that in issuing a binding decision on the question of whether a right of access exists, I must have regard to the fact that the scope of the review is limited by the wording of the original request and any subsequent narrowing of the request by the applicant.

Accordingly, I am satisfied that the scope of this review is confined to a consideration of whether the Department was justified in refusing access to those parts of the various records that, according to the Department, contain legal advice. The Department cited various grounds for refusing access to certain records, including that parts of some records were outside the scope of the request, that parts of others were excluded from release under section 42(f) (Attorney General records), and that further parts were exempt from release under sections 28(1)(a) (records relating to meetings of the Government), 29(1)(a) (deliberative process material), and 31(1)(a) (legal professional privilege).

During the course of the review, the Department explained that certain parts of the various records were redacted under section 42(f) where there were references to advices received from the Office of the Attorney General, but that if this was not appropriate then it also wished to rely upon section 31(1)(a) in refusing access to those parts. It follows, therefore, that this decision will address only those parts of the various records that were refused under sections 31(1)(a) and 42(f).

Following its internal review decision, the Department had withheld the following records in part under sections 31(1)(a) and/or 42(f):

Section 42(f): 2, 6, 7, 8, 11, 15, 16, 21, 26, 29, 32, 33, 34, 36, 37, 46, 48, 50, 51, 52,
55, 57, 58, 60, 61, 63, 64, 68, 70, 73, 74, 76, 79, 81, 82, 83, 84, 87, 91,
92, 93, 94, 98, 99, 104 and H5

Section 31(1)(a): 14, 22, 24, 25, 47, 56, 62, 67, 69

Both sections: 20, 23, 28, 31, 75, and 77

During the course of this review, the Department conducted a further full review of all records that had been withheld in full or in part and indicated that it was willing to release additional material in some of the records. It has informed this Office that it is now willing to fully release the following relevant records:

11, 32, 57, 63, 73 and 74

It also explained that the redactions in record 98 are outside the scope of the request as opposed to being excluded under section 42(f) and that record 104 had been mis-classified and had, in fact, been released in its entirety.

For the sake of completeness I should add that the Department also agreed to release other records, in whole or in part, that will not be considered in this decision. I expect the Department to make those records available to the applicant.

Accordingly, the scope of this review is concerned with whether the Department was justified in refusing access to the remaining parts of the following records that have been withheld under sections 31(1)(a) and/or 42(f):

Records 2, 6, 7, 8, 14, 15, 16, 20, 21, 22, 23, 24, 25, 26, 28, 29, 31, 33, 34, 36, 37, 46, 47, 48, 50, 51, 52, 55, 56, 58, 60, 61, 62, 64, 67, 68, 69, 70, 75, 76, 77, 79, 81, 82, 83, 84, 87, 91, 92, 93, 94, 99, and H5

Findings

Preliminary Matter
Before I proceed to consider the various records, I should explain that a review under section 22 of the FOI Act is considered de novo in that it is based on the circumstances and the law as apply on the date of the decision. 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 a more recent judgment, The National Maternity Hospital and The Information Commissioner[2007] IEHC 113, [2007] 3 IR 643, 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]".

As the effect of section 42(f) applying to a record is to exclude that record from the scope of the Act, I will firstly address the Department's contention that much of the withheld information is excluded under that section.

Section 42(f)
Section 42(f) provides that the FOI Act does not apply to "a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration". For the exclusion to apply, the record at issue must be held by or created by, among others, the Office of the Attorney General. It is important to note that the Office of Parliamentary Counsel (OPC) is a constituent part of the Office of the Attorney General and as such, records held or created by the OPC (apart from records relating to general administration) are also excluded from the FOI Act under section 42(f). However, the fact that a record might contain advice received from the Office of the Attorney General does not, of itself, mean that section 42(f) applies. Having considered the records that the Department considers are excluded under section 42(f), I accept that the following records (insofar as they contain information coming within the scope of the request) are excluded from the FOI Act by virtue of section 42(f):

2, 20 (part), 23 (part), 26 (part), 36, 46 (part), 47 (part), 81, 82, 83, 84, 87 (part), 91, 92.

I do not agree that section 42(f) applies to the remaining records. As I am satisfied that all relevant parts of records 2, 36, 81, 82, 83, 84, 91 and 92 are excluded under section 42(f), I do not need to consider these records further.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption that requires FOI bodies to refuse access to records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

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)

The applicant submitted that any legal privilege has been waived, and has referred to High Court judicial review proceedings in which he states relevant documents were exhibited. This is contested by the Department, which refutes the suggestion that it has previously waived privilege. I am not satisfied that the applicant has demonstrated that legal privilege over the records at issue in this case has been waived, and in particular I note that the documents submitted by him that he states were exhibited in court are not under review in this decision.

I am satisfied that the relevant limb of legal professional privilege at issue here is legal advice, rather than litigation, privilege. I note that the applicant is of the view that it is in the public interest that the advice received should be released. Unlike many other exemptions in the FOI Act, section 31(1)(a) is not subject to a public interest test. If the record would be exempt from production in proceedings in a court on the ground of legal professional privilege, then that is the end of the matter.

Having examined the contents of the relevant records, I find that legal professional privilege attaches to the relevant parts of the following records, and that they are exempt from release under section 31(1)(a):

6, 7, 8, 14, 15, 16, 20, 21, 22, 23, 24, 25, 26, 28, 29, 31, 33, 34, 37, 46, 47, 48, 50, 51, 52, 55, 56, 58, 60, 62, 64, 67, 68, 69, 70, 75, 76 (except third redacted paragraph - release), 77, 79, 87, 93 (except for last redacted paragraph - release), 94 (except for last redacted paragraph - release), 99, and H5.

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Department. I direct the release of the following parts of the following records:

Record 61: The full record.
Record 76: Attachment - Page 2 - Para. 3 "Annually, only about 450...rather than class A (employee)."
Record 93: Attachment - Page 3 - Final para. "In the circumstances...Part 2 of Schedule 1."
Record 94: Attachment - Page 3 - Para. 2 "In the circumstances...Part 2 of Schedule 1."

I affirm the remainder of the Department's decision to partially refuse access to records under sections 31(1)(a) and 42(f) of the FOI Act.

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.

Stephen Rafferty
Senior Investigator