Case Number: 170102

Whether the Department has justified its refusal to fully grant access to various records concerning the applicant's entitlement to a State Contributory Pension

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 13 December 2016, the applicant made a request to the Department for all records relating to his entitlement to the State Contributory Pension (the pension), including any documents relating to any discussions within the Department about his entitlement.

The Department's decision of 16 January 2017 granted access to certain records except for any personal information about third parties in them. However, it did not consider all relevant records. A further decision issued on 27 January 2017, which granted access to some records and withheld others under section 31(1)(a) of the FOI Act. Section 31(1)(a) is a mandatory provision that applies to records attracting legal professional privilege. On 31 January 2017, the applicant sought an internal review of the Department's refusal to grant access to records 18 to 21 and 27 to 30 on the basis that section 31(1)(a) applied to them. The Department's internal review decision of 24 February 2017 granted partial access to records 18 and 19 and affirmed its refusal to grant access to the other records specified by the applicant.

On 27 February 2017, the applicant sought a review by this Office of the Department's refusal to grant full access to the records identified in his internal review application.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above, and to correspondence between this Office, the Department, and the applicant. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal to grant access to the remainder of records 18 and 19, and to records 20 to 21 and 27 to 30 in full. It does not extend to the additional records that the Department considered in its internal review.

This Office has no remit to examine, or make findings on, the Department's approach to pension entitlements of persons in similar situations to the applicant.

Findings

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

Section 31(1)(a) - General
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record 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 a 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).

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Furthermore, he accepts that, provided the ingredients of 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 does not prevent the client from being able to assert the privilege over the communications at issue. Section 31(1)(a) does not require the consideration of the public interest.

Analysis

The Department contends that both litigation and legal advice privilege apply to the withheld records. Given its generally indefinite nature, I will consider legal advice privilege first.

The records are all email strings. Some are emails between an official in the Department and a person stated by the Department to be its in house legal adviser (which I have no reason to dispute), arising from a request for legal advice. The other records consist of emails between the official in the Department and the Office of the Revenue Commissioners (the Revenue), which set out legal advice given by the Revenue's legal services department.

Disclosure of a record to a third party generally amounts to a waiver of privilege, except where there is "limited disclosure for a particular purpose, or to parties with a common interest", as per the Supreme Court judgment of 4 March 2009 in the case of Redfern Limited v O'Mahony [2009] IESC 18. I consider the Revenue's disclosure to the Department of legal advice was confidential and limited in nature, and for the common interest of dealing with the litigation that the applicant had threatened. Thus, I do not consider the Revenue to have waived privilege over its own legal advice, having regard to the context, and limited nature, of that disclosure to certain staff within the Department. I am satisfied that the official in the Department forwarded the Revenue emails on to the Department's legal adviser and/or referred to their contents with the adviser, in the context of seeking his legal advice.

I accept that the records form part of a continuum of correspondence that results from an original request for advice, and am satisfied that they attract legal advice privilege. I find that they are exempt under section 31(1)(a) of the FOI Act. In the circumstances, there is no need for me to consider whether the records attract litigation privilege.

The public interest is not required to be considered in respect of a record to which section 31(1)(a) applies. Even if it were, the applicant should be aware that it is not open to me to take my own view on what constitutes a public interest. It is clear from the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 that a "true public interest" is one that is "recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Public interests must be distinguished from private interests. Thus, the fact that there might be a considerable number of self employed that are affected by, and have a private interest in, the Department's current approach to pension entitlements does not equate to a true public interest that this Office could take into account.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant access to the remainder of records 18 and 19, and records 20 to 21 and 27 to 30 in full, on the basis that the information in them is exempt under section 31(1)(a) 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 not

Elizabeth Dolan
Senior Investigator