Case Number: 170364

Whether the Department was justified, pursuant to sections 15(1)(a) and 31(1)(a) of the FOI Act, in refusing to grant access to the Independent Review Mechanism (IRM) file and report relating to the applicant's deceased son

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

This case has its origins in the tragic death of the applicant's son a number of years ago. The applicant made a complaint relating to the actions of the Gardaí surrounding his death. Her complaint was reviewed by the IRM, which was a panel of barristers set up in 2014 to review certain allegations of Garda malpractice. A recommendation was made to the then Minster for Justice and Equality (the Minister) by the panel and she decided not to take further action relating to the applicant's complaint. As I understand it, this was due to the case being before the Garda Síochána Ombudsman Commission at the time, which was considered to be the appropriate forum.

In June 2015, the applicant made a request seeking copies of all documents held by the Department concerning her deceased son (Case No. 160157 refers). She sought an internal review and subsequent review by this Office of the Department's decision to part grant her request. The Commissioner varied the Department's decision to grant access in part to the records sought and directed the release of additional records. That case was then closed.

Subsequently the applicant formed the view that another person (Y) whose complaint had been reviewed as part of the IRM had received a copy of the IRM file relating to Y's case in its entirety from the Department. Accordingly, the applicant made a new FOI request on 17 May 2017, wherein she sought a copy of the report and file relating to her deceased son's case which had been submitted as part of the IRM process.

On 14 June 2017, the Department refused to grant access to the report sought by the applicant on the basis of section 31(1)(a) of the FOI Act (legal professional privilege). It noted that she had sought a copy of Counsel's recommendation to the Minister in relation to the IRM in another previous request, which it had refused on the same grounds.

The applicant sought an internal review on 16 June 2017, and confirmed that she sought the report submitted to the Minister as well as the file provided to Counsel as part of the IRM. She reiterated her belief that Y had been provided with these records relating to his/her complaint and that fairness demanded she be treated the same way. The Department's decision on 29 June 2017 affirmed its original decision on the same grounds.

I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the Department; and the contents of the records concerned.

Scope of Review

This review is solely concerned with whether the Department was justified in its refusal to grant access to the IRM report relating to the applicant's deceased son on the basis of section 31(1)(a) and its effective reliance on section 15(1)(a), insofar as its position is that no additional records exist relating to the applicant's request.

Preliminary Matters

As I have noted in a previous decision, I have great sympathy for the applicant and her family in the tragic circumstances surrounding this request, and have given careful consideration to the applicant's submission to this Office. However, I cannot take into account, or make any findings on many of the issues she raised since my remit under the FOI Act is relatively narrow. In this regard, section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for a request.

It is important to note that although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Analysis and Findings

The applicant is of the view that records of the same type as those sought by her, i.e. the file submitted to the IRM panel and the report given to the Minister, were released to Y in relation to his/her own case, and that she is entitled to the same level of access. The Department's position is that it is refusing access to the report on the same ground as before (section 31(1)(a)) and that no additional records were submitted to the panel for the IRM (i.e. the file the applicant is seeking) other than those which were the subject of a previous review and decision of this Office (Case No. 160157). The Department stated that the report had not been submitted to the Minister at the time of the applicant's request in Case No. 160157.

Whether the File and Report in another case were Released to a Complainant
The applicant is of the view that Y received the complete file and report from the Department relating to the review of his/her complaint by the panel. She stated in submissions to this Office that she was in contact with Y's solicitor who informed her that he was in receipt of the records relating to the review of Ys complaint.

During the course of this review, Ms Murdiff asked the Department to address the applicant's submission in this regard. As noted above, I must be careful during a review not to reveal details of records which are exempt from release under FOI. I also must take care not to reveal details of Y's complaint or her personal information.

In its submission to this Office, the Department stated that similar records had been submitted to the panel in relation to the review of Ms X's complaint. It has provided details of Y's FOI request to this Office and I can confirm that the parameters of his/her request differed slightly from the applicant's. Y made an application for review of the Department's decision to this Office. The outcome of the review was to direct the release of a name on one particular record. The Department's position was that this was the only additional item released to the applicant in that case. Having reviewed the Department's decision and this Office's decision in that case I can confirm this is correct.

The Department is of the view that it was the release of this additional piece of information which gave rise to the media report which may have given the applicant the impression that further records had been released. The Department stated that it did not consider it appropriate to comment on Y's case in its responses to the applicant in this case. The Department was also at great pains to confirm that it has dealt with FOI requests for records relating to the IRM process in a consistent manner and in line with the provisions of the FOI Act. There is no evidence before me to suggest otherwise.

Section 15(1)(a)
In its original and internal review decisions the Department appeared to solely consider one record - that is, counsel's report to the Minister. During the course of this review the applicant confirmed to this Office that she was seeking a copy of the file given to the panel for the purposes of the IRM process as well as the report prepared by counsel and submitted to the Minister.

I note that Ms Sandra Murdiff, of this Office, informed the Department of her view that it had not addressed the first part of the applicant's request and invited it to comment. In its response, the Department stated that the panel who reviewed the applicant's complaint had been provided with a file prepared by the Department's Garda Division which comprised of papers submitted by or on behalf of the applicant. It said that the panel had also been provided with relevant files from the Department's Crime Division who had previously dealt with the applicant's complaint.

The Department's position is that the records from the Garda Division and the Crime Division, along with the records submitted by or on behalf of the applicant, were the only records submitted to the panel for the purposes of the review, and that these were already the subject of a previous FOI decision, internal review, and review by this Office. The Department stated that it has already provided Ms O'Farrell with the documents relied upon by counsel in reaching their recommendation.

Accordingly, it seems to me that the Department has effectively relied on section 15(1)(a) to refuse access to additional records, insofar as it states that no additional records - i.e. no records other than those already considered in its previous decision - exist relating to the applicant's request. I have no reason to doubt that this is the case and the applicant has not made any argument that any other records should exist. Accordingly, I find that the Department was justified in refusing to release additional records on the basis that no further records exist relating to the applicant's request.

Section 31(1)(a)
The Department refused access to the report prepared by counsel and submitted to the Minister in respect of the applicant's complaint on the basis of section 31(1)(a).

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. In deciding whether section 31(1)(a) applies, I must consider whether the record concerned would be withheld on the ground of legal professional privilege in court proceedings. Legal professional privilege 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).

In correspondence with this Office, the Department referred to Case No. 160217, Mr X and the Department of Justice and Law Reform (available on our website at www.oic.ie). It stated that this Office's decision in that case related to an identical record - i.e. a report prepared by counsel for the Minister in the course of the IRM. In that case the Senior Investigator was satisfied that counsel's role was essentially that of "legal advisor, rather than as an administrator or decision maker". He also noted that the Attorney General advised that "the individual assessments, having regard to the applicability of diverse statutory frameworks, made by counsel could only be described as legal advice." For those reasons, he was satisfied that the record at issue in that review attracts legal advice privilege.

I am satisfied that the circumstances are the same in this case, and that, therefore, the Department was justified in refusing to grant access to the report on the basis of legal professional privilege. Accordingly, I find that the Department was justified in deciding to refuse access to the report under section 31(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse to grant access to the IRM file and report to the Minister on the basis of sections 15(1)(a) and 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 later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator