Whether the SWAO was justified in its decision to refuse the applicant's request for records relating to him on the basis that sections 31(1)(a) and 37 applied

23/08/2018

Background

On 23 August 2017, the applicant sought access to all records relating to him. On 18 September 2017, the SWAO part-granted the request. It refused access to a number of records under section 31(1)(a) on the ground that the records are protected by legal professional privilege. A small amount of information was also withheld under section 37(1) on the ground that it comprised personal information relating to third parties. The applicant sought an internal review of that decision on 12 October 2017, wherein he sought clarification of the basis on which the SWAO considered the records to be privileged. On 3 November 2017, the SWAO affirmed its refusal of the records at issue.

On 2 May 2018, the applicant sought a review by this Office of the SWAO's decision. In conducting this review, I have had regard to the correspondence between the applicant and the SWAO as outlined above and to the correspondence between this Office and both the applicant and the SWAO on the matter. I have also had regard to the nature and content of the relevant records. In referring to the records at issue I have adopted the numbering system used by the SWAO in the schedule of records it prepared when processing the request. As each page has been numbered, some records comprise several page numbers.
 

Scope of Review

The SWAO refused access to pages 65-67, 69-76, 80-81, 82-83, 87-91, 92, 93, 117-123, 127-131, 132, 133-137, 138-144, 145-149, 150-156, 160-161, 162, 166-168, 169-175, 176-181, 182, and 183-185 under section 31(1)(a). It refused access to pages 84-86 under sections 31(1)(a) and 37(1) and withheld certain information from pages 250-251 under section 37(1). During the course of the review, it also sought to rely on section 42(f) to refuse access to pages 65-67, 69-76, 81, 83, 88-91, 160-161, 169-175, 176-181, and 182.

Pages 84-86 comprise an internal email reporting on the status of a number of court cases, including a case involving the applicant. The SWAO refused access to the information concerning the court cases relating to third parties under section 37(1) on the ground that release of the information would disclose personal information relating to those parties. However, I have decided to exclude that information, which is contained in page 85, from the scope of this review as it is not information relating to the applicant and was not sought by him in his original request. This review is concerned solely with whether the SWAO was justified in refusing access to the records as outlined above, apart from the relevant text on page 85 that I have excluded.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary points.
The first is that the decisions of the SWAO fell short of the requirements of section 13 as they did not, in my view, contain adequate reasons for the refusal of access to certain records. Under that section, a decision notice must specify, among other things, the reasons for the refusal, the provision of the Act pursuant to which the request is refused, and the findings on any material issues relevant to the decision.
While the original decision indicated that access was refused under section 31(1)(a) on the ground of legal professional privilege, it did not explain why this exemption was being applied and I note that the schedule of records gave no description of the records at issue. As such, the applicant was in no position to determine if the exemption had been validly applied. Indeed, in his request for internal review, he specifically sought clarification of the basis on which a claim of legal professional privilege was made and sought a description of the nature of the records withheld. However, the internal review decision simply repeated the exemption claimed.

I note that Ms Lynch of this Office brought this matter to the attention of the SWAO when she invited it to make a submission on the case and that, in response, the SWAO acknowledged and expressed its regret that the decision did not set out the basis on which section 31(1)(a) was being claimed. However, it also provided this Office with a more detailed schedule of records which contained a brief description of the nature of the records withheld. I see no reason why the SWAO could not have provided the applicant with a similarly detailed schedule to allow him to make a more informed decision as to whether or not he had grounds for seeking a review of the decision. I trust the SWAO will take steps to ensure that all future decisions are in compliance with the requirements of section 13.
 
The second point I wish to make is that section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been 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 SWAO to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Finally, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. In light of the de novo nature of the review, I consider it appropriate to examine the applicability of section 42(f) to certain records, notwithstanding the fact that it was not relied upon by the SWAO when processing the applicant's request.

Analysis and Findings

As I have outlined above, during the course of the review the SWAO confirmed that it considered section 42(f) to apply to certain records. As the effect of section 42 is to exclude records from the scope of the Act, I will address that section in the first instance.

Section 42(f)

Section 42(f) is a mandatory provision which provides that the Act does not apply to a record held or created by the Office of the Attorney General other than a record relating to general administration. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the Office such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.  I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, such as issuing legal advice or engaging in litigation.

The SWAO argued that pages 65-67, 69-76, 81, 83, 88-91, 160-161, 169-175, 176-181, and 182 are correspondence between the SWAO and the Office of the State Solicitor (CSSO) which is a constituent part of the Office of the Attorney General and that section 42(f) applies.

For the section to apply, the record at issue must be held by, or have been created by, the CSSO. All of the records at issue in this case are held by the SWAO. Therefore, I have considered whether the records in question were created by the CSSO. Having examined the records, I am satisfied that section 42(f) applies to pages 69-76, the first parts of 81 and 83 comprising emails from the CSSO, and 160-161. I find, therefore, that the Act does not apply to these records, or parts of records, and that no right of access exists

However, pages 65-67, the remainder of 81 and 83, 169-175, 176-181 and 182 comprise records that were created by the SWAO. The fact that they were sent to the CSSO does not, in my view, mean that they are captured by the exclusion in section 42(f). Furthermore, pages 88-91 comprise a record that was created by Counsel for the SWAO, not the CSSO. I find that section 42(f) does not apply to these records. However, it remains to be considered whether section 31(1)(a) applies.

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

I must now consider the applicability of section 31(1)(a) to the remaining records, apart from pages 69-76, the first parts of 81 and 83 comprising emails from the CSSO, and 160-161. Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned 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).
In its submission to this Office, the SWAO argued that records were withheld on the basis of both litigation privilege and advice privilege. Advice privilege, unless lost or waived, lasts indefinitely.

The Commissioner also considers that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. Having examined the records at issue, I am satisfied that the SWAO was justified in claiming advice privilege in respect of pages 65-67, the remainder of pages 84-86, 88-91, 117-123, 127-131, 132, 133-137, 138-144, 145-149, 150-156, 162, 169-175, 176-181, 182, and 183-185. These records relate to advice sought and received relating to consequences of the High Court and Supreme Court judgments involving the applicant.

I am satisfied that the remaining pages are not protected by advice privilege. I have considered whether they are protected by litigation privilege. While I accept that the remaining parts of pages 81 and 83 are of a type that may attract litigation privilege, it is not clear to me that pages 80, 82, 87, 92, 93, or 166-168 do so. Pages 80, 82, 87, 92 and 93 comprise internal correspondence relating to the then pending Supreme Court case, while pages 166-168 comprise internal correspondence relating to the judgment of the Supreme Court. However, even if I was to find that those records did, indeed, attract litigation privilege, it is important to note that where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied. In this case, the relevant court proceedings have concluded. The SWAO has not explained why it considers that litigation privilege should continue to apply, nor has it explained why it considers that advice privilege might apply to these records. In the circumstances, and having regard to the provisions of section 22(12)(b) as outlined above, I find that section 31(1)(a) does not apply to pages 80, the remaining parts of 81, 82, the remaining parts of 83, 87, 92, 93, or 166-168.

Section 37 - Personal Information

The SWAO redacted certain information from pages 250 and 251 under section 37(1). That section provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the requester. The redactions comprise a work email address and work phone numbers of staff of the SWAO and the Department of Employment Affairs and Social Protection. I find that the redacted information is not personal information relating to the staff members in question for the purposes of the FOI Act. I find that section 37(1) does not apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the SWAO.  I find that the SWAO was justified in refusing access to pages 69-76, the first parts of pages 81 and 83 comprising emails from the CSSO, and pages 160-161 under section 42(f) and that it was justified in refusing access to pages 65-67, the remainder of pages 84-86, 88-91, 117-123, 127-131, 132, 133-137, 138-144, 145-149, 150-156, 162, 169-175, 176-181, 182, and 183-185 under section 31(1)(a). I find that it was not justified in refusing access to page 80, the remaining parts of 81, 82, the remaining parts of 83, 87, 92, 93, or 166-168, or in redacting certain information from pages 250-251. I direct the release of those records, or parts of records.

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