Whether the Department was justified in its decision to refuse access to 19 records relating to its proposal to revoke the applicant’s citizenship under sections 42(f) and 31(1)(a) of the FOI Act

15 July 2019

Background

On 9 August 2018 the applicant submitted a request to the Department for all records relating to her application for naturalisation and relating to the decision to propose to revoke her citizenship. She also sought a statement of reasons for that decision.

On 5 September 2018 the Department issued a decision in which it stated that it was granting the request. It provided a schedule of 22 records it had identified as coming within the scope of the request. The applicant sought an internal review of that decision on 27 September 2018 wherein she argued that the Department had not released all relevant records, including records relating to related legal proceedings, and had not provided the reasons for the Department's decision that her citizenship should be revoked.

In its internal review decision of 18 October 2018, the Department stated it was affirming its original decision and said that the records already released outlined the reasons considered in reaching the decision to revoke the applicant's citizenship. However, the Department went on refuse access to certain records relating to current legal proceedings under section 31(1)(a) of the FOI Act.

On 24 October 2018, the applicant, through her solicitors, sought a review by this Office of the Department's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the communications between the applicant and the Department as set out above and to communications between this Office and both the Department and the applicant or her solicitors on the matter. I have also had regard to the nature and content of the relevant records. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review the Department provided this Office with copies of 76 relevant records located in its Legal Services Support Unit that were not considered when the Department issued its original decision on the request, and an accompanying schedule.

The schedule indicates that access was granted to 57 records and access was refused to the remaining 19 records on the ground of legal professional privilege (section 31(1)(a) refers). In referring to the records issue, I have adopted the numbering system used by the Department in that schedule.

During the course of this review, the applicant’s solicitors indicated that the review could be confined to a consideration of the 19 records to which access had been refused. I note that Mr O’Gorman of this Office confirmed his understanding of the scope in a follow-up email of 17 December 2019 and that the applicant’s solicitors did not make any further comment on that point.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access to records numbered 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 18, 19, 24, 25, 64, 72, 73, and 76.

Preliminary Matter

Before I address the substantive issues arising, I would like to make a preliminary point. During the course of the review, the Department sought to rely on section 42(f) to refuse access to certain records. The applicant was made aware of the Department's reliance on section 42(f) by this Office, and offered an opportunity to make a submission on the point. The applicant sought and received an extension to the deadline to make a submission. The extended deadline was 19 June 2019 and no submission has been received to date.

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. As such, I consider it appropriate to examine the applicability of section 42(f) to certain records notwithstanding the fact that the Department did not originally refuse access to the records on that basis.

Analysis and Findings

All of the records at issue relate to legal proceedings regarding a proposal by the Department to revoke the applicant's citizenship under section 19(1)(a) of the Irish Nationality and Citizenship Act 1956, as amended.

The Department sought to refuse access to the records at issue under section 31(1)(a) and section 42(f). As the effect of section 42 is to exclude records from the scope of the Act altogether, I will address that section in the first instance.

Section 42(f)

The Department argued that section 42(f) applies, in whole or in part, to records 4, 5, 6, 7, 8, 9, 11, 12, 14, 15, 16, 18, 24, 25, 64, 73 and 76. That section provides that the Act does not apply to a record held or created by the Office of the Attorney General (AG) other than a record relating to general administration. The Chief State Solicitors Office (the CSSO) is a constituent office of the Office of the AG. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which concern 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 advising on legislation or litigation.

Records 4, 5, 6, 11, 12, 18, 64, 73 and 76 consist of correspondence and legal documents, including draft affidavits, created by staff members of the CSSO or legal counsel instructed by the CSSO and nominated by the Office of the AG. I am satisfied that these records were created by or on behalf of the CSSO and that they do not relate to general administration. I find, therefore, that section 42(f) applies to records 4, 5, 6, 11, 12, 18, 64, 73 and 76.

While the Department has not argued that section 42(f) applied to record 72, like record 76 which I dealt with above, it is a draft affidavit. In its submission the Department explained that draft affidavits are records of the Office of the AG as they are prepared by legal counsel, who as I have noted above, are nominated by that Office and instructed by the CSSO. Accordingly, I am satisfied that record 72 was also created by or on behalf of the CSSO and that section 42(f) applies.

Records 7, 8, 9, 14, 15, 16, 24 and 25 consist of email correspondence between staff of the Department and the CSSO. I am satisfied that the emails from the CSSO were created by that office and they do not relate to general administration. I find therefore that section 42(f) applies to those parts of records 7, 8, 9, 14, 15, 16, 24 and 25 consisting of email correspondence from the CSSO, but not to the remainder of the records which comprise email correspondence from the Department.

Having found section 42(f) to apply to all of records 4, 5, 6, 11, 12, 18, 64, 72, 73 and 76 and parts of records 7, 8, 9, 14, 15, 16, 24, and 25, I will now consider the Department's arguments that section 31(1)(a) applies to the remaining records/parts of records.

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

I must now consider the applicability of section 31(1)(a) to the remaining records at issue, namely record 19 and the parts of records 7, 8, 9, 14, 15, 16, 24, and 25 comprising emails from the Department. 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 Department stated that all of the records at issue (including those to which I have already found section 42(f) to apply) were created for the dominant purpose of ongoing litigation before the High Court in which an affidavit of discovery has been sworn and that the High Court had already refused discovery of the records at issue. It appears the Department is seeking to assert both advice privilege and litigation privilege over the records.

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 Department was justified in claiming advice privilege in respect of record 19, and the remainder of records 7, 8, 9, 14, 15, 16, 24 and 25. These records relate to advice sought and received relating to litigation involving the applicant and the proposal to revoke her citizenship.

Accordingly, I find that section 31(1)(a) applies to record 19, and the remainder of records 7, 8, 9, 14, 15, 16, 24 and 25.

In conclusion, therefore, I find that the Department was justified in refusing the applicant's request for certain records under sections 31(1)(a) and 42(f) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the records at issue, in whole or in part, under sections 42(f) and 31(1)(a).

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.

 

 

 

 

Stephen Rafferty

Senior Investigator