Whether the Department is justified in refusing to grant the applicant's request for all documents relating to a meeting between a named former Assistant Secretary of the Department and a named T.D. in or around a certain date

17 June 2019

Background

On 18 December 2018, the applicant made an FOI request to the Department for all documents relating to a meeting between a named former employee of the Department and a named T.D. in or around a certain date. 

The Department's decision of 18 January 2019 refused the request under section 15(1)(a) of the FOI Act on the basis that it could not find the requested records or discover any indication that they existed. The applicant sought an internal review on 24 January 2019 in which it asked various questions about the Department's searches for the records. On 13 February 2019, the Department issued its internal review decision, in which it said that it had found three records but was refusing access to them under section 31(1)(a) (legal professional privilege). It did not further explain the basis for its decision to the requester. On 18 February 2019, the applicant applied to this Office for a review of the Department's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the refusal to grant the applicant's request is justified under the FOI Act. 

Findings

The grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large. It is well settled that no restrictions can be placed on the use to which records may be put. 

The Investigator to whom this review was assigned put certain brief details to the applicant's solicitors arising from the Department's submission to this Office. Being mindful of the requirements of section 25(3) of the FOI Act that this Office does not disclose the contents of an exempt record in the course of a review, she said that the records support the Department's arguments that the records contain details of legal advice sought from and given by a legal adviser to its client and also that they were created with the dominant purpose of preparation for anticipated/pending litigation. Litigation privilege and legal advice privilege are the two types of legal professional privilege. 

The applicant's solicitors say that they do not accept the Department's position and that the vague detail given to them "raises and creates reasonable suspicion". They say that, unlike the Department and this Office, they do not know what is in the records and cannot make submissions in relation to this review unless they are given further information that should include responses to a number of questions. 

I do not accept that, in the circumstances of this case, fair procedures require this Office to provide the applicant with the level of detail that the solicitors are seeking about the records under review. While the applicant may be of the view that the requested information can be provided without disclosing information that might compromise the Department's claim of privilege, the requirements of section 25(3) of the Act mean that the level of detail that I can give about the records and the Department's submission and in explaining my decision in this case is limited. However, I can confirm that I have considered the submission of 25 April 2019 on behalf of the applicant  and am satisfied that my examination of the case and of the law and arguments put forward took account of the issues raised where these are relevant. I note that the applicant does not accept the Department's claim of legal professional privilege and I will proceed on that basis having examined the records carefully.  

Section 31(1)(a) - legal professional privilege 
Section 31(1)(a) of the FOI Act requires the refusal of access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest.  

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). 

While I understand that this FOI request has been made against the background of ongoing litigation, I will consider advice privilege first. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, it lasts indefinitely. 

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 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. Legal advice privilege does not apply to records of communications for the purpose of obtaining and/or giving legal assistance. The Commissioner also 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.

I note that the applicant's solicitors raised the question of whether redacted version of the records could be made available i.e. if portions of the records could be accessed without undermining the privilege claimed. I do not consider that this is possible or practicable in this case having regard to the content of the records and to section 18 of the FOI Act. I am satisfied that the communications involved do not contain matters of legal assistance as opposed to legal advice. 

The client may decide to waive privilege and waiver may also be implied in certain circumstances. However, the Commissioner takes the view that the courts would be slow to infer that there was a waiver of privilege, other than in clear cut cases. He considers that he would not be justified in concluding that, as a general proposition, privilege does not extend to records in the possession of an FOI body simply on the grounds that the body is not the client to whom privilege belongs. In Case No 090077, the Commissioner explained that the 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  the Supreme Court judgment put it in  Redfern Limited v O'Mahony [2009] IESC 18. 

Having considered the Department's submission and the records, I am satisfied that the records comprise confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice. I do not consider the advice privilege to have been waived in the circumstances of this case. I accept that the records, in full, are subject to legal professional privilege. I find that they are exempt under section 31(1)(a) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant the request 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 later than four weeks after notice of the decision was given to the person bringing the appeal. 

Elizabeth Dolan
Senior Investigator