Whether TUSLA was justified in refusing access to records relating to the transfer of adoption records from St Patrick’s Guild to the Child and Family Agency under section 31(1)(a) of the FOI Act

17 October 2019

Background

On 14 February 2019, the applicant made an FOI request to TUSLA for records relating to the transfer of records originally held by St Patrick’s Guild to TUSLA: the Child and Family Agency. By letter dated 25 March 2019, TUSLA granted access to some records and refused access to the remaining records, on the grounds that they were exempt under sections 30(1)(c) and 31(1)(a) of the FOI Act. On 29 March 2019, the applicant applied for an internal review. TUSLA issued an internal review decision by letter dated 29 April 2019. It varied its original decision by releasing further records and refusing the remaining records under sections 30(1)(c) and 31(1)(a). On 9 May 2019 the applicant applied to this Office for a review of TUSLA's decision.

In conducting my review, I have had regard to the correspondence between the applicant and TUSLA as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by TUSLA for the purposes of this review.

Scope of this Review

During the review process, TUSLA granted access to the withheld information in Records 9, 20, 22, 27, 28, 29, 30, 34 and 43. Accordingly, the question for me is whether TUSLA was justified in refusing access to the information which remains withheld in Records 6, 10, 16, 18, 19, 25, 31, 32, 33 and 37 under section 31(1)(a).

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Analysis and Findings

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

TUSLA claims section 31(1)(a) of the FOI Act over the withheld information in Records 6, 10, 16, 18, 19, 25, 31, 32, 33 and 37 (the records).

Section 31(1)(a) provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP 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).

This Office has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of confidential communications regarding the giving or receiving of legal advice. The former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522: "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." I adopt this approach and take the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

I have examined the records and considered TUSLA’s submissions. I am satisfied that the records are confidential communications made between TUSLA and its professional legal advisers and form part of a continuum of seeking and receiving legal advice resulting from the original request for advice. I find that TUSLA was justified in refusing access to the records under section 31(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TUSLA's decision, 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.

Elizabeth Dolan

Senior Investigator