Whether the HSE was justified in refusing access to records relating to the applicant’s pension under sections 15(1)(a), 29(1) or 31(1)(a) of the FOI Act

25 October 2019

Background

In a request dated 31 December 2018, the applicant sought access to:

“1. All correspondence to and from the offices of the Director General and to and from the offices of the Director of Human Resources relating to my personal pension calculation. This is to include all internal and external correspondence, including any correspondence from any Government Department;

2. All files relating in any way to me which include any reference to my pension calculation.”

In a letter to this Office of 1 March 2019, the applicant stated that he had not received an original or internal review decision from the HSE in relation to his FOI request. On 6 March 2019, this Office directed the HSE to issue an effective position letter to the applicant and to this Office. In its effective position letter of 22 March 2019, the HSE identified 80 records as falling within the scope of the applicant’s request. The HSE granted access to 47 records. It refused access in full or in part to the remaining 33 records under sections 29 and/or 31 of the FOI Act. On 24 March 2019, the applicant applied to this Office for a review of the HSE’s decision.

During the course of the review, the applicant identified additional records which he said fall within the scope of his request and which were not located by the HSE. Following communications with this Office, the HSE stated that after further searches it had located additional records. The HSE released these additional records to the applicant. It also released records 11, 23, 24, 26, 27, 40, 43, 44, 45, 46, 47, 48, 49, and 50. These records contain chains of emails. The same emails are contained in records 6, 7, 8, 9, 10, 19, 20, 22, 25, 38 and 39; therefore, the applicant has access to the information withheld from those records. The HSE’s position is that access is refused to records 1(a)/(b), 2(a)/(b)/(c), 3(a), 12, 52(a)/(b) and 54(a) under sections 29 and/or 31 of the FOI Act.

This Office provided the applicant with an update in relation to the HSE’s position. The applicant argued that further records which fall within the scope of his request ought to exist and he argued that he is entitled to access to the remaining records.  

I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue.

Scope of the review

The scope of this review is confined to whether the HSE was justified in its decision to refuse access to further records under section 15(1)(a) of the FOI Act and whether it was justified in its decision to refuse access to records 1(a)/(b), 2(a)/(b)/(c), 3(a), 12, 52(a)/(b) and 54(a) on the basis that they are exempt from release under sections 29 and/or 31(1)(a) of the FOI Act. The HSE also refused access to record 58(a); however, as this record was created after the date of the applicant’s FOI request, it falls outside the scope of this review.

Preliminary Matters

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally, be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

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. This means that the description which I can give of the background, the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues

In his submissions to this Office, the applicant argues that additional records within the scope of the request should exist beyond those identified by the HSE. As such section 15(1)(a) of the Act is relevant. This section provides that a request may be refused if the records sought do not exist, or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence.

The applicant states that he first wrote to the Director General (DG) in relation to his pension calculation in March 2017 and there were several other communications to the DG around this time. He states that a repeat request for an explanation was made to the DG on 18 May 2017, that this correspondence was acknowledged by the HSE’s solicitors on 20 May 2017 and they promised a “substantive response”. The applicant states that the final response on behalf of the HSE was delivered by its solicitors some months later and he wrote to the DG in relation to it in October 2017. The applicant states that none of these records appear in the schedule provided by the HSE and there is only a reference to one chain of emails relating to this entire period. He argues that there would most likely have been very significant correspondence involving senior HR figures in advance of the involvement of the HSE’s solicitors. He argues that it is not possible that there are no relevant files in National HR or in the Pensions Department and it is extremely unlikely that there are no relevant files in the DG’s Office.

Following the applicant’s submissions, this Office requested the HSE to respond to detailed queries in relation to searches undertaken to locate all records held within the scope of the request, including those specifically mentioned by the applicant. It also sought information on the HSE's record management practices.

In its reply, the HSE states that following further searches, additional records were located, including the records specifically mentioned by the applicant. It states that these records are all documents in the possession and/or procurement of the HSE which were inadvertently not previously furnished. The HSE states that when the applicant wrote to the DG in March 2017, the matter was referred to National HR who issued a reply. It states that the applicant raised concerns with the DG in relation to this reply and the matter was then referred to the HSE’s solicitors. It states that its solicitors informed the applicant that as the issue raised was the subject of ongoing litigation it could not comment further at that time. The HSE states that there would not have been a high level of internal correspondence generated pending the outcome of the litigation. It states that the litigation was concluded in 2018 and this is why there is a higher volume of internal correspondence from 2018.

The HSE states that it conducted searches on documentation held by the National HR Department, the Office of the DG and with the HSE’s solicitors. It states that searches were carried out manually, by computer, by name and by key word search using combinations of the applicant’s name, surname and initials. It states that an email was circulated to relevant staff members requiring each recipient to certify he/she has searched areas under his/her control for records which fall within the scope of the applicant’s request. It states that all employee records are retained in line with the HSE Data Retention Policy.

Following further searches, the HSE located all of the records specifically mentioned by the applicant. It has also located further correspondence between the applicant and the HSE or its solicitors and a small amount of internal correspondence between the DG’s Office and the National HR Office. It is clear that the applicant expected that further records ought to exist, in particular, internal correspondence dating from 2017. However, I have no reason not to accept the HSE’s explanation that the matter was handed over to its solicitors in 2017 and was not progressed further until certain litigation was concluded in 2018. On the basis of the information provided by the HSE, including its replies to queries posed by the Investigator, I am satisfied that it has taken reasonable steps to locate all records within the scope of the applicant’s request. I find, therefore, that section 15(1)(a) of the Act applies to the applicant’s request insofar as it relates to any further records which in the applicant’s view the HSE ought to hold.

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

The HSE refused access to the following records under section 31(1)(a) of the Act on the basis that they are exempt under legal advice privilege and/or litigation privilege: 1(a)/(b), 2(a)/(b)/(c), 3(a), 12, 52(a)/(b), 54(a). Section 31(1)(a) provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). 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).

Advice Privilege

In order for a record to benefit from legal advice privilege it must constitute or refer to a communication between lawyer and client, that communication must arise in the course of the professional lawyer-client relationship, the communication must be confidential in nature and it must be for the purpose of giving or receiving legal advice.

The applicant argues that the HSE’s has sought to claim legal advice privilege in relation to internal communications which are not communications between solicitor and client. He argues that the HSE’s solicitors were engaged as a provider of legal assistance rather than legal advice. He argues that their role was to come up with a form of words in order to provide an explanation to him in relation to pension calculation matters and he argues that correspondence which is of an administrative nature and does not involve the seeking or giving of legal advice is not privileged.  Finally, the applicant argues that there is much greater expertise on public pension rules available within the HSE than what is likely to be available in an outside law firm and there would be no reason for the HSE to take outside advice to explain their own decision.

While LPP applies in relation to communications relating to legal advice, it does not apply to records of communications relating to legal assistance. In Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] ILRM 58 the Supreme Court distinguished between correspondence relating to legal advice and correspondence relating to legal assistance as between client and solicitor. The Commissioner’s understanding of the Supreme Court’s application of the term “legal assistance” is that it does not go beyond - “communications of fact leading to the drafting of legal documents and requests for the preparation of such…” The Commissioner takes the view that correspondence which is of an administrative nature, and does not involve the seeking or giving of legal advice, is not privileged.

I have examined the records at issue closely and I am satisfied that they each contain or disclose either a request for legal advice or the provision of legal advice. The records are not of an administrative nature and do not amount to the provision of legal assistance. A number of the records contain internal communications between HSE staff, however, those records disclose confidential legal advice provided by the HSE’s solicitors and I am satisfied that they are also exempt under legal advice privilege.

Finally, the applicant argues that there is a general public interest in public administration being carried out in an open and transparent way and this conflicts with the secrecy which the HSE are seeking to achieve in this case. He argues that he is entitled to full transparency in relation to his pension and he argues that if legal advice is being followed in relation to his pension calculation, he is fully entitled to have the basis of this advice presented to him.

The LPP exemption contains no public interest balancing test. I cannot consider whether the public interest in openness and transparency would be served by the release of records which I have found to contain legal advice. I find that records 1(a)/(b), 2(a)/(b)/(c), 3(a), 12, 52(a)/(b) and 54(a) are exempt under section 31(1)(a) of the Act on the basis of legal advice privilege. In light of this finding, it is not necessary to consider whether these records are also exempt under litigation privilege or under section 29 of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the HSE’s decision. I find that the HSE was justified in refusing access to additional records under section 15(1)(a) of the Act on the basis that additional records either do not exist or cannot be found after reasonable searches have been carried out. I find that the HSE was justified in refusing access to certain records under section 31(1)(a) of the Act as these records would be exempt from production in a court on the basis of legal professional privilege.

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