Whether the Department was justified in refusing access to various records relating to the Public Services Card (the PSC), including briefings, submissions and memos prepared for Minister Doherty, on the basis of section 31(1)(a) of the FOI Act

3 March 2021

Background

In a request dated 29 August 2019, the applicant sought access to copies of any briefings, memos or submissions prepared for the then Minister for Employment Affairs and Social Protection, relating to the PSC, from 1 July to 29 August 2019 inclusive. He also sought access to copies of any records relating to the PSC generated within the press and communications division of the Department during the same period. The applicant stated that he was not seeking access to copies of media enquiries or responses.

In a decision dated 23 September 2019, the Department refused the applicant’s request in full, on the basis of sections 28(1) and (2), 29(1), 30(1)(b), 31(1)(a), 32(1)(a)(ii) and 40(1)(a) of the FOI Act. The applicant sought an internal review, which the Department responded to by way of two decision letters. The internal reviewer’s first letter, dated 1 October 2019, refused the second part of the applicant’s request for access to records generated by the press and communications section of the Department, on the basis that no such records existed (section 15(1)(a) refers).

The internal reviewer’s second letter, dated 11 October 2019, varied the Department’s original decision in relation to the first part of the applicant’s request. The Department identified 18 relevant records, three of which it released in full (records 10-12). It refused to grant access to record 3 on the basis of sections 28(1) and (2) - records relating to meetings of the Government, and relied on section 31(1)(a) - legal professional privilege - in respect of its refusal to grant access to the remaining records.

The applicant applied to this Office for a review of the Department’s decision on 25 October 2019.

I have now completed my review in accordance with section 22(2) of the FOI Act. I wish to apologise for the delay in concluding this matter. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matter

During the review, for the sake of completeness, this Office’s Investigator raised a number of queries with the Department concerning the records identified by the Department. She queried the absence of relevant records from 1 July to 15 August (before the DPC’s report issued), and from 16 August to 29 August (the period directly following the DPC’s press release). On 2 October 2020 the Department stated that it had checked with relevant personnel again on foot of her email and had located one additional record, which it released to the applicant. The Department also said that while there were various meetings and requests for legal advice during the period referred to, there are no records of any other briefings, memos or submissions prepared for the then Minister regarding the Public Services Card during that time. In any event, during the course of this review, the applicant confirmed to this Office that he was not seeking a review of the Department’s reliance on sections 15(1)(a) and 28.

Scope of the Review

In submissions to this Office, the Department stated that some of the records identified at internal review stage did not exist when the applicant made his original request. Notwithstanding this, the Department stated that it proceeded on the basis that these records are within the scope of the applicant’s request. I note that, of the 15 records withheld, only records 1 (in full) and 2 (in part) and the attachment to record 18 existed at the date of the applicant’s request. I am satisfied that any of the records that were created after the applicant’s request are outside the scope of this review.

Accordingly, having regard to the above, this review is solely concerned with the Department’s decision to refuse access to records 1, 2 (in part) and the attachment to record 18 on the basis of section 31(1)(a).

Analysis

Section 31(1)(a)

Section 31(1)(a) of the FOI Act 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 or not 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).

The Commissioner 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 communications which was for the purpose of giving or receiving legal advice. In this regard, the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522] are relevant:

"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."

The Commissioner has adopted this approach and takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

The Department has relied on both legal advice privilege and litigation privilege in support of its decision to refuse access to the records sought.

The applicant’s FOI request was made against the backdrop of the DPC’s completion of a lengthy investigation into certain aspects of the PSC. The DPC issued a press release on the matter on 16 August 2019, which stated that under applicable laws, it was not open to it to publish its Report without the prior agreement of the Department. It also referred to the possible enforcement of the findings in its report and gave the Department various deadlines for steps to be taken to comply with its findings. The Department published the DPC’s report and its response on 17 September 2019. As noted above, the records under review were created in the period between the report being finalised and the publication of the DPC’s report by the Department.

The records that remain in scope of this review comprise emails between various combinations of senior officials in the Department and the Department’s legal adviser, external senior counsel, the Minister’s advisers and the Minister’s private secretary.

Having reviewed the content of the records at issue, I am satisfied that they seek legal advice or enclose, discuss and refer to legal advice obtained. I am also satisfied that the records comprise a continuation of the original correspondence seeking or providing legal advice, which maintains the confidentiality of the advice sought and/or received. Accordingly, I find that section 31(1)(a) applies.

Section 31(1)(a) is a mandatory exemption and does not require a consideration of the public interest for or against release. I affirm the Department’s decision to refuse access to the records concerned on the basis of 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 decision. I find that the Department was justified in refusing to release the records at issue on the basis of 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.

 

Deirdre McGoldrick

Senior Investigator