Whether the Department was justified in refusing access to records relating to the applicant under section 31(1)(a) of the FOI Act (legal professional privilege)

8 March 2021

Background

The applicant acted through his solicitor at all stages in this FOI process and references to the applicant may be taken as references to his solicitor, as appropriate. The applicant’s FOI request to the Department of 20 July 2020 sought access to records dating from 20 October 2017 containing surveillance information regarding particular activities that he was alleged to have carried out. The Department’s decision of 27 August 2020 withheld various records under section 31(1)(a) of the FOI Act, on the basis that they contain details of legal advice sought or received by the Department from its legal advisors and attract legal professional privilege. It also withheld the records under section 31(1)(b) (contempt of court). The applicant sought an internal review on 14 September 2020. On 5 October 2020, the Department affirmed its refusal to grant the request under section 31(1)(a), referring also to legal proceedings to which it said the records relate. It said that section 31(1)(b) does not apply. On 20 October 2020, the applicant applied to this Office for a review of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant.  I have also examined the records considered for release by the Department and I have had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Department was justified in refusing to grant the applicant’s request of 20 July 2020 on the basis that the records it identified as covered by that request are exempt under section 31(1)(a) of the FOI Act.

The Department’s submission refers to part of another FOI request made by the applicant in October 2020, which concerns the existence of records relating to any electronic or other surveillance that it carried out regarding his activities. The applicant asks this Office to confirm whether the Department carried out surveillance on him, to provide him with the details of any parties involved and to obtain relevant records from any parties concerned. However, the scope of this particular review is confined to the sole issue set out in the previous paragraph. It does not extend to reviewing the Department’s decision on the applicant’s October 2020 FOI request or to answering his questions. Neither does it extend to examining any other matter, including the Department’s performance of its functions insofar as the applicant is concerned.

Analysis and Findings

Section 31(1)(a) – legal professional privilege

Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP 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).

The Commissioner 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.

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. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.

For litigation privilege to apply, litigation must be contemplated or pending and the records must have been created for the dominant purpose of such contemplated/pending litigation. However, any privilege that a party is entitled to claim does not automatically continue beyond the final determination of the proceedings in which it originally applied.

LPP belongs to the client and the client has the right to waive this privilege if the client so wishes.  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 per the Supreme Court judgment of 4 March 2009 in the case of Redfern Limited v O'Mahony [2009] IESC 18. ]

Submissions

The Department says that the records consist of confidential communications between it and its legal advisors (including its Legal Services Division) regarding legal advice sought and/or received for the sole purpose of certain court proceedings involving the applicant. It says that the litigation concerned is no longer proceeding. While unclear if it considers litigation privilege to still apply in such circumstances, its position is that the records attract advice privilege in any event.

The applicant says that under the Constitution, European Convention on Human Rights Act 2003, natural justice and the principles of fair procedures, he is entitled to obtain any records that contain the information he is seeking. He says that the records are needed for his legal advisors to defend him in criminal proceedings. He says that the refusal is contrary to an Order of Discovery and that the Department is obliged to provide him with all information and evidence that it gathered in relation to the proceedings. He says that he is not looking for legal advice sought or received but evidence that the Department claims to have collected. He says that the Department can simply produce a statement saying whether it carried out surveillance. He also says that the records relate to his personal information. He refers to a particular court case, which he says concerns the meaning of the term “information”. He says that, in that court case, Mr Justice McCracken held that the applicant was entitled to see all information and to be verbally informed in regard to any matter concerning any business or transaction of the respondent’s counsel. The applicant also says that LPP is a two-way street such that privilege can be lifted by either party to it and that he permits the Department to waive LPP over the records. He also sets out other reasons why he believes that the Department is not entitled to withhold the records. I see no reason to detail these reasons here because they concern provisions of the FOI Act on which the Department has not relied.

Findings

First, I would like to point out that, unless proven to the contrary, any law passed by the Oireachtas, including the FOI Act, is presumed to be constitutional and in line with the ECHR Act 2003. Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making his FOI request. Furthermore, section 31(1)(a) is a mandatory exemption and I must find it to apply if I am satisfied that the relevant tests for the exemption to apply are met. It is not relevant to my consideration of section 31(1)(a) whether the records also relate to the applicant’s personal information. In addition, privilege may only be waived by the party claiming it and therefore it is not open to the applicant to waive any privilege that is being claimed by the Department.

I have no role in determining whether the terms of any Order of Discovery have been complied with, nor do I have any role in examining whether the Department complied with court procedures applicable to the litigation involving the applicant. Such matters are not relevant to my consideration of the Department’s decision on the applicant’s FOI request. I should also say that, given that this case involves a request for records, the FOI Act does not require the Department to create any statement confirming whether it carried out surveillance on the applicant and, equally, I have no power to either ask it or direct it to do so. Finally, I also note that, in November 2020, this Office’s Investigator told the applicant that she was unable to find any judgement given by Mr Justice McCracken as described. She asked him for a link to the judgment or a pdf of its contents. The applicant replied that he was unable to do so at that time. He has not in the meantime provided any details of the case concerned and I have not considered this particular argument further.

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. This means that I am required not to disclose any details of the records under review. However, I can confirm that I have examined them. I am satisfied that, in pertinent parts, they comprise confidential communications between the Department and its professional legal advisors for the purpose of seeking and/or providing legal advice. I am also satisfied that, in their entirety, the records form part of a continuum of correspondence that results from an original request for advice. I have no reason to consider that the Department has waived privilege over the contents of the records. I am satisfied that they attract legal professional privilege and I find that they are exempt under section 31(1)(a) of the FOI Act. In the circumstances, there is no need for me to consider whether the records attract litigation privilege. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision on the applicant’s FOI request of 20 July 2020. I affirm its refusal to grant access to the various records it considers relevant to that 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.

Deirdre McGoldrick

Senior Investigator