Whether the Department was justified in refusing access to a report by Counsel regarding potential litigation under section 31(1)(a) of the FOI Act (legal professional privilege)
11 May 2022
Background
The applicant's request of 24 August 2021 sought access to a report prepared by a named Senior Counsel, regarding potential litigation on behalf of Irish haemophiliacs against various US pharmaceutical companies. The Department's decision of 6 September 2021 refused the request under section 31(1)(a) of the FOI Act, on the basis that the requested report attracts legal professional privilege.
The applicant sought an internal review on 7 September 2021. The Department's internal review decision of 30 September 2021 affirmed its decision on the request. In particular, it said that the record contains legal advice and therefore attracts legal advice privilege. On 15 October 2021, 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, to correspondence between this Office, the Department and the applicant, to the record at issue and to the provisions of the FOI Act.
Scope of Review
The scope of this review is confined to whether the Department's refusal of the applicant's request is justified under section 31(1)(a) of the FOI Act.
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).
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 concept of "once privileged always privileged" applies to advice privilege, and
thus, unless otherwise lost or waived, lasts indefinitely. LPP belongs to the client and the client has the right to waive this privilege if the client so wishes. Noting the Department's position that advice privilege applies, I see no need to describe litigation privilege.
Submissions
The applicant was invited to make submissions to this Office but none have been received. His other correspondence, however, says that he is one of the affected haemophiliacs. He says that he was not made aware that the report had been created. He says that the report impacts on him personally and is relevant and pertinent to him. He says that the report would prove critical in treating his psychological trauma, and help to restore his dignity, integrity and the rights that he says were stolen from him as a child. He says that he is not seeking the report for litigation purposes and that the "legal relevancy of this document is moot."
The Department notes the mandatory nature of section 31(1)(a) and the indefinite nature of legal advice privilege. It says that the report contains legal advice provided by Counsel to the Minister for Health at the latter's request. It says that advice concerns the legal options available to the State, acting either alone or together with representative organisations, to seek legal remedy from manufacturers of defective medicinal products. It acknowledges that the report is known to exist but says that neither the document itself, its contents nor its conclusions are publicly known. It says that, therefore, privilege has not been waived over the report.
Findings
While I note the importance of the record to the applicant, and his assurance that he is not seeking the report for litigation purposes, I cannot take these matters into account. This is because section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making his FOI request.
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 contents of the report. However, I can confirm that I have examined it.
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. I am satisfied that the report consists of a confidential communication between Counsel and the Minister for the purpose of providing legal advice to the latter. I am satisfied that it attracts legal professional privilege. I also accept that privilege has not been waived over its contents.
As set out above, the concept of "once privileged, always privileged" applies to privileged legal advice. This means that the passage of time does not affect the application of the exception in this case. I find that the report is 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 decision, on the basis that the requested record is exempt 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
