Whether the Department was justified in refusing access, under section 31(1)(a) of the FOI Act, to certain records relating to the High-Level Task Force on COVID-19 Vaccination, on the ground that the records attract legal advice privilege

3 February 2022

Background

In a request dated 18 February 2021, the applicant sought access to records relating to actions 4 and 5 of the meeting of 7 December 2020 of the High Level Task Force on COVID-19 Vaccination. The applicant noted that these records included the output of the identified action owners and measures taken to close these actions, as indicated in the notes of the next meeting which took place on 16 December. In a late decision dated 28 April 2021, the Department part-granted the request. It identified three relevant records, one of which was released (with minor redactions of personal information), and the other two were refused under section 30(1)(b) of the FOI Act.

On 19 May 2021, the applicant sought an internal review of the Department’s decision to refuse access to the two records. On 13 August 2021, the Department issued a late internal review decision in which it affirmed the refusal of the two records but varied the basis for refusal. It cited section 31(1)(a) as a basis for refusal on the ground that the records comprised legal advice received.

On 19 August 2021, the applicant submitted a separate request for records relating to the request for legal advice and associated records. The Department refused that request on the ground that no relevant records exist or could be found. It said it would not hold such records and that the request may be more appropriate to the HSE.

On 26 November 2021, the applicant to this Office for a review of the Department’s decision on his request of 18 February 2021.

I have now completed my review in accordance with section 22(2) of the FOI Act and have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the submissions made by the Department and by the applicant, and to the correspondence between the parties as outlined above. I have also examined the records at issue.

Scope of Review

In his application for review to this Office, the applicant argued that section 31(1)(a) cannot apply to the records at issue and as such, he asked that the Department’s decision to refuse access to the records under section 30(1)(b) be considered. It is important to note that a review by this Office is considered to be “de novo” which means that it is based on the circumstances and the law as they pertain at the time of this Office’s decision.

As I have indicated above, the Department varied the basis on which it had decided to refuse access to the records in its internal review decision. In light of the “de novo” nature of our reviews, I am satisfied that it is appropriate in this case to consider only the applicability of section 31(1)(a) to the records. Accordingly, this review is concerned solely with whether Department was justified in refusing access, under section 31(1)(a) of the FOI Act, to the two records at issue.

Analysis and Findings

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

a) 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

b) 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 concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. Moreover, this Office takes the view that privilege also attaches to records that form part of a continuum of correspondence that results from the original request for advice.

In its submissions to this Office, the Department said that in undertaking the vaccine rollout, it was necessary for the Department of Health to investigate the legal implications of informed consent when implementing a nation-wide vaccination scheme. It said the records at issue comprise an email from a solicitor acting in a legal capacity and an attachment to that email which contained a legal opinion regarding informed consent in terms of the Covid-19 vaccination rollout.

The applicant argued that that the Department’s decision on his second FOI request for records relating to the request for legal advice undermined its decision on the first request. He argued that the records at issue could not benefit from legal professional privilege because, in order to do so, the records must constitute or refer to a communication between a lawyer and a client and the communication must arise in the course of a professional lawyer-client relationship. He argued that as there is no record of the communication between the Department and the solicitor, then there cannot be any confidentiality in the communication. He further argues that that internal communications within the Department could not be considered communications between solicitor and client, that privilege can only apply to legal advice and not legal assistance, and that mere forwarding an email to a solicitor does not in itself make it privileged.

I do not accept the applicant’s argument that the absence of additional supporting documentation (for example invoices, or a formal written request for legal advice) undermines the Department’s claim for exemption under section 31(1)(a). I am satisfied that a determination can be made on the appropriateness of the Department’s refusal having regard to the content of the specific records themselves. Having carefully examined the records, I am satisfied that the email and attachment constitute a confidential communication made between a professional legal advisor (the solicitor, external to the Department) and a client (the Department of Health) for the purpose of giving advice to the High Level Task Force on Covid 19 Vaccination on the matter of informed consent, and how this might feed into the Task Force’s strategy. As such, I am satisfied that the records attract legal advice privilege and I find that the Department 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 hereby affirm the Department’s decision to refuse to release the two records at issue 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.

Stephen Rafferty

Senior Investigator