Whether the Department was justified in refusing access to records relating to the applicant-�s late son

20 October 2023

Background

In a request dated 14 May 2022, the applicant sought access to records relating to her late son. The request specified that the records should include -�-�all correspondence, communication, minutes of meetings, emails including internal emails and private email accounts, files, including legal files, briefing notes, agenda notes, memos, letters, reports, submissions, powerpoint presentation, hand written notes, fax, etc-� to and from, and within, the Department, as well as any communication between the Department and -�-�all state bodies/agencies including any reference to scoping exercise, scoping investigation, scoping inquiry, Court Report, Court Services Report, GSOC, IRM Independent Review Mechanism and Report or reports-�. The applicant specified that the relevant time period to be covered by her request was 13 August 2021 to 31 December 2021.

In a decision dated 30 August 2022, the Department part-granted the applicant-�s request. It identified 152 records that fell within the scope of the request, granting access in full to 26 records, in part to 107 records and refusing access in full to 19 records. The Department cited sections 29, 30, 31, 37, 42 and 15 of the FOI Act as grounds for refusing access to the records that it withheld in full or in part. The Department numbered the first 61 records that came within the scope of the request in numerical order from 1-61. The remaining 91 records numbered by alphabetical reference to the initial record (eg, -�record 3(a)-�, -�record 3(b)-�, -�record 24(a)-�, etc). For the ease of reference of all parties I have used the Department-�s numbering system in conducting this review.

On 26 September 2022, the applicant sought an internal review of the Department-�s decision. In its internal review decision dated 17 October 2022, the Department affirmed its original decision. On 13 April 2023, the applicant applied to this Office for a review of certain elements of the Department-�s decision. In particular, in her application for a review the applicant specified nine records, the Department-�s refusal of which in whole or part she wished to appeal.

Subsequently, in the course of this review, the Department indicated that it no longer sought to withhold certain records that came within the scope of the review (specifically records 14(a) and 24(a)), and released these to the applicant. In addition, in its submissions to this Office the Department indicated that redactions had been made to records 26(a) and 57 in error. The Department subsequently released updated versions of these records to the applicant with the erroneous redactions removed.

In its submissions, the Department also indicated its view that certain sections of a number of the records at issue, specifically parts of record 26(a) and 42, were being withheld on the basis that they fell outside the scope of the applicant-�s FOI request. As the applicant had not had an opportunity previously, in the context of this case, to consider the argument that sections of these records fell outside the scope of her request, I contacted her to put her on notice of same, and to invite her to make any submissions that she wished in relation to the matter. No further submissions were received from the applicant.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant-�s comments in her application for review and to the submissions made by the Department support of its decision. I have also had regard to the contents of the relevant records. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As outlined above, in her application to this Office for a review of the Department-�s decision, the applicant specified a number of records, and stated that she wished to appeal the Department-�s refusal to release these in particular.  I note that a number of the records sought by way of the applicant-�s application comprise an email and attachment.  The applicant specified in her application a number of records in respect of which she was seeking only the attachment, others in respect of which she sought both the email and its attachment, and others in which she sought the email only. I also note that, as the applicant is appealing the Department-�s decision in respect of selected records (and not all of those withheld in the Department-�s decision), not all of the exemptions under the FOI Act that the Department cited in its decision are relevant to this review.

Accordingly, this review will therefore focus solely on two aspects of the Department-�s decision -� firstly, whether the Department was justified, under sections 31(1)(a), 37(1) and 42(j) of the FOI Act, in withholding access to the particular records specified by the applicant, namely:

• attachment to record 14(a)
• attachment referred to in record 15(a)
• attachment referred to in record 18(a)
• record 18(d)
• attachment to record 24(a)
• record 26(a)
• record 35 and its attachment
• record 42 and its attachment
• record 57

Secondly, this review will also focus on whether the Department was entitled to withhold the relevant sections of records 26(a) and 42 on the basis that they fell outside the scope of the applicant-�s FOI request.

Preliminary Matters

I note that the Department-�s initial decision on the applicant-�s request was not issued within the timeframe set down in the FOI Act. The Department cannot but be well aware of its obligations in this regard. It is incumbent on me to emphasise to the Department that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The Department should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.

Analysis and Findings

Records deemed by the Department to fall outside the scope of the request

As outlined above, the Department indicated in its submissions that it was withholding specified portions of records record 26(a) and 42, on the basis that they fell outside the scope of the applicant-�s FOI request, as they related to separate matters.

I have examined the relevant sections of records 26(a) and 42 and accept that they relate to matters that are altogether separate and distinct from the issues that were raised in the applicant-�s FOI request. As a result, I accept the Department-�s contention that this material falls outside the scope of the applicant-�s request, and therefore does not fall to be released in response to the request.

Section 37(1)

The Department relied on section 37(1) of the FOI Act as a basis to redact certain information from the following records:

• record 18(d) -� email correspondence, both internal to the Department and including an email from an external firm of solicitors, covering the period 5 May 2022 to 7 June 2022
• record 35 -� internal Department email correspondence dated 23 March 2022
• record 42 -� internal Department email correspondence covering the period 5 April 2022 to 7 April 2022
• record 57 -� email correspondence, both internal to the Department and including an email from an external firm of solicitors, covering the period 5 May 2022 to 6 May 2022.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition including, at point (ii), information relating to the financial affairs of the individual and, at point (iii), information relating to the employment or employment history of the individual.

In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

In its submissions regarding section 37(1), the Department stated that the redactions made to records 18(d), 35 and 57 comprised the mobile phone numbers of staff. In relation to record 42, the Department stated that, as well as the mobile phone numbers of staff, the redacted material was the personal information of a named public servant, specifically the salary and total pay of that individual. I have examined the information at issue and accept that it is personal information for the purposes of section 2 of the FOI Act, and thus within the scope of section 37(1)

However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (-�the Enet case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

In its submissions, the Department did not specifically address section 37(5)(a). In her application for a review of the Department-�s decision on her FOI request, the applicant argued, in particular in relation to the material redacted under section 37(1) from record 42, that this was information relating to costs borne by the taxpayer, and that it was therefore in the public interest to release this information.

There is a clear public interest in maintaining the exemption provided for in section 37(1). In particular, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. The release of the information in the records has the potential to damage this public interest by revealing disclosing personal information relating to third parties. As there is no limitation on the use to which material released under FOI can be subsequently put, release under FOI is generally regarded as equivalent to release to the world at large. There is therefore the potential for widespread dissemination of the personal information in the records. While I do not regard the mobile phone numbers of Department staff as, necessarily, the most sensitive of personal information, it is still personal and private information and I consider that harms to the public interest in maintaining the privacy rights of individuals may still potentially flow from its release. In addition, the salary and total pay of an individual is information that I regard as inherently private and there is a clear potential harm to the public interest in maintaining the privacy of individuals that may flow from the release of such information.

In terms of the public interest in releasing the information at issue, I am unable to identify any strong public interest in releasing the mobile phone numbers of Department staff. I cannot see how any public interest is served by the release of this information. The matter is slightly different in the case of the salary and pay of the individual named in the records, in circumstances where -� as the applicant has pointed out -� the individual is a public servant and as such their salary and pay is a cost borne by the taxpayer. Accordingly there exists, in my view, a public interest in releasing this information, as it is in the public interest members of the public being made aware of such taxpayer costs so that they may form a view on whether value for money is being achieved in public expenditure.

However, I consider that there is a risk of significant harm to the public interest that exists in maintaining the privacy of individuals, should the information relating to the salary and total pay of an individual be released. Similarly, in respect of the mobile phone numbers of Department staff members, while (as outline above) I can identify no significant benefit to the public good in releasing such information, I consider that there again making such information public carries a risk of harm to the public interest in maintaining the privacy rights of individuals, albeit that this is information of a less sensitive nature than that pertaining to salary and total pay.

 Bearing in mind the factors outlined above -� and in particular the fact that release under FOI must be consistent with the right to privacy, as well as the Constitutional right to privacy -� I consider that, on balance, the greater public interest lies in withholding this information. This material relates to the salary of an individual (albeit a salary paid by the Irish State), and such information is, to my mind, inherently private. Moreover, I take the view that the applicant-�s argument in favour of disclosure in the public interest, while not without merit, essentially appeals to a general principle of openness which the Supreme Court in the above-mentioned Enet case specifically stated was insufficient to direct the release of records in the public interest.

Therefore, having examined the relevant information, I cannot identify a public interest in favour of releasing the relevant material that is sufficiently strong to outweigh the public interest in the right to privacy of the relevant individuals. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. Accordingly, I find that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the Act, to the information I have identified above as comprising personal information.

Section 31(1)(a)

The Department relied on section 31(1)(a) to withhold parts of records 57 and 18(d), which I have described above, and namely the paragraphs that it redacted from page 2 of both records. Section 31(1)(a) provides for the mandatory refusal of access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).

LPP enables a 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 Department argued that legal advice privilege attached to the relevant parts of records 57 and 18(d), and stated that the redacted material included a summary of, and advice relating to, certain legal issues faced by the Department, and that this constituted legal advice from the Head of the Department-�s Legal Unit. The Department stated that its position was that the relevant parts of the record clearly showed that the communications were for the purpose of giving legal advice, such as to bring it within the scope of section 31(1)(a) of the FOI Act.

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.  As outlined above, in order for advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

Having considered the nature and contents of the records at issue, I would first of all note that the redacted material in both records is the same information, specifically an email from the Head of the Department-�s Legal Unit dated 5 May 2022 to various Department staff. I also note that, in the case of record 57, the salutation of the email in question, and the first paragraph of the email, have not been redacted, while in the case of record 18(d) the entire email has been redacted. In circumstances where this information -� the salutation and the first paragraph of the email -� has been released by way of record 57, I can find no basis for the same information in record 18(d) to be withheld.

In relation to the remainder of the email that has been redacted from both records at issue, I further note that the relevant communications to the Department are from its own internal (in-house) legal advisor. I should note that, generally speaking, this Office accepts that, provided the ingredients of the relevant type of LPP 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. A relevant European Court of Justice case, namely Akzo Nobel v the European

Commission, held that legal advice privilege does not apply to communications with in-house lawyers on European competition law issues. However, in a previous decision of this Office, Case 080216, the then-Commissioner found that the judgment in Akzo Nobel was of limited effect in that, in principle, it applies only to the exercise by the European Commission of specific powers under European competition law. She found that the Akzo Nobel judgment did not require her to find that records of advice received, or sought, from an in-house legal advisor cannot attract LPP. On the basis of the information at issue in the relevant records in this case, I consider that the same principle applies here.

It is also worth noting that, in order for legal advice privilege to attach to a record, it must have the required quality of confidentiality. An examination of the information at issue suggests that the relevant communication in this case was clearly intended to be confidential.

It therefore seems clear to me that the information at issue falls within the ambit of legal advice privilege, on the basis that it comprises confidential communications made between a client (the Department) and his/her professional legal adviser (the Head of the Department-�s Legal Unit) for the purpose of obtaining and/or giving legal advice. Consequently, I find that advice privilege attaches to the relevant redactions made to records 57 and 18(d), and that section 31(1)(a) accordingly applies to exempt from release the relevant portions of the records. However, as outlined above, there is no basis for the redaction of the salutation and the first paragraph of the email that comprises record 18(d), in circumstances where this same information has been released by way of record 57.

Section 42(j)

The Department relied on section 42(j) of the FOI Act as a basis to withhold in full attachment to record 14(a), the attachments referred to in records 15(a) and 18(a), the attachment to record 24(a), record 26(a) and the attachment to record 35. Each of the records in question comprises draft material prepared by the Department to brief the Minister for Justice and/or Department of the Taoiseach in relation to the subject matter of the applicant-�s FOI request.

Section 42 relates to the restriction of the FOI Act, and provides that it will not apply in a number of specified circumstances. Subsection (j) of section 42 provides that the FOI Act does not apply to:

-�a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee (including such proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State (whether answered orally or in writing))-�.

Accordingly, in order for the relevant information in the records to fall within the scope of section 42(j), the Department is required to demonstrate, firstly, that it (as an FOI body) provided the material to a member of the Government or a Minister for State, and secondly that that the purpose for such provision of material was for its use in the Oireachtas, or any committee, subcommittee, etc, of the Oireachtas, including proceedings relating to questions put by members of the Oireachtas to members of the Government or Ministers of State.

In its submissions, the Department stated that the relevant material in the records at issue contained drafts of material prepared for the Minister for Justice in response to oral Parliamentary Questions (PQs) and briefing material for the Taoiseach. It further stated that the attachment to record 35 consisted of material prepared for the Minister for Justice to be used in the Dáil when responding to oral PQ 8769/22. In addition, the Department stated that the emails to which the relevant information was attached showed that it had prepared the information forwarded it to the Minister for Justice via the ePQ system and to the Taoiseach by email. Thus, the Department argued that it had demonstrated that the requirements of section 42(j), as outlined above, had been met.
I have reviewed the material that the Department withheld pursuant to section 42(j) of the FOI Act and find as follows. It seems apparent to me, upon an examination of the relevant records, that each was provided by the Department to the Government or a Minister for State (specifically, to the Minister for Justice and the then-Taoiseach). Furthermore, it seems clear that the purpose of providing these records to the relevant Government officials was for use in the Oireachtas, and specifically for proceedings relating to PQs. In those circumstances, I accept that the requirements of section 42(j) have been met in respect of these records. I therefore find that section 42(j) applies to restrict the operation of the FOI Act in respect of record 14(a), the attachments referred to in records 15(a) and 18(a), the attachment to record 24(a), record 26(a) and the attachment to record 35. It follows that the FOI Act does not apply to these records and consequently they do not fall to be released in response to an FOI request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-� decision. I find that the Department was entitled to withhold the information in the records that it sought to exempt from release under section 37(1). Moreover, I find that the Department was justified in refusing access to the records it withheld under section 42(j), on the basis that the relevant information in those records is not subject to the FOI Act. I also find that the Department was entitled to withhold the information I have identified above in records 26(a) and 42 on the basis that it falls outside the scope of the applicant-�s FOI request. Finally, in relation to the records withheld under section 31(1) of the FOI Act, I find that the Department was justified in its decision to withhold the relevant information from these records, apart from the material identified above that appears in both of the relevant records and which the Department withheld from record 18(d) but not from 57, and I direct the release of this portion of record 18(d).

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Neill Dougan
Investigator