Decision
Mr X and Department of Health
From Office of the Information Commissioner (OIC)
Case number: OIC-141134-G9X9G3
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Cite as: [2024] IEIC 141134
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Whether the Department was justified in refusing access to records created between 1 March 2023 and 2 May 2023 held in the Minister's email account or official phone referring or relating to the publication of the report into the secondment of Dr. Tony Holohan under sections 29(1), 30(1)(a), 31(1)(a), 35(1)(b), 37(1) or 42(f) of the FOI Act
27 May 2024
In a request dated 2 May 2023, the applicant sought access to all records created between 1 March 2023 and 2 May 2023 held in the Minister's email account or official phone referring or relating to the publication of the report into the secondment of Dr. Tony Holohan to Trinity College Dublin. In a decision dated 26 June 2023, the Department identified 46 records as coming within the scope of the applicant's request. It granted access to 9 records (4, 5, 9, 10, 11, 14, 22, 25, 26) and refused access in full or in part to the remaining 37 records under sections 29(1), 31(1)(a) and 37(1) of the FOI Act. On 7 July 2023, the applicant sought an internal review of that decision. On 28 July 2023, the Department affirmed its original decision. On 2 August 2023, the applicant applied to this Office for a review of the Department's decision.
During the course of this review, this Office provided the parties with an opportunity to make submissions. In its submissions, the Department said that given the passage of time, the exemptions relied on may no longer apply to certain records within the scope of this request. It released records 3, 16, 18, 35, 39, 40, 41, 42, 43 and 45 to the applicant. It said records 6, 7, 8, 12, 13, 15, 23, 24 and 27 contain email addresses or contact details and it wished to rely on section 37(1) of the Act in refusing access to those details. Finally, the Department said it wished to rely on an additional exemption provision, section 30(1)(a) of the Act, in refusing access to records 1, 2, 17, 28, 36, 37 and 46. This Office updated the applicant in relation to the Department's revised position. In reply, the applicant said the information withheld under section 37 could be disregarded for the purposes of the review. This Office also notified the applicant that having examined the Department's submissions and the content of the records, it intended to consider sections 30(1)(a) and also 35(1)(b) in relation to records 1, 2, 17, 28, 29, 31, 36, 37 and 46. In reply, the applicant confirmed that he had no further comments to make.
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 submissions made to date. 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.
I note that within the records refused by the Department under section 31(1)(a) of the Act is correspondence it received from the Attorney General or the Office of the Attorney General. Having regard to the content of those records, I am required to consider whether section 42(f) of the FOI Act applies to them.
Accordingly, this review is concerned whether the Department was justified in its decision to refuse access to records 1, 2, 17, 19, 20, 21, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 44 and 46 under sections 29(1), 30(1)(a), 31(1)(a), 35(1)(b) or 42(f) of the FOI Act.
It is important to note that a review by this Office under section 22 of the FOI Act is considered to be "de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the "de novo" nature of our reviews, I consider it appropriate to examine the applicability of additional relevant exemptions, notwithstanding the fact that they were not relied upon as a ground for refusing access to the records in the Department's decision on the request.
Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is somewhat limited.
While I am limited in the extent to which I can describe the contents of the records at issue, I believe it would be useful to provide some background information in relation to this review and some high-level detail in respect of the records at issue. In April 2022, the Minister for Health, Stephen Donnelly appointed Ms. Maura Quinn to carry out an external review of the proposed secondment of the former Chief Medical Officer, Dr. Tony Holohan to Trinity College Dublin. Ms. Quinn's report was published on 17 April 2023. The records include correspondence from or on behalf of Mr. Robert Watt and Dr. Tony Holohan to Minister Donnelly which contains comments in relation to the content of the report and its publication. The records include an earlier draft of Ms. Quinn's report dated 14 June 2022. The records also contain correspondence between Minister Donnelly and the Attorney General in relation to the report and correspondence sent by the Office of the Attorney General to a representative of one of the affected parties.
As outlined above, within those records refused by the Department under section 31(1)(a) of the Act is correspondence it received from the Attorney General or the Office of the Attorney General. Section 42(f) provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General. Records 20, 21, 32, 33, 34 and 44 were created by the Attorney General or the Office of the Attorney General. I am also satisfied that these records are not concerned with general administration. I find, further to section 42(f) of the FOI Act, that the Act does not apply to records 20, 21, 32, 33, 34 and 44.
The Department refused access to records 1, 2, 19, 29, 30, 31, 36, 37, and 38 under section 31(1)(a) of the FOI Act. That section 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 (LPP). LPP 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).
It is important to note that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) of the FOI Act where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can 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.
For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated or pending litigation. In the judgment of the High Court in University College Cork - National University of Ireland v The Electricity Supply Board [2014] IEHC 135, Finlay Geoghegan J. stated -
"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."
As such, a body claiming the exemption must satisfy the Commissioner that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created.
In his internal review request, the applicant states that section 31 has been invoked for many of the records at issue without any real explanation given as to why it would apply. He states that from the schedule provided to him, it appears that some of these records are internal Department emails. He says they may contain elements that are protected by legal privilege but it is doubtful that all of their contents are protected by legal privilege. He says the records include correspondence between and Dr. Holohan and the Minister and again it is unclear why Section 31 would apply to them, nor has any explanation of this been provided. He says that some of the records are also between the Department and an "external party". He says that the exclusion of these records would probably be justified if this was with a legal representative but no further information has been provided.
The Department states that it relied upon section 31(1)(a) as these records contain confidential communications between a client and their legal advisor for the purpose of obtaining and/or giving legal advice or the records formed part of a continuum of communications so that legal advice may be sought. The Department states that the records include correspondence forwarded to the Attorney General for legal advice and which form part of a continuum of correspondence which is protected by legal advice privilege. It states that the records also include correspondence from an external party who is a legal representative and these record contain information protected by legal privilege. It also states that a number of the records were created for the purpose of preparing for contemplated litigation.
Record 2, 19, 30, and 38 contain requests for legal advice from the Minister to the Attorney General. I am satisfied that these records are exempt on the basis of legal advice privilege. Records 1, 36 and 37 contain comments in relation to the content and publication of the Quinn report made to Minister Donnelly by parties affected by the review. Record 29 and 31 contain comments in relation to the Quinn report which were made to Minister Donnelly on behalf of one of the affected parties by their legal representatives. The Department has refused access to records 1, 36, 37 on the basis that these records were later forwarded to the Attorney General for legal advice and form part of a continuum of correspondence which is protected by legal privilege.
Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each individual record should be considered in its own right and the test of legal professional privilege should be applied on a record by record basis. Neither records 1, 36, 37 nor records 29 and 31 contain confidential communications made between a client and his professional legal adviser for the purpose of obtaining or giving legal advice. I am not satisfied that these records are exempt on the basis of legal advice privilege. The fact that they may have been later forwarded to the Attorney General for legal advice does not, in my view, mean that they can be described as forming part of a continuum of correspondence resulting from a request for advice, in circumstances where the records were in existence prior to any such request for advice.
I have also considered whether the records can be regarded as having been created for the dominant purpose of apprehended or threatened litigation. Having carefully examined records 36 and 37, it is clear to me that the purpose of these records is to provide comments in relation to the Quinn report and its publication to be considered by Minister Donnelly. Records 1, 29 and 31 contain references to initiating legal steps or to instituting legal proceedings. I am prepared to accept that one of the purposes of these records was preparation for contemplated litigation. However, it seems to me that an equal purpose for the creation of the records was to provide submissions on the contents and publication of the Quinn report for the consideration of the Minister as part of the review process. I am not satisfied that the dominant purpose for the creation of these records is preparation for contemplated or pending litigation.
However, even if I was satisfied that these records meet the dominant purpose test, the concept of "once privileged always privileged" applies only to claims of privilege based on legal advice privilege and not to litigation privilege. Where a claim is made for exemption under section 31(1)(a) on the grounds of litigation privilege and where the documents concerned were created in preparation of proceedings which did not proceed or have since concluded, the FOI body should be in a position to show how litigation privilege would continue to apply. This Office asked the Department to show how litigation privilege continues to apply in this case in circumstances where the Quinn report was published in April 2023 and no litigation has been taken in this matter. The Department did not provide a reply to this query. In these circumstances, I am not satisfied that records 1, 29, 31, 36 or 37 are exempt on the basis of litigation privilege.
In summary, I find that the Department was justified in refusing access to records 2, 19, 30, and 38 under section 31(1)(a) of the Act. However, I find that it was not justified in refusing access to record 1, 29, 31, 36, 37 under section 31(1)(a).
The Department refused access to records 1, 2, 17, 28, 36, 37 and 46 under section 30(1)(a) of the FOI Act. As I have found record 2 to be exempt under section 31(1)(a) of the Act, it is not necessary to consider this record under section 30(1)(a). The Department refused access to records 29 and 31 under section 31(1)(a) of the Act. However, in my view it is appropriate to consider whether section 30(1)(a) of the Act also applies to these records having regard to their contents.
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
In its submissions, the Department said section 30(1)(a) was relied on because the granting of access to these records could reasonably be expected to cause harm to the procedures used in conducting reviews of this nature in the future. It said as part of this process, relevant parties were given the right to comment as is fair procedure. It said the relevant parties provided information in confidence and on the understanding that it would be treated as confidential during the review process and releasing the records could reasonably be expected to prejudice the giving of further similar information from persons in the future. It said it is important that similar information should continue to be given to the Department to allow it to carry out reviews in the future. It said release of this information could have an impact on the frankness and candour of participants in such a process in the future.
As part of the review process, affected parties were provided with various iterations of the Quinn report so that they could provide their comments on the report. Comments were provided to the reviewer Ms. Quinn and to Minister Donnelly who commissioned the review. Ms. Quinn made changes to the report following receipt of comments from affected parties. Ms. Quinn also made changes to the report following a request by Minister Donnelly to further examine certain matters raised by Mr. Watt in his submissions which were considered by Minister Donnelly. Records 1, 17, 36, 37 and 46 concern comments in relation to the content and publication of the Quinn report which were submitted to Minister Donnelly. Record 29 and 31 concern comments in relation to the Quinn report which were submitted on behalf of one of the affected parties by their legal representatives to Minister Donnelly. Record 28 contains an earlier draft of Ms. Quinn's report dated 14 June 2022.
In my view, given the context in which this review took place and the serious matters being dealt with, a fundamental part of the review process was adherence to the constitutional rights of fair procedures and natural justice of affected parties involved in the review. Affected parties were given the opportunity to review the accuracy of various iterations of the report in order to ensure the report accurately reflected their input, and in order that they have a right to see any comment which may be made which could be adverse to them. This is a requirement to ensure fair procedures and to ensure accuracy in the review process. Draft reports prior to the final report have not been through this full process and therefore may contain information which may inaccurately reflects what a person said, or which make adverse comments about individuals which were appropriately removed from the document following feedback.
It seems to me, that while parties participating in a review would be fully aware of the fact that the final report would be made available, they would have a genuine and reasonable expectation that their comments in relation the contents and publication of the report would be treated as confidential. This expectation is expressly stated in records 36 and 37 where the affected party headed his comments as being made "in strictest confidence". If parties had concerns that their comments might be released this could impinge on their entitlement to fair procedures and natural justice and they could reasonably be expected, in my view, to engage with the review with less candour and frankness than would be necessary to ensure the effectiveness of the review. I am satisfied that the release of the records at issue could reasonably be expected to prejudice the effectiveness of the procedures or methods employed for the conduct of examinations, investigations, inquiries or audits conducted by or on behalf of the Department. I find, therefore that section 30(1)(a) applies to the records at issue.
Section 30(2) of the Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned. In its submissions to this Office, the Department identified a range of factors in favour of and against release of the records, as follows:
Factors in favour of release:
- The public interest in increasing openness and transparency in how the Department allocates its resources;
- There is a public interest in enhancing the accountability of public bodies;
- There is a serious public interest which extends beyond curiosity;
- The public interest in members of the public exercising their rights under the FOI Acts.
Factors against release:
- The extent to which release would disclose information on the position taken throughout management processes in the conduct of a review, the disclosure of this information may impact the future management of similar processes;
- The Department has a duty of confidentiality in relation to disclosure of personal information;
- The protection of information received in confidence by the Department on the understanding that it would be treated as confidential, and disclosure could prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the Department.
The Department concluded that the public interest would not, on balance, be better served by granting the request. It said that releasing the records would harm its ability to carry out similar reviews in the future.
I acknowledge that that there is a significant public interest in facilitating public scrutiny of how the Department carried out its functions in relation to the proposed secondment in this case, particularly given the proposed commitment made in relation to the use of public funds. However, it seems to me that this public interest has already been served to a significant extent by publication of the report that was prepared following the external review. While I accept that the release of the draft report and comments provided to the Minister would bring further transparency to the review process, I believe that such additional transparency should not be at the expense of damaging the integrity of the review process itself, particularly where that process is designed to ensure that the review adheres to the principles of procedural fairness and natural justice.
There is a strong public interest in ensuring the integrity of the review process, given its objectives. As set out in the terms of reference, the review sought to determine learnings from the process related to the proposed secondment of the Chief Medical Officer and associated research proposal and make recommendations that could inform future such initiatives. In my view, in circumstances, where the publication of the final report has resulted in a significant degree of transparency around the matters that were the subject of the review, and given my finding that the release of the records could reasonably be expected to prejudice the effectiveness of the procedures employed for the conduct of such reviews, I am satisfied that the public interest would, on balance, be better served by refusing access to the records at issue.
In conclusion, therefore, I find that the Department was justified in refusing access to records 1, 17, 28, 29, 31, 36, 37 and 46 under section 30(1)(a) of the Act. In light of this finding, it is not necessary to consider whether these records are also exempt under section 35 of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse access to records 1, 2, 17, 19, 20, 21, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 44 and 46, under sections 30(1)(a), 31(1)(a), and/or 42(f) of the FOI Act.
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