Whether the Department was justified in refusing access to a report of a working group published in 2017 under sections 30, 31 and 32 of the FOI Act

13 July 2020

Background

On 25 October 2018, the applicant sought access to “a copy of the Working group on Lariam report”. In a decision dated 19 November 2018, the Department said it understood the applicant’s request to be for what it described as “the Second Report of the Working Group regarding litigation arising from the use of Malaria Chemoprophylaxis in the Defence Forces completed in 2017”. It refused access to the report in question under sections 29(1)(a), 30(1)(c), 31(1)(a) and 32(1)(a)(iv) of the FOI Act.

The applicant sought an internal review of that decision on 18 December 2018. On 18 April 2019, the Department issued its internal review decision in which it indicated that it had decided to vary the grounds for refusing the request. It annulled the decision to rely on section 29(1)(a) as a ground for refusing the request on the basis that section 29(1)(a) is not a standalone paragraph. It provided further details in respect of its claim for exemption under the remaining exemptions cited in the original decision.

On 16 October 2019, the applicant sought a review by this Office of the Department’s decision through his legal representatives. As such, all references to engagements and exchanges of correspondence with the applicant should be taken to include engagements and correspondence with his legal representatives. In his application for review, he argued that his request should not have been interpreted as a request only for the 2017 report. He said he was actually seeking access to all finalised versions of the report, including those from 2013.

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 communications between the parties, as above, and to those between this Office and both parties on the matter. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

As this Office explained to the applicant when accepting the review, the scope of the review is confined to determining whether the Department was justified in refusing access to the report as described in its original decision on his request, namely the 2017 report. The Department was clear in its description of the record it considered and the applicant made no attempt to challenge the Department’s understanding of the scope of the request when he sought an internal review of that decision.

During the course of the review, both parties were invited to make submissions to this Office on the matter. The Department was informed that it should consider the request for focused submissions issued to be its final opportunity to present arguments to this Office in support of its decision. While it was invited to respond to a series of questions regarding the exemptions cited in its internal review decision, it was also informed that those questions were not exhaustive and it should therefore provide any other information it considered relevant to the review.

The Department provided a submission on the matter on 12 December 2019. I note that in a response to a subsequent request from this Office for clarification of matters arising, the Department made what I consider to be passing references to sections 33 and 35 of the FOI Act in respect of what it described as information relating to other armed forces that was provided to the Working Group in confidence. However, I am satisfied that the Department made no substantive claim for exemption of the record at issue under those provisions of the Act.

Accordingly, this review is confined to the question of whether the Department was justified in refusing access to the 2017 report under sections 30(1)(c), 31(1)(a) and 32(1)(a)(iv) of the FOI Act.

Analysis and Findings

The report at issue is entitled “Second Report of the Working Group regarding litigation arising from the use of Malaria Chemoprophylaxis in the Defence Forces” and is dated October 2017. While the Department refused access to the report under sections 30, 31 and 32, I will consider the applicability of section 31 first as it seems to me to be of most relevance.

Section 31(1)(a)

This section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege.

In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the ground of legal professional privilege (LPP) in court proceedings. LPP enables the 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).

In relation to litigation privilege, in the case of Silver Hill Duckling v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516 (Silver Hill), O' Hanlon J. held:

"once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege."

For litigation privilege to apply the records must have been created for the dominant purpose of contemplated / pending litigation. The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. in Silver Hill. 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."

The introduction to the report explains that the Working Group on Malaria Chemoprophylaxis was originally convened in 2011 in relation to litigation initiated concerning the prescription of Mefloquine (Lariam) to members of the Defence Forces and that this remains the context of its work. It says the group brings together inputs from those involved in managing the State’s response to the litigation, together with medical, military and personnel support services. It adds that the work of the group has continued over the past five years, reflecting the continuing emergence of knowledge and practice, as well as the ongoing litigation process, and that the report reflects the work of the group in the period August 2015 to August 2017.

In its submission of 12 December 2019 to this Office, the Department said that as the report was produced in the context of current and potential litigation, it is legally privileged. It said the Department established a working group in January 2011 as, at the time, it was dealing with a number of claims taken by current and former military personnel who alleged injuries as a result of their consumption of Lariam whilst serving overseas. It said the purpose of the group was to review issues in relation to the use of Lariam particularly having regard to the current and potential litigation. It said that by the conclusion of the first report in 2013, some 22 claims were on hand with the State Claims Agency and that at the end of October 2019, the State Claims Agency was managing 237 claims concerning the use of Lariam on its behalf. It argued that the disclosure of either report would hand existing and prospective plaintiffs and their legal teams a significant advantage both legally and tactically.

I also note that in a published Ministerial Brief prepared by the Department in 2017, the working group was described as having re-convened in August 2015 “to review issues arising in relation to the use of Lariam, particularly in the context of the current and potential litigation…” and that a report of the group’s findings was expected to be completed shortly.

In his submission to this Office, the applicant argued that the Department is not entitled to refuse access to the report under section 31(1)(a) as it is not clear that it was prepared for the dominant purpose of litigation and, even if it was, consideration should have been given to the possibility of partial release of the report.

In support of that argument, he referred to a number of responses to Parliamentary Questions (PQs) which provide high level details of some of the recommendations contained in the report. He also referred to a response wherein the Minister stated that the purpose of the working group was to review, inter alia, issues arising in relation to the use of Lairam, particularly in the context of the current and potential litigation (applicant’s emphasis).

The applicant argued that the PQ responses indicate that the report contains at least some information on prospective policy changes and recommendations covering matters including planning, training and education/information sharing in the Defence Forces and as such, that at least some of the information contained in the report could not be covered by litigation privilege. He also argued that the Minister’s response suggests that the issues relating to Lariam were considered particularly but not exclusively in the context of litigation.

In essence, the applicant argued that it does not appear that the dominant purpose for the creation of the report was preparation for pending or contemplated litigation and that the PQ responses do not support such a claim. He argued that even if it was prepared to prepare for pending or contemplated litigation, it appears that the report had at least one other co-equal purpose, namely the making of prospective policy recommendations on a number of matters not restricted to the use of Lariam by the Defence Forces.

This Office accepts that the onus is on the party asserting privilege to show, on the balance of probabilities, that the dominant purpose of the creation of the record was pending or contemplated litigation. We also accept that it is not sufficient that the record has two equal purposes, one of which is apprehended or threatened litigation.

In my view, the Department has, indeed, shown on the balance of probabilities that the dominant purpose for the creation of the report at issue was pending or contemplated litigation. The Department established the working group in 2011 as it was dealing with a number of claims taken at the time concerning the use of Lariam. The group was set up to review issues in relation to the use of Lariam, particularly having regard to the current and potential litigation. The title of the report itself indicates that it concerns litigation arising from the use of Malaria Chemoprophylaxis (my emphasis).

I should add that the fact the report may have other uses does not, of itself, mean that the dominant purpose for its preparation cannot have been pending or contemplated litigation, nor does it mean that such other uses must be regarded as co-equal purposes for its creation.

Furthermore, the fact that the report may contain information concerning the making of prospective policy recommendations on a number of matters not restricted to the use of Lariam by the Defence Forces does not, in my view, mean that such parts of the report cannot attract litigation privilege. It seems to me that the release of such information would still involve the disclosure of information of relevance to the issue of the pending or contemplated litigation. In any event, the inclusion of such information does not mean that the dominant purpose for the creation of the report cannot have been pending or contemplated litigation.

Having carefully considered the matter, I find that the report at issue attracts litigation privilege. I find, therefore, that section 31(1)(a) applies. Unlike many other exemption provisions in the Act, section 31(1) is not subject to a public interest balancing test. As such, any arguments that the applicant has advanced in terms of where the balance of the public interest lies are of no relevance to the applicability of section 31(1)(a). Furthermore, while the applicant also argued that the Department failed to have regard to the overall scheme of the Act when considering the request, it is important to note that the right of access does not apply to an exempt record where the exemption is mandatory (section 11(7)(a) refers). As such, if section 31(1)(a) applies, then that is the end of the matter.

In conclusion, therefore, I find that the Department was justified in refusing access to the record at issue under section 31(1)(a) of the FOI Act. In light of that finding, it is not necessary for me to consider whether the other exemptions cited also apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse to grant access to the report concerned 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