Whether DPER was justified in refusing access, under section 31(1)(a) of the FOI Act, to a record containing the applicant’s personal details on the ground that the record attracts legal professional privilege

10 February 2022

Background

In a request dated 18 July 2021, the applicant sought access to records containing his personal details held by the FOI Central Policy Unit (CPU) in the Department of Public Expenditure and Reform (DPER). In a decision dated 31 July 2021, the request was part granted. DPER identified 43 records relevant to the applicant’s request. Seven records were withheld in full under section 31(1)(a) of the FOI Act while a small amount of information was redacted from another record under section 37(1). Under section 17(2)(b) of the Act, the applicant was also invited to arrange to inspect one of the records, rather than a copy of it being provided to him, on the basis that it contained material subject to copyright. The remaining records were released to the applicant in full. In referring to the records at issue in this decision, I have adopted the numbering system used by DPER in the schedule of records it prepared when processing the request

On 6 September 2021, the applicant sought an internal review of DPER’s decision on the ground that more records should have been released. DPER affirmed its decision on 27 September 2021, wherein it also explained that while further searches were carried out as part of the internal review, no further relevant records were located.

On 6 October 2021, the applicant sought a review by this Office of DPER’s decision. Early in the review, the Investigator informed the applicant that in light of his comments as set out in his application for review, she intended to confine the scope of the review to those records to which access was refused under section 31(1)(a) of the Act. In response, the applicant said he agreed with that approach.

Subsequently, during the review, DPER re-examined the records and released four of the withheld records in full (records 11, 19, 22, and 27). It also informed the applicant of its view that of the three remaining records to which access was refused, one (record 26) did not come within the scope of the request and one (record 31) was contained entirely within one of the four records released (record 11), thereby leaving one record (record 16) withheld under section 31(1)(a). It argued that the record in question was also exempt under section 42(f) of the Act.

On 1 February 2022, the Investigating Officer contacted the applicant and informed him of her view that record 26 was not captured by the scope of his request and that DPER was justified in refusing access to record 16. She invited him to withdraw his application for review as settled or to make further submissions on the matter. As the applicant has not withdrawn his application and has made no further submissions, I have decided to conclude the review by way of a binding decision.

In carrying out my review, I have had regard to the correspondence between the applicant and DPER as set out above and to the correspondence between this Office and both the applicant and DPER on the matter. I have also examined the records at issue.

Scope of Review

Record 26 is an email from an FOI body to the CPU looking for observations/comments on a draft response to an FOI request made by a third party. Having examined the record, I am satisfied that it does not come within the scope of the applicant’s request as it does not contain his personal details. The record simply refers to a High Court judgment in a case to which the applicant was a party, details of which are publicly available on the website of the Courts Service. I will not consider record 26 further.

Accordingly, this review is concerned solely with whether DPER was justified in refusing access to record 16 under section 31(1)(a) and/or section 42(f) of the FOI Act.

Preliminary Matter

Before I address the substantive issues arising, I would like to address a concern the applicant expressed in his application for review in relation to the Schedule provided to him by DPER. He expressed a concern that “no details of from/to or dates are supplied” and that in one case, “the form of communication is not disclosed”. He argued that as a first step in the review process, DPER should be required to provide “a fully detailed schedule”. 

The schedule provided contains no details in relation to record 21. However, DPER has confirmed that there is no record 21 and that this was included in the schedule in error. The records for which a date and number of pages are not provided are the records to which DPER had initially refused access under section 31(1)(a).

While I note that the schedule template used in this case is in the format recommended in the FOI processing manuals published by the CPU, I accept that in this case, the decision maker could have included more details in relation to the records to which access was refused. Nevertheless, given the nature of the exemption cited, I am satisfied that the schedule provided contains sufficient particulars to allow the applicant to understand the basis on which DPER decided to refuse access to the records.

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 (LPP).

LPP enables the client to maintain the confidentiality of two types of communication:

1. 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
2. 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 and/or pending litigation (litigation privilege).

In its submissions to this Office, DPER argued that record 16 is exempt on the basis of litigation privilege. The record comprises an email thread between a government department and the Chief State Solicitor’s Office (the CSSO) that was forwarded to the CPU. DPER argued that the record was created for the dominant purpose of pursuing litigation which remains outstanding. It said the record was forwarded for the limited purpose of apprising the CPU of the outcome of a particular part of the litigation, which related to the operation of the FOI system. It said the record is held confidentially on that basis and has not been provided to any other party. It argued that it is well established that such a disclosure does not amount to a waiver of privilege.

Privilege belongs to the client and the client has the right to waive this privilege if the client so wishes. Waiver by the client may be done expressly, but it may also be implied from the circumstances. This Office considers that the Irish courts would be slow to infer that there was a waiver of privilege, other than in clear cut cases. It would not be appropriate to conclude, as a general proposition, that privilege does not extend to records in the possession of an FOI body simply on the grounds that the body is not the client to whom privilege belongs.

As stated above, one of the factors necessary to establish that privilege arises is that the communication concerned is confidential. Where the communication ceases to be confidential, waiver of privilege may result. The steps taken to preserve the confidentiality of the communication may be relevant in considering whether there has been a waiver of privilege.

I am satisfied that this record comprises confidential communication between a client (the government department) and its legal advisor (CSSO) in relation to ongoing litigation. In relation to the sharing of the record with the CPU, I accept DPER’s argument that that the parties had a common interest with respect to the matter concerned and that the record was shared with the CPU on a confidential basis and for a particular purpose. I am satisfied that the record attracts litigation privilege and that privilege was not waived by the forwarding of the record to the CPU. I find, therefore, that DPER was justified in refusing access to record 16 under section 31(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm DPER’s decision to refuse access, under section 31(1)(a) of the FOI Act, to record 16.

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