Whether the Commission was justified in redacting, under section 31(1)(a) of the FOI Act, parts of certain records relating to its investigation of complaints made about the Taoiseach on the grounds that they are legally privileged

13 June 2023

Background

On 10 November 2022, the applicant made a ten-part FOI request for various specified records relating to complaints received by the Standards in Public Office Commission (the Commission) about the alleged leaking of a draft GP agreement by the Taoiseach Leo Varadkar TD. In a decision dated 7 December 2022, the Commission part-granted the request. In an accompanying schedule of records, it identified 60 relevant records, of which 35 were released in full, six were released with redactions, and 19 were refused. The Commission relied on sections 15(1)(d), 31(1)(a) and 37 in respect of the records refused in whole or in part.

On 28 December 2022, the applicant sought an internal review of the decision to redact parts of records 43 and 47, arguing that he saw strong public interest grounds for releasing the redacted information. On 18 January 2023, the Commission affirmed its refusal of the relevant parts of both records under section 31(1)(a) of the Act. It noted that section 31 is not subject to a public interest test. The applicant applied to this Office for a review of the Commission-™s decision on 18 January 2023.

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 by the Commission and by the applicant. 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.

Scope of Review

Parts of two sentences were redacted from record 43, as were the three final sentences in the last paragraph of record 47. This review is concerned solely with whether the Commission was justified in redacting the information in question under section 31(1)(a) of the FOI Act.

Preliminary Matters

Before I consider the substantive issues arising, I would like to make two preliminary comments. First, it is relevant to note that one of the records at issue in this case was prepared by the Ombudsman, who is a member of the Commission as prescribed by section 2 of the Standards in Public Office Act 2001 (the 2001 Act). The Ombudsman is also the Information Commissioner. In his submissions to this Office, the applicant raised this point and queried whether any special arrangements were required for this review, in light of the fact that part of it relates to a record prepared by the Information Commissioner himself in his capacity as a member of the Commission. The FOI Act contains no specific provisions for carrying out a review where the Information Commissioner himself is potentially an affected party. However, in the circumstances, I confirm that I have conducted the review and made a decision on it with no involvement by, or consultation with, the Commissioner or the Office-™s internal Legal Services Unit.

Secondly, section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld information.

Analysis and Findings

The records at issue

By way of background, at a meeting held on 21 October 2022, the Commission considered the complaints received about Mr Varadkar and decided that it would not proceed to an investigation under the Ethics in Public Office 1995 or the Standards in Public Office Act 2001. The records at issue in this case are statements made by two of the Commissioners, the Ombudsman (record 43) and the Comptroller and Auditor General (record 47), at the meeting of 21 October.

Section 31(1)(a): Legal Professional Privilege

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:

• 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 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. 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.

For litigation privilege to apply the records must have been created for the dominant purpose of contemplated / pending litigation. This Office also accepts that in certain circumstances, litigation privilege may attach to internal communications, provided that the dominant purpose for their creation is contemplated or pending litigation.

Legal professional 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 takes the view that the Irish courts would be slow to infer that there was a waiver of privilege, other than in clear cut cases. One of the factors necessary to establish that legal professional 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.

In its submissions, the Commission said that in the course of its consideration of the complaints about the Taoiseach, it sought and received legal advice from Senior Counsel and from its own Legal Services Unit. Records containing these legal advices are listed in the Schedule of Records provided to the applicant and were withheld under section 31(1)(a). The applicant has not sought a review of the decision to refuse access to these records. It is the Commission-™s position that the redacted portions of the records that are the subject of this review contain direct references to this legal advice and disclosure of the redacted text would disclose the content of the legal advice received. It referred to paragraph 4 of the Law Society-™s Practice Note on Legal Professional Privilege in support of its position:

Legal advice privilege (LAP) arises in respect of a confidential communication or a continuum of communications, or a reference to such communications, which takes place between a professionally qualified lawyer and a client, in the course of a professional legal relationship, in which legal advice is sought and/ or received.

It said that the statements were made as part of the Commission-™s internal discussion of the complaint which included consideration and discussion of the legal advice provided to the Commission and should be considered a part of the continuum of correspondence protected by legal advice privilege. It said that this legal advice has only ever been discussed internally within the Commission and with its professional legal advisors. It said there has been no disclosure of the legal advice to any third parties and as such privilege was not waived.

In addition to legal advice privilege, the Commission went on to say that it considered litigation privilege (LP) to apply to the records. It referred to paragraph 9 of the Law Society-™s Practice Note in this regard:

LP arises in respect of confidential communications that take place between a lawyer or a client and a third party for the dominant purpose of preparing for litigation, whether existing or reasonably apprehended (Artisan Glass Studio v Liffey Trust [2018] IEHC 278)

It said that all decisions of the Commission are judicially reviewable and that it believed it was more than reasonable to consider that the Commission apprehended that litigation was likely to arise after its consideration of the issue. In particular, it noted that some of the redacted information in record 47 directly referred to the consequences of potential litigation. It confirmed that such litigation has in fact already arisen in that one of the complainants has initiated judicial review proceedings in relation to the Commission-™s decision not to take further action on the complaints.

I have carefully examined the records at issue. It is clear that the Commission, as the client, received legal advice from legal advisors acting in a professional capacity. While neither of the records comprise direct communication between the Commission and the legal advisors containing legal advice, I accept that a reference to such legal advice contained within these records that reveals the nature of the advice, either sought or given, can attract legal advice privilege. I note that the records at issue are statements prepared by two of the Commission members for their participation in a meeting of the Commission and not for the benefit of, or distribution to, any third party. As such I accept that any such claim to legal advice privilege has not been waived.

As stated previously, I am limited by section 25(3) in the description that I can give of the withheld records. However, I can say that it is clear to me that the disclosure of the information redacted from record 43 would reveal the nature of legal advice given. I find, therefore, that this information is captured by legal advice privilege and that section 31(1)(a) applies.

It seems to me, however, that the information redacted from record 47 can be distinguished from that redacted from record 43. Again, I am conscious of the limitations of section 25(3), but I think I can reasonably describe the information refused as points made by the Commission member that he considered to be of relevance to the Commission-™s decision-making process. There is no explicit reference to any legal advice or legal advisor, nor is it evident to me that the nature of any legal advice sought or received can be inferred from the redacted information, even when read with the rest of the information contained in the record. I find that the information redacted from record 47 is not captured by legal advice privilege.

The Commission argued that the information is also subject to litigation privilege. In relation to litigation privilege, in the case ofSilver 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. In the judgment of the High Court inUniversity 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 Commission, in its submissions, essentially said that litigation was a strong possibility in this case and that this was a consideration of the Commission. I find this to be reasonable and acknowledge that such legal proceedings have indeed been initiated. However, in order for litigation privilege to apply, the record must have been created for the dominant purpose of preparing for such litigation, whether existing or reasonably apprehended. While litigation may well have been a factor considered by the Commission member in preparing his statement, it seems to me that the dominant purpose of it was his participation in the meeting of the Commission on 21 October 2022 and to communicate the points he considered to be relevant to the Commission-™s decision making process. I do not accept that its dominant purpose was for apprehended or threatened litigation, and I find that litigation privilege does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Commission. I affirm its decision to refuse access to parts of record 43 under section 31(1)(a) on the ground that legal advice privilege applies. However, I find that it was not justified in refusing access to part of record 47 under section 31(1)(a) and I direct its release.

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 applicant 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.

Stephen Rafferty
Senior Investigator