Whether the Department was justified in refusing access to certain records of correspondence with a barrister under 31(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request made on 30 June 2017, the applicant sought access to records of correspondence that were generated in response to a query that was made in May 2017 about a possible conflict of interest in relation to the appointment of a certain barrister to the Independent Review Mechanism (IRM).  The IRM, consisting of a panel of two Senior and five Junior Counsel, was established in 2014 to consider allegations of Garda misconduct or inadequacies in the investigation of such allegations.  In 2015, the panel made recommendations to the Minister in all 320 cases submitted to it, including a case relating to the applicant.  On 19 July 2016, the Minister published the panel's Overview Report on the process accompanied by a press release noting that "the IRM process has been completed". 

In its decision dated 27 July 2017, the Department refused access to the records concerned under section 31(1)(a) of the FOI Act on the basis of legal professional privilege.  On 10 August 2017, the applicant applied for an internal review of the Department's decision.  In its internal review decision dated 29 August 2017, the Department affirmed its original decision and in addition found that section 37(1) applied to the personal information contained in the records sought.  On 1 September 2017, the applicant applied to this Office for a review of the Department's decision.

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 Department in support of its decision.  I have also examined the records at issue.  I note that the barrister named in the records was notified of the review as an affected third party and given an opportunity to make submissions.  In response, the barrister stated that he had no objection to the release of the records insofar as they affect his interests, though he correctly noted that the records refer to another third party individual.  I have decided to conclude this matter by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in refusing access to the following records of correspondence which were generated in response to query regarding a potential conflict of interest on the part of the barrister named in the records:

Email sent from the Department to the barrister at 16:52 on 11 May 2017
Reply from the barrister at 20:44 on 11 May 2017
Reply from Department to the barrister at 10:04 on 12 May 2017.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."  It should also be noted that a review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.

Section 31(1)(a)
As indicated above, the records at issue in this case consist of correspondence with the barrister concerned in May 2017 regarding a possible conflict of interest in relation to his appointment to the IRM, which had completed its work by the time of the publication of the Overview Report in July 2016.  Nevertheless, the Department has refused access to the records at issue on the basis that they form part of the continuum of communications resulting from the original request for legal advice, i.e. the IRM recommendation provided by counsel in relation to the applicant's case.  According to the Department, the correspondence in question concerns the "legitimacy" of the opinion given.  In support of its position, the Department has referred to the decision of this Office in Case 160217, Mr X and the Department of Justice and Law Reform, available at www.oic.ie. 

Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. 
Legal professional privilege enables a 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).

In previous decisions, the Commissioner has accepted 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) where they form part of a continuum of correspondence that results from the original request for advice.  The Commissioner has adopted this approach having regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

 "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." 

However, I note that Case 160217 is distinguishable from this case.  Case 160217 involved an actual report prepared by counsel as a member of the IRM advising the Minister in relation to relevant complaints against the Gardaí.  In contrast, the correspondence in this case arose as a result of a query made long after the work of the IRM was completed.  It is not part of the continuum of communications resulting from the original request for legal advice, but rather a request for comments from the barrister concerned in response to the query raising the possibility of a conflict of interest on the part of the barrister himself.  I do not believe that I would be revealing exempt information in violation of section 25(3) of the Act by noting that, in his response, the barrister provided his recollections of the matter and made a general comment regarding the circumstances for recusal.  Unlike the subsequent reply from the Department, the barrister did not provide any opinion on the matter. 

The Department does not dispute that the work of the IRM is completed, but it notes that the applicant and other complainants have continued to communicate with the Minister/Department about their cases.  I do not accept that continued communication with the Minister or the Department by individuals who may have difficulty accepting the recommendations made in their cases means that any related queries to members of the now disbanded IRM panel form part of a "continuum of communications" resulting from the original request for the recommendations.  In this case, the aim of the communications in the records at issue was not to keep the barrister and the Department "informed so that advice may be sought and given as required".  On the contrary, the relevant advice had already been given and the process itself (i.e. the IRM) was at an end.  In the circumstances, I find no basis for concluding that the records qualify for exemption under section 31(1)(a) on the basis of legal advice privilege.

Section 37
However, the records at issue also include identifying information about another third party individual who may have been represented by the barrister concerned in previous legal proceedings.  Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual"; "(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual"; and "(xiv) the views or opinions of another person about the individual".  

Given the context in which the other third party individual is referred to in the records at issue, I accept that the identifying information about the individual qualifies as personal information within the meaning of the Act.  With certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. 

Rather, when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58).  The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.  I therefore find that section 37(1) applies to the identifying details of the third party individual (apart from the barrister) referred to in the records concerned.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.  However, I am satisfied that none of those circumstances arises in this case in relation to the third party individual concerned.  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 information would be to the benefit of the person to whom the information relates.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the individual to whom it relates, I find that section 37(5)(b) does not apply.  In considering the public interest test contained in section 37(5)(a), it is 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 Hospital case").  It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.  In this case, I find that the public interest in granting access to the identifying details of the individual concerned does not outweigh the public interest in upholding the right to privacy of the individual.  Accordingly, I find that the records at issue should be released to the applicant subject to the redaction of the identifying details of the third party individual (apart from the barrister) referred to therein.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case by directing the release of the records concerned subject to the redaction of the identifying details of the third party individual (apart from the barrister) referred to therein.

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.

Elizabeth Dolan
Senior Investigator