Decision
Ms Y and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-148451-G8H9C5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148451-G8H9C5
Published on
Whether the Department was justified in refusing access to certain records relating to the applicant’s late son, for the period 16 March to 13 July 2023, under sections 28, 31(1)(a), 42(f) and 42(j) of the FOI Act
22 January 2025
In a request dated 13 July 2023, the applicant sought access to specified records relating to her late son, for the period 16 March 2023 to the date of the request. Following further correspondence with the Department, the request was refined and this was agreed with the Department on 8 August 2023. On 11 September 2023, the Department part-granted the request. It identified 87 relevant records. Most of the records were released, with small amounts of personal information redacted under section 37(1). Records already in the public domain were refused under section 15(1)(d) and some other records were refused, in whole or in part, under sections 15(1)(i), 28, 29, 31, 42(f) and 42(j) of the FOI Act. Parts of some records were also withheld on the basis that they were not relevant to the request. On 5 October 2023, the applicant sought an internal review of this decision. On 27 October 2023, the decision was affirmed by the Department. On 23 April 2024, the applicant applied to this Office for a review of the Department’s decision.
In the course of the review, the Department released further records and revised its position in respect of certain other records. The applicant was invited to provide additional comments in response to this which she did.
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 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.
Following correspondence with the applicant, she agreed that she did not wish to pursue the release of redacted personal information relating to third parties, or records that were refused because she had already been provided with a copy, or because they were publicly available, or because the information fell outside the scope of the FOI request.
The Department released records 51, 52 and 78 during the review. In respect of record 50, it clarified that the reference to section 31 on the schedule of records was an error and that the only redactions made were personal information under section 37. Having examined the record, I am satisfied that it requires no further consideration. I also note that record 22 is contained in its entirety in record 87; accordingly, I will give record 22 no further consideration.
This review will therefore only consider the following records (including attachments where the records are emails,) which were refused, in full or in part, under sections 28, 31(1)(a), 42(f) and/or 42(j): records 1, 3, 17, 30, 31, 38, 43, 53, 62, 65, 70, 82, 83, 84 and 87.
The Department refused record 1 and one attachment to record 82 under section 28. The records are both entitled “Draft Memo for Information of Govt_final report_Jan2023”. From its submissions, it appears that the relevant sub-section of section 28 relied upon by the Department is section 28(1)(a) and I must therefore consider whether it was justified, under section 28(1)(a), in refusing access to these records.
Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. It is not a harm-based exemption such that release of a record would lead to particular consequences specified in the particular provision. There is no ‘public interest override’ in this exemption. The section provides for a class-based exemption of certain records regardless of their contents. Section 28(1)(a) is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney General for consideration and its creation for that purpose. Section 28(6) provides that a “record” in this section includes a preliminary or draft of the whole or part of the material contained in the record.
Having considered the records and the submissions, I am satisfied that the records in question contain a draft Memorandum created for the purpose of submission by the Minister for Justice to the Government for its consideration.
Section 28(1) is subject to exceptions which are provided for in section 28(3). That section provides that section 28(1) does not apply to a record –
a. if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
b. if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.
The draft Memorandum in question is a ‘Memorandum for Information’. Having regard to the Cabinet Handbook which contains instructions for the preparation and submission of memoranda for Government, as well as to the records themselves, I accept that this Memorandum was prepared to bring matters to the attention of the Government for information. Having considered the content of the record, I am satisfied that it does not contain factual information relating to a decision that has been published. As such, I find that section 28(3)(a) does not apply. For the avoidance of doubt, I am similarly satisfied that the record does not relate to a decision of the Government that was made more than five years before receipt of the FOI request.
I am satisfied that the Department was justified, under section 28(1)(a), in refusing to release record 1 and the relevant part of record 82.
The Department cited section 31(1)(a) as a basis for refusing, in full or in part, records 30, 31, 38, 43, 53, 62, 65, 70, 80 and 82. In respect of some of these records it also claimed section 42(f), which provides that records created or held by the Office of the Attorney General (AGO), apart from records relating to general administration, are not subject to the FOI Act. I will examine section 31(1)(a) first.
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest. 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).
Provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
For some records, it is self-evident that a record will attract legal advice privilege e.g. in this case, record 30 is described in the schedule as an email from an official in the Department of Justice to the AGO and, having examined the content of that email correspondence, it is clear that it involves a request for legal advice, and the legal advice that was then provided in response. In respect of other records, it is less clear-cut. For example, the applicant highlighted record 62 which was refused in full and is described as an email between two civil servants in the Department. She queried how such correspondence could be legally privileged. Having examined that record, while I accept that it does not contain direct communication between a client and legal advisor for the purposes of requesting or providing legal advice, I am satisfied that it discloses legal advice provided by the AGO to the Department and that it attracts legal advice privilege on the basis that it forms part of a continuum of correspondence originating from that advice.
Having considered the contents of each of the records at issue, and applying the approach set out above, I am satisfied that the parts of records 30, 31, 38, 43, 53, 62, 65, 70 and 82 refused under section 31(1)(a) are subject to legal advice privilege. I find that release of these records would disclose confidential legal advice requested by, or given to, the Department, either because they contain confidential communication between client and legal advisor for the purpose of requesting or providing legal advice, or they form part of a continuum of communication originating from that advice. As I have accepted that the records are legally privileged and therefore exempt from release, there is no need to examine them under section 42(f).
Section 42 provides that the FOI Act does not apply to various specified categories of records. In other words, such records are excluded from the scope of the Act. There is no
public interest provision in section 42. If the record is captured by one or more of the categories of records described in section 42, that is the end of the matter.
Section 42(j) provides that the Act does not apply to a record given by an FOI body to a member of the Government or a Minister of State for use by him or her for the purposes of any proceedings in either House of the Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee. Proceedings include proceedings in relation to questions put by members of either such House to members of the Government or Ministers of State, whether answered orally or in writing.
The Department altered its position in respect of certain records originally refused under section 28 and said that it was instead relying on section 42(j) as a basis for refusal. I will therefore consider whether the following records, or parts of records, are excluded from the scope of the FOI Act under section 42(j): records 3, 17, 83, 84 and 87.
Record 3 is a record labelled Leaders Questions Note and dated 4 May 2023. Record 17 is a similar record, labelled Leaders Questions Note and dated 4 July 2023. The attachment to records 83 and 84 that has been refused under section 42(j) is the same as record 3.
Following a request for clarification, the Department confirmed that the Leaders Questions Notes, in records 3 and 17, were given to the Tánaiste and Taoiseach respectively, for Leaders Questions in the Dáil. It provided copies of emails that demonstrate this.
In respect of record 87, the applicant said that the person named in the Schedule of Records as having sent the email was a journalist and she queried why a journalist would be submitting a record to the government. Having examined the record, while the individual at issue may previously have worked as a journalist, at the time the record was created, it is apparent that he was working as a Special Advisor to a Minister. Having regard to the content of the record, I accept that it was prepared for and given to a Minister of State in response to Parliamentary Questions put forward by two TDs, for answer in the Dáil.
For these reasons, I am satisfied that section 42(j) applies to records 3, 17, 83, 84 and 87.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that it was justified, under sections 28, 31(1)(a), and 42(j) of the FOI Act in refusing to release the records at issue.
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.
Emer Butler
Investigator