Decision
Ken Foxe, Right to Know and Standards in Public Office Commission
From Office of the Information Commissioner (OIC)
Case number: OIC-157713-T1V0J1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157713-T1V0J1
Published on
Whether SIPO was justified in refusing access to records relating to the second decision not to proceed with an investigation into the leaking of a document by former Taoiseach Leo Varadkar under section 31(1)(a) of the FOI Act
10 April 2026
In a request dated 2 January 2025, the applicant sought access to “a copy of any records held by members of SIPO referring or relating to the decision not to proceed with an investigation into the leaking of a document by former Taoiseach Leo Varadkar. For avoidance of doubt, this would be the second decision taken and as reported in the following article: https://www.thejournal.ie/sipo-again-rules-out-investigation-into-leo-varadkar-gp-contract-leak-6578668-Dec2024/ In its decision dated 29 January 2025, SIPO identified nine records as falling within the scope of the request. It granted partial access to records 3 and 7 with the redaction of information which it said falls outside the scope of the request. It refused access to the remaining records under either sections 29(1), 30(1)(a), 31(1)(a) or 35(1)(a) of the Act. On 5 February 2025, the applicant sought an internal review of that decision. On 7 March 2025, SIPO issued its internal review decision. SIPO varied its original decision in relation to records 4 and 6 granting partial access to these records and refusing access to the remainder of the records under section 37(1) of the Act. On 25 March 2025, the applicant applied to this Office for a review of the SIPO’s decision.
During the course of the review, this Office provided the parties with an opportunity to make submissions. In its submissions, SIPO said it was refusing access to records 1, 2, 5, 8 and 9 under sections 31(1)(a) of the Act and also section 29(1) in the case of records 8 and 9. SIPO confirmed that it was no longer relying on sections 29, 30 and 35 in relation to records 3, 4, 6 and 7. This Office updated the applicant in relation to SIPO’s revised position concerning the records and the applicant provided further comments and observations in reply.
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 parties to date. 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.
Records 3 and 7 are Minutes of Commission meetings which took place on 29 July 2024 and 21 October 2024. SIPO says these records contain information which falls outside the scope of this request and which has been redacted. I have examined both records carefully and I am satisfied that the information withheld from records 3 and 7 concerns various complaints and discussion items other than the investigation into the leaking of a document by former Taoiseach Leo Varadkar. I find, therefore, that the information withheld from these records falls outside the scope of the applicant’s request. I do not therefore propose to consider those records in this review.
Records 4 and 6 are a Briefing Note to the Commission and Briefing Note appendices dated 21 October 2024. In record 4, the Commission redacted the names of certain individuals who made complaints in relation to the leaking of a document by former Taoiseach Leo Varadkar. The name of one of the individuals is in the public domain, as that individual brought litigation against the Commission in respect of its previous decision not to proceed with an investigation. The Commission redacted the names of the other individuals citing section 37(1) of the Act. In record 6, the Commission redacted the work email address of a staff member of the Department of Health on page 13 and the names of Department of Health, HSE and IMO staff members on pages 14 and 15.
In communications with this Office the applicant stated that the work email address of a member of staff of a public body is not considered personal information under the FOI Act. He said if it was, this would have to apply equally to both staff of SIPO and the Department of Health. He stated that no distinction should or can be made between the public body that responds to the request, and members of staff of other public bodies that end up captured by a request. He stated however, that he was happy for this to be excluded from the review as it makes little practical difference as long as the name of the official remains. He also accepted that the names of complainants (apart from the one already identified publicly) and representatives of the IMO can be redacted.
Following the applicant’s comments, the only information redacted by SIPO under section 37 of the Act which remained in scope are the names of FOI Body staff members which were redacted from record 6. Following communications with this Office, SIPO released this information to the applicant and therefore the issue of whether section 37 applies to parts of records 4 and 6 does not arise for consideration in this review.
In light of the above, the scope of this review is confined to whether SIPO was justified in refusing access to records 1, 2, 5, 8 and 9 under sections 31(1)(a) or 29(1) of the FOI Act (in the case of records 8 and 9).
In his application for review, the applicant raised queries concerning the role of the Information Commissioner as a member of the Standards in Public Office Commission and how this Office manages a potential for conflict of interest arising from the dual role. The applicant asked what steps the OIC will take to avoid the potential for a conflict of interest in this case. He said he does not believe the creation of artificial 'Chinese walls' is a satisfactory arrangement in a public body. He asked that all steps taken to avoid the potential for a conflict of interest in this case be outlined in the decision.
As previously outlined to the applicant in case OIC-156552-J8M2S8 ( available at https://oic.ie/ga/cinneadh-ombudsman/2cb1c-mr-x-and-standards-in-public-office-commission/ ) the Office of the Information Commissioner and the Standards in Public Office Commission, along with four other statutory Offices, function as a single amalgamated agency under one Vote, namely the Office of the Ombudsman, while simultaneously protecting and preserving the statutory independence and functions of each of the constituent parts. Each Office has its own staff complement but the staff and systems of finance, human resources, legal, communications and information technology are shared. Staff occasionally move across offices, but decision-making within each statutory office remains independent and care is taken in the assigning of work to avoid potential conflicts.
In this case, I confirm that I have conducted the review and made this decision under powers delegated to me by the Information Commissioner in accordance with the provisions of the FOI Act. I confirm that the Information Commissioner has had no involvement whatsoever in this review. As such, I am satisfied that no conflict of interest arises.
In my view, section 31(1)(a) of the FOI Act is the appropriate exemption provision to consider first. SIPO relied on section 31(1)(a) to refuse access to records 1, 2, 5, 8 and 9. Section 31(1)(a) 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. 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. This Office accepts that privilege can apply to records that form part of a continuum of correspondence that results from the original request for advice. Moreover, providing the prerequisites of advice privilege are present, the fact that a professional legal adviser is employed as an in-house adviser does not prevent the client from asserting privilege over the communications at issue.
In its submissions to this Office, SIPO stated that record 1 is a communication between a lawyer in the OPLA and his clients, summarising a recent judgment in respect of which the clients had an interest. It said both clients, the Clerk of the Dail and the Clerk of the Seanad, are individual members of the Commission. SIPO stated that record 2 is a communication between the Commission’s barristers and the Commission providing advice as to the implications of that judgment. SIPO stated that record 5 is a communication between the Commission’s in-house legal adviser and the Commission which provided the Commission with legal advice as to the evidential thresholds that it must apply to the evidence received following the judgment and analyses the proposals made by the secretariat in light of that evidence.
SIPO stated that records 8 and 9 comprise an email from the Commission’s in-house legal adviser to the Commission attaching a draft decision in respect of the complaint. It says in this case, at its meeting on 29 July 2024, the Commission considered the legal advice provided by its legal adviser (record 5), as well as verbal advice of that legal adviser provided at its meeting, the advice of junior and senior counsel on the litigation that preceded the decision (record 2), and the strong likelihood of further litigation taking place. It says taking those matters into account, at its meeting SIPO instructed its legal adviser to prepare a draft of the decision which would both ‘knit together’ the preliminary views of the Commissioners and implement the legal advice provided which is record 9.
In his comments to this Office, the applicant stated that not all of these records sound like the type of records that would necessarily be sheltered by legal professional privilege, in particular the document that is merely a summary of a judgement and the advice around the implications of that judgment seem, at least based on their description, to be more general.
Record 1 is dated 25 June 2024. It contains a summary of the High Court decision against the SIPO (Murphy v Standards in Public Office Commission [2024] IEHC 374). It was prepared by a barrister in the Office of Parliamentary Legal Service and sent to the Clerks of the Dail and Seanad. Unlike record 2, it does not contain legal advice on how SIPO ought to proceed with the complaint in light of the Court’s judgment. While LPP attaches to communications between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, it does not apply to records of communications for the purpose of obtaining and/or giving legal assistance. A distinction should therefore be made between legal advice and legal assistance.
InSmurfit Paribas Bank Ltd v AAB Export Finance [1990] 1 IR 469 the Supreme Court distinguished between communications for the purpose of obtaining legal advice and communications for the purpose of obtaining legal assistance other than advice. This Office’s understanding of the Supreme Court’s application of the term “legal assistance” inSmurfit Paribas Bank Ltd v AAB Export Finance is that it does not go beyond- in the words of McCarthy J. judgment – “communications of fact leading to the drafting of legal documents and requests for the preparation of such…” For example, this Office takes the view that correspondence, which is of an administrative nature, and does not involve the seeking or giving of legal advice, is not privileged.
SIPO argued that the communication of a summary of a judgment involves a decision by a lawyer as to what aspects of the judgment to summarise or highlight for discussion, which amounts to the communication of legal advice as to the content and meaning of that judgment. I accept that deciding which parts of the judgment to highlight to the Clerk of the Dail and the Clerk of the Seanad involved the use of legal expertise which goes beyond drafting of an administrative nature. I find therefore that record 1 meets the test for legal advice privilege.
Record 2 is dated 26 July 2024. It contains advice on the judgment and its implications. Record 2 was created by the Junior and Senior Counsel who represented the Commission in the High Court case. This advice was sent to the Commission’s internal legal advisers. Record 5 is dated 21 October 2024. It is titled Legal Advice to the Commission on complaints by Mr. Paul Murphy TD against Leo Varadkar TD. It is headed Legally Privileged Advice and was prepared by the Commissions Head of Legal. It contains advice concerning evidential thresholds, evidential assessment and options for the Commission. I find that these records are exempt on the basis of advice privilege.
Records 8 and 9 are both dated 18 November 2024. Record 8 is an email from the Head of Legal to the Head of the Secretariat in the Commission attaching a draft decision regarding the Leo Varadkar complaint for the attention of the Commissioners. Record 9 contains the draft decision. I accept that preparing the draft required legal expertise in relation to the various litigation risks facing the Commission and the legal tests to be applied by the Commission, taking into account the judgment of the Court in recent litigation in respect of the same complaint. The covering email contains information for the Commissioners in relation to this legal draft. I also find that these records are exempt on the basis of advice privilege.
In summary, I am satisfied that records 1, 2, 5, 8 and 9 contain confidential communications made between a professional legal adviser and the client for the purpose of giving legal advice and I find that these records are exempt on the basis of section 31(1)(a) of the FOI Act. In light of this finding, it is not necessary to consider whether section 29(1) applies to these records.
Finally, I note that in his submissions to this Office, the applicant said the records released by SIPO in this second case shed absolutely no light on how the second decision was arrived at. He said the public are none the wiser as to how the second decision was arrived at, who was involved in it, or whether there were any dissenting views (as happened in the first case). He said this is unsatisfactory in circumstances where a decision is being made not to investigate a very serious matter involving the most senior officeholder in the state. It seems to me that the applicant’s arguments are reflective of public interest arguments in favour of release of the records. There is no public interest under section 31 of the Act. I cannot therefore consider whether there is a public interest in the release of records which I have found to contain legally privileged information.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm SIPO’s decision. I find that SIPO was justified in refusing access to the records at issue under sections 31(1)(a) of the Act.
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.
Jim Stokes
Investigator