Decision
Ms Z and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-146111-B7C0D5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146111-B7C0D5
Published on
Whether the Department was justified in refusing access to certain records relating to the applicant’s late son, under sections 28, 30, 31(1)(a), 37 and 42(f) of the FOI Act
22 October 2024
Due to the sensitive nature of the circumstances of this case, I will not describe in detail the records sought. Suffice to say, on 16 March 2023 the applicant made an FOI request for specified records relating to her late son held by the Department of Justice, for the period from 2 January 2023 to the date of the request. In a late decision dated 19 June 2023, the Department part-granted the request. It identified 78 relevant records. While many were released with small amounts of personal information redacted under section 37(1), others were refused, in whole or in part, under sections 15(1)(d), 30, 31 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. The applicant sought an internal review of this decision on 13 July 2023. Among other things, she stated that the Department had demonstrated an ‘over-reliance’ on refusing records on the basis of legal privilege, and queried its refusal of records under section 30, which is a discretionary exemption. On 4 August 2023, the Department affirmed its decision. On 4 August 2023, 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 records. The applicant provided additional comments in response to this.
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, and to the communications between the parties and with this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In her application for review by this Office, the applicant requested that the following 15 records that were refused, in full or in part, be considered: records 12, 16, 17, 19, 20, 21, 39, 49, 51, 53, 54, 56, 63, 66 and 74.
In relation to the information that was redacted on the basis that it was outside the scope of the FOI request, having examined the records I am satisfied that the information refused on this basis is indeed related to completely separate issues and falls outside the scope of the FOI request. Furthermore, the parts of records 17 and 19 that were refused were attachments originally submitted to the Department by the applicant’s solicitor and had been previously released to the applicant as part of another FOI request. In relation to record 49, the applicant noted a reference to a submission. Having examined the record, which is an email, I am satisfied that there is no attachment to it and it has been released in full. I informed the applicant of my views on these matters, and she accepted that position. I will give them no further consideration.
The applicant confirmed that she had received a full copy of record 63, further to a separate request. The Department reissued a copy of record 51 to the applicant which she had stated had been released with a page missing.
The applicant also stated that she was not interested in other people’s personal information. I will therefore exclude the redactions, under section 37, of mobile phone numbers of Department of Justice staff members and names and contact details of third parties from the scope of the review. I will, however, examine any more substantive redactions made under section 37.
Further to receiving a request for submissions on the outstanding records (i.e. the refusal to release records 16, 39, 53, 54 and 56 under sections 30, section 31(1)(a) and 37), the Department revised its position in respect of these records. It said that, due to the passage of time, it was in a position to release records 16, 53, 54 and 56, in part. It later released additional parts of record 16 and 56. It said that the redacted parts of record 16 fell outside the scope of the FOI Act by virtue of section 42(f). The applicant made submissions to this Office on the outstanding redactions.
Bearing all of the above in mind, this review is only concerned with whether the Department was justified in refusing access, in whole or in part, to records 16, 39, 53, 54 and 56 under sections 30, 31(1)(a), 37 and 42(f) of the FOI Act.
During the review, the applicant highlighted the difficulties that she and her family have faced and continue to face in trying to get a full and comprehensive understanding of the circumstances that led to the death of her son. While I am of course sympathetic to the applicant and her family, I must emphasise that, as the applicant is aware, this Office has no remit to investigate complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review is concerned only with the Department’s decision on the applicant’s FOI request.
Record 16 was originally refused in full under section 31(1)(a). During the review, it was released to the applicant in part. The Department said it was in a position to do this due to the passage of time. The record is an internal seven-page Department of Justice email. The main parts that remain refused are on pages three and four, with further smaller redactions made on pages five and six. In its submissions, the Department said that it was relying on section 42(f) instead of 31.
In response to the partial release of the record, the applicant said that while she accepts that advice from the Office of the Attorney General (AGO) is exempt, she does not accept that all of what is redacted on page three is advice from the AGO. She said that the redacted part of page four is not advice from the AGO but a decision of senior civil servants within the Department. In relation to page five, she said that while the redacted parts of the fourth and fifth paragraph may contain AGO advice, she asked that it be checked. However, she said that she did not accept that the seventh paragraph contained AGO advice. She asked that the redacted paragraphs from page six be released.
Section 42(f): Records held/created by the Office of the Attorney General
Section 42(f) provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General (AGO). While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the AGO such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, which includes, but is not limited to, advising on legislation and litigation.
As noted above, the Department’s position is that all redacted information in record 16 is outside the scope of the FOI act by virtue of section 42(f).
Having carefully examined record 16, while I accept that it contains several references to, and summaries of, advice received from the AGO, the record itself, which is an email containing a submission to the Minister, does not appear to have been created by the AGO, and the Department has not made any arguments that it was. I note that at the top of the submission it identifies its author, owner and reviewers, all of which point to it being an internally created document. Neither do the redacted parts of the record appear to contain verbatim the advices of the AGO such that it could potentially be argued that these parts of the record were created by the AGO. Rather, it seems to me that these parts of the record have been refused on the basis that their release would disclose legal advice provided by the AGO, albeit the legal advice has been summarised or communicated by a member of staff of the Department of Justice, rather than being contained in a record created by the Office of the Attorney General.
For completeness, I should say that no argument has been made and nor is it apparent to me, that the relevant parts of the record are held by the AGO. In any event, this Office does not accept that the fact that a copy of a record might also be held by the AGO, as well as the Department, means that section 42(f) serves to put such a record outside the scope of the FOI Act.
I am not satisfied that the Department has justified its refusal of this information under section 42(f).
Section 31(1)(a): Legal professional privilege
The Department said in its submissions that it was no longer relying on section 31 as a basis for refusing the relevant parts of record 16. However, given the nature of the information refused and the fact that it is a mandatory exemption, I am satisfied that I must consider it.
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.
The applicant has disputed that the relevant redacted parts of record 16 all contain AGO advice. Having carefully examined them, I am satisfied the release of any of these paragraphs would indeed disclose confidential legal advice sought from and/or provided by the AGO, albeit this advice has been summarised by a member of staff of the Department. I find that these parts of the record attract legal advice privilege. I believe that this is consistent with the Commissioner’s approach that advice privilege attaches to a relevant continuum of correspondence. I am also satisfied that communicating this legal advice internally within the Department cannot be taken as the Department waiving its legal privilege, and that the advice remains confidential such that legal advice privilege still applies.
For these reasons, I am satisfied that the redacted parts of record 16 are exempt from release under section 31(1)(a) of the FOI Act, and that the Department was justified in refusing to release them.
The Department refused to release record 39, a four-page email chain with four attachments, under section 31(1)(a). It is described in the Schedule as an email between two named Department of Justice staff members, “re: March 2023 sensitive litigation”. The applicant queried how an email from one civil servant to another could be legally privileged.
In its submissions to this Office, the Department clarified that the majority of the record falls outside the scope of the FOI request and that it only considers one small part of one of the attachments (the second attachment which is 65 pages in total) to be relevant. Having carefully examined record 39, I am satisfied that apart from this one specific part of the relevant attachment, the remainder is entirely unrelated to the applicant and/or her late son and that it falls outside the scope of the request. Therefore, I will limit my analysis to this one part of the second attachment which the Department has refused on the grounds of legal professional privilege.
I refer to the explanation of legal privilege and section 31(1)(a) above, under record 16. I am constrained by section 25(3) in what I say about the attachment in question. However, I think I can reasonably say that the while the top email in the chain was indeed sent from one civil servant to another, the relevant part of the attachment concerns specified litigation and contains legal advice which I am satisfied was given in confidence by the Department’s legal unit. It seems to me that this would attract both legal advice privilege and litigation privilege, and I am satisfied that it is exempt under section 31(1)(a). On that basis, I find that the Department was justified in refusing to release it.
Records 53, 54 and 56 were released in part during this review. There is considerable overlap between the records, each of which comprise an email chain with an attachment. Having carefully examined the three records, I am satisfied that if I limit my analysis to the parts of record 56 that have been refused, these are the same parts as have been refused from records 53 and 54.
Record 56 consists of a three-page email chain and a one-page attachment. While in the original decision, this record was refused in full under sections 30, 31 and 37, the Department’s current position, having released the record in part, is that it has redacted parts of the record in accordance with sections 30(1)(a) and 37. The record contains communication with the Repatriation Unit of the Department further to a request made on behalf of the applicant. The attachment (which is a letter to the applicant’s solicitor) was released in full during the review.
I will examine section 37 first.
Section 37: Personal information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
Having carefully examined the record and the information that has been redacted, I accept that it discloses information about an identifiable individual, that is not the applicant or her late son, that falls within the definition of personal information as set out in section 2 of the FOI Act, as summarised above. It may well be the case that some or all of the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to “the world at large”, as the FOI Act places no restriction on the subsequent uses to which the record may be put. Accordingly, I am satisfied that section 37(1) applies to the information redacted from the record. That is not the end of the matter however, as section 37(1) is subject to the other provisions of section 37.
Section 37(2) provides that section 37(1) does not apply in certain specified circumstances. Based on the contents of the record and the information available to me, I am satisfied that none of the circumstances apply in this case.
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I am satisfied that section 37(5)(b) does not apply.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
The Department made no submissions to this Office on the public interest. The applicant said that the redacted information in this record should be released in the interest of transparency and the public interest. While not explicitly stated, it seems to me that the applicant in her communications with this Office also effectively made arguments that the records should be released in the interests of public safety. I accept that if it was evident from the contents of the record and the context in which it was created, that release would contribute to public safety in some way, then this would be a public interest that would need to be carefully weighed up against the public interest in the protection of the right to privacy.
Having carefully considered the information at issue, it is not evident to me that its release would enhance public safety, either specifically in relation to concerns about the individual in question or more generally. While its release would increase to some degree the level of general public understanding around the processes and procedures used by the Repatriation Unit, I am not satisfied that this additional understanding is sufficient to outweigh the public interest in protecting the right to privacy. Neither is it apparent to me that there are any other public interest factors in favour of release that outweigh the public interest in the right to privacy. I find, therefore, that section 37(5)(a) does not apply.
As I have found all information redacted from this record to be exempt from release under section 37(1), I do not need to consider the applicability of section 30.
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 31(1)(a) and 37(1), in refusing access to the parts of the records that remain within the scope of this review.
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