Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147736-B3Y3N7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147736-B3Y3N7
Published on
Whether the HSE was justified in refusing access to records concerning the applicant’s late father
11 April 2025
On 12 July 2023, the applicant made an eight-part FOI request to the HSE, seeking access to various records relating to his late father. This decision concerns those parts of the request seeking access to records held in [a particular HSE Hospital].
The HSE did not issue a decision on the relevant parts of the request within the timelines set out in the FOI Act. In effect, this amounts to a refusal of access to the requested records.
On 22 August 2023, the applicant sought an internal review of the HSE’s effective decision. The HSE’s internal review decision of 26 September 2023 part-granted the request and relied on various provisions of the FOI Act in relation to the withheld excerpts. In particular, it refused access to pages 8-11 of the [Hospital’s] Administrative & Correspondence records under section 31(1)(a) of the FOI Act. It said that these records attract legal professional privilege because they “relate to legal correspondence between an FOI body and its legal representatives”.
On 25 March 2024, the applicant applied to this Office for a review of the HSE’s refusal of access to the above-mentioned pages 8-11.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSE and the applicant, to the contents of the records at issue, and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the HSE was justified under the FOI Act in refusing to grant full access to pages 8-11 of the [Hospital’s] Administrative & Correspondence records.
The review does not extend to any other matter. In particular, this Office has no role in examining, or making findings on, the actions of the HSE or any other party in relation to the care or treatment of the applicant’s late parents. Neither can the review consider the applicant’s views on the HSE’s handling of his FOI requests.
The applicant’s arguments are detailed and lengthy. While it is not practicable to set them out in full, I confirm that I have examined and had regard to all of his arguments.
Overall, the applicant takes issue with the HSE’s care of his parents, including the legality of its decision to take them into and keep them in respite and nursing home care. He alleges that agents of the HSE were complicit. He says that Data Protection laws caused an obstacle in his attempts to hold persons to account. He says that his own right to due process and fair procedures was not upheld. He contends that the HSE is seeking to protect its reputation, and those of certain staff, by refusing to grant access to the records sought. He says that the records should be disclosed to expose the true extent of what he says is the HSE’s wrongdoing in relation to his parents and family. He says that he wants access to further records to assist with Garda investigations, to appeal to the Ministers of Health and Justice in relation to the matter, and that his solicitor needs the records in order to advise him.
The applicant provides copies of various records, which he says comprise evidence of the HSE not following procedures and court rulings and not complying with the law, and evidence of dishonesty, corruption, abuse and cover-up. He describes,inter alia , his father’s health and his inability to understand and communicate his preferences regarding medical treatments; circumstances leading to the issue to his father of a driving licence, particularly the issue of a fitness to drive certificate; his father’s account of a particular medical examination; events that he says took place during various other medical appointments; medical diagnoses; medical treatments that were advised and provided; how these treatments impacted on his father and other family members; the actions of other parties, including the person whom he says assumed the unofficial role of next of kin; differences of opinion between family members as to where the applicant’s father would be best cared for; circumstances leading to his father and his mother being admitted to respite and ultimately nursing home care; the sharing of his parents’ personal information; communications that the applicant says he had with various nursing home staff and others; matters relating to High Court proceedings commenced by the HSE, including why the applicant believes there were alleged delays; matters relating to his parent’s deaths including the details in their death certificates; various statements made by HSE staff and others that the applicant says were false and criminally misleading; and discussions that the applicant had with the Coroner and with HIQA which he says confirm the criminal/civil nature of his concerns.
The applicant also describes his father’s discharge from hospital in late 2018 and says that the HSE should have sought the assistance of the Courts in making appropriate care arrangements. He says that he raised concerns about the matter and that the HSE tried to make him into a scapegoat and downplay the significance of its own decision. He reiterates that his parents’ placement in respite and nursing home care was unlawful. He says that the HSE sought to use his personal medical information against him and was dishonest in assuring him that his information had not been disclosed. He says that the records contain evidence of carelessness and dishonesty by certain HSE staff. He says that his complaint about an individual to a regulatory body resulted in legal advice being given to the HSE to be reassessed. He says that, nonetheless, incorrect information continued to be provided to third parties, including the High Court.
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This provision also has implications for the extent to which I can describe the HSE’s submission and give reasons for my decision in this case.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
I also wish to draw attention to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the HSE of satisfying this Office that its decision to refuse the request was justified in this case. In the case ofThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the eNet judgment), the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest.
LPP enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and their professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner takes the view that privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
The parties’ arguments
The HSE’s position is that pages 8-11 form part of a continuum of correspondence with its legal advisor, arising from its request for legal advice. It provides a copy of the request concerned. It contends that the legal advisor duly sought information from an HSE employee (page 11 refers) and that pages 8-10 consist of the requested information as provided by the employee. It says that it is not willing to waive privilege.
The applicant provides copies of pages 7 (dated 14 January 2019) and 12 (2 January 2019) of the Administrative & Correspondence records. He suggests that pages 8-11 may be dated somewhere between 2 and 14 January 2019.
The applicant refers to section 4.2 of the 3rd edition of the “Guide to Good Professional Conduct for Solicitors”, which he says was published by the Law Society of Ireland in October 2013. He says that, according to the Guide, LPP does not exist in the following circumstances:
(a) communications made for some fraudulent or illegal purpose,
(b) communications made by a client to a solicitor before the commission of a crime for the purpose of being guided or helped in the commission of that crime.
He says that LPP does therefore not exist in circumstances where information that has been gathered illegally (he gives here the examples of through deception or in breach of GDPR) and which has been communicated by a client to their solicitor for whatever reason. He says also that LPP does not exist if the legal advisor’s advice is not actually legal. He refers here to scenarios where the legal professional is incompetent or where the legal professional violates the rules of professional conduct in order to maintain the contractual relationship with their client.
He refers also to the High Court judgment in the case ofDirector of Corporate Enforcement v Cumann Peile na h-Eireann “Football Association of Ireland” and John Delaney [2022] IEHC 593 (the Delaney case). He says that Ms Justice Reynolds is reported as having concluded that Mr. Delaney had failed to establish that any individual document was entitled to privilege. He notes also that the comments made by the Court of Appeal that Mr Delaney’s assertions of privilege had, “perhaps by design”, rendered it virtually impossible for the other party to the matter to meaningfully interrogate the claim of privilege. The Court of Appeal is reported as having also said that it was “very difficult to avoid the conclusion” that Mr Delaney was deliberately attempting to shield documents from disclosure which he does not wish to disclose.
The applicant says that it is plausible that the HSE is deliberately trying to prevent the disclosure of documents that it does not want to be disclosed. He says also that the records released to him to date under FOI have been crucial in understanding matters relating to the HSE’s care of his parents and in enabling further steps in the matter to be taken.
The applicant appears to suggest that the HSE gathered information illegally, which it then passed to its legal advisors, and/or that the legal advice given to the HSE by its legal advisor had an illegal purpose. He is also of the view that HIQA and the Coroner’s Office have confirmed criminality. He says that, in these circumstances, LPP cannot apply.
As already explained, this Office has no role in considering the HSE’s performance of its functions, including its decisions in regarding the care of the applicant’s parents. Neither does this Office have any role in considering the merits or purpose of any legal advice given. Furthermore, I do not consider the applicant’s communications with HIQA and the Coroner’s Office to have the significance that he believes them to have. In my view, they amount to explanations that it is for An Garda Síochána to investigate his concerns, for instance, rather than findings of criminality.
Further to all of the above, I have no reason to consider that LPP cannot apply in the circumstances of this case.
The Delaney case concerned a particular procedure provided for under the Companies Act 2014 that is not applicable here. In any event, the Courts found in that case that the onus is on the party claiming privilege to justify those assertions. This is similar to the requirements of section 22(12)(b) of the FOI Act. I have already set out that section 22(12)(b) places the onus on the HSE of satisfying this Office that its decision to refuse the request was justified in this case. As noted by the Supreme Court in the eNet judgment, the HSE’s refusal of access to the relevant records must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
I have examined the relevant records, the HSE’s submission and supporting documentation. I am satisfied that the HSE has justified its position that pages 8-11 are part of a continuum of communications arising from an initial request for legal advice. In particular, I accept that the advisor sought the information from the employee in order to be fully informed of all relevant issues that would inform the legal advice they had been asked to provide. I accept that the records attract legal advice privilege. I find that pages 8-11 are exempt from release under section 31(1)(a) of the FOI Act. I note also that the HSE is not prepared to waive privilege.
Section 31(1)(a) does not require the consideration of the public interest. Therefore, I need not consider the applicant’s arguments as set out earlier, insofar as they may represent public interests.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that pages 8-11 are exempt under section 31(1)(a) of the FOI 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.
Anne Lyons
Investigator