Decision
Ms Y and Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-143663-R9L7M6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143663-R9L7M6
Published on
Whether the Department was justified in refusing access to certain records relating to the applicant’s late son, under sections 28, 31(1)(a), 42(f) and 42(j) of the FOI Act
22 October 2024
As the circumstances surrounding this case are sensitive, I will not set them out in this decision in order to avoid the inadvertent disclosure of the applicant’s identity. For the same reason, I am not setting out the full details of the applicant’s FOI request of 2 January 2023 except to say that it was for access to various records relating to her late son held by the Department of Justice dating from 31 August 2022 to the date of the request. The Department part-granted the request on 22 March 2023. It listed 147 records on the Schedule. Many of the records were released with small amounts of personal information redacted under section 37(1). Other records were refused, in whole or in part, under sections 28, 29, 31, 42, 15(1)(d), and 15(1)(i) of the FOI Act. The applicant sought an internal review on 16 April 2023. The Department affirmed its decision on 12 May 2023. On 7 November 2023, the applicant applied to this Office for a review of the Department’s decision.
During the review, the Department released further records to the applicant. While the applicant was satisfied with the release of some of these records, she queried the redactions that remained in others, and confirmed that she required a decision on these records. The Department also altered its position in respect of some of the records and the exemptions relied upon. Furthermore, I formed the view that some of the records refused under section 42(f) (records created/held by the Office of the Attorney General) should have been considered under section 31(1)(a) (legal professional privilege), and vice versa. The applicant was informed of these developments and given an opportunity to comment, 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, and to the correspondence set out above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In the Schedule of Records prepared by the Department, the 147 records were numbered as records 1-79, 1(a) – 42(a), 1(b) – 13(b), 1(c) – 9(c), and 1(d) – 4(d). I have adopted this numbering in the review.
The applicant confirmed that she was not seeking the personal information of third parties refused under section 37, any parts of the records that were redacted on the basis that the information was outside the scope of her request, or records refused under section 15(1)(d) or 15(1)(i) (i.e. information already in the public domain or that had previously been released to her).
This reduced the scope of the review to 57 records refused under sections 28, 29, 31(1)(a) and/or 42(f) of the FOI Act: records 2, 3, 4, 6, 14, 15, 23, 24, 25, 26, 27, 28, 37, 39, 43, 46, 47, 48, 49, 51, 52, 53, 54, 66, 69, 70, 71, 72, 73, 77, 10(a), 15(a), 16(a), 19(a), 20(a), 25(a), 26(a), 28(a), 29(a), 30(a), 31(a), 32(a), 33(a), 34(a), 39(a), 42(a), 1(b), 3(b), 10(b), 11(b), 1(c), 2(c), 3(c), 4(c), 5(c), 6(c), 1(d), which were refused under sections 28, 29, 31(1)(a) and/or 42(f).
During the review, the Department revised its position in respect of some records. It released further tranches of records to the applicant, with some or all of the previous redactions removed. It said that it was no longer relying on section 29 in respect of any of the records however it made submissions in respect of section 42(j) in respect of some records. On 16 August 2024 it released records 37, 47, 48, 49, 54, 72, 30(a), 31(a,) and 34(a), 10(a), 32(a), 2, 3, 4 and 6, in full or in part. The applicant confirmed that she wished the review to consider the outstanding redactions in records 10(a), 32(a), 2, 3 and 4. On 23 August 2024, it released records 23, 24, 27, 28 and 42(a). The applicant confirmed that she was not seeking access to advice provided by the Attorney General, but queried outstanding redactions in records 23, 27 and 28. On 26 August 2024, the Department released records 26(a), 11(b), 28(a), 29(a). Again, the applicant confirmed that she accepted that advice from the Attorney General was exempt from release but queried whether the redactions in record 11(b) did actually contain such advice. The Department also then released the covering email in record 16(a), a fresh copy of record 29(a) (which had previously been provided with some of the text cut off along one side), part of record 33(a) (the covering email and one attachment), and a redacted version of record 25(a).
Taking all of the above into account, the outstanding refused records, in full or in part, are: 2, 3, 4, 14, 15, 23, 25, 26, 27, 28, 39, 43, 46, 51, 52, 53, 66, 69, 70, 71, 73, 77, 10(a), 15(a), 16(a), 19(a), 20(a), 25(a), 29(a), 32(a), 33(a), 39(a), 1(b), 3(b), 10(b), 11(b), 1(c), 2(c), 3(c), 4(c), 5(c), 6(c), and 1(d).
Many of the records contain only a small amount of information falling within the scope of the applicant’s request, with the remaining information relating to entirely separate matters. I will only consider the relevant parts of the records.
Having gone through each of the records, I note that a number of duplicates or overlapping records appear. The following records are duplicates: 39(a) and 5(c), 10(a) and 3(b), 71 and 4(c). The relevant parts of 6(c) are contained entirely within 1(c). The relevant parts of record 15 are contained entirely within record 14. The relevant attachment refused from records 1(d) and 16(a) is the same as the attachment to record 28. The attachment to records 10(a) and 32(a) that was refused under section 28 is the same as the relevant attachment to record 33(a).
Bearing all of the above in mind, the scope of this review is therefore confined to the question of whether the Department was justified, under sections 28, 31(1)(a), 42(f) and 42(j) in refusing access, in full or in part, to the relevant parts of records 2, 3, 4, 14, 23, 25, 26, 27, 28, 39, 43, 46, 51, 52, 53, 66, 69, 70, 71, 73, 77, 10(a), 15(a), 19(a), 20(a), 25(a), 29(a), 32(a), 33(a), 39(a), 1(b), 10(b), 11(b), 1(c), 2(c) and 3(c).
Section 42 provides that the FOI Act does not apply to the 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 consider whether the following records, or parts of records, are excluded from the scope of the FOI Act under section 42(j): records 39, 43, 46, 51, 52, 71, 73, 77, 39(a), 1(c), 2(c) and 3(c).
There is a significant degree of overlap and duplication between these records. Having examined the records, I note that records 39, 43, 46, 51, 52 and 77 contain a briefing note prepared for the Taoiseach for Leaders Questions in the Dáil in November 2021. Records 71, 73, 39(a), 1(c), 2(c) and 3(c) contain briefing materials for the Minister for answering oral parliamentary questions in the Dáil in December 2022. Having regard to the content of the records, as well as the explanation provided by the Department as to its internal processes for preparing such briefing documents, I am satisfied that they were given to the Minister or the Taoiseach for use by them for the purposes of proceedings in the Oireachtas, and that such records therefore fall outside the scope of the FOI Act by virtue of section 42(j). I find that the Department was justified in refusing to release these records.
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.
The Department’s position is that the refused parts of records 14, 23, 25, 27, 28, 53, 66, 69, 70, 10(a), 32(a), 1(b), 10(b) and 11(b) are outside the scope of the FOI act by virtue of section 42(f). Having examined the records, it seems to me that parts of records 15(a), 19(a), 20(a), 26 should also be considered under section 42(f).
Having regard to the wording of section 42(f), I am satisfied that any of the above records containing emails drafted by members of staff of the AGO and that relate to their core functions as legal advisors to the Department, fall outside the scope of the FOI Act. Similarly, I find that section 42(f) excludes the attached documents created by staff of the AGO, whether attached to emails sent by the AGO, or emails sent by members of staff of the Department of Justice. These documents include legal advices, memos for Government and litigation updates. I am satisfied that these documents do not relate to general administration.
However, some of the records which the Department have sought to exclude on the basis of section 42(f) were not, it seems to me, created by the AGO. Neither has any argument been made and nor is it apparent to me, that they 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 the record outside the scope of the FOI Act. Rather, it seems to me that these records have been refused on the basis that their release would disclose legal advice provided by the Office of the Attorney General, albeit the legal advice has been summarised or communicated by a member of staff of the Department of Justice, a legal advisor or otherwise, rather than being contained in a record created by the Office of the Attorney General. While such information may well be subject to legal advice privilege, and I will consider that below, I am not satisfied that the Department has justified its refusal of such records under section 42(f).
In some of the records under consideration here, which are predominantly email chains with attachments, both of the above categories are contained within the same record i.e. they contain some material created by the Office of the Attorney General, while the remainder was created by the Department and may disclose the substance of legal advices provided by the Office of the Attorney General.
For the reasons set out above, I am therefore satisfied that the remaining refused parts of the following records are excluded from the scope of the FOI Act pursuant to section 42(f): record 14 (the attachment only), record 26, record 53, records 66, 69 and 70 (bottom email in the chains only), record 10(a) (attachments), record 15(a), record 19(a), record 32(a)(attachments), record 1(b) (attachments), and record 10(b). I am satisfied that the Department was justified under section 42(f) in refusing to release these records.
However, I am not satisfied that section 42(f) serves to exclude the remaining parts of record 14 (text of email), 23, 25, 27, 28, 66, 69, 70, 10(a), 32(a), 1(b), or 11(b) from the scope of the Act. That is not the end of the matter, however, as I will consider these records under section 31(1)(a).
The Department cited section 31(1)(a) as a basis for refusing records 2, 3, 4, 66, 69, 70, and 1(b) on the basis of section 31(1)(a). While it did not claim section 31(1)(a) in respect of records 14, 23, 25, 27, 28, 10(a), 32(a) or 11(b), having considered the contents of these records, and the fact that section 31(1)(a) is a mandatory exemption, it seems to me that I must also consider them through the lens of legal professional privilege.
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.
In some cases, it is self-evident that a record will attract legal advice privilege – for example record 1(b) contains a clear and explicit request from the Department for further legal advice from the AGO. Other records are less straight-forward and the applicant queried how certain records could be exempt on the basis of legal privilege. For example, she refers to the redacted parts of record 3 which is described on the schedule as an email sent by an Assistant Secretary in the Department of Justice, who is a civil servant rather than a legal advisor.
Having examined this record, I am satisfied that the redacted parts disclose confidential legal advice provided by the AGO. I accept that this type of information, which is contained in the majority of the records I am considering under this exemption, attracts legal advice privilege regardless of whether it was specifically communicated by a legal advisor in the Department (e.g. record 14, text of email), or by a member of staff of the Department (e.g. records 27 and 11(b)), briefing documents prepared for An Taoiseach). 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, or on a limited basis to a party outside the Department (e.g. to an Taoiseach / Department of an Taoiseach) cannot be taken as the Department waiving its legal privilege, and that the advice remains confidential such that legal professional privilege still applies.
On this basis, and having carefully examined the relevant parts of each of the above records, I am satisfied that they are almost all subject to legal advice privilege. I therefore find that the remaining refused parts of records 2, 3, 4, 14, 23, 25, 27, 28, 66, 69, 70, 1(b) and 11(b) are exempt under section 31(1)(a) of the FOI Act.
With respect to the relevant parts of records 10(a) and 32(a), both of which contain very similar information with some amended text in record 32(a), I am satisfied that most of the refused parts contain information that is subject to legal advice privilege. I note that some redacted parts of record 10(a) were released in record 32(a), on pages 2 and 4; I will give those parts no further consideration. However, having carefully considered the last paragraph of page 4 on each of the records, it is not apparent to me that either of them disclose confidential legal advice. The Department has not claimed another exemption in respect of these redactions (which it had refused under section 42(f), discussed above), and it is not apparent to me that they are exempt. I am not satisfied that the Department has justified refusing access to these paragraphs and I direct their release.
The Department refused parts of records 25(a) and 33(a) under section 28.
Record 33(a) is an email with three attachments: a draft “Memorandum for Information of the Government” from the Minister for Justice, and two appendices. The first appendix is a terms of reference for a scoping exercise which the applicant already has and is publicly available. The second appendix was released during the review along with the covering email. Record 25(a) is an email that was released in part with one paragraph redacted.
From its submissions, it is evident that the relevant sub-section of section 28 relied upon by the Department is section 28(1)(a) and I must consider whether it was justified, under section 28(1)(a), in refusing access to the draft Memorandum attached to record 33(a) and the paragraph redacted from record 25(a).
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.
The Department has confirmed that the Memorandum in question was submitted to the Government by the Minister for Justice, and that it has not been published. Section 28(6) provides that “record” in this section includes a preliminary or other draft of the whole or part of the material contained in the record. On this basis, I accept that record 33(a) is a draft Memorandum created for the purpose of submission to the Government for its consideration, and that section 28(1)(a) applies to it. Having examined it, I also accept that record 25(a) contains a draft of part of the same Memorandum and that section 28(1)(a) applies to that part of the record.
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 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 record 33(a) itself, I accept that this Memorandum was prepared to bring matters to the attention of the Government for information, and 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 the relevant parts of record 33(a) and 25(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that it was justified, under sections 28, 31(1)(a), 42(f) and 42(j) of the FOI Act, in refusing to release the majority of the records remaining within the scope of the review. However, I find that it was not justified in refusing to release the last paragraph of page 4 of records 10(a) and 32(a) and I direct their release.
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 requester 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.
Emer Butler
Investigator