Decision
Mr A and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-149701-V4B0Z5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149701-V4B0Z5
Published on
Whether the Council was justified in refusing access to records relating to fire inspection reports completed in respect of the emergency department at University Hospital Limerick on the basis of section 31(1)(a) of the FOI Act
In a request dated 10 October 2023, the applicant submitted an FOI request to the Council for copies of any fire inspection report completed by the Limerick Fire Service in the Emergency Department at University Hospital Limerick (UHL) in 2020, 2021, 2022 and up to 10 October 2023. He also sought copies of any correspondence, minutes of meetings or phone calls between the Limerick Fire Service and the UL Hospitals’ Group concerning fire inspection reports. In a decision dated 2 November 2023, the Council refused access to all 51 records it identified as coming within the scope of the request, under section 31(1)(a) of the FOI Act. It said the records identified are considered to be legally privileged due to their sensitive nature and in the event that they may be used in future High Court proceedings if the case arises.
On 11 December 2023, the applicant sought an internal review of the Council’s decision. He made submissions in respect of the FOI body’s reliance on section 31(1)(a) and said that it is not acceptable for the Council to withhold all the records on the ground that the authority may at some stage in the future use them in legal proceedings. He said that overcrowding has been an ongoing problem at UHL for years “so the efforts of the local fire department to highlight issues in the Emergency Department would not prejudice any legal proceedings even if they were taken against UHL”. He said that the Council could have chosen to redact the names of the people who made a complaint to the local authority but could have still released the details of the issues raised. He said that it instead decided to withhold all the records, which he believes is totally contrary to the spirit and operation of the FOI Act.
On 5 January 2024, the Council affirmed its refusal of the request under section 31(1)(a). On 10 June 2024, the applicant applied to this Office for a review of the Council’s decision.
During the course of the review, and in light of the nature and contents of the records at issue, the Investigator notified UHL of the review and invited it to make submissions. UHL is an FOI body in its own right. The Investigator contacted UHL by phone to clarify which email address should be used in issuing the notification and sent the correspondence accordingly. No submissions were received within the two-week timeline imposed. UHL was informed that if we did not hear from it within that time, it would be assumed that it has no objection to release. The Investigator sent a follow-up email confirming same and no response has been received to date.
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 applicant and the Council. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
I note that certain of the 51 records identified by the Council as coming within the scope of the request contain the names and contact details of identifiable individuals who made complaints (records 35 and 44). In his submissions to this Office, the applicant said the Council “could have chosen to redact the names of the people who made a complaint to the local authority but could still have released the issues they had raised”. Based on the applicant’s statement, I am satisfied that he is not seeking information contained in the records relating to the identity and contact details of complainants. Such information is therefore outside the scope of this review and I will not consider it further.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access, under section 31(1)(a) of the Act, to the 51 records apart from the personal information of complainants which I consider to be outside the scope of the review.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited. It also means that I must be circumspect in referencing certain submissions made by the parties.
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.
Legal professional privilege enables a client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal advisor for the purposes 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.
In its submissions to this Office, the Council said the exemption is being claimed on the basis of litigation privilege. The Council was asked to confirm the identity of the client, legal adviser and/or third party, as appropriate, and explain the basis on which it considered that the communications concerned were confidential. In response, the Council said that the client is the UHL Emergency Department. It said that the records in question are confidential communications and reports between Limerick City & County Fire and Rescue Services (LCCFRS) and the Emergency Department. It said that the records resulted from inspections carried out to investigate overcrowding and potential fire hazard and emergency escape issues that had been reported. The Council said that several meetings took place between the parties to resolve these issues, which it said have not yet concluded. It said that it therefore decided to withhold such records “to allow UHL to find solutions to the concerns raised by the Fire Service”.
The Council said that the records were created and ensued from fire safety inspections that were carried out by the Fire Service at the Emergency Department of UHL following reports of overcrowding there. It said that this was evidence that would be relied upon in court as there was a threat of legal action being taken against UHL by LCCFRS if solutions were not put in place to address all of the concerns raised relating to fire hazards and emergency escape routes for patients and staff attending or working in the Emergency Department.
The Council said that the records that relate to the request range across ten years and form the complete file on the overcrowding issued inspected by LCCFRS. It said that while the threat of legal action remains in place against UHL, the likelihood that it will be initiated at this stage has minimised. It said that there has been ongoing collaboration and agreement by both UHL and LCCFRS in respect of works necessary to alleviate overcrowding. However, it said that LCCFRS may have no option but to take legal action as the solutions being implemented by UHL are not yet complete.
The Council was asked whether the dominant purpose for the creation of the relevant records was the preparation for litigation. In response, it again said that the basis for the creation of the records was a result of inspections that were carried out in the Emergency Department following reports of overcrowding and unsafe conditions. It provided further submissions in respect of the findings of such inspections but I consider that referencing the details would be to disclose information contained in the records. I confirm that I have considered the submissions carefully.
The Council provided further detail in respect of its engagement with UHL. It said that the LCCFRS are currently working closely with UHL management to establish agreed working solutions on how to manage capacity issues. It said that if these agreed solutions are achieved, it may be in a position to release the records. It said that to release the records at this “critical juncture” could impede the working relationship that currently exists between both authorities and would not be in the public interest as it may cause unwanted attention to an issue that is currently in the process of being resolved. It referenced the work of UHL and said that “to hinder the positive steps being taken to create a safer working environment for all who use it would not serve the public interest at present”.
The applicant also made submissions to this Office. He said that he does not accept that it is appropriate for the Council to refuse to release records and correspondence concerning seven inspections conducted by LCCFRS at UHL. He said that it is not acceptable for the Council to refuse the records because the authority may at some stage in the future use them in legal proceedings. He said that no evidence has been provided that legal proceedings have been initiated and that even if they were, he does not believe all records could be withheld in “what seems like a blanket refusal”. He said that out of all the records refused, only one record refers to an application to the High Court under section 23 of the Fire Services Act to comply with a Fire Safety Notice, which he said he assumes has been dealt with at this stage. He noted that the records include letters from LCCFRS to UHL management and their responses and said that release would not prejudice any future High Court case that may arise. He also referred to certain specific records listed on the schedule provided and said that no proper explanation was given as to why access was being refused. He said that some of the records relate to the condition of the Emergency Department in 2013 and that a new Emergency Department has been provided since.
The applicant said that overcrowding has been an ongoing problem at UHL for years so the efforts of the local fire department to highlight issues would not prejudice any legal proceedings even if they were taken against the hospital. The applicant said that he does not believe that the records are subject to legal professional privilege because they do not refer to a communication between a lawyer and a client and they don’t arise in the context of a professional lawyer-client relationship. He said that the records come under the category of “open communication” between the UL Hospitals’ Group and the Fire Department where no legal professional privilege applies. He said that he does not believe that the Council can prove that all of the refused records were created for the dominant purpose of contemplated pending litigation.
Litigation privilege attaches to 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.
InSilver Hill Duckling v Minister for Agriculture ([1987] 1 ILRM 516) O’Hanlon J held:
“once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege.”
It is important to note that legal professional privilege attaches to confidential communications. Where records are of communications which are not confidential, legal professional privilege does not attach. In the current case, the majority of the records comprise communications between the Council and UHL. They effectively comprise records of communications with the opposing party to contemplated or pending litigation. I do not accept that such communications can be considered confidential for the purposes of section 31(1)(a).
Even if I was to accept that the communications at issue were confidential, I must also consider the dominant purpose test. For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated or pending litigation. The dominant purpose test was expressly adopted in Ireland by Hanlon J in the above case ofSilver Hill Duckling v Minister for Agriculture . In the judgment of the High Court inUniversity College Cork – National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) Finlay Geoghegan J. stated:
“The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation.”
In the same judgment, Finlay Geoghegan J. also noted that the “onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to ... enable his solicitor prosecute or defend an action." In its submissions, the Council said that the records were created as a result of inspections that were carried out in the Emergency Department following reports of overcrowding and unsafe conditions. It seems clear to me that the purpose of the records was to assess whether such conditions existed and, when issues and concerns were identified, to engage with UHL and ensure that action was taken and solutions were found. The fact that the records may be relied upon in court is not sufficient to meet the dominant purpose test.
The records were created in response to concerns identified and evidence the parties’ attempts to mitigate and resolve those concerns. They include action plans, updates and assurances. I do not accept that the dominant purpose for which the records were brought into existence was to enable a party to prosecute or defend an action. Accordingly, I find that litigation privilege does not apply and that section 31(1)(a) does not serve to exempt the records.
The Council said that the records were refused “to allow UHL to find solutions to the concerns raised by the Fire Service”. However, it has not sought to rely on any further exemption provisions, notwithstanding the fact that it was invited to do so by this Office. Nor has UHL made submissions in respect of the review or the records at issue. The level of overcrowding experienced in UHL is a matter of public record. Having carefully considered the contents of the records, it is not clear to me that any other mandatory exemption provision applies such that the records should not be released.
I direct the release of the records, with the redaction of the information relating to complainants which I consider outside scope (records 35 and 44) and with the redaction of the mobile phone numbers of staff members where they appear (records 14, 17, 35 and 45). I am satisfied that such information is personal such that section 37(1) applies and that the public interest does not weigh in favour of release.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it was not justified in refusing access to the records on the basis of section 31(1)(a) and I direct their release, subject to the redaction of personal information and information which is outside the scope of the 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.
Alison Connolly
Investigator