Decision
Ms. X and the Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-157283-F9T9P1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157283-F9T9P1
Published on
Whether the HSE was justified in refusing to release certain records, under section 31(1)(a) of the FOI Act, which relate to an incident involving the applicant’s late son on the ground that those records attract legal advice privilege
19 June 2025
‘Section 38 agencies’ refer to service providers who are funded by the HSE to provide services on its behalf. The applicant’s late son was in the care of a section 38 agency when he tragically passed away.
In a request to the HSE dated 16 December 2024, the applicant sought:
• copies of all communications (including any attachments) exchanged between the section 38 agency and the HSE regarding the passing of her son, including but not limited to correspondence exchanged under the HSE’s Incident Management Framework for the period March 2024 to the date of the request, and
• copies of any internal HSE records, such as internal correspondence, briefing notes, memoranda, or other documentation relating to the matter for the period March 2024 to the date of the request.
On 18 December 2024, the HSE sent an email to the applicant saying it had forwarded her request to the section 38 agency as that agency holds its own records. In reply, the applicant said that her request relates to records held by the HSE and said that the fact that the section 38 agency also hold records relating to the issue is a completely separate matter. The applicant contacted the HSE on 28 January 2025 and again on 4 February 2025 and said that she wished to apply for an internal review of the deemed refusal of her request as she had not received a decision letter from the HSE. In a decision dated 4 February 2025, the HSE part-granted Part 2 of the applicant’s request. It identified 52 pages of records as being relevant to the applicant’s FOI request, and granted access to the records, except for pages 11 – 13 and 23 – 26, which it refused under section 31(1)(a) on the ground that legal professional privilege applied. The HSE said that the section 38 agency was dealing with part 1 of the applicant’s FOI request. On 10 March 2025, the applicant applied to this Office for a review of the HSE’s decision.
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 correspondence outlined above and to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In correspondence with this Office, the HSE said that its Disability Services were advised by the CEO of the section 38 agency that the agency would be responding to Part 1 of the applicant’s FOI request, which would include correspondence between the HSE and the agency on this matter. The HSE said it therefore did not process Part 1 of the FOI request.
While the applicant in her request for internal review of the HSE’s deemed refusal noted that her FOI request was for records held by the HSE and queried the HSE’s intention to transfer her FOI request to the section 38 agency, she subsequently confirmed to this Office that she was confining her appeal to the records the HSE refused under section 31(1)(a) of the FOI Act, i.e. to pages 11 – 13 and 23 – 26 in the schedule of records provided to the applicant with its original decision.
Accordingly, this review is solely concerned with whether the HSE was justified in refusing access, under section 31(1)(a) of the FOI Act, to pages 11 – 13 and pages 23 – 26 of the records.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
I wish, in the first instance, to express my condolences to the applicant on the tragic loss of her son. While I can appreciate the importance the applicant may place on obtaining the records at issue, it is important to note that under section 13(4) of the FOI Act, subject to the FOI 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 FOI Act requires a consideration of the public interest (not relevant in this case).
Second, 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.
Finally, 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.
As noted above, I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the records at issue and of the reasons for my decision is somewhat limited. However, I do not believe that I am in breach of section 25(3) by providing the following description and context. The applicant’s late son was in the care of a section 38 agency funded by the HSE when, following an incident in the residential care home in which he was receiving care, he sadly passed away. The records identified by the HSE as relevant to the applicant’s FOI request consist of email correspondence within the HSE and between the HSE and the section 38 agency in relation to the incident involving the applicant’s late son and subsequent matters. The records refused by the HSE, pages 11 – 13 and 23 – 26, concern legal advice sought by the HSE concerning these matters.
Section 31(1)(a) - legal professional privilege
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 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 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.
In its submissions to this Office, the HSE said that section 31(1)(a) was cited on the basis of legal advice privilege. It said that a member of staff of the HSE had contacted the HSE Office of Legal Services seeking legal advice on the case, and contacted an adviser in another area of the HSE following receipt of legal advice, and these communications were contained in pages 11 – 13 and 23 – 26 of the relevant records. The HSE said that these records attract legal advice privilege as all the records contain a summation of legal advice from a solicitor within the HSE’s Office of Legal Services, and identify that advice was sought and received from the HSE’s solicitors. It said that it was necessary for the HSE to obtain legal counsel, and the correspondence contains a request for counsel. It said that therefore the communication was between a client and their professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, the HSE said that the relevant pages form part of a continuum of correspondence arising from the HSE’s request for counsel.
Having examined the relevant records as well as the HSE’s submission, I am satisfied that the HSE has justified its position that pages 11 – 13 and 23 – 26 contain legal advice and/or are part of a continuum of correspondence arising from an initial request for legal advice. I therefore accept that the records attract legal advice privilege. While I recognise that this outcome may be disappointing for the applicant, I find that the HSE was justified in its decision to refuse access to the records at issue under section 31(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find the HSE was justified in refusing access to pages 11 – 13 and 23 – 26 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.
Richard Crowley
Investigator