Cinneadh
Mr. X and the Department of Social Protection (the Department)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-111314-G7R5L0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-111314-G7R5L0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to records concerning the provisions of the Former Disabled Persons Maintenance Allowance, and its successor the Disability Allowance
19 August 2025
This case relates to the provisions of the Disabled Persons Maintenance Allowance, and its successor the Disability Allowance, and the cessation of these payments to individuals in the long term care of the State. The applicant in his appeal referenced a previous High Court case which was settled by the State in 2008, and which related to the cessation of payments to a woman who was admitted into state care.
The applicant submitted a request dated 19 April 2021, to the Department of Social Protection and sought the following records, citing two specific legal actions in which the HSE was the respondent:
• Any internal communications or documents which related to the assessment of potential liabilities for the Department / the State arising from the first, second or both named legal cases.
• Any internal communication or documents which were generated in responding to any parliamentary questions related to this this case or where either of these cases were cited in the question received by the Department.
• The details of any settlements which were made in other cases which dealt with the same issue as this settlement.
• Any communication with the Department of Health on this issue from 2008, 2009 or 2010.
• Any memo brought to Cabinet arising from the issues raised in this.
In a decision dated 16 June 2021, the Department partially granted the request. The decision set out three business areas, from which documents would be released. These were Business Area – A (Disability Allowance Operational Area), Business Area B (Legal Unit) and Business Area C – (Illness, Disability and Carers Policy Unit). The decision further stated that the Department was partially releasing documents in accordance with sections 31, 37 and 40 of the legislation. The applicant sought an internal review from the Department. The Department issued its internal review decision on 21 July 2021, and varied its original decision, releasing additional records under the relevant business areas. The Department maintained its application of the exemptions under the above sections for a number of records. The applicant applied to this Office for a review of the Department’s decision on 6 August 2021.
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 relevant parties, the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
During the review, a further document was scheduled under Business Area C by the Department; Document 18 constitutes a copy of letter issued from the Department of Health to the Department of Social Protection enclosing a background note and joint draft memorandum in relation to the 2008 High Court case. The Department has stated that the document was to be partially granted on the schedule however, this appears to be erroneous as they have not released/scheduled any copy in part. Accordingly, for the purposes of the decision I will consider the entire document for release under each of the exemptions.
In the circumstances of this case, I considered it appropriate to issue a draft of this decision to the parties prior to concluding matters. All parties were informed that it was open to them to make a further submission on foot of my draft decision, but that any such submission should be confined to an additional point of fact, an error of fact or an error of law. The Department made an additional submission and within which it submitted that further exemptions applied to the first category of records; Business Area A. The Department additionally applied section 40(1)(a) and 40(2)(q) to records 2, 6 and 7 under Business Area A. The Department also made additional arguments relevant to the applicability of section 31(1)(a) across the records, in particular the Department highlighted a new threat of litigation received in 2023.
I wish to note that while for the purposes of this decision I have considered the late reliance on a discretionary exemption in relation to records 2, 6 and 7, I would remind the Department that the purpose of issuing a draft decision is to ensure that there are no errors of fact or law. It should not be used as an opportunity for public bodies to add additional exemptions.
The scope of this review is concerned with whether the Department was justified in refusing access to the following records or parts thereof:
• Business Area A: Record 1 was part granted citing exemptions under sections 31(1)(a), 37(1) and 42(f), it is a near duplicate of record 3 in Business Area C, records 3, 4, 8, 9 were refused under section 31(1)(a), and records 2, 6 and 7 were refused under sections 31(1)(a), 40(1)(a) and 40(2)(q). Record 5 was granted.
• Business Area B: Records 1 – 9 were refused under sections 31(1)(a), 37(1), 42(f), 40(1)(a) and 40(2)(q) and 42(f)
• Business Area C: record 1 and 2 were granted, records 3 - 17 were partially granted.
Redactions were made to records 3 – 17 with exemptions claimed under sections 31(1)(a), 37(1), 40(1)(a), 40(2)(q), 42(f) and 42(j). Record 18 has been withheld in full under sections 31(1)(a), 40(1)(a) and 40(2)(q).
The applicant noted in his application that he does not seek access to any document which explicitly includes officers from the CSSO or the Attorney General’s Office. I have interpreted this to mean any document written or provided by the CSSO or AGO to the Department.
Before I address the substantive issues arising, I would like to address a concern that the applicant expressed in his submissions in relation to this Office’s handling of the review. The applicant has argued that if the Department makes a submission related to a case, which an applicant has filed, and on which an applicant is asked to respond, that the applicant should be provided with a copy of the submissions and not a summary from the investigator. The applicant has expressed the view that this practice of sharing information with only one side is not consistent with the principles of fair procedure.
The issue of all parties to an appeal responding to all submissions has been raised before. In the 2005 High Court appeal from the National Maternity Hospital, the judgement states “I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures.” This judgment has since been endorsed by the Court of Appeal in ([2022] IECA 153).
The policy of this Office is that, in general, submissions will not be exchanged between parties to review. As submissions made by one or more parties to a review are likely to contain sensitive information that may not be appropriate for disclosure to others, submissions are not exchanged as a general rule. In particular, care must be taken that the provisions of section 25(3) of the FOI Act are fully observed. Section 25(3) requires me to take reasonable precautions to prevent disclosure of information in an exempt record. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Secondly, I note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
I would also like to note an additional issue raised by the applicant in his final submissions to this Office. The applicant has argued that the records assessed by the decision maker are incomplete, he has argued that documents in draft format have been included in the schedule but that the finalised versions have not. I contacted the Department for comment on this matter. The Department have clarified that Business Area A document no. 1 and Business Area C document no. 3, represent a copy of a draft letter and the draft letter to the Department of Finance. The email from Business Area C to the Department of Finance with the final version was not included. The Department have set out that, as it is correspondence between the Department of Social Protection and the Department of Finance it was not within the scope of the FOI request. However, the final version of the document which issued to the Department of Finance is included in Business Area C Document No 6 - Chain of emails October 2008: Duplicate of Document No 5 and Attachments. There does not appear to be any difference between this version and Business Area A Document No 1 other than formatting.
In relation to Business Area C Document No 17 - draft note for Minister’s Information on Memo for Government 022010, the Department have clarified that there is no final version of this document as the Memo was never brought to Government. I am satisfied with the Department’s explanation in respect of this matter.
The Application of section 22(12)(b)
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy this Office that its decision to refuse access to certain records, either in whole or in part, was justified.
Section 31(1)(a) – Legal Advice and Litigation Privilege
The Department have refused access to most records under Business Area A and all records under Business Area B, on the basis of section 31(1)(a). In addition, all part – granted records under Business Area C have cited exemption under section 31(1)(a). On that basis I consider section 31(1)(a) to be the most relevant exemption to this request.
Section 31(1)(a) provides for the mandatory refusal of a request where the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).
LPP enables the client to maintain the confidentiality of two types of communication:
1. 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
2. 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. It is important to note that, 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. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can 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 applicant has set out that he wishes to appeal the manner in which the Department applied the exemptions. He believes that the records may reveal that the State had acted ultra vires in its decision to stop certain payments. He also set out his belief that this case is of particular public interest due to the fact that it relates to the rights of people in long term state care.
In the applicant’s submissions, he has argued that the exemptions under this section have been misapplied and that the onus is on the Department to justify its claims that the relevant records constitute legal advice or litigation privilege. He has further queried whether the Department is relying on legal advice privilege where no solicitors or counsel are included in the records. He has argued that the Department cannot assert Legal Advice Privilege in circumstances "where the communication is used to further a criminal or fraudulent purpose, even where the lawyer is not party to or even aware of the purpose to which his client intends to put the communication (Hussain v Garda Commissioner [2016] IEHC 612"). He contends that if the state is aware that it has usurped the property rights of individuals and is discussing how best to not let them know, then it is likely legal professional privilege cannot apply. The applicant also contends that it is not plausible to suggest further claims are lurking and ready to pounce without new information.
In relation to items 1, 2, 3 and 5 in Business Area A, the applicant has stated that while the information may have been sought by Counsel, the underlying information would have existed for another purpose and could be supplied without reference to the legal advice. The applicant has further argued that the High Court case referenced was in 2008, and that the Department has not provided any details of any active or anticipated cases which could result if they were released. He also contends that it appears the dominant purpose for creation of some of the documents was public relations, actuarial, damage limitation and financial exposure, not in preparation for litigation. In relation to documents under Business Case C, the applicant has argued that save for item 8, none of the documents appear to have any legal involvement or purpose.
In response, the Department claimed the information in Business Area A was prepared for the potential litigation in the first High Court case. It clarified, that it is the operational area that deals with the processing of customer claims for Disability Allowance. The Department stated that all records held in this area were created in the context of preparing the State’s response to the first case and estimating of the cost of settlement of this case. It has claimed that it would have no other reason to create the documents other than in response to requests for information from the legal or policy areas dealing with each case.
Turning to the Department’s claim that litigation privilege applies in respect of all instances where legal advice privilege is claimed, it has contended that privilege subsists even though litigation in respect of both cases in question has concluded. As I have outlined above litigation privilege attaches to confidential communications made between the client and professional legal advisor and a third party or between the client and the third party, the dominant purpose of which is the preparation for contemplated/pending litigation. It should also be noted, that for litigation privilege to apply legal proceedings must be contemplated or pending.
As to whether litigation is contemplated, this Office takes the view that the mere possibility of proceedings is not sufficient, and that litigation can be said to be “contemplated” where there is a definite prospect, apprehension or threat of litigation and not a mere anticipation of it. In addition, in order 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 O'Hanlon J. in Silver Hill Duckling Limited v Minister for Agriculture [1987] 1 I.R. 289, [1987] I.L.R.M. 516. Furthermore, in the judgement of the High Court in University College Cork – National University of Ireland v The Electricity Supply Board ([2014] IEHC 135) (the UCC case), 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."
Moreover, in her judgement Finlay Geoghegan J stated 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”.
While the Department has stated that the documents under Business Area A were created on the request of counsel in anticipation of litigation on the first case, this concluded in 2008. In respect of Business Area B, the Department has clarified that this area was staffed by Legal Advisors for the purposes of providing advice to the Minister and Department (The Client), and are all concerned with the second case. Business Area C, deals with Disability Policy, and the role of the unit was to contribute on policy perspective to the preparation of the State’s defence. Originally, the Department did not argue that it was currently involved in any relevant litigation in either case. Rather, it argued that the release of the information at issue could reasonably be expected to result in further litigation in this area. It has cited that this is evident from the content of the records claiming this privilege and on the basis that the matter is one under scrutiny by a journalist of the national broadcaster. It contended on this basis that litigation privilege continues to exist.
The Department has referenced an article which appeared in the Irish Examiner in 2008 in support of this view, the article in question referenced legal observers who said that the case could be used by other patients to make similar claims. Following a draft decision which issued to the Department and Applicant, the Department put this Office on notice of additional proceedings which it says were threatened in February 2023. The Department is now arguing that there remains a live threat of litigation with respect to the withdrawal of the DPMA to those in residential care. The Department maintains that the proceedings threatened satisfy the “closely related test”, articulated in University College Cork vs ESB [2014] IEHC 135.
It argues that the threatened or anticipated proceedings would proceed on a similar substantive ground to the originally contemplated proceedings and that there is a clear link between the two. It has further noted that the parties against whom this litigation would proceed would be the same parties as the originally contemplated proceedings, and that all proceedings have been related to the withdrawal of the DPMA for those in residential care homes. Accordingly, it submits that the litigation privilege should prevail, despite the conclusion of the 2008 proceedings. The Investigator sought clarity from the Department on whether the threatened proceedings in question were still live or whether the Department had sought to settle the matter at the time. The Department stated that no such settlement had been reached and that the threat remained live at this time.
The Department provided a copy of the letter received by it in 2023 and argued that the limitation period had not expired in respect of the above threatened litigation. It noted that section 11(e) if the Statute of Limitations 1957 provides that actions for recovery of money due by virtue of an enactment must be brought within six years of the date upon which the cause of action accrued, and that this is qualified by the fact that a person who is “under a disability” shall have an extended period under that Act, within which to issue proceedings, pursuant to section 49(1)(a) of the 1957 Act. The Department considers that section 49(1)(a) of the 1957 Act preserves the cause of action of many people in residential care homes that may be deemed to be suffering from a disability of the purpose of Part III of the 1957 Act. It maintains that there is, therefore, a reasonable basis to assume from the content of the attached letter that the threatened litigation is not statute barred and that same remains an “active threat” as a result.
Before I consider each of the records in turn, I would also like to state that I do not accept the Department’s claim that legal advice privilege applies to every document to which litigation privilege is claimed and vice versa. There are records, which in my view do not contain legal advice between a legal representative and client, and are not clearly part of a continuum. I also wish to re – iterate that litigation privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied. The relevant factors, which I must consider in the circumstances are whether any related proceedings are anticipated or contemplated, the identity of the parties concerned, the subject matter of any further proceedings and the dominant purpose for which the record was created. These will be examined in respect of each relevant business area. In relation to the exemptions claimed under section 31(1)(a), I have considered the documents for each business area in turn.
Business Area A
Having considered the nature and contents of the records at issue and the details of the Department’s submissions, I find that section 31(1)(a) applies to some records under this Business Area.
Records 1, 2, 6 7, 8 and 9 either contain some summations of legal advice received in relation to the ongoing litigation during the first case, or where the communications are not solely for the purpose of disclosing/providing legal advice, I believe that they were created on foot of the litigation from the first case and in anticipation of any future litigation which may have arisen. In respect of whether they benefit from litigation privilege and whether that privilege is continuing, I am aware that the proceedings referred to under Business Area A concluded in 2008, I am also aware that the Department considers that there may be further proceedings initiated should these records become public. The Department has argued that the University College Cork – National University of Ireland v The Electricity Supply Board judgement is of limited relevance to this FOI request, where the information, which would be released, is in respect of vulnerable parties.
I have also taken into consideration the applicant’s arguments, that litigation after 14 years cannot be put in a bracket of proceedings for which there is a reasonable likelihood of being initiated.
On consideration of the contents of the documents themselves, I am of the view, that the information withheld in records 1, 8 and 9 is information which either summarises legal advice, or which forms a confidential communication between a legal advisor and client, as such I consider this information to be exempt from release.
It is clear from the records, that documents 2, 6 and 7 were created on foot of the pending litigation in respect of the above referenced High Court case in 2008. Records 2 and 6 comprise specific calculations of compensation related to the potential liability of backdating claims for two specific years and record 7 comprising an analysis of the potential liabilities arising. All documents were specifically created in the context of whether further claims were to arise. I would note however, that while the records appear to have been created on foot of pending litigation at the time, it is not clear that the records were intended for use within that litigation. Rather, it seems to me that the records were created to assess the Department’s potential overall liabilities should further litigation be actioned from other potential claimants. It is worth noting that the records were not created by a legal team, nor is it evident that they were provided to a solicitor.
Turning to the Department’s claim of Legal Advice Privilege, the Department has argued that these records arise out of a continuum from record 1, which this Office has found to be exempt on the basis that it contains legal advice. The Department has further claimed that the records should benefit from Legal Advice Privilege, as it maintains that it was created for the purpose of obtaining advice on the issue of the withdrawal of the DPMA, and that opportunity cost and financial cost forms part of a litigation strategy and was relevant information to the provision of Legal Advice.
I would note that by the Department’s own explanation Business Area A, was specifically an operational area. In relation to whether the documents form part of a continuum arising out of the original request for advice, I would note that record 1 is not a letter between a client and legal advisor but between two Principal Officers in two separate Departments, and rather contains a small summary of legal advice received. Indeed, the letter states that the document’s purpose was to inform on the progress of the case overall. Based on this, I am satisfied that records 2, 6 and 7 are not part of a continuum as they cannot be said to result from an original request for advice, but rather appears to feed into the Department’s own operational strategy on the issue of the DPMA repayments. Accordingly, I do not consider that they can be exempt on the basis of Legal Advice Privilege.
Turning to the question of Litigation Privilege attaching the records 2, 6 and 7 and whether this is continuing beyond the conclusion of the original proceedings. In the judgment of the High Court in University 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 ."
The decision concluded that ESB was not entitled to refuse discovery of documents that were privileged under a separate, historic, set of proceedings. The judge, in that case stated that for litigation privilege to subsist, there must be commonality between “the parties, or the subject matter, or both ” and that “no privilege attaches to … communications in subsequent proceedings unless their subject matter is the same ,” It was further noted, that in conclusions she stated “[w]here the second proceedings are not closely related to the first proceedings, there is no objective of the proper conduct of the administration of justice which can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.”
Originally, it was this Office’s position that given the time which had elapsed since these records were created that it could not argue that there was a reasonable expectation that any litigation privilege is continuing. It is clear from the records that the Department considered that further litigation may have arisen at the time the records were created and the Department is now claiming that the proceedings threatened in 2023 satisfy this continuing threat.
Following a request from the Investigator the Department provided a copy of the letter in question. While there is a clear statement in the letter that proceedings against the Department for the recovery of DPMA payments could be initiated, the Department has not provided further evidence that any other such communications took place between the solicitor for the potential claimant and the Department since February 2023. The Department has stated however that the matter was not settled.
As stated above all three records relate to the Department’s estimation of potential financial liabilities which could arise out of additional court settlements following the first High Court case. They are not specifically related to the original plaintiff’s claim nor do they appear specific to any one case, but rather to feed into an overall estimation within the Department of any liabilities in the future. As stated above, for litigation privilege to apply and indeed for it to continue, the purpose for the creation of the record must be “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." While I accept the Department’s argument that apprehended litigation was also a purpose, I am not satisfied that this was necessarily the dominant purpose. As Finlay Geoghegan J. noted, 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." The document specifically relates to the potential costs of any such actions to the Department if a number of claimants were to come forward. It does not appear to be directly relevant to the specifics of any case other than to inform the Department of potential liabilities which may arise if all DPMA claimants were to be repaid or backdated. While litigation may well have been a factor in the Department deciding to prepare the documents, it seems to me that the more dominant purpose was to consider the Department’s own overall liabilities and to develop an approach to any future claims more broadly. I do not think such an operational strategy is sufficiently tied to the dominant purpose of a solicitor or barrister being able to prosecute or defend an action. It also does not appear that there was any legal advice or litigation input in the creation of the records, it seems to me that on that basis the claim for privilege is undermined in the circumstances. Accordingly, I do not consider that litigation privilege can apply in such circumstances.
Finally, I am not satisfied that the Department has provided a sufficient explanation in respect of records 3, 4 and 5. It appears to me that the information contained in those records could have been gathered routinely by the Department. While it appears to have been relevant to the High Court case in question, I am not satisfied that the records meet the criteria under the dominant purpose test.
Business Area B
Having considered the nature and contents of the records at issue and the details of the Department’s submissions, I am satisfied that some comprise confidential communications made between the Department and its professional legal advisor (the AG/AGO and CSSO) for the purpose of obtaining legal advice and therefore attract advice privilege. I also accept that advice privilege applies to those records that form part of a continuum of correspondence resulting from the original requests for advice and as such I am satisfied that all records under Business Area B attract LPP under section 31(1)(a) and are therefore exempt from release. It is worth noting again, that the applicant has explicitly stated that he is willing to set aside the appeal in relation to any document, which explicitly includes officers from the Attorney General’s Office or CSSO, from my reading of the records this includes all records under Business Area B.
Before considering the records under Business Area C, I wish to note that the Department applied a large number of redactions across each of these records. I will consider the applicability of section 31(1)(a) to the redacted material, in the first instance, before moving on to consider the applicability of sections 37(1), 40(1)(a), 40(2)(q), 42(f) and 42(j) if necessary.
Business Area C
The Department sought exemption under section 31 in relation to every record under this Business Area. I find that section 31(1)(a) applies to some aspects of some records under this Business Area.
Record 3, is a duplicate of record 1 from Business Area A, as such I am of the view that it is also exempt. I am however, not satisfied that this applies to records 4 or 5, which were scheduled without the appendices referenced in the emails. Record 6 contains the appendices referenced, in total this includes a memorandum for Government and two further attachments which I have labelled Appendix A (advice of Counsel of the State) and Appendix B (advice of the Attorney General), these have been withheld in full. For the purposes of the decision, I am of the view that each document contains references or summations of legal advice, or clearly constitutes advice from counsel, I am satisfied on that basis that each enjoy exemption under section 31(1)(a).
In some cases, it is self-evident that a record will attract legal advice privilege, for example records under Business Area B which relate to correspondence between Legal Advisors for the State. However, in respect of the records considered under this Business Area, there is overlap in documents between certain exempt records, or either a record may contain a small summation of legal advice as part of an overall brief or note. In respect of documents under this Business Area, the Department has sought exemption of information across the records under various sections such as 40(1)(a), 42(j) and 42(f) for example.
From my review I have determined the remaining information in the following records meet the threshold for Legal Advice Privilege: records 8, 14, 15 and 16, either these records contain a summation of legal advice or constitute a brief for counsel.
I also consider that paragraphs 1 from record 7, paragraphs 1, 3 and 4 from record 12, and paragraphs 1, 2 and 4 from record 13 are exempt under section 31(1)(a), on the basis that these paragraphs clearly summarise legal advice. The Department has also argued for the exemption of paragraph 5 from record 12 on the basis that it discusses and sets out litigation strategy which it argues was informed by legal advice received at the time.
In particular, it notes that the final paragraph of section 5 which considers the Statute of Limitations with respect to potential claims. It maintains that this is a legal matter, informed by legal advice and attracting legal advice privilege. While it is clear that the paragraph does indeed touch on a legal matter, it is not clear from the paragraph or from the document more broadly, that the paragraph is directly reflective of legal advices between a client and legal advisor. Section 5 more broadly discusses the wider implications of a settlement on the Exchequer, however I am not satisfied that the Department has argued effectively that its own decision or strategy making, albeit potentially informed by legal advice at some point, should be withheld in its entirety. The specific requirements of legal advice privilege outline that privilege attaches to confidential communications between a client and advisor for the purpose of obtaining and or giving legal advice. A departmental strategy potentially informed by advice, but not in and of itself, a summary of said advice cannot be said to fall within that bracket. Accordingly, I am satisfied for that reason that section 5 is not captured by LPP privilege.
The Department has argued that record 17 appears to have been written by a legal advisor seconded from the Office of the Attorney General who was part of the planning unit and that it discusses legal strategy and as such should be exempt under section 31(1)(a). The note is titled “Implications of a High Court settlement” and the Department has submitted that the whole note should be withheld but that specifically paragraphs 5 and 7 should be exempted from release on the grounds of legal advice privilege. It argues that both paragraphs outline the State’s strategy to deal with potential future litigation, a strategy that has been informed by legal advice.
The Department has maintained the same argument for record 18, primarily that the record discusses a legal strategy developed on foot of legal advice and as such should be considered exempt under both elements of legal professional privilege.
Neither document 17 or 18 appear to be advices provided from a professional legal advisor to a client (the Department). Record 17 is undersigned by the Planning Unit with no signature, and record 18 is a memo from a Secretary General to another Secretary General. Neither document explicitly references any advices given or sought.
For the reasons outlined under Business Area A, i.e that litigation privilege cannot be applied to records which were not primarily created for the dominant purposes of contemplated or pending litigation, I do not consider that records 17 and 18 should be withheld under this subsection. Crucially, I would note that the Department was devising its own strategy for handling any potential additional claims which may have arisen, however it is not sufficient to withhold such information on the premise that such claims may arise upon an unknown date in the future. For litigation privilege to apply there must be apprehended or threatened litigation, no such threat at the time was flagged, and although the Department argues that there is a threat now, that does not negate the fact that the dominant purpose for which the documents were originally created must be apprehended or threatened litigation.
In relation to whether either document contains Legal Advice, I would crucially note that both records states that the views of the AG who was providing Legal Advice to the Department at the time had not been sought at the point of creation, and that both documents are in draft format. I will note that there does appear to be a summary of advices received prior to the creation of the memo under subsection 3 in record 18, and I am satisfied that those advices remain privileged and as such am satisfied that the Department can redact that information. However, for the reasons outlined above, I do not consider that the Department can broadly argue that its own devised strategy whether informed by Legal Advice or not can be withheld on such an argument, rather it appears that the Department was considering the implication of a previous settlement in respect of its business going forward.
Accordingly, I do not consider that the records can benefit from exemption under section 31(1)(a).
Finally, I do not consider records 9, 10, and 11 to be exempt under section 31(1)(a). Documents 9, 10 and 11 are administrative in nature and are not clearly part of a continuum. Accordingly, I am satisfied that these records are not exempt under section 31(1)(a).
Section 37(1) and 37(2) – Personal information
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details 14 specific categories of information that is personal, without prejudice to the generality of the foregoing definition. If the information at issue is captured by one or more of the 14 categories, this is sufficient for it to comprise personal information for the purposes of the Act. It is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.
The Department cited section 37(1) as its basis for redacting certain information across a small number of documents (Business Area C - 3, 7, 12, 13).
Following engagement with the Department, it has indicated that the redactions to names of employees present and retired in Departments should not have been applied and that the documents would be provided to the applicant without those redactions. However, the Department has maintained its decision to redact the names of litigants, and any personal information, which would identify them across the records including: names, places of address, email details, and medical diagnosis.
I am of the view that such identifying information benefits from exemption under section 37(1). While the Department have not specified which part of the personal information definition applies to each redaction, I consider that personal information relating to either of appellants in the court cases referred to, would enjoy exemption from release under paragraphs (i) and (x) of the definition of personal information in section 2(1). These provisions provide that information relating to the medical history of the individual and information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary are personal information and thus might be exempt from release under s. 37.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates.
I see no basis for finding that the release of the relevant information would benefit the third parties to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. As set out above, it is also relevant to note here that the release of records under FOI is, in effect, regarded as release 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.
In determining where the balance of the public interest lies, I have considered section 11(3) which, as outlined above, provides that FOI bodies must have regard to the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs, and the need to strengthen the accountability and the quality of decision making of FOI bodies. However, I must also have regard to the findings 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 which the Court noted that, while there is an onus on the FOI body to justify the refusal of access to records, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal. While 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 applicant has made a number of detailed public interest arguments around the applicability of section 40, however, in relation to the redactions under section 37, the applicant has stated that it is open to the Department to contact either parties’ solicitors to seek third party input, the applicant maintains that certain details are in the public domain as part of the court record. He states that he is not seeking any more personal information than what was covered and reported on following the court cases and which is on the court file.
In the circumstances, I accept the Department’s submissions that the release of personal information in relation to the litigants would not be in their best interest as they are vulnerable individuals. I also consider that there is no specifically cogent or fact based reason to disclose their personal information to the world at large. I don’t consider that the personal information identified in the records would enhance significantly – if at all – the transparency around the State’s handling of matters related to the disability maintenance allowance. I consider that in circumstances where personal information in respect of the two litigants appears, it could easily be dealt with via redaction in the documents concerned. I do not consider that entire records should be withheld on this basis, as from my examination of the records they only contain references to the individuals concerned. From my review of the records, I am satisfied that the following documents: Business Area C – 9, 12 and 13 contain personal information of the two vulnerable parties mentioned, and I am satisfied that this can be dealt with by way of redaction. The other records concerned enjoy exemptions under other provisions and have not been reconsidered in light of section 37.
Section 42 provides that the FOI Act does not apply to the various categories of records described in the section. 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. The Department have claimed exemption under sections 42(f) and 42(j) in respect of records across a number of their business areas. These are considered separately below.
Section 42(f) provides that the FOI Act does not apply to records held or created by, in particular, the Attorney General or the Office of the Attorney General (AGO), other than a record relating to general administration. 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.
It should be noted that the Chief State Solicitor’s Office (CSSO) is a constituent office of the Attorney General. This Office, however, does not accept that section 42(f) applies to a record held by an FOI body simply because it is a copy of a record held by the AGO/CSSO. Where the record/records were created by The Department of Social Protection and copied or issued to the AG/CSSO, the fact that the AG or CSSO may also hold exact copies, does not mean that copies held by the Department are deemed to be exempt. This is based on High Court Case, DPP v OIC [2021] IEHC 752. The judgement in that case set out that a second FOI body cannot refuse to disclose a record in its lawful possession by reference to the statutory exclusion in favour of the DPP, or in this case, the applicable CSSO/AG. The judgement found that the two bodies do not hold the self-same records within the meaning of section 42(f). This is notwithstanding that the information contained within the records is identical.
The Department has argued the Attorney General’s involvement in the generation of the records is patent, in particular because the Attorney is the Government’s legal advisor. The Department has aimed to improve the schedule to identify where AGO and CSSO legal advisors were involved in communication. The Department has argued that certain correspondence in records includes the names of staff from the AGs Office and the CSSO.
On the basis of the judgement above, I do not consider section 42(f) to be applicable to any record which was not clearly created by either the AG’s office or the CSSO. In addition, there are a number of records which contain crossovers in terms of exemption under section 31(1)(a) and section 42(f). Any document, which I have already found to be exempt under section 31, will not be reconsidered, in light of section 42(f).
From my earlier examination of the records, I have determined this to be applicable to all records under Business Area B which are exempted from release under section 31(1)(a). Section 42(f), is also relied upon in respect of redactions which have been made to records 5, 9, 11, 12, and 13 under Business Area C.
From my review, some of the records which the Department has sought to exclude on the basis of section 42(f) were not, it seems to me, created by the AGO/CSSO. 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. On that basis, I consider that record 5 does not clearly contain any communication with a member of either office, it refers to advices from the AG’s office, but these have not been scheduled with the email. I also consider this to be applicable to records 11, 12, and 13 there is no clear member of either Office copied in on any of these records, nor does it appear the records were created by them. While record 9 is marked for the attention of the AGO, it was not created by the Office of the AGO nor does it contain any summation of advice given by the Office, but rather is attached for the information of another Department and the AGO. On that basis, I am not convinced that the Department has satisfactorily argued for its exemption on the basis that it is created or held by the AGO. Accordingly, I am satisfied that section 42(f) does not apply to the records in question.
Redactions have been applied to record 7 on the basis of section 42(j). This section provides that the FOI 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 Oireachtas or any committee of either or both of such Houses or any subcommittee of such a committee.
Proceedings include such proceedings in relation to questions put by members of either House of Oireachtas to members of the Government or Ministers of State (whether answered orally or in writing).
Record 7 under Business Area C comprises a briefing for Leader’s Questions for a specified date. The record notes that it is for the Taoiseach’s information. I am satisfied that this record was given by the Department to the Taoiseach for use by him for “the purposes of proceedings” in the Dáil i.e. Leaders’ Questions. Accordingly, I find that section 42(j) applies to the record, the effect of which is that the Act does not apply to the record.
Records 17 and 18 under Business Area C, and records 2, 6 and 7 under Business Area A have been withheld on the basis of sections 40(1)(a) and 40(2)(q).
Section 40(1)(a) provides that a request may be refused if the head of the body is of the opinion that access to the record could reasonably be expected to have a serious, adverse effect on the financial interests of the State.
Section 40(1) may be applied to any record, but particularly those of a sort described in section 40(2) of the FOI Act. The Department has identified section 40(2)(q) are relevant which is as follows:
“liabilities of the State or a public body ”.
However, the mere fact that a record falls within one or more of the categories described in section 40(2) does not mean that the record qualifies for exemption. One or more of the provisions of section 40(1) must also apply. It should also be noted that the exemption provided for by section 40(1) of the Act is subject to a public interest test. Section 40(3) of the Act provides that section 40(1) will not apply in circumstances where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.
For section 40(1)(a) to apply, the potential harm that might arise from disclosure must be identified and the expectation that the harm will occur must be reasonable. In examining the merits of a body’s view that the harm could reasonably be expected, this Office does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities but rather whether or not the decision maker’s expectation is reasonable. It is sufficient for the body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
Consideration should also be given to what disclosure of the record would actually reveal. For example, where the information contained in the record is already known or in the public domain, it may not be reasonable to expect that prejudice or harm would result from its disclosure. The time at which the FOI decision is being made may also be relevant. It is possible that the release of the record could not reasonably be expected to result in the harm envisaged due to the passage of time.
The Department has stated that the liabilities in question for the purposes of section 40(2)(q) are those arising from litigation related to the payment of the Disabled Persons Maintenance Allowance and Disability Allowance. The Department has stated that the applicant himself, used the language of liabilities in seeking the information.
The Department has argued that it is clear from the records that the settlement reached in the cases involved financial payments from the State. It contends that it is also clear that the Departments in question were assessing the legal advice and formulating strategy for settlement, with a view to protecting the financial interests of the state. The Department has referenced the decision of the Information Commissioner Mr K and the Health Service Executive Primary Care Reimbursement Service (180315). In this decision, the Senior Investigator accepted that the disclosure of records relating to the negotiations at issue could reasonably be expected to result in pharmaceutical companies refusing to enter into negotiations with the HSE in future, which could result in considerable losses to the exchequer.
It has submitted that the State is entitled to negotiate with litigants and to formulate strategy for dealing with litigation, based on legal advice, with a zone of privacy which does not involve the release of records revealing sensitive considerations in respect of such litigation. The Department contend that a serious adverse effect on the financial interests of the State is reasonably likely where the State must release records which reveal its detailed consideration of liabilities and/or potential liabilities.
In relation to the records under Business Area A, the Department argues that the specific calculations in question reveals the potential liability to the Exchequer and thus the taxpayer if litigation were to be pursued by those who had their DPMA stopped. It maintains that it is not in the public interest to release this information. Furthermore, it has argued that while there was some information in the public domain in 2023 with respect to potential State liability, that figure reflected the totality of potential exposure across more than one Government Department. It maintains that the specific compensation figure with respect to the Department is not in the public domain.
Having considered the relevance of this Office’s decision in respect of case (180315), I do not consider it to be directly comparable to the circumstances of this case, the Department has not identified circumstances here where they could be at risk of stakeholders refusing to negotiate should this information be released. I am also cognisant that the records in this case are nearly twenty years old and relate to the interests of vulnerable members of the public. I would also note that the Department has failed to outline exactly what the potential harm envisaged is in respect of the records being considered under this exemption. While the onus is on the public body to identify the harm envisaged, it would however, be reasonable to assume, given arguments in respect of other records, that the harm envisaged is that a number of other claims may result should the information in question be released.
It is also pertinent to note that there has been more recent coverage of this matter by the media in February 2023 following an RTÉ Investigates article covering the matter and that it was subsequently raised in the Dáil by the Taoiseach at the time. The RTÉ Investigates article specifically references a number of confidential documents including memos between Departments which both address advice from the Attorney General’s Office and the State’s forecasted liabilities. While the Department has unequivocally stated that the documentation within the public domain does not cross over with the records under consideration as part of this review, it is worth noting that it is clear from the article that information of a similar kind to that in records 17 and 18 appears to be in the public domain. Accordingly, it would follow that the information which the Department are trying to protect on the basis that access to the record could reasonably be expected to have a serious, adverse effect on the financial interests of the State is already in the public domain to an extent. Whether or not this article which was released in 2023 has resulted in further state liabilities, it is unlikely that the release of the same or similar information again would sufficiently increase this likelihood. I would also note that in order for section 40(1)(a) to apply the expectation of a serious, adverse effect on the financial liabilities of the state must be reasonable. In the circumstances, and based on the information provided to me over the Department’s handling of this matter since the first claimant came forward in 2006, it is difficult to conceive of how these records almost twenty years later could reasonably be expected to cause a significant adverse effect on the financial interests of the State.
In particular, the Department has failed to outline how the specific breakdown of the Departmental liabilities versus the total of the Governmental liabilities (which is in the public domain), could have a significant adverse effect on the financial liabilities of the State. Given the information before me, the time elapsed since the first High Court case and the fact that a large portion of information concerning the cessation of the DPMA payments is already public, I do not consider the risk of additional claims arising is sufficient to cause a serious, adverse effect on the financial interests of the State.
Accordingly, I am satisfied that section 40(1)(a) does not apply in the circumstances.
Having carried out a review under section 22(2) of the FOI Act, I am varying the Department of Social Protection’s decision.
I find that that the Department was justified in refusing access to the following records or information under sections 31(1)(a) and 42(j).
Business Area A - 1, 8 and 9
Business Area B – All records.
Business Area C – 3, 6, paragraph 1 in record 7, 8, paragraphs 1, 3 and 4 in record 12, paragraphs 1, 2 and 4 from record 13, 14, 15, 16 and paragraph 3 in record 18.
I am also directing the removal of any references to the names of litigants and information concerning social welfare entitlements by way of redaction from records in Business Area C – 9, 12 and 13 and across any other records where they may appear.
Finally, I find that the Department was not justified in refusing access to the remaining information in the following records, and am directing their release in full:
Business Area A – 2, 3, 4, 5, 6, and 7
Business Area C – 4, 5, 9, 10, 11, 12, 13, 17 and 18.
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Ger Deering
Information Commissioner