Cinneadh
Ms. Y and the Legal Aid Board
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147963-G5S7H4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147963-G5S7H4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Board was justified in refusing access to copies of records related to the applicant’s clearance by PAS for a new civil service position and sick leave records under sections 31(1)(a) and 15(1)(a) of the FOI Act
5 June 2025
In a request dated 30 November 2023, the applicant sought access to 8 categories of records held by the Legal Aid Board created since 1st September 2023, which related to the applicant’s clearance by PAS for a new civil service position. Specifically, she sought the following categories of records;
(a) The standard personal reference forms sent by PAS to the Legal Aid Board as completed by any/ all officers of the Legal Aid Board;
(b) all records concerning oral and written work references and opinions expressed re: suitability for employment (including from the point of view of health) provided to PAS or any third party by Legal Aid Board;
(c) all hand-written notes of telephone calls between PAS and the Legal Aid Board or the Legal Aid Board and any other party including but not limited to Office of Chief Medical Officer for the Civil Service;
(d) all audio recording/ video recording of calls between PAS and Legal Aid Board, to include calls made through social media platforms such as Zoom or Webex, WhatsApp etc;
(e) any text messages/ Whatsapp messages between PAS and Legal Aid Board, Legal Aid board and any third party concerning this recruitment process;
(f) any hand-written notes/records, any electronic records/memos to include SMS messages, WhatsApp messages;
(g) all minutes of meetings concerning this recruitment;
(h) all communications with third parties concerning this recruitment.
On 7th December 2023, the applicant sent a follow up email, further clarifying what she was seeking and extending the parameters of her request. She additionally sought all records touching on relevant cases raised by the HR of the Legal Aid Board and NSSO.
In relation to her sick leave record the applicant sought:
(i) All records touching on relevant cases raised by the HR within the Legal Aid Board with NSSO, all communications between staff of the Board and NSSO. In particular, she sought the instructions of the Board to NSSO staff concerning classification of the applicant’s sick leave and any subsequent reclassification of her sick leave, the dates times of those instructions, names of parties involved and their staff grade and role.
(j) All records pertaining to NSSO case [X]
(k) All instructions from the Board to the NSSO related to the above case regarding the classification and/or reclassification of absence reasons, to include all relevant meetings, notes and electronic communication on same.
(l) All communications and records between staff of the board and the Office of the Chief Medical Officer, and any other party touching on NSSO Case X.
In relation to her employment record, the applicant further sought:
(m) All information in her original request, expanded to also include further information such as;
(m1) Any draft employment reports and amendments thereto,
(m2) All cases raised by legal aid board with the office of NSSO, all communications between any staff of legal aid board and NSSO, in particular the instructions of the Board to NSSO staff, the dates and times of those instructions.
(m3) A request to indicate whether the cases were marked private
(m4) Any records interacting with the CMO
(m5) Names of all parties to whom the sick leave/employment report was distributed
(m6) When the employment report was distributed
(m7) Names and Roles of all parties involved in the compilation in relation to the Employment Report
(m8) Any documents, forms, records or reports submitted by the applicant’s line manager to HR or NSSO
(m9) Copies of any staff compliance checks before completing that report
(m10) List of copies of all documentation relied on by author of said report
(m11) Any amendments to the report and any records of meetings/notes, calls, texts, general correspondence relating to the compilation of the report
(m12) All information as to which parties within the Board had access to the applicant’s communications with NSSO or CMO or PAS since September 2023.
On 21 December 2023, the Board wrote to the applicant explaining that due to the nature of the request and the additional information sought on 7 December 2023, that the date for response was being extended by four weeks. A final decision issued to the applicant on 22 January 2024. The Board granted access to parts (a), (b), (j) and (l) of the first part of the applicants request, and further granted access to parts (m1), (m4), (m5), (m6), m(7), m(8) m(10) and m(11) of the applicant’s request. It refused access to parts (c), (d), (e), (g), (i), (k), (m2), (m3), (m9) and m(12) under section 15(1)(a) on the basis that no records exist. The decision maker also refused parts (f) and (h) of the applicant’s request on the basis of section 12(1)(b), stating that the applicant had failed to provide the Board with sufficient particulars to enable them to identify the records required. In particular, the Board stated that the applicant had not identified which third parties she was referring to.
On 1 February 2024, the applicant sought an internal review of the Board’s decision. The applicant again followed up by email on 19 February 2024, clarifying her position that not all records had been released to her. The applicant clarified which third parties she was referring to in relation to elements (f) and (h) of her request. In relation to part (m12) of the applicant’s request, she argued that the NSSO employee database would be accessible by HR within the Board. She also further requested an additional 6 categories of records, which she requested the Board provide to her. On 26 March 2024, following a request from this Office the Board issued an effective position to the applicant. Having identified the third parties relevant to part (h) of the request, the Board stated that if any records did exist, that they would be withheld under section 31(1)(a), but that it was under no legal obligation to confirm the existence of such records. The Board maintained its refusal of other records under section 15(1)(a) and provided an explanation as to why the requested records did not exist. On 4 April 2024, the applicant applied to this Office for a review of the Board’s request.
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 referred to above and to the submissions made by the relevant parties who made submissions. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the applicant was put on notice that the additional information requested on 19 February 2024, which included specifics such as metadata on who accessed certain records was deemed to be outside the scope of the review and would not be considered further. I am satisfied that for the purposes of the review the information sought in the original request and subsequent clarification of that request on 7 December 2023, is the only information which this Office will review.
In her original submission to this Office, the Applicant raised concerns in relation to certain parts of her original request specifically records certain records which were refused under section 15(1)(a), and the application of section 31(1)(a) by the Board.
I am satisfied that the issues raised within that original submissions are the only issues which the applicant has sought this Office to address. The applicant noted eight specific points which she considered relevant to her overall appeal. Some of the issues which the applicant raised are not relevant to the question of whether further records exist but rather concern the handling of the case by the Board, or have already been dealt with as part of earlier OIC decisions. These matters will not be reconsidered within this decision.
Accordingly, I will only consider the remaining points raised in the applicant’s original submission to this Office for the purposes of my consideration of sections 15(1)(a).
During the course of the review, the Board changed its position in relation to section 31(4) and confirmed the existence of six records under section (h) for consideration. The Board has maintained that while it has no issue confirming the existence of these records to the applicant, it still considers them to be exempt from release on the basis of section 31(1)(a). Accordingly, I will be considering the Board’s claims in relation to these 6 records under section 31(1)(a).
Accordingly, this review is concerned with whether the Board was justified under section 31(1)(a) in refusing access to the 6 records under (h), and whether it was justified under section 15(1)(a) in refusing access to further records across the other categories.
Before I address the substantive issue in this case, I wish to make a number of preliminary comments. Firstly, it is important to note that section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for that request shall be disregarded. This means that this Office 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 or release of the information where the Act requires a consideration of the public interest (not relevant in this case).
For the benefit of the applicant, I also wish to explain that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by FOI bodies, the mechanism for doing so is by accessing records held by these bodies. In other words, a person wishing to obtain information from an FOI body must make a request for records, requests for information are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
It is important to note that the FOI Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist. It is also worth noting that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision. I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act, which states that where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course of events. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, FOI bodies are not required to manually extract information to create a new record in order to provide the information requested, regardless of the applicant’s views on whether it may be practical or feasible to do so. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
In relation to her request for information regarding what member of the Board staff issued instructions to the Legal Aid Board to amend her record, the applicant has argued that there already exists a log of all those who log into cases that are opened in her name. The applicant has submitted that the provision of details relating to who accessed her NSSO record would not involve the creation of a new record. She has argued that it is not creating a record to indicate the dates, times and names of staff who accessed her records but rather that it is to ensure security, transparency and compliance with obligations under FOI and GDPR that the NSSO automatically record each time a record is accessed and by whom. The applicant has argued that she is entitled to know who accessed her record and when and for what reasons, the applicant argues that it is automatically recorded on the NSSO database.
The applicant also made arguments in relation to the breadth of searches conducted for part (f) of the request. She maintains that no information was provided as to how searches were conducted, she also argues that the searches have been limited and that searches should have been conducted. She has argued that Legal Aid Board employees are issued work mobiles and that where official work is carried out on privately owned devices eg texts in relation to employees, those records should also have been checked. In particular, she contends that the searches across SMS, voicemail, Zoom, Webex , Whatsapp or similar messaging on relevant electronic devices should have been conducted.
In relation to part (h) of the applicant’s request, she argued that other than communications with the Board’s Solicitors no other correspondence had been scheduled, she maintained that further correspondence with other third parties should exist. She has argued that the reviewer also indicates that the matter is not one that is relevant to board members but that in her view the board members are obliged to be notified of litigation matters affecting the organisation. She maintains that such notification accords with the regulatory compliance obligations of the Legal Aid Board not only as a state body but also as a registered charity.
The applicant also referenced a case referral form [X] which the applicant states was created by the Board on 23 October 2023. The applicant has stated that in the initial record received from the Board appears to have been deleted. The applicant maintains that the CMO did not receive the relevant case referral form with attached sick leave record.
The applicant has also argued that no records between 1 September and 26 October have been disclosed across the request. She has argued that her solicitors contacted the Board on 27th September 2023 about the new job offer requesting that Board not disclose her medical records. As such, she states that there has to exist some record at least between this date and 26 October 2023. She has pointed out that instructions from someone must have issued in order to begin the process of creating two CMO referral forms dated 26 October 2023. She maintains that there must exist communication not only from the Board to Solicitors but also from senior management to staff within the Board as to how to proceed. She maintains that neither category has been provided.
The Board provided lengthy submissions containing its reasons for concluding that no further records exist. The Board stated that its overall position, is that when relying on section 15(1)(a) of the Act, this is due to the fact that no further records exist, and that they never existed. The Board has stated that consideration needs to be given to the records identified and released to the requester, it stated that the FOI request related to the requestor’s clearance for a new civil service position via the Public Appointments Service. The records required were created and received via email and were therefore:
1. Emails to and from PAS with a Standard Employer Reference Form
2. Emails regarding referral to the CMO and a CMO referral form pertaining to discounting with related sick absence report from NSSO profile.
3. Emails to the line manager for input into the Standard Employer Reference form
4. Letters exchanged between the requestor’s solicitor and solicitors instructed by the Board (which were exchanged via email)
The Board has stated it was not the case that all records did not exist or even a majority did not exist, but rather that certain aspects of the request failed to grasp or understand the sequence of events that have led to the requestor incorrectly assuming records existed pertaining to her clearance for appointment to a new civil service position via the Public Appointment Service (PAS).
The Board clarified that all the relevant records were stored on the applicant’s personnel file, and in a dedicated email folder, it said that the records at issue here are specifically to do with the requestor’s clearance for a civil service position via the Public Appointments Service. It stated that it covered a short period to that end as outlined in the requestor’s FOI request. The Board also specified that the records were kept in a locked HR store room and that no records would’ve been destroyed as the file was active at the time. The Board is not claiming any records were destroyed in this case. It states that in any event, personnel records are retained indefinitely for superannuation purposes as staff of the Board are civil servants and members of the applicable civil service superannuation scheme.
It set out that the initial request was received on the 30 November 2023, and the records at issue therefore cover the period 1 September 2023 to 30 November 2023 notwithstanding records on the issue which went beyond the date range. The Board highlighted that, further to another FOI request by the requestor, a significant number of records were released to the requestor covering the period 1 September 2023 up to and beyond the 30 November 2023 (pertaining to two different subject matters – her employment with the Board and, the subject of the within review, her clearance for the new position). The Board clarified that records beyond 30 November 2023 pertained to the requestor’s clearance for a new civil service position and were already released to her in another FOI decision.
The Board explained that the instruction to begin the process of creating a CMO referral was released to the applicant as part of her FOI request and that these were records pursuant to the requestor’s own application to be considered under Circular 13/2023 Assessment for Promotion & Higher Duties Allowance and, in particular, the discounting of her sick leave.
The Board stated that the applicant had sought three CMO referral forms, two of which were released to her. It argued that the third referral form requested did not pertain to a Legal Aid Board employee. That is, the case referral number provided by the requestor for which she sought the specific records was confirmed by the NSSO as not relating to the Board employee and that this was communicated to the applicant. It said that other relevant records, between the applicant’s solicitors and the Boards solicitors have been scheduled and withheld on the basis of section 31(1)(a).
In relation to part (f) of the applicant’s request, the Board clarified that a full search was undertaken and all available records concerning the applicant’s clearance for an appointment with PAS and all records that were created owing to communications with third parties as a result of the applicant’s consideration under that recruitment process had been released.
In relation to part (h) of the request, the Board considers that the applicant’s request explicitly stated she was seeking records concerning her clearance for a new civil service position, and that as indicated to her by the reviewer the statutory Board of the Legal Aid Board do not interact with the Executive on operational matters such as the recruitment of staff members by the Public Appointment’s Service. In relation to her reference to litigation, the Board said this was not referenced in either her FOI request or review and as such was deemed to be outside scope. The Board clarified that no records exist between the NSSO and the Board, because the Board did not instruct the NSSO to amend the applicant’s sick leave records.
With regard to the information sought by the requestor around Whatsapp, Zoom calls and Webex, it clarified that these are not available on board devices, but that if the requester was using Zoom as a general term for video conferencing platforms that the Board uses a different system called Cisco upon which recording is not available. It stated that the records pertained to the HR function as it related to the recruitment process it clarified that HR colleagues do not use SMS messaging, but that all communication with third parties and around the applicant’s clearance was conducted via email. It clarified that no meetings took place with PAS or third parties as this would never be the case for any member of staff under consideration by PAS for a new position, but that it is a standard process where forms are completed and emailed to PAS, it stated that were line manager input was sought these records were released to the requester. The records around communicating to the CMO and PAS were further released to the requestor on foot of her FOI request.
The applicant was put on notice of the points raised by the Board and offered an opportunity to provide further submissions should she so wish. The applicant did not provide any further submissions.
The applicant in her original submissions provided to this Office outlined a number of different specific elements she was querying in relation to her overall request. As the applicant did not raise any further issues following receipt of a further request for submissions, I am satisfied that the applicant’s request remains confined to the issues raised within those original submissions.
I am satisfied that the main issues arising concerning searches for records are as follows:
1. That a log should exist and be accessible by the Board of all staff members who accessed the applicant’s NSSO profile and when and that this would be extractable from the NSSO database.
2. That inadequate information has been provided as to how searches were carried out for her records.
3. That communications with third parties other than just the Board Solicitors should exist in relation to part (h) of her request.
4. That there must be further records created between the 1st September and 26 October which exist but which have not been scheduled as part of the review.
In relation to point 1 of the applicant’s submissions which relate to parts (k), (m2) and m(12) of her request the applicant did not specify that she was seeking a log of staff who accessed her NSSO records in either her original or internal review requests, accordingly, I am satisfied that the question of whether such a record is extractable by the Board is not one which I need to consider for the purposes of this review. In any case, this Office has been advised by the Board on two previous occasions that it no longer has access to the applicant’s NSSO portal as she is no longer a staff member within the Board, but that such information may be held by the NSSO themselves. I do not consider that the Board contacting the NSSO to provide such information would be the type of reasonable step envisioned by section 17(4). I would also state that in relation to who issued instructions to the NSSO to change her sick leave record both the Board and the NSSO has stated, that it was on the applicant’s own instructions that the NSSO decided to change her sick leave categorisation. Accordingly, I am satisfied with the Boards explanation that no such instructions exist for the purposes of this review to be adequate on that basis.
In respect of the searches carried out by the Board, I would note that following receipt of the Board’s submissions the applicant was put on notice of the extent of the searches conducted by the Board and was offered a further opportunity to specify whether she believed that any further searches may have been warranted in the circumstances. The applicant did not make any further submissions on the matter. Notwithstanding this, I consider that where the Board claims no further records exist it has provided reasonable explanation as to the steps carried out by staff to search for records within the scope of the review, it has also clarified that in relation to parts (e) and (f) of the applicant’s request that staff members do not have access to Whatsapp, Zoom calls and Webex or use of them on Board devices for any purpose. In the circumstances, the applicant has not provided any information or evidence to suggest that these platforms may have been used. I am also satisfied that the Board has adequately explained why no further communication exist with PAS and am satisfied that it has provided an adequate explanation with respect to parts (c) and (e) of the request.
In relation to the scope of the applicant’s request under part (h), in her letter of the 19 February 2024, she specifically stated she was seeking in relation to her recruitment “all communications between legal aid board, staff or their agents to any third-party including X solicitors, or board members of the legal aid board.” Following receipt of the Board’s submissions on the records, the applicant has provided no further arguments to support her contention that further external communication should exist with third parties outside the Board’s solicitors. I am also satisfied that the Board has explained its position in relation to additional communications between the dates specified, including that such information was previously released to the applicant and notwithstanding that explanation, I am satisfied that in the absence of further evidence the searches carried out by the Board are sufficient in the circumstances.
In relation to her contention that that the Executive Board would have to be notified of any matters concerning litigation, I accept the Board’s point that in relation to this element of her request she explicitly stated she was seeking records concerning her clearance for a new civil service position, and did not reference communications to the Board concerning litigation in her original request. I am also satisfied with the explanation that the statutory Board of the Legal Aid Board do not interact with the Executive on operational matters such as the recruitment of staff members by the Public Appointment’s Service.
In relation to the points raised by the Applicant relating to the CMO case referral form she has stated the document was provided to her at review stage by the internal reviewer. The other arguments raised by the applicant do not relate to missing records or information but rather seem to reflect her dissatisfaction with the manner in which information was provided to the CMO. This is not something which is relevant to the consideration of whether further information exists/is missing. Accordingly, I am satisfied that this Office has nothing further to adjudicate on with respect to the CMO referral.
For the benefit of the applicant, I would note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
Having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that the Board has provided adequate reasons for its conclusion that the further records sought by the applicant do not exist. In the circumstances, I find that the Board was justified in refusing access, under section 15(1)(a) of the FOI Act, to any additional records on the basis that no further records exist.
Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest.
LPP enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and their professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner takes the view that privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
In the applicant’s original submission to this Office, she made a number of points related to the Boards use of section 31(1)(a) in its decision.
The applicant has stated that she is party to other proceedings in which the respondent is the Board and that it is the State Claims Agency who is dealing with the matter on behalf of the respondent, which in this case, would be the Legal Aid Board and that the dealings have been contracted to a private firm. She has stated that should the Board assert such documents were created for the dominant purposes of litigation then insofar as there exists direct communication between the Board and their Legal Advisers or documents, that do contain material which would disclose the substance of such communications, these must be disclosed where the record has more than one purpose i.e (the equal purpose rule). She maintains that the onus is on the Board to show, on the balance of probabilities, that the dominant purpose of the creation of the record was pending or contemplated litigation.
Despite the Board originally seeking to withhold the relevant records under section 31(4) the Board confirmed to this Office that it would be happy to disclose the existence of these records but not the contents of same to the requestor. The Board has argued that records 2, 3, 5 and 6 contain Legal Advice in that these communications that are either for the purpose of seeking legal advice, or in fact contain legal advice or are a continuum of communications between the Board and its solicitors in respect of specific legal advice provided to the Board. Records 1 and 4 constitute correspondence from the applicant’s solicitors and the Board notes that while the applicant may have these letters in her possession already, it considers that they are exempt from release as they relate to potential High Court proceedings and as such benefit from Litigation Privilege.
The Board contends that it is evident from the communications that the Board sought legal advice and that the communications following are part of the continuum of that advice. While I am constrained by section 25(3) from going into the detail of some of the Board’s arguments around why the information in the letters could be considered Legal Advice I can confirm I have had regard to their arguments. The Board states that as the requestor and her solicitors made repeated demands of the Board to carry out certain actions, and threats of resultant litigation if they failed to do so, the Board required receipt of ongoing legal advice. The Board also states that the requester proceeded to issue litigation in April 2024 which remains ongoing.
The Board maintains that the threat of litigation made by the Applicant’s solicitors remains unresolved and that the dominant purpose for the creation of each of the relevant records was for said litigation and that this continues to apply.
The applicant was contacted and offered an opportunity to make further submissions on the matter, but did not provide any for this Office to review.
Having considered the nature and the contents of the records, I am satisfied that section 31(1)(a) applies to some records. In my view, records 2 and 5 contain requests for and summations of Legal Advice between the Board and its advisors. While I am satisfied that this request for advice flows directly from the contents of record 1, the record itself is correspondence from the applicant’s own solicitor relating to the High Court Proceedings which were underway at the time, I am satisfied that this is a document which would normally be in the possession of the applicant and specifically that it is not as a result of the original request for advice, nor does it follow a request for advice. Records 3, 4 and 6 are also records of correspondence between the solicitor for the Board and solicitor for the applicant. Although these documents are arguably attachments within a continuum, these documents were not brought into existence for the purposes of seeking or giving legal advice, I am also satisfied that the records would have ordinarily been in the possession of the Board and would not disclose anything which the applicant would not already be aware of. In my view, these are clearly not part of a continuum of legal advice correspondence between a client and legal advisor, nor would I consider the contents to be particularly confidential. I am satisfied that Legal Advice Privilege cannot apply in the circumstances.
The Board has also stated that the correspondence between the Board and the applicant’s solicitors are subject to litigation privilege as there were ongoing proceedings at the time. 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.
In Silver 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 remaining records comprise of communications between the Board and with the applicant’s solicitors. Accordingly, I am satisfied that these records are most likely already in the possession of the applicant and even if they are not, they comprise records of communications between the applicant and the opposing party to contemplated or pending litigation, in this case the Board, and as such legal professional privilege cannot attach to them. I do not accept that such communications can be considered confidential for the purposes of section 31(1)(a).
Accordingly, I am satisfied that these records are not exempt under section 31(1)(a) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Board’s decision. I find that the Board was justified in refusing access to any further records within the scope of the applicant’s request under section 15(1)(a) on the basis that no further records exist. I also find that the Board was justified in refusing access to records 2 and 5 on the basis that they are exempt under section 31(1)(a). I annul the Board’s decision in respect of records 1, 3, 4 and 6 on the basis that they are not covered by section 31(1)(a) and direct their release to the applicant.
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.
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Rachael Lord
Investigator