Case number: 040025
Dear Mr McCarthy
I refer to your application to my Office for a review of the decision taken by the Department of Agriculture and Food following your FOI request of 11 July 2003. I have now completed my review of the Department's decision which I have carried out in accordance with the provisions of the FOI Acts of 1997 and 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended. At the outset, I would also like to apologise for the long delay that has occurred in finalising this review.
In your original request you sought the release of "a copy of the Department's record of the indemnity correspondences per Emerald Meats / Department / GATT matter". The Department's original decision issued on 12 August 2003 and resulted in 24 relevant records being identified, of which access was granted to three.
On 26 August 2003 you sought an internal review of the original decision and this led to your original request being re-considered by a more senior official. You were informed of the outcome of the internal review on 22 September 2003 but this did not result in any further records being released.
My Office subsequently received a review application from you which I accepted on 28 January 2004. A submission in support of its decision was received from the Department and the case was then referred to an Investigator from my Office (Mr. Cathal Duffy).
Arising from his correspondence with the Department regarding the scope of this review, Mr. Duffy wrote to you on 22 April 2005 informing you of the Department's contention that he had taken an unduly broad view of the scope of your original request. In light of the circumstances which he outlined, Mr. Duffy sought your views on this matter. In your subsequent telephone conversation with Mr. Duffy, you agreed, in order that this issue would not become, itself, a source of further litigation, to allow this review to be confined to information found under the sub-heading "Indemnities" or, in the absence of such a sub-heading, where the content of a document specifically relates to the indemnities issue. In your subsequent confirmation letter of 3 May 2005 you stated that you were taking this approach in light of your right to make a fresh FOI request to the Department for the balance of the documentation that the Department had not deemed to be relevant to your original request. In these circumstances, it is not necessary for me to make any finding in relation to the scope of this review but, nevertheless, I wish to state that I do not share the Department's view that there was no need to seek to resolve any ambiguity with you in this regard.
I note that during the course of correspondence with this Office in relation to this review, the Department agreed to release to you the contents of the first paragraph (comprising one sentence) of the Secretary General's letter of February 2000 to the Secretariat of the Public Accounts Committee (PAC) (Vol. IV - Record No. 6).
On 25 May 2005 Mr. Duffy wrote to you outlining his views in relation to each of the records, deemed to be relevant by the Department, that had been withheld from release. Following a number of telephone conversations with Mr. Duffy regarding the applicability of the exemption claimed by the Department under section 22(1)(a) of the Act, you replied to his letter on 31 May 2005. Mr. Duffy responded to your letter on 1 July 2005 and you subsequently attended a meeting with Mr. Liam Kelly, Senior Investigator, and Mr. Duffy on 22 August 2005 during which you agreed that correspondence with the Chief State Solicitor's office, withheld by the Department on the basis of sections 46(1)(b) or 22(1)(a), can be omitted from the scope of this review. Mr. Duffy wrote to you again on 9 September 2005 informing you of his preliminary views in relation to the eleven outstanding records and you responded on 5 December 2005.
In light of the circumstances outlined above, the only issue that I am now required to address is the applicability or otherwise of the exemption claimed under section 22(1)(a) of the Act to the eleven records that are still within the scope of this review.
Section 22(1)(a): Legal Professional Privilege (LPP)
This exemption provides that:
"A head shall refuse to grant a request under section 7 if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege."
As advised in Mr. Duffy's letters of 25 May 2005 and 9 September 2005, in previous decisions I have found that the law in relation to LPP enables the client to maintain the confidentiality of two types of communication:
communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
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 essence, the purpose of LPP is to safeguard the integrity of confidential communications which are necessary in order to enable parties to a case to seek and receive legal advice and/or to enable a client to prepare their arguments, in confidence, in preparation for litigation that is anticipated or pending. LPP ensures that the content of such communications is not prematurely disclosed (if at all) to the other party or parties to proceedings which would prejudice the fairness of those proceedings. It does not apply to records which are created for the purpose of being disclosed to the other parties to the proceedings in question.
It is however important to note that whilst I am required by section 34(10) of the Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record. As such, I am unable to discuss in any detail the basis for my findings (below) in relation to the records at issue which fall within the scope of this review.
In considering whether the records would be exempt from production in a court on the ground of LPP, I have to bear in mind that the privilege resides with the client. Accordingly, the question that I have to consider (below) in respect of each record, or part of record, is whether the client, in this case the Department, would succeed in withholding it on the ground of LPP in court proceedings.
Vol. IV - Record No. 1
This record is comprised of the "Indemnities" paragraph which forms part of a two page internal memo dated 2 December 1999 drawn up by an official acting in an administrative capacity in order to inform senior management in the Department and the Minister of developments in relation to the "Emerald Meats Case".
The first issue that arises is whether the exemption can apply to an internal record that is not in fact a direct communication between the client and a third party. From your meeting with Mr. Kelly and Mr. Duffy, it is my understanding that you believe that internal "briefing material" memoranda cannot be privileged as the exemption only applies to actual direct correspondence and not, for example, to a summary of correspondence that may have taken place between a client and a legal adviser. In his letter of 1 July 2005, Mr. Duffy stated that in his view it would leave a client in an incongruous position if they could properly protect legal advice, as received, from disclosure but could not subsequently summarise that advice for the benefit of senior management in a confidential internal briefing note. I agree with Mr. Duffy's view in this regard and I also agree with the decision taken in case number 020538 (Mr. X. and the Department of Social and Family Affairs - see www.oic.gov.ie), a copy of which was given to you during your meeting with Mr. Kelly and Mr. Duffy. That decision found that LPP can attach to records that paraphrase or summarise legal advice sought or obtained, thereby meeting the first limb of the LPP rule, and may also attach to other records if the dominant purpose in creating them was contemplated or pending litigation, thereby meeting the second limb of the LPP rule.
The second issue that arises concerns the confidentiality of the information contained in this record. I have examined the content of this record very carefully and also the submissions received from both you and the Department. I note that in your letter of 31 May 2005 you provided a list of references to various exchanges at PAC and other meetings where information relating to the indemnities issue was revealed and is therefore now in the public domain. Having carefully examined the full text of the reports of all of the proceedings that you had referred to, I am satisfied that there is nothing to indicate that the specific information that the Department withheld under section 22(1)(a) has in fact lost the quality of confidence that is necessary for such an exemption to apply. However, I have also examined the contents of the three records that the Department has already released to you and, having done so, I find that LPP would not attach to the first two sentences in this record because it is clear that the information contained has in fact already been disclosed by the Department when it released records to you following its original decision of 12 August 2003. As such, the information in the first two sentences is already known to you and therefore does not have the necessary quality of confidence for an exemption under section 22(1)(a) to apply. Apart from the first two sentences, I find that LPP would attach to this record and that the exemption claimed is therefore justified in respect of the balance of this record.
As regards the arguments that you advanced, during your meeting with Mr. Kelly and Mr. Duffy, in support of your claim that LPP should not apply to the records that are the subject of this review, I am satisfied that the responses provided in Mr. Duffy's letter of 9 September 2005 fully reflect my position. In summary, I am satisfied that the absence of such records from the Affidavit of Discovery sworn by the Department in your pending High Court case is not something that I can take into account as this is a matter that is between you, the Department and ultimately the Court. In relation to your claim that the records relate to what you believe to be unlawful and criminal activity and that the FOI Act cannot be used to protect related correspondence from disclosure, I acknowledge that, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds. I am aware that it is a well established legal principle that privilege may not attach to communications in furtherance of a criminal offence. However, I am satisfied that only records created in preparation for, or furtherance of, such activity can be denied the protection afforded by the LPP exemption and this is clearly not the case in respect of any of the records that are the subject of this review. Finally, you also mentioned during your meeting that there is, in your view, a very strong public interest in the release of this and the other relevant records. However, as the LPP exemption contains no public interest balancing test, there are no public interest considerations that I can take into account.
Accordingly, I find that the first two sentences should be released whilst the balance of this record has been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. IV - Record No. 2
This record is comprised of the "Indemnities" paragraph which forms part of a two page Briefing Note prepared on 17 December 1999 in advance of the Secretary General's scheduled appearance before the PAC on 13 January 2000.
My finding in relation to this record is as outlined above in respect of Record No. 1. Accordingly, I am satisfied that the first two sentences should be released to you but the remainder of the record is exempt on the basis of the exemption claimed by the Department under section 22(1)(a) of the Act.
Vol. IV - Record No. 5
This record is comprised of the "Indemnities" paragraph which forms part of a single page "Note for Minister" dated 15 February 2000. Apart from claiming an exemption under section 22(1)(a), the Department also claimed that the provisions of section 46(1)(db) of the Act are applicable.
Section 46(1)(db) provides that the FOI Act, as amended in 2003, does not apply to a record given by a public body to a member of the Government, or a Minister of State, for use by him or her for the purposes of any proceedings in either House of the Oireachtas including proceedings in relation to questions put by members of each such House to members of the Government or Ministers of State, whether answered orally or in writing.
The Department's internal review decision states that this record is subject to section 46(1)(db) as it "consists of briefing material for the Minister for a Parliamentary Question .....". However, when Mr. Duffy sought details from the Department as to the particular Parliamentary Question (PQ) that this record relates to, it emerged that it was not in fact given to the Minister in relation to any specific PQ or particular proceedings in either House of the Oireachtas. The Department has clarified that this record was prepared as a contingency in order to enable the Minister to give up to date information about the Emerald Meats case in the Houses of the Oireachtas "should he be called upon to do so".
In these circumstances, I find that section 46(1)(db) of the Act cannot apply to this record as the effect of such an interpretation of this provision would be to exclude, from the scope of the FOI Act, briefing material merely given to a member of the Government or a Minister of State in the event that he or she may, at some time in the future, require such information for a PQ or for any proceedings in either House of the Oireachtas.
However, the exemption claimed by the Department under section 22(1)(a) is relevant. In this regard, I find, similar to my position in relation to Record No. 1, that the first two sentences should be released whilst the remainder of this record has been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. IV - Record No. 8
This record is comprised of the "Indemnities" paragraph which forms part of a two page Briefing Note prepared on 29 March 2000 in advance of the Secretary General's scheduled appearance before the PAC on 6 April 2000.
Similar to my findings outlined above in respect of Record No. 1, I am satisfied that the first two sentences should be released whilst the remainder of this record has been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. IV - Record No. 9
This record is comprised of the "Indemnities" paragraph which forms part of a two page internal memo dated 26 June 2000 drawn up in order to inform senior management in the Department of developments in relation to "Emerald Meats".
Similar to my findings outlined above in respect of Record No. 1, I am satisfied that the first two sentences should be released whilst the remainder of this record has been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. V - Record No. 2
This record is comprised of the "Indemnities" paragraph which forms part of a two page internal memo dated 5 October 2000 drawn up in order to inform senior management in the Department of developments in relation to "Emerald Meats".
Similar to my findings outlined above in respect of Record No. 1 (Vol. IV), I am satisfied that the first two sentences should be released whilst the remainder of this record has been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. V - Record No. 3
This record is comprised of the "Indemnities" paragraph which forms part of a two page Briefing Note prepared in February 2001 in advance of the Secretary General's scheduled appearance before the PAC.
Similar to my findings outlined above in respect of Record No. 1 (Vol. IV), I am satisfied that the first two sentences should be released whilst the remainder of this record has been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. V - Record No. 6
This record is comprised of the second paragraph of a single page "Note for File" drawn up on 11 April 2001 following a meeting between the Department and its legal advisers.
Similar to the position outlined above in respect of Record No. 1 (Vol. IV), it has come to my attention that certain information in this record has, in fact, previously been disclosed and has therefore lost the quality of confidence that is necessary for LPP to apply. The extract in question comprises part of the second sentence in the second paragraph of the document, that is, from the beginning of the sentence up to and including "..... 1999,". I find that this extract should be released whilst the balance of the sentence and the remainder of the record have been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Vol. V - Record No. 13
This record is comprised of the third paragraph of a single page Briefing Note for the Secretary General which was prepared in November 2001.
My findings in respect of Record No. 1 (Vol. IV) above apply equally to this record apart from the fact that I have not found anything in its content that has previously been disclosed. Accordingly, I find that the Department has maintained, in full, the confidentiality of the information contained in this record and is therefore justified in withholding it on the basis of section 22(1)(a) of the Act.
Vol. V - Record No. 14
This record is comprised of the "Indemnities" paragraph which forms part of a single page Briefing Note prepared in November 2001 for the Secretary General's scheduled appearance before the PAC.
My finding in relation to this record is as outlined above in respect of Record No. 13 (Vol. V). Accordingly, as I am satisfied that the Department has maintained, in full, the confidentiality of the content of this record, I find that the LPP exemption claimed is justified.
Vol. VI - Record No. 1
This record is comprised of the "Indemnities" paragraph which forms part of a single page Briefing Note prepared in November 2002 for the Secretary General's scheduled appearance before the PAC.
Similar to the position outlined above in respect of Record No. 1 (Vol. IV), it has come to my attention that certain information in this record has, in fact, previously been disclosed and has therefore lost the quality of confidence that is necessary for LPP to apply. The extract in question comprises part of the first sentence of this record, that is, from the beginning of the sentence up to and including "..... 1999,". I find that this extract should be released whilst the balance of the sentence and the remainder of the record have been properly withheld by the Department in accordance with section 22(1)(a) of the Act.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 as amended, I hereby vary the decision of the Department of Agriculture and Food. Apart from the first paragraph of record number 6 (Vol. IV) which the Department has agreed to release in any event, I direct that it also release to you the extracts identified above in record numbers 1, 2, 5, 8 and 9 (from Vol. IV), 2, 3 and 6 (from Vol. V) and 1 (from Vol. VI).
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this eight week time limit.
Emily O'Reilly
Office of the Information Commissioner