Case number: 98058
Records relating to the drafting of the Solicitors Amendment Bill, 1998 - whether information given in confidence - section 26(1)(a) - whether disclosure would constitute a breach of a duty of confidence - section 26(1)(b) - whether legal professional privilege applies to legal advice and other records submitted to the Department in confidence by a third party - section 22(1)(a) - records created by the Office of the Attorney General - section 46(1)(b) - records submitted to the Government - section 19(1)(a) - records of the Government - section 19(1)(b) - whether granting access to a record relating to the deliberative process would be contrary to the public interest - section 20(1)(a) - whether access to copies of published articles may be refused under section 46(2) - whether access to a pre-commencement record necessary or expedient to understand other records - section 6(5)(a)
The requester sought records relating to the drafting of the Solicitors Amendment Bill, 1998. The records at issue consisted of correspondence between the Department and the Law Society, records created by the Office of the Attorney General, a memorandum to the Government and earlier drafts, the Government decision about the Bill and copies of two published articles.
The Commissioner found one of the records containing correspondence with the Law Society to which the Department refused access under section 26(1)(a) did not contain confidential information and could not be said to have been given in confidence and that the Department was not entitled to refuse access under section 26(1)(a). He found that some of the other records met the requirements of section 26(1)(a) but that the public interest would be better served by granting access to them. He accepted that a record containing legal advice obtained by the Law Society and forwarded to the Department in confidence and parts of other records which referred to the legal advice were exempt from release under section 22(1)(a). He did not accept that the Law Society would succeed in withholding the remainder of its correspondence with the Department on the grounds of legal professional privilege and decided that these records were not exempt under section 22(1)(a).
The Commissioner decided that the Department was entitled to refuse access to records created by the Attorney General which did not concern the general administration of the Office of the Attorney General. He decided that the Department was not entitled to refuse access to the factual elements of a memorandum to the Government. He decided that a record of the Government decision to approve the text of the Bill and introduce it in the Seanad was a record of the Government and that the publication of the Bill and introduction of the Bill in the Seanad, together with the issuing of a press release had the effect of publishing the decision to the general public. Since the contents of the record were purely factual, he decided that the Department was not entitled to refuse access under section 19(1)(b). The Department did not show to the Commissioner's satisfaction that the decision to refuse access to one record under section 20(1) was justified and the Commissioner found that it was not entitled to refuse access to this record.
The Commissioner decided that copies of published articles retained by the Department had a separate identity to copies available elsewhere and did not accept that the Department had carried out its duty to give reasonable assistance to the requester since it did not inform him of the specifics of the records which would allow him seek them elsewhere. Mindful of the question of whether the giving of access to copies of the records might involve an infringement of copyright (section 12(2)(b)(ii)), the Commissioner decided to grant access in a form or manner to be agreed or decided in accordance with section 12(3)(b).
The Commissioner also decided that access to part of a pre-commencement record was necessary or expedient to understand one of the extra records released and granted access to that part of the record.
On 4 June 1998, Mr Phelim McAleer of the Sunday Times newspaper made a request under the Freedom of Information Act, 1997 (the FOI Act) for records relating to the drafting of the Solicitors Amendment Bill, 1998. The background to this request is that in early 1998 the Department of Justice, Equality and Law Reform began work on the preparation of a Bill designed to amend the law relating to advertising by solicitors. During this process it entered into correspondence with the Law Society in the course of which the Society gave its detailed comments in relation to the drafting of the Bill. This process eventually culminated in the publication of a Bill on 2 June 1998. On 22 June 1998 the Department decided to release some records and to refuse access to certain other records. The records are all contained on file reference LR 21.1.1 and can be divided into nine groups as follows:
It follows that this review is concerned solely with the records in Groups 1 to 8 inclusive .
Mr McAleer sought an internal review of this decision on 30 June 1998. The internal review affirmed the initial decision on 17 July 1998 and Mr McAleer sought a review by this Office in a letter dated 4 August 1998.
In reviewing this case, I have examined the files submitted by the Department and considered its submissions to me. Some of the records related to consultations with the Law Society and, in accordance with section 34(6) of the FOI Act, I notified it of my proposal to review the Department's decision. In addition to receiving submissions from the Law Society, my officials also met with officers of the Law Society. Mr McAleer indicated that he did not wish to make any submission. I have summarised the submissions made to me below.
The Law Society stated that it regularly has occasion to make submissions to Ministers and to the Government regarding the necessity for legislative and other changes touching on the solicitors' profession and other matters. It did not claim that all these representations are made in confidence. At a meeting with my officials the Law Society explained that the degree of confidentiality, if any, that attached to its communications with the Department depended on the context. If the subject matter of the correspondence was something that might affect the Society in a very general way then it would know in advance that the communication was not a confidential one. On the other hand, it might relate to something such as the Disciplinary Committee and in this case a different view might be taken. There was a spectrum of involvement on the Law Society's part with Government Departments. At one end of the spectrum was a situation in which the Society voluntarily made submissions to the Departments, for example, about a Finance Bill. The communication in the case under review was at the other end of the spectrum involving, as it did, a situation in which the Department had come to the Society requesting its views and where the changes proposed had a specific effect on members of the profession and could prove controversial.
The Law Society accepted that it did not have a specific agreement with the Department that its views were being communicated in confidence. However, it argued that the very open nature of the correspondence with the Department was indicative of the fact that its views were communicated in confidence.
It stated that if it cannot express its views forthrightly, such dealings would become more circumspect. It further stated that future submissions on pending legislation would be inhibited if this information is released. Such a change would not be in the public interest according to the Law Society since it is desirable that the Minister should continue to be able to receive the views of the Law Society on these matters. The submission specifically referred to legal advice furnished by Senior Counsel and submitted by the Society to the Minister. The Society stated that this advice appeared to have assisted the Minister in his decision to proceed with the legislation. Again, the Society stated that it would not submit such advice if it was to be made available to the public. The Society argued "that the documentation which is the subject matter of the request clearly comes within the scope of section 26(1)(a) since it would be likely to prejudice 'the giving to the body of further similar information from the same person' and 'it is of importance to the body that further such similar information as aforesaid should continue to be given to the body'." It also submitted that "the disclosure of the counsel's opinion would clearly infringe section 26(1)(b), since the Minister was under a duty of confidence to maintain the confidentiality of advice given to the Society, the disclosure of which was clearly protected by legal professional privilege."
At the meeting between my officials and the Law Society, the Society argued that the legal advice submitted by it was covered by legal professional privilege. It also stated that there is a public interest in the development of legislation and that its advice enabled changes to be made to the draft legislation which improved it. It argued that all correspondence between the Society and the Department came within the scope of legal professional privilege. It further argued that the transmission of legal advice to the Department in confidential circumstances did not amount to a waiver of privilege. It subsequently informed me that the Council of the Society was of the view that the records should not be released. The Department
The records in respect of which disclosure was refused by virtue of section 19 (1) consist of Memoranda (and draft Memoranda) for Government, drafts of the Bill, draft press notices and texts of Government decisions. I put it to the Department that the records the release of which was being sought refer to the preliminary stages of the introduction of the Bill which had, at that point, been published. I noted that the Department had issued a press release about it. In the circumstances, I invited the Department to show me why section 19(3) which permits the disclosure of records if and insofar as they contain factual information relating to a decision of the Government which has been published to the general public, did not apply.
In reply, the Department argued that the Government decisions had not been published to the general public although it conceded that the press release, which was approved by Government, did indicate the nature of the decision made. It also claimed that the documentation revealed the deliberative process of Government and contained information that is not in the public domain at present. It argued that proposals, opinions and advice are not "factual" information in the context of the Act.
It also pointed out that the records included drafts of the Bill which had been prepared by the Attorney General's Office. It argued that these records were excluded from the scope of the FOI Act by virtue of section 46 (1) (b) of the Act.
The Department also claimed that the legal opinion furnished by the Law Society was exempt by virtue of section 19(1)(c). I put it to the Department that this document did not appear to be information for the Minister for Justice, Equality and Law Reform for use solely for the purpose of the transaction of business of the Government at a meeting of the Government since it was transmitted to the Office of the Attorney General and the Parliamentary Draftsman. In reply, the Department stated that the document in question was transmitted to the Attorney General in his capacity as legal adviser to the Government of which the Minister is a member. It said that the document was not circulated to other Ministers either prior to or at the meeting in question.
The Department stated that the record which it claims is exempt under section 20 is a letter from the Department to the Law Society which shows the operative thinking processes of the Department. It stated that this information would allow the requester to become aware of details of proposed amendments to the Bill by the Government in advance of members of Dáil Éireann.
The Department claimed, without elaborating on the point, that the legal advice furnished by the Law Society was exempt by virtue of section 22(1)(a) on the grounds that it would be exempt from production in proceedings in a court on the grounds of legal professional privilege. Section 26
The Department argued that the information given to it by the Law Society was given in confidence and on the understanding that it would be treated as confidential. In support of this view it said that "the Department has no basis for believing other than it was given in confidence to the Department with a view to it being taken into account in the context of the formulation of Government policy." The Department argued that the Law Society would not have engaged in the detailed level of correspondence which actually took place if it knew the information would be made public. In further support of its view that the information was given in confidence, it pointed to the fact that the fax cover sheets received from the Law Society, not all of which were retained on file, specifically state that the information is confidential.
The Department described the statutory functions of the Law Society in the following terms "While the Law Society of Ireland is the representative body for the solicitors' profession, it exercises, in addition, important statutory functions under the Solicitors Acts, 1954 to 1994 in relation, inter alia, to discipline and regulation of the profession. For example it is empowered by virtue of section 77 of the Solicitors Act, 1954 to prosecute offences under the Solicitors Acts (including offences committed by non solicitors) - see for example sections 55 and 56 of the Solicitors Act, 1954 and section 11(5) of the Solicitors (Amendment) Act, 1994. In that context the Society exercises functions which are similar to those of the Director of Public Prosecutions. It has the power to make statutory instruments in relation to a variety of matters and to act as effective prosecutor before the Disciplinary Tribunal appointed by the President of the High Court in respect of alleged misconduct by a solicitor. Its functions therefore extend beyond those of a normal representative body."
The Department pointed to the fact that the Bill gives certain additional powers and functions to the Society. In these circumstances, the Department argued that it was extremely important that a full and frank exposition of the Society's views be canvassed. The Department argued that the information supplied by the Society could be used by any person intent on circumventing or challenging the Society either as regards the existing law or as regards the Bill when enacted. The Department expressed the view that in these circumstances the Society would be unlikely to give further similar information if its correspondence were to be disclosed in this particular case.
With regard to the records not released under section 46(2), I asked the Department to consider whether it might be contrary to the spirit of the Act to refuse to release the records without giving the requester details of their contents and whether it was correct in seeking to apply this section of the Act. It did not address my query regarding the spirit of the Act in its reply and argued that section 46(2) is intended to apply to these records. It pointed out that it keeps library copies of newspapers and stated that any person who wanted to see every newspaper article relating to the Department could therefore make an application under the FOI Act if this subsection was not applied.
This group of records contains correspondence with the Law Society about the Bill. Record numbers 1, 2 and 13 are letters from the Law Society containing detailed drafting points in relation to the Bill. Record number 6 contains legal advice furnished by Senior Counsel and submitted by the Society to the Minister. Record number 43 is a letter from the Law Society following the publication of the Bill. The Department has refused to grant access to these records on the grounds that section 26(1)(a) applies.
Section 26(1)(a) requires that a head refuse a request where the record concerned contains information
The first question which arises here is whether the information given by the Law Society to the Department was given in confidence and on the understanding that it would be treated as confidential. As evidence of the confidentiality of the communications, the Department pointed to the statement contained on the faxes sent by the Law Society which reads "The message in this fax is confidential and intended only for the person to whom it is addressed. If you have received this message in error, please destroy it and notify the sender immediately". I should say at the outset that confidentiality notes of this kind, by virtue of their invariable use no matter what the content of the main body of the fax, have become diluted to such an extent that it would, in my opinion, require a specific note in the main body of the fax to convey to a recipient that the sender regards the contents as confidential. Accordingly, I do not accept that the existence of the confidentiality note of itself is evidence that the information contained in the particular faxes is confidential and that it was understood that the information was given to the Department on the basis that it would be treated as confidential.
It seems to me that where an understanding of confidence is asserted by both parties, then in the absence of any independent evidence, it is appropriate to examine the contents of the records with a view to establishing whether the nature of the contents is consistent with the existence of an understanding of confidence. Four of the records in this case (numbers 1,2,6 and 13) contain the detailed views of the Law Society on the drafting of the legislation and on some of the policy issues underlying the legislation. It is not apparent to me that the whole of the contents of these records is particularly sensitive. Nevertheless, it is clear that the information contained in the records is not trite, has not been put into the public domain and appears to have had a restricted circulation within the Law Society. In the circumstances, I am satisfied that the contents of record numbers 1, 2, 6 and 13 have the necessary quality of confidence to come within the terms of section 26(1)(a) and I am satisfied to accept the evidence of the Society and of the Department that the information in these records was given in confidence and on the understanding that it would be treated as confidential.
Having accepted that the first two requirements of section 26(1)(a) are met in relation to record numbers 1, 2, 6 and 13, I will now consider whether the third and fourth requirements are also met. The Law Society says that it regularly has occasion to make submissions to Ministers and to Government regarding legal issues and that on some occasions at least these representations are made in confidence and in the expectation that confidentiality will be preserved. It states that "without the assurance of such confidentiality, any further dealings at this level would have to be more circumspect and guarded."
As will be apparent from its submissions which I have summarised above, the Society has stopped well short of saying that it will not make submissions to the Department in the future if the records which are at issue in the present case are released. I would be sceptical of any claim that the Society, in the course of discharging its role as the representative body for solicitors in Ireland, would decide to cease making representations on behalf of the profession merely on the basis that these representations could be released under the Freedom of Information Act. However, as the Department has pointed out, the Society's role is not confined to one of representing the solicitors' profession. It also exercises important statutory functions. From time to time it furnishes views and observations to the Department in connection with this role. It appears to me that it cannot be compelled to furnish such views and observations and certainly not in the level of detail contained in the correspondence which is the subject of the present request. In the circumstances, I accept the evidence of the Society and I find that disclosure in this case would be likely to prejudice the giving to the Department of further similar information from the Law Society in the future.
I also accept that it is of importance to the Department that further similar information to that contained in record numbers 1, 2, 6 and 13 should continue to be given to it.
Therefore, I accept that record numbers 1, 2, 6 and 13 are covered by section 26(1)(a). However, there is a further matter which must be considered before access to the records can be refused viz the provisions of section 26(3). This section provides that
"Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."
It seems to me that the main factor in favour of the release of this information is that release would increase the openness and transparency of the process of government and would allow increased scrutiny of the legislative process. As a general principle, I consider that it is in the public interest that views and representations which influence the legislative process should be open to public scrutiny especially where that process relates to an important and influential profession on whose behalf its representative body is providing the views or making the representations. Before the enactment of the Freedom of Information Act, significant weight might not have been attached to this aspect of the public interest. Indeed, it might have been assumed generally that the public interest was better served by conducting deliberations which preceded legislation on a confidential basis. However, the very enactment of the Freedom of Information Act suggests that significant weight should be attached to the public interest in an open and transparent process of government.
Set against the public interest in having an open and transparent process of government, is the public interest in the preservation of confidences. The very terms of section 26 recognise that there is a public interest in the proper preservation of confidences. Moreover, a second aspect of the public interest can be identified from the terms of the section, namely the public interest in ensuring the future availability to public bodies of information which is of importance to them.
In relation to the first aspect of the public interest mentioned above, I do not accept that, as a matter of course, parties who are consulted in the course of the legislative process and whose views are taken into account so as to influence the legislation, are entitled to have their views treated as totally confidential. There may be exceptional situations in which it is in the public interest to obtain the views of certain parties during the course of the legislative process in confidence. However, I do not accept that this is such a situation.
In balancing the public interest in ensuring the continued availability to public bodies of information which is of importance to them against the public interest in having an open and transparent process of government, I have to take account of the degree to which release in this case would impact on the future availability to public bodies of information which they consider is of importance to the deliberative/legislative process.
The Law Society is an organisation which has a particular interest in this Bill and will be a party to its implementation. It is also in a unique position to provide advice to the Department on the drafting of the Bill. I accept that, in its own words, "without the assurance of such confidentiality, any further dealings at this level would have to be more circumspect and guarded". However, I consider that a statutory body, with duties to both its members and the general public, is not likely to refuse to offer advice on an area of the law with which it is so concerned, merely because this advice may subsequently be made public. To do so could be to act against its own and its members' interests. In decision reference number 98127 - Eithne Fitzgerald and the Department of the Taoiseach (OIC Decisions Vol. 2 pp. 185 - 202) , in respect of an exemption claimed under section 20 of the FOI Act, I stated that
"The FOI Act has introduced a new regime in respect of records held by public bodies and, while I accept that open and frank discussion is often required in order to evaluate and assess policy options, I do not accept as a general proposition that the Act would have the effect of preventing public servants from properly carrying out their functions."
I would also consider that statutory bodies would not be prevented from giving advice on legislation which they implement as a result of the new regime introduced under the FOI Act. The fact that that advice may in the future be more "circumspect and guarded" may be regrettable, but it does not seem to me that such an outcome is so detrimental to the public interest as to outweigh the public interest in an open and transparent process of government.
The Department has also argued that this information, if released, could be used by any person intent on circumventing or challenging the Law Society regarding existing law or regarding the Bill when enacted. It does not seem to me that the possibility that this information, if released, could be used for these purposes is against the public interest.
Having considered all of the public interest factors mentioned above, I find that on balance the public interest would be better served by granting than by refusing to grant access to records number 1, 2, 6 and 13. I find that these records are not exempt by virtue of the provisions of section 26(1)(a) of the Act.
Record number 43 contains information which cannot be described as confidential or said to have been given in confidence. In the main, this record simply confirms the Law Society's support for the draft legislation and the steps it had taken to make the media aware of this. I do not accept that this information was given in confidence. I find that the provisions of section 26(1)(a) do not apply to this record.
The Law Society also argued that record number 6 was exempt by virtue of section 26(1)(b). That section provides that a public body shall refuse to grant a request if
"disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment........or otherwise by law".
No case has been made to me that there is any agreement or enactment which imposes a duty of confidence in the present case. In Case Number 98049 - Henry Ford & Others and the Office of Public Works (OIC Decisions Vol. 2, pp. 144 - 170), I pointed out that section 26(1)(b) also protects against a disclosure which would constitute a breach of a duty of confidence owed in equity. In deciding whether there has been an equitable breach of confidence, I adopted the tests set out in the English case of Coco v A. N. Clark and which were adopted in the leading Irish case of House of Spring Gardens Limited v Point Blank Ltd viz.
'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'
I think that it is important to record that in the same case Costello, J. characterised the obligation of confidence which is based on equity as a duty to act in good faith and as a moral obligation. It does not seem to me that information consisting of a person's views on legislative proposals can become the subject of a moral obligation on the part of a Government department not to disclose those views to the public at large, particularly where those views have been considered and acted upon. I find it impossible to accept that, in this particular case, the release of the record by the Department would amount to "unconscionable behaviour" on its part. I could envisage a situation in which private individuals, corporations or interest groups might, in the course of making their views known to a public body, disclose such details of their own private affairs as might impose an obligation of confidence in relation to those details. However, the matters at issue in the correspondence with the Law Society do not concern its private affairs but matters of public policy.
Even if I were to accept for the moment that an obligation of confidence has been created in this case, I would also have to consider the question of the public interest. The public interest test in section 26(3) does not apply to section 26(1)(b). However, it is well established that the action for breach of confidence is itself subject to a public interest defence and I can see no reason why the existence of such a defence should not be considered when applying the provisions of section 26(1)(b). This defence was considered in the case of National Irish Bank Limited v Radio Telefis Eireann  2 I.R. 475. In the Supreme Court, Keane J made reference to the dictum of Goff L.J. in AG v Guardian Newspapers (No. 2) in which he said
"although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure........... it is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure."
I recognise that the parameters of the public interest defence to an action for breach of confidence continue to be in a state of development in various jurisdictions. It is clear that the defence will apply in the disclosure of crime or fraud, misdeeds, matters which are dangerous, medically or otherwise, to an individual or to the community at large and in other limited cases depending on circumstances.
From my perspective as Information Commissioner, there is a clear public interest in disclosing information to the greatest extent possible unless outweighed by some other countervailing public interest which favours withholding. It seems to me that considerations of the kind which have already led me to conclude, in dealing with the application of the exemption in section 26(1)(a), that the public interest was better served by release in this case, are also relevant in considering the public interest defence in the context of section 26(1)(b). In the circumstances, I find that even if the Department did owe a duty of confidence to the Law Society in relation to the contents of record number 6, and I am by no means convinced that it does, the public interest in disclosure would outweigh the public interest in preserving that confidence. In my view, the Department is not bound in equity to treat these matters as confidential. I find that section 26(1)(b) does not exempt this record.
My finding that section 26(1)(a) does not exempt record numbers 1, 2, 6, 13 and 43 and that section 26(1)(b) does not exempt record number 6 does not conclude the matter because the Department claims that record number 6 is exempt by virtue of section 22(1)(a) of the Act and section 19(1)(c) and the Law Society claims that four of the records (1, 2, 6 and 13) are exempt by virtue of section 22(1)(a). I deal with these claims below.
Section 19(1)(c)As indicated above, the Department also refused access to record number 6 under section 19(1)(c) because it said the record contains information for the Minister for use by him solely for the purpose of the transaction of business of the Government at a meeting of the Government.
Section 19(1)(c) allows a public body to refuse a request if the record
"contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government."
This record was prepared for the Law Society and contains legal advice the Society received on the Bill. It was submitted to the Assistant Secretary in charge of the relevant division in the Department. It clearly was not prepared for use by the Minister solely for the transaction of business of the Government at a meeting of the Government but rather to influence the Department in its preparation of the legislation. In the circumstances, I find that section 19(1)(c) does not apply to this record.
The Department also claimed that section 22 (1)(a) applies to record number 6. The Law Society has also argued that legal professional privilege would attach not alone to this document but to some of its other correspondence with the Department i.e. to records number 1, 2, and 13.
Section 22(1)(a) provides that
"A head shall refuse to grant a request under section 7 if the record concerned� (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"
In considering whether the records in question would be exempt from production in a court on the ground of legal professional privilege, I have to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the client, in this case, the Law Society, would succeed in withholding the document on the ground of legal professional privilege in court proceedings.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
It is clear that record number 6 contains legal advice furnished by Senior Counsel to the Law Society. I am satisfied that at the time of its creation this document would have been exempt from production in proceedings in a court on the ground of legal professional privilege. I am aware that legal professional privilege may be waived and I have considered whether the Law Society waived its privilege by sending this record to the Department. It appears that the legal advice was sought with a view to giving it to the Department and for use by the Department, at its discretion, in relation to the proposed legislation. The question arises whether privilege extends to records in the possession of a public body where the body is not the client. The question of waiver of privilege and imputed waiver of privilege was dealt with in considerable detail by the Queensland Information Commissioner in decision number 98005 (Queensland Law Society Inc and Sir Lenox Hewitt). The Commissioner commented that
"the [Australian] courts will allow an exception for a limited intentional disclosure of privileged material, if the disclosure is compatible with the retention of confidentiality. Thus, disclosure of privileged information by the beneficiary of the privilege to another person for a limited and specific purpose, on the clear understanding that the recipient is not to use or disclose the information for any other purpose, will not involve a general waiver of privilege, and, subject to questions of imputed waiver, may not disentitle the beneficiary of the privilege from asserting the privilege against other persons."
He went on to refer to a number of authorities who had considered the question of whether a limited disclosure might give rise to an imputed waiver of privilege whether that result was intended or not. He found that the general view which could be gleaned from these authorities was that the question should be resolved by reference to the requirements of fairness in all of the circumstances of the particular case. He went on to find that in the particular circumstances of the case before him, fairness required a finding that privilege had been waived by imputation of law. It seems to me that this case illustrates the kind of principles which might be applied where some act or omission of the public body can be identified which, though falling short of intentional waiver, is inconsistent with maintenance of the privilege. However, it appears to me from, for example, Bula Ltd v Crowley that the Irish courts would be slow to infer that there was a waiver of privilege other than in clear cut cases and that I would not be justified in concluding that, as a general proposition, privilege does not extend to records in the possession of a public body simply on the grounds that the body is not the client to whom privilege attaches.
Bearing in mind that I have already found that the legal advice received by the Society was communicated to the Department in confidence and accepting that the requirements of fairness do not arise in this case, since the requester is not in dispute with the Department or the Society on any matter to which the advice is relevant, I find that the Law Society has not waived privilege. Therefore, I accept that the Law Society would succeed in withholding this document on the ground of legal professional privilege and the Department is therefore obliged to refuse access. I do this with some reluctance because the effect of this decision is to oblige a public body to refuse access to legal advice, submitted for the purpose of influencing legislation, while I have decided that it is in the public interest to grant access to other submissions made in confidence. However, section 22(1)(a) is a mandatory exemption and provides that access "shall" be refused. It follows that where a document qualifies for legal professional privilege then in the absence of a waiver of that privilege, whether by imputation or otherwise, access must be refused.
I note that paragraph 9 of record number 13 refers to legal advice on the Bill. I consider that the second through to the sixth sentences of this paragraph would be exempt from production in proceedings in a court on the ground of legal professional privilege and the Department is therefore obliged to refuse access to this portion of the paragraph under section 22(1)(a).
I do not consider that the remainder of the records ( i.e. records number 1,2,13 (with appropriate deletions) and 43) would be exempt from production in proceedings in a court on the ground of legal professional privilege as argued by the Law Society. The Law Society was not acting in a professional capacity in providing advice to the Department. Nor can it be said that the dominant purpose for which the records were created was preparation for contemplated or pending litigation. It is clear from the contents of the records that the dominant purpose for which the records were created was to influence the framing of the legislation. In any event, any litigation that may arise would be in respect of legislation that does not yet exist, so I am not satisfied that any litigation was apprehended or threatened.
These are records created by the Office of the Attorney General to which access was refused on the grounds of section 46(1)(b). This section provides that the Act shall not apply to
"a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices)".
From my examination of these records, I accept that they were created by the Attorney General and that they do not concern the general administration of the Office of the Attorney General. Therefore, the Department is entitled to refuse to grant access to these records.
Access to these records was refused under section 19(1)(a). This section provides that access to a record may be refused if the record
"has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose".
Section 19 also provides that
"''record" includes a preliminary or other draft of the whole or part of the material contained in the record".
The exemption is restricted by section 19(3) which provides that section 19(1) does not apply to a record
"(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public..."
The Bill has been published and the Government decision to approve the text of the Bill and the Minister's authority to present it to the Dáil and circulate it to deputies has been made known generally or "published to" the general public.
Record 11 is a draft memorandum for the Government and I accept that the final version of the memorandum has been submitted by the Minister to the Government for its consideration and that the record was created for that purpose.
Record numbers 18, 21, 23 are later drafts of the memorandum and despite the fact that there are some differences in the various drafts, I have considered all four records together since the same considerations apply to all four. The draft memoranda in the present case contain a mixture of fact, opinion, interpretation, proposal and recommendation. The Department has taken the view that the whole of each of the four records is exempt. In the circumstances, I find it necessary to examine each of the records to determine if they contain factual information. I do this with some reluctance because much of the factual information contained in these documents is already in the public domain. Indeed, much of the other material contained in these drafts such as the Department's explanation of the purpose and main features of the Bill is also publicly known.
This being so, I take the view that the analysis which I am forced to make below is somewhat academic. There is little, if anything, which the requester can learn from the material which I have decided must be released which could not be obtained from other sources. I believe that an exercise like this could be avoided by more discussion with the requester, by a better explanation of what material is and is not protected by section 19 and by a willingness to point requesters to published sources which contain factual and other information which has been included in a memorandum to Government.
Having said that, I now proceed to a detailed examination of record numbers 11, 18, 21 and 23. Each record is divided into nine parts, numbered consecutively. I can summarise my findings in relation to each part as follows:
|1. Decision sought||Not factual|
|2. Purpose and Main features of the Bill||Not factual|
|4. Differences between the Bill as drafted and the General Scheme||Factual|
|5. Consultations with the Law Society of Ireland||Factual|
|6. Consultations with the Law Society of Ireland||Not factual except for the first three sentences|
|7. Views of the Attorney General||Not factual|
|8. Views of the Minister||Not factual|
|9. Explanatory Memorandum and draft press release||Factual|
By way of explanation, I should say that item 1 is the expression of a request rather than a statement of fact. Item 2 is the Department's interpretation of the purpose and main features of the Bill. In this sense, I would accept that it is an opinion as opposed to factual information. It is difficult to see why the contents of the latter item need to be withheld as the same material has been published in the Explanatory Memorandum to the Bill. Nevertheless, for the purpose of this decision, I have decided only to direct release of the material which, as indicated above, I have found to be factual.
The name of the Senior Counsel who provided legal advice to the Law Society is personal information about a third party and I do not consider that the public interest that access be granted to this name outweighs the right to privacy of this individual. This name should be deleted before release.
Record 19 is a memorandum addressed to the Minister and to an Assistant Secretary of the Department seeking approval to submit the memorandum to Government. It details additional provisions included in the General Scheme of the Bill and summarises other information contained in the draft memorandum. This document was submitted to the Minister as opposed to the Government and therefore the Department is not entitled to refuse to grant access under section 19(1)(a). The first sentence of paragraph 4 of this record refers to legal advice on the Bill. I consider that this sentence would be exempt from production in proceedings in a court on the ground of legal professional privilege and the Department is therefore obliged to refuse access to this sentence under section 22(1)(a). This sentence should be deleted in accordance with section 13 before the release of the record. I should also note that this record contains information which may subsequently have been used by the Minister for the purpose of the transaction of business of the Government at a meeting of the Government. Therefore, I need to consider section 19(1)(c) which provides that access to a record may be refused if the record "contains information (including advice) for a member of the Government ... for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government." Clearly a memorandum the purpose of which was to get Ministerial approval of the circulation of a memorandum to Government does not meet the sole purpose requirement of the section and I find that the Department is not entitled to refuse access under section 19(1)(c). Although it is not a factor which requires to be taken into account for the purpose of my decision, I should add that the information contained in this record which I have directed be released is essentially the same as the factual information contained in the draft memoranda for the Government and its release adds nothing to the information contained in those parts of record numbers 11, 18, 21 and 23 which I have already decided should be released.
Record 24 is headed Submission to the Government and is addressed to the Taoiseach certifying the urgency of having the Bill placed on the agenda of a particular Government meeting. While the document is titled "Submission to the Government", it was not submitted to the Government but to the Taoiseach and the Department is not entitled to refuse to grant access under section 19(1)(a). However, it seems to me that the Urgency Certificate meets the requirements of section 19(1)(c) and I find that the Department is entitled to refuse access under that section. The contents of the record are such that I do not need to consider section 19(3)(a) relating to factual information.
Record 31 is a briefing note for the Minister on the Bill in the context of the Government meeting. Again this was not submitted to the Government but rather to the Minister to enable him prepare for the Government meeting. Therefore, the Department is not entitled to refuse to grant access under section 19(1)(a). However, the briefing note for the Minister clearly contains information (including advice) for a member of the Government, (the Minister) for use by him solely for the purpose of the transaction of business of the Government at a meeting of the Government. The record therefore comes within the scope of the exemption provided by section 19(1)(c). Paragraphs 1, 2, 6 and 8 contain factual information and should be released in accordance with section 19(3)(a).
Record 32 is a record of the Government decision to approve the text of the Bill and introduce it in the Seanad and have it circulated to Senators. The Department has argued that this is a record of the Government and is not a record by which a decision of the Government is published to the general public by or on behalf of the Government and is, therefore, exempt under section 19(1)(b).
I accept the validity of the Department's argument subject to what follows. The Press Release approved by the Government and the actions of the Minister in publishing the Bill and introducing it to the Seanad have the effect of making the decision generally known to the public, that is, publishing that decision to the general public. I have, therefore, considered whether release would be justified under section 19(3)(a).
The contents of this record are purely factual and that factual information relates to a decision of the Government that has been published to the general public. Therefore the Department is not entitled to refuse to release the record under section 19(1)(b).
Record 35 is a copy of record 32 and the same considerations apply.
The Department has refused access to record number 15 under section 20(1). This is a letter, dated 20 May 1998, to the Law Society from the Department. The latter argues that the record shows the operative thinking processes of the Department and that this information would allow the requester to become aware of details of proposed amendments to the Bill as introduced in advance of members of the Houses of the Oireachtas.
Section 20(1) provides that
"A head may refuse to grant a request under section 7
(a) if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,
and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make."
I accept that this record relates to the deliberative processes of the Department, so that the requirements of section 20(1)(a) are met. The Department did not make any explicit arguments to me as to why section 20(1)(b) might apply in this case. I can only assume from its submission that it is arguing that granting this request would be contrary to the public interest because the record would show what it refers to as the 'operative thinking processes' of the Department and because it would allow the requester to become aware of details of proposed amendments to the Bill as introduced in advance of members of the Houses of the Oireachtas.
The Act clearly envisages that there will be cases in which disclosure of the details of a public body's deliberations - whether before or, in some cases, after a decision based on these deliberations has been made - would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. I can see no reason why disclosure of the Department's deliberations or thinking processes would be contrary to the public interest in the present case.
The essence of the Department's second argument - that the members of the Houses of the Oireachtas should be the first to know the details of any amendments which the Department might consider proposing - is respect for the Houses of the Oireachtas, something which I fully endorse. Amendments to a Bill after it has been introduced arise in two broad sets of circumstances. First, the Minister may, during the debate on the Bill in either House, undertake to come back with an amendment or amendments to meet particular points raised by the members. I would accept, as a general principle, that such amendments should first come into the public domain by being tabled in the appropriate House and that their disclosure in other circumstances may, by failing to show a proper respect for the Houses of the Oireachtas, be contrary to the public interest. In the second set of circumstances, the Minister may decide to table amendments as a result of consultations with, or representations from, particular interest groups. It is possible, in some circumstances, that such amendments, and even their wording, may be agreed or negotiated with the interests involved. It seems to me to follow that respect for the Houses of the Oireachtas would normally require that such amendments should be tabled in the appropriate House with the minimum of delay. This is because, until this has been done, the particular interest group has an advantage over the members of the House in terms of knowledge of the Minister's intentions. Unless there is some other public interest requirement which operates to the contrary, it does not seem to me that allowing this advantage to continue indefinitely shows the respect for the Houses of the Oireachtas which the public interest demands.
In the present case the Law Society, as an organisation which has a particular interest in the Solicitors Bill and which will be a party to its implementation, has been informed of the Minister's intentions in relation to certain amendments. It seems to me that, at this stage, the argument advanced by the Department is no longer viable. I am not convinced that the public interest requires that this information should be withheld from others, including the requester. Also, I am conscious that the Department could not have justified the refusal on the basis of its second argument if the requester had been a member of the Houses of the Oireachtas.
For the avoidance of any doubt on the matter, and having regard to the final part of section 20(1), I should also say that, based on my perusal of the record, I cannot see how its disclosure would make the requester aware of a significant decision that the Department proposes to make.
In any event, section 34(12)(b) provides that
"In a review under this section ... (b) a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."
The Department has not shown to my satisfaction that the decision to refuse access to this record was justified. Therefore, I find that it is not entitled to refuse access under section 20.
The second paragraph of this record refers to legal advice on the Bill. I consider that this paragraph would be exempt from production in proceedings in a court on the ground of legal professional privilege and the Department is therefore obliged to refuse access to this paragraph under section 22(1)(a). The paragraph should be deleted in accordance with section 13 before the release of the record.
These are two records which the Department has withheld on the basis of section 46(2). This section provides that
"Subject to subsection (3) [which relates to the Data Protection Act], this Act does not apply to
(a) a record that is available for inspection by members of the public whether upon payment or free of charge, or (b) a record a copy of which is available for purchase or removal free of charge by members of the public,
whether by virtue of an enactment (other than this Act) or otherwise."
The records in question are copies of articles from a newspaper and a periodical.
I consider the fact that the Department has retained copies of these articles makes these copies records of the Department and gives them a separate identity from copies which could be obtained elsewhere. I invited the views of the Department on this matter and asked it to consider whether it is contrary to the spirit of the Act to refuse to release the records without giving the requester details of their contents. It pointed out that it keeps library copies of newspapers and that a requester seeking copies of every article relating to the Department could make a request under the FOI Act. While this is undoubtedly the case, the Department would have the option of attempting to assist the requester in narrowing the scope of the request. In addition, the Department would have to consider whether the giving of access in the form requested would involve an infringement of copyright in accordance with section 12(2)(b)(ii) of the FOI Act. It might also be able to refuse access on administrative grounds in accordance with section 10. Depending on the form of the request, the Department might also be entitled to charge fees in accordance with section 47 of the FOI Act.
I would also point out that the requester was never informed of the specifics of these records and would not be able to seek them elsewhere without this knowledge. I do not accept that the Department carried out its duty to give reasonable assistance to the requester in respect of these records. I also note that, in other cases, the Department has granted access to similar records.
I do not accept that the FOI Act does not apply to these records and have decided that the Department should grant access to them. However, I am mindful that section 12(2)(b)(ii) may apply to the records. Section 12(3)(b) provides that "Where a head decides to grant a request under section 7 but not to give access to the record concerned in the form or manner specified in the request, he or she shall give such access ... (b) if the case is one to which paragraph (b) of that subsection applies, in such other form or manner specified in or determined under subsection (1) as may be agreed by the head and the requester or, if those persons are unable to agree upon such a form, in such form specified in subsection (1) as the head considers appropriate."
I do not consider it appropriate for me to endeavour to reach such agreement with the requester at this time. Therefore, I am satisfied to decide to grant access to these records in a form or manner agreed or decided in accordance with section 12(3)(b).
The Department overlooked the existence of records created prior to the commencement of the Act because the requester is familiar with the Act and it assumed that he was not seeking records created prior to commencement. The requester has not claimed that any of the records contain personal information about him nor has he claimed that he has any difficulty understanding records already released to him.
Therefore, in this review, I must look at the extra records that I have decided should be released to see whether the release of other records created before the commencement of the Act is necessary or expedient to understand those records now being released.
The records relating to the Law Society correspondence are difficult to understand without access to the earlier draft of the Bill which was created prior to the commencement of the Act. However, section 6(7) of the Act provides that
"Nothing in this section shall be construed as applying the right of access to an exempt record."
and the definition of exempt record includes a record in relation to which the grant of a request under section 7 would be refused by virtue of section 46. I have already decided that later drafts of the Bill are exempt records. For the same reasons I find that drafts created prior to the commencement of the Act are exempt.
Paragraph 18 of record number 1 contains a reference to an amendment proposed by the Law Society in earlier correspondence. This reference cannot be understood without access to the text of the proposed amendment which is contained in a letter dated 20 March 1998. Therefore, I have decided that the requester should be given access to paragraph 7 of that letter.
Apart from this one instance, I do not consider that access to records created before the commencement of the Act is necessary or expedient in order to understand the records now being released.
Having completed my review under section 34(2) of the Act, I have decided to annul the Department's decision to refuse access and, in accordance with section 34(2)(b)(ii), to make the following decision:
- Grant access in full to record numbers 1, 2, 32, 35 and 43, - Refuse to grant access to record number 6, - Refuse to grant access to record numbers 5, 9, 14, 16, 17, 22, 24, 27, 29, 34, - Grant partial access to record numbers 11, 18, 19, 21, 23 and 31 as described above, - Grant partial access to record number 13 subject to the deletion of the second through to the sixth sentences of paragraph 9, - Grant partial access to record number 15 subject to the deletion of the second paragraph, - Grant access to record numbers 41 and 42 in a form or manner agreed or decided in accordance with section 12(3)(b) and - Grant access to paragraph 7 of the Law Society's letter dated 20 March 1998.