Case number: OIC-135064-B1C0V2

Whether the Department was justified, under sections 31(1)(a) and 37(1) of the FOI Act, in refusing access to a record relating to a determination made by the Workplace Relations Commission (WRC)

 

25 October 2023

 

Background

In a request dated 24 November 2022 the applicant referred to a previous FOI request that he had made to the Department and said that he was now seeking records that had ‘come into being’ since that previous request. Following communication between the applicant and the Department, on 8 December 2022 the Department confirmed that it understood the request to be for “electronic records concerning the [Workplace Relations Commission] WRC determination in the Geraghty v Revenue Commissioner 2021 (a case concerning non-consensual retirement of a women at 65) including appeal(s) that were created after 20th June 2022 to 1st December 2022”. The earlier request by the applicant to the Department for similar records was the subject of another review by this Office.

On 30 December 2022, the Department refused the request. It identified nine records relevant to the request and refused access to all of them under section 31(1)(a) of the FOI Act, on the basis that the records were legally privileged. On 10 January 2022, the applicant sought an internal review of the decision. He said that he was surprised that so few records had been identified. He also said that legal professional privilege allowed for free communication between a client and his/her solicitor, and that the Department has no such relationship with the Revenue solicitor, and nor could it as Revenue is an independent body. He said that he accepted that the Department could have such a protected relationship with the AGO/CSSO. On 1 February 2023, the Department affirmed its decision. It said that it had conducted further searches and that no additional records had been found. It said that as well as section 31(1)(a), it was also refusing access to one record (record 9) under section 37(1) on the basis that it contained personal information.

On 2 February 2022, the applicant applied to this Office for a review of the Department’s decision. He referred to his application for internal review and said that he was disappointed that the Department had not engaged with the points he had raised. He said that he had expected better as the Department is the ‘lead line agency responsible for FOI matters’.

As a party potentially affected by a decision in this case, the Office of the Revenue Commissioners (Revenue) was also informed of the review and invited to make a submission which it did.

This Office issued a decision on the earlier review on 16 August 2023: case OIC-127176.

The Department then reconsidered its position on this current request, and on 13 October 2023 it released records 1 to 8 to the applicant. It maintained its position on record 9. The applicant confirmed that he wished the review by this Office to progress to a formal, binding decision on the outstanding record.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the Department, by Revenue and by the applicant, and to the exchanges outlined above. I have also examined the record at issue. 

Scope of Review

While the applicant in his request for internal review queried why, as he saw it, so few records were found, he confirmed to this Office that he was happy to confine this review to the Department’s refusal to release the records that it identified.

Further to the Department releasing records 1 to 8, this review is concerned only with whether it was justified in refusing access, under sections 31(1)(a) and 37(1), to record 9.

Analysis and Findings

The earlier decision by this Office in  case OIC – 127176 provides further context and background to the record at issue in this case. In summary, the WRC found that a Revenue employee who had to retire at 65 had been discriminated against on age grounds. Revenue appealed this decision to the Labour Court but it was subsequently withdrawn. The Department, while not a party to the case, had an interest in the matter.

Section 31(1)(a): Legal Professional Privilege

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

  • confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
  • confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.

Legal professional privilege belongs to the client and the client has the right to waive this privilege if the client so wishes. Waiver by the client may be done expressly, but it may also be implied from the circumstances. The Commissioner takes the view that the Irish courts would be slow to infer that there was a waiver of privilege, other than in clear cut cases. He considers that he would not be justified in concluding that, as a general proposition, privilege does not extend to records in the possession of an FOI body simply on the grounds that the body is not the client to whom the privilege belongs. One of the factors necessary to establish that legal professional privilege arises is that the communication concerned is confidential. Where the communication ceases to be confidential, waiver of privilege may result. The steps taken to preserve the confidentiality of the communication may be relevant in considering whether there has been a waiver of privilege. The Commissioner has explained that his approach concerning the disclosure of a record to a third party is that it generally amounts to a waiver of privilege, except where there is “limited disclosure for a particular purpose, or to parties with a common interest”, as per the Supreme Court judgment in the case of Redfern Limited v O’Mahony [2009] IESC 18.

Both the Department and Revenue submitted that record 9 was subject to legal advice privilege, and that the privilege was not waived. The Department identified an Assistant Revenue Solicitor as the legal adviser and identified named staff in both the Department and in Revenue as the clients. It said that the communications in question were focused on the preparation for the then upcoming Labour Court hearing.

Having carefully considered the record at issue, I accept that it contains legal advice from external Counsel that was communicated by the Revenue solicitor to colleagues in Revenue and the Department. I accept that this advice was shared on the basis of common interest, which does not amount to a waiver of privilege. I accept that this record is subject to legal advice privilege and that it is therefore exempt from release under section 31(1)(a) of the FOI Act. As I have found the record to be exempt from release under section 31(1)(a), there is no need to consider the application of section 37.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department. I find that it was justified in refusing access, under section 31(1)(a), to record 9 on the basis that the record is subject to legal advice privilege.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Emer Butler
Investigator