Case number: OIC-60589-V6P9J1
18 August 2020
This review arose out of a decision I issued following my review in case 180368. It is necessary to set out the background to that previous review in some detail as it is directly relevant to this current review.
On 13 June 2018, the applicant made an FOI request to EirGrid for the following records:
(i) records received by EirGrid from ESB/ESB Networks on or after 1 January 2013 regarding the alteration, diversion or undergrounding of the 110 kV transmission lines on lands owned by a [named] company ('the lands');
(ii) records prepared or considered by EirGrid on or after 1 January 2013 in relation to the alteration, diversion or undergrounding of the 110 kV transmission lines on the lands;
(iii) records sent by EirGrid to ESB/ESB Networks on or after 1 January 2013 in relation to the alteration, diversion or undergrounding of the 110 kV transmission lines on the lands;
(iv) records prepared or considered by EirGrid in relation to the letter to ESB/ESB Networks of 30 October 2015; and
(v) records prepared or considered by EirGrid which informed the content of the letter dated 30 October 2015 from EirGrid to ESB/ESB Networks.
EirGrid identified 57 records as falling within the scope of that request, 12 of which it decided to withhold under section 31(1)(a) of the Act (legal professional privilege). The applicant sought a review by this Office of EirGrid's decision. He argued that further records coming within the scope of his request ought to exist. During the course of that review, EirGrid provided a description of the refused records which did not match with the records provided to this Office. I was not satisfied that EirGrid had properly addressed the applicability of section 31(1)(a) to the records nor was I satisfied that EirGrid had properly identified all of the relevant records coming within the scope of the request. On 5 March 2019, I annulled EirGrid’s decision and remitted the matter to it for fresh consideration. My decision is available on the OIC website at:
Following that decision, EirGrid conducted a fresh decision making process and issued a fresh decision on 2 May 2019. It made a fresh decision in respect of the records to which access was refused under section 31(1)(a) during its previous processing of the request and provided a schedule of 16 such records, numbered 1 to 16. It granted access in full to record 7 and partial access to records 2 and 5. It refused access to the remaining records, and to the relevant parts of records 2 and 5, under section 31(1)(a).
Eirgrid refused access to 600 records relating to part two of the request under section 15(1)(c) of the Act on the ground that granting the request would cause an unreasonable and substantial interference with or disruption of its work. However, it noted that the applicant had agreed to amend and re-submit part 2.
In relation to parts 1 3, 4, and 5, Eirgrid identified 141 relevant records and provided a schedule of those records, numbered 1 to 141. It refused access to certain third party records under sections 36 or 37 of the Act (commercially sensitive or personal information). It informed the applicant that he could apply directly to this Office for a review of the decision relating to those third party records. It also refused access to certain records under section 31(1)(a) of the Act and it informed the applicant that he could seek an internal review of that part of its decision.
The applicant applied directly to this Office for a review of EirGrid’s decision. He said he would provide a list of the records that he wished to have reviewed. This Office accepted the application and the review was allocated case reference number OIC 53484 Q7Q0F5. In his submissions to this Office, the applicant limited the scope of his request to records refused under section 31 of the Act. This Office does not have jurisdiction to carry out reviews in relation to records refused under section 31 of the Act in the absence of an internal review; that part of the decision was not one to which section 38 of the FOI Act applied. Following communications with this Office, EirGrid agreed to carry out an internal review.
The applicant limited the scope of his internal review request. He sought a review of the decision to refuse access, in whole or in part, to the records on the first schedule of 16 records, apart from record 15 based on his understanding that he had been given access to that records on foot of a previous request. He also sought a review of the decision to refuse access to records 8-28, 31, 65-72, 76, 81, 86, 92, 110-112 and 141 of the second schedule.
On 14 November 2019, EirGrid issued its internal review decision. It explained that it had decided to include record 15 from the first schedule as it considered that the applicant had not received a copy of the full record previously. It created a new schedule combining the first and second schedules to the original decision into a single schedule and re-numbering the records at issue as records 1-53. For the purposes of this review and for ease of reference, I have adopted the numbering system used by Eirgrid in that new single schedule in referring to the records at issue.
Eirgrid varied its original decision by granting access to record 1 and to an attachment to record 14. It refused access to the remaining records in full or in part under section 31 of the Act. On 30 December 2019, the applicant sought a review by this Office of EirGrid’s decision.
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 relevant correspondence between the parties and to the correspondence between this Office and both Eirgrid and the applicant on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether EirGrid was justified in refusing access, in full or in part, to records 2-53 under 31(1)(a) of the FOI Act.
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.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
(a) 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
(b) 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).
It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. In case number 020281 (Mr. X and the Department of Education and Science) (available at www.oic.ie) the former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:
“Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317;  2 All E.R.., 246, CA.] …[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings… There will be a continuum of communications and meetings between the solicitor and client…Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach.”
It is also important to note that the concept of "once privileged always privileged" applies only to claims of privilege based on legal advice privilege, and not to litigation privilege. Where a party is entitled to claim litigation privilege, the privilege does not automatically continue beyond the final determination of the proceedings in which it originally applied. Nevertheless, communications between a client and his/her professional adviser in the course of, or in anticipation of, litigation may also benefit from legal advice privilege. In such circumstances, the concept of "once privileged always privileged" applies
In its submission to this Office, EirGrid said the records at issue concern a dispute that arose between the applicant, the ESB and EirGrid in relation to “uprate” works to transmission lines which pass over the applicant’s lands. It said that in 2013, the ESB took proceedings to restrain the applicant from preventing access to the lands to carry out these works. As EirGrid has joint statutory responsibility with the ESB for maintaining the electricity transmission system, it joined the proceedings as a joint plaintiff. Eirgrid and the ESB were jointly represented by external legal counsel.
Eirgrid said there were four sets of proceedings involving EirGrid, the ESB, the applicant and its sister company. It said EirGrid and the ESB were ultimately successful in relation to all of the 2013 proceedings. It said while the substantive issues in the 2013 proceedings have, therefore, been heard and determined by the Courts, the issue of legal costs of these proceedings is still ongoing and in dispute between the parties.
EirGrid said that while the 2013 proceedings were ongoing, ESB Networks received a request from the applicant in 2015 to underground the transmission lines running across its lands to facilitate development. It said that in light of the 2013 proceedings, EirGrid and the ESB anticipated from the 2015 undergrounding request that, should ESB Networks decide to refuse the request, the applicant would issue proceedings to challenge the refusal and to claim for a loss of development potential, as a claim for damages was directly made in the 2013 proceedings.
Eirgrid added that, given their joint, statutory responsibility for maintaining the transmission system, EirGrid and the ESB engaged with each other following receipt of the 2015 underground request and jointly considered how best to determine and respond to the request, as well as draft responses to the applicant on the request. It said that when ESB Networks sent its initial response to the applicant, it received a subsequent letter from planning consultants acting for the applicant in which the applicant threatened to proceed with a planning application for the lands and make a claim for loss of development against the ESB if the request was refused. It said ESB Networks ultimately decided to refuse the 2015 undergrounding request in late 2015 and as anticipated, the applicant subsequently issued further proceedings against the ESB in relation to this matter in December 2017 (the “2017 proceedings”). It said the 2017 proceedings are still ongoing.
EirGrid argued that the records are exempt on the basis of legal advice privilege as they comprise confidential communications between EirGrid, the ESB and their legal advisers for the purpose of seeking or obtaining legal advice in respect of various aspects of the proceedings and the undergrounding request from the applicant. It said that some of the records also comprise correspondence between the ESB and EirGrid which falls within the wider “continuum of correspondence” relating to the legal advice sought and/or obtained. EirGrid also argued that the records are exempt on the basis of litigation privilege as they comprise confidential communications relating to the proceedings created for the dominant or exclusive purpose of preparing for the proceedings as joint respondents.
The applicant argued that it is well established that in-house solicitors employed by organisations such as EirGrid and ESB may only provide legal advice to their respective employers and that those in house employed solicitors are prohibited from providing legal advice and/or legal services to third parties or external clients. He submitted that it is not possible for EirGrid or its employees, including employee solicitors, to give legal advice to ESB and vice versa and that any records passing between ESB and EirGrid cannot constitute legal advice. He said EirGrid has accepted that litigation between it and the applicant came to an end in April 2018 and it is not a party to the 2017 proceedings. He argued, therefore, that litigation privilege cannot be applied to records in the manner suggested by EirGrid.
I should say at this stage that the fact that Eirgrid is not a party to the 2017 litigation is not determinative of the question of whether or not litigation privilege applies. The relevant test is whether the record is a confidential communication 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.
The records comprise letters and materials prepared for the proceedings and/or the 2015 undergrounding request. Most of the records contain communications between EirGrid staff members and its solicitor. These records include emails attaching draft versions of letters or affidavits, marked up versions of these draft documents which contain the solicitor’s comments and final versions of the documents which reflect advice provided by EirGrid’s solicitor. The records also include information passed to EirGrid’s solicitor so that advice may be provided. A number of the records contain information and advice passed between EirGrid and the ESB.
In case 090077 (Mr. X and the Department of Transport Tourism and Sport) (available at www.oic.ie) the former Commissioner explained that her approach concerning 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". The Courts have described common interest privilege as follows:
“In short, common interest privilege arises where one party (party A) voluntarily discloses a document which is privileged in its hands to another party (party B) who has a common interest in the subject matter of the communication or in litigation in connection with which the document was brought into being. In such circumstances, provided disclosure is given in recognition that the parties share a common interest, the document will also be privileged in the hands of party B… It does not matter whether both parties are in the same litigation, or only one is, or whether they are both plaintiffs or both defendants, as long as they have a genuine common interest. Nor is it necessary for them to be represented by the same solicitor as long as their interests are close enough to be able to do so. And although they must have a common interest, i.e. subject area of interest which is common to both, they need not have exactly the same interests.” Hansfield Developments v Irish Asphalt Ltd  IEHC 420.
I have carefully examined the records and I accept that they contain confidential communications or form part of a continuum of communications for the purpose of obtaining and/or giving legal advice. I also accept that the records which contain information or advice shared between EirGrid and the ESB were shared on the basis of common interest privilege. EirGrid and the ESB have a common interest in the subject matter of the records and the litigation in connection with which the records were brought into being. The fact that litigation between EirGrid and the applicant has come to an end does not prevent EirGrid from relying on legal advice privilege.
I am also of the view that the records attract litigation privilege. I accept Eirgrid’s argument that the dominant purpose for their creation was in preparation for contemplated/pending litigation. While the 2013 proceedings have, indeed, concluded, this does not automatically mean that litigation privilege can no longer apply. The issue of the undergrounding or the diversion of the transmission lines over the applicant’s lands formed the background context for the 2013 proceedings involving Eirgrid and the ESB. That is an issue that remains in question between the parties in the ongoing 2017 proceedings. The 2017 proceedings were issued by the applicant as a result of the ESB’s decision to refuse its 2015 request to underground the transmission lines.
Given the subject matter of the underlying dispute, and the fact that EirGrid and ESB have joint, statutory responsibility for maintaining the transmission system, I accept that the 2013 proceedings, the 2015 undergrounding request and the 2017 proceedings are inextricably linked. Therefore, notwithstanding that the 2013 proceedings have concluded, I accept that litigation privilege in respect of the 2013 proceedings survives in respect of the closely related and ongoing 2017 proceedings.
In conclusion, therefore, I find that EirGrid was justified in refusing access to the records at issue under section 31(1)(a) on the ground that they would be exempt from production in proceedings in a court on the ground of legal professional privilege.
Having carried out a review under section 22(2) of the FOI Act, I affirm EirGrid’s decision. I find that EirGrid was justified in refusing access in full or in part to the records under section 31(1)(a) of the Act on the basis that they would be exempt from production in a court on grounds of legal professional privilege.
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.