Whether the Council was justified in its decision to refuse access to certain records relating to a personal injury claim, under sections 30(1)(a), 30(1)(c) and 31(1) (a) of the FOI Act
19 September 2018
On 12 March 2018, the applicant made an FOI request to the Council for access to records referencing a particular case. At all times during the course of the request and this review, the applicant was represented by her solicitors. The file reference quoted in the request relates to a personal injury claim that was being pursued by the applicant. The Council did not issue a decision and the applicant submitted a request for an internal review. On 5 June 2018, the Council made a decision refusing the applicant's request on the basis of sections 30(1)(a), (b) and (c) and section 31(1)(a) of the FOI Act. On 20 June 2018, this Office received an application for a review of the Council's decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude the review by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the applicant and the Council, as well as to correspondence between the Council, the applicant and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.
Scope of Review
The Council initially identified 18 records as coming within the scope of the applicant's request. During the course of the review, the applicant agreed that she was no longer seeking access to correspondence that had been exchanged between her solicitors and the Council. This narrowed the scope of the review to 6 records. Further, the Council agreed to release record number 13 to the applicant on the basis that it did not relate to litigation.
This review is therefore concerned with whether the Council was justified in deciding to refuse access to five records on the basis of sections 30(1)(a), 30(1)(c) and 31(1)(a) of the FOI Act.
I am disappointed with the decision making process of the Council in this case. Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). The Council failed to make an original decision and its internal review decision did not provide any substantial reasons for refusing the applicant's request; it merely cited sections of the FOI Act. Further, a schedule of records was not provided to the applicant with the decision. I find it hard to understand why the Council did not have regard to the useful FOI guidance, including template letters, provided by the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (DPER). I should add that the Council did provide a very detailed submission on the review.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Analysis & Findings
The five records in this case consist of a site inspection report, engineering report, photographs and associated correspondence ranging in date from 3 April 2017 to 4 August 2017. They were created on foot of a letter received by the Council from the applicant's solicitor in January 2017. That letter gave details of a particular incident at a location maintained by the Council and called upon the Council to admit full liability for the applicant's injuries and loss. It went on to note that failure to admit this would result in the applicant's claim for damages being the subject of an application to the Injuries Board.
While the Council also relied on sections 30(1)(a) and (c), it seems to me that section 31(1)(a) is the most relevant in this instance and so I will address that exemption first.
Section 31(1)(a) - Legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. 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 (legal advice privilege), and
- confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).
Litigation privilege is the relevant aspect of section 31(1)(a) that the Council relied on.
For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation. Litigation encompasses not alone court proceedings but also proceedings before tribunals exercising quasi judicial functions. The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. in Silver Hill Duckling Limited v Minister for Agriculture  1 IR 289. In the judgment of the High Court in University College Cork – National University of Ireland v The Electricity Supply Board ( IEHC 135) Finlay Geoghegan J. stated -
"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."
As such, a body claiming the exemption must satisfy the Commissioner, on balance, that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created.
The Commissioner has also accepted that in certain circumstances litigation privilege may attach to internal communications, provided that the dominant purpose for their creation is contemplated or pending litigation.
The Council described the records in this case as relating solely to a public liability personal injury claim made against the Council by the applicant. It stated that the applicant was seeking damages for injuries allegedly sustained. The records consist of internal reports that, according to the Council, were prepared (i) in order to properly investigate the personal injury claim made by the applicant in contemplation of legal proceedings to be issued by her seeking damages and (ii) in order to instruct solicitors to handle the personal injury claim on behalf of the Council. The Council went on to say that the file (containing the records) was prepared for the purpose of enabling solicitors for the Council to defend the claim on the Council's behalf.
The Council relied on the case of Silver Hill Duckling Limited referred to above. It argued that litigation privilege clearly applies as litigation was anticipated once the applicant's solicitors wrote to the Council seeking damages by letter dated 23 January 2017. It noted that a claim for damages to the Injuries Board is, in all cases where liability is denied by the Defendant, a precursor to litigation. According to the Council, the sole purpose of the creation of these records was preparation for this litigation.
The applicant's solicitors argued that legal privilege cannot apply because, if proceedings were issued, the requested information would form part of the discovery process and would be required to be produced. Further, the applicant's solicitors stated that they did not believe that the Council had appointed solicitors; neither had they received correspondence from the legal department, and legal privilege could not extend to the requested records.
Having examined the records, I accept that they qualify for litigation privilege. It is clear that these records were created on foot of a letter sent by solicitors for the applicant as described above. Any reasonable interpretation of this letter would give rise to the conclusion that litigation is contemplated in the circumstances. This satisfies the first part of the test in relation to this exemption, that litigation must be contemplated or pending. The second strand of the test relates to the dominant purpose behind the creation of the record. It is obvious from the circumstances, and indeed the records themselves, in this case that not only was apprehended litigation the dominant purpose for the creation of these records, it was the sole purpose. Finally, while litigation privilege does not normally continue beyond the final determination of the proceedings, I am satisfied that any proceedings, if initiated at this point in time, have not concluded. I find therefore that the records qualify for legal professional privilege. Accordingly, I uphold the Council's refusal of access to the withheld records under section 31(1)(a) of the FOI Act.
For the sake of clarity, in relation to the applicant's argument that the records would have to be produced through discovery, this is not a matter that I can take into account in this review as whether a claim of privilege would succeed in the event of discovery being made is a matter for the Court.
As I have found that the records are exempt under section 31(1)(a), it is not necessary for me to go on to consider the potential applicability of sections 30(1)(a) and (c).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision to refuse access to the records under section 31(1)(a) of the Act on the basis 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.