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Mr X and Department of Health (FOI Act 2014)

Case Number: 160519

Whether the Department was justified in refusing access to records relating to a Deed of Indemnity and Charge on the basis that the records requested are exempt under sections 11(4), 31(1)(a), 35(1)(b) and 42(f) of the Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In 1997, the North Eastern Health Board (NEHB) agreed to purchase Our Lady of Lourdes Hospital in Drogheda from the Congregation of the Medical Missionaries of Mary (the Congregation). At that time, complaints of sexual assault had been made against a person who worked at the Hospital. A Deed of Indemnity and Charge was executed as part of the sale of the Hospital. The Deed provided that when the Hospital was transferred, the NEHB, the Department and the State would not take over liability for future claims in respect of these complaints. The Congregation established a fund from part of the proceeds of the sale of the Hospital to supplement the Deed.

On 14 March 2016, the applicant made an FOI request to the Department for the following records in relation to the Deed of Indemnity and Charge:

"All records of claims, payments, reports, account statements, notices, communications, certificates, reviews, withdrawals, appointments, mandates, invoices, fee payments, determinations or demands."

On 11 April 2016, the Department informed the applicant that due to the number of records concerned, retrieval and examination of the records would cause an unreasonable interference with its work. The Department invited the applicant to amend his request. On 13 April 2016, the applicant amended his request to the following records in relation to the Deed of Indemnity and Charge:

"Memoranda, correspondence, claims, bank account statements and invoices."

On 5 May 2016, the Department refused access to all but one of over three hundred records considered to be within the scope of the applicant's request. The record released to the applicant was the Deed of Indemnity itself. In his internal review request, the applicant argued that the schedule that accompanied the original decision was insufficient to allow him to make an informed decision as to whether the reasons stated for withholding records were valid. The Department accepted this point and agreed to provide the applicant with a more detailed schedule to enable him to make a decision regarding the internal review. On 27 July 2016, the applicant applied directly to this Office on the basis of a deemed refusal of his request. On 28 July 2016, the applicant received a schedule from the Department containing its decision in relation to 357 records considered to be within the scope of his request. The Department released ten of the records in full or in part, and it refused access to the remaining records on the basis of sections 31(1)(a), 31(1)(b), 35(1)(a) and 42(f) of the Act.

On 4 August 2016, this Office requested the Department to write to the applicant stating its effective position under the provisions of the FOI Act. Also on 4 August 2016, the applicant wrote to the Department setting out the basis for his internal review request. On 31 August 2016, the Department issued its internal review decision. The Department affirmed the decision as outlined on the schedule provided to the applicant and it gave reasons for its decision. On 22 November 2016, the applicant applied to this Office for a review of the Department's decision.

During the course of the review, the applicant stated that he was willing to narrow the scope of his application to the following records:

  • 2, 3, 8, 9, 10, 11, 12, 14, 19, 20, 21, 37, 44, 53, 60, 68, 71, 73, 79, 81, 82, 87, 92, 95, 102, 103, 107, 109, 115, 128, 146, 148, 158, 163, 180, 200, 203, 266, 279, 293, 294, 309, 311, 313, 318, 325, 329, 337-357 (inclusive).

 

This Office informed the Department of the narrowed scope of the review. In its reply, the Department stated that in the case of records which it had refused on the basis of section 31(1)(b) of the Act, it now wished to rely on sections 31(1)(a) and/or 35(1)(b) of the Act. In reply, the applicant disputed what he referred to as the "questionable and retrospective justifications by the Department for refusals to release documents."

During the course of the review, the Department released record 279 in full and records 266, 293, 294, 309, 311 and 329 in part. Also, the parties agreed that information in relation to the value of the fund contained in records 337 to 357 would be released and the remainder of the information contained in the records would be withheld. This information was released during the review.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the Department and the applicant, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of the Review

The applicant's request is for records in relation to the Deed of Indemnity and Charge. Records 79 and 92 relate to matters other than the Deed of Indemnity and Charge. I am satisfied that these records fall outside the scope of the applicant's request.
As outlined above, information has been released as agreed from records 337 to 357 along with record 279 and particular parts of seven other records which will not now be considered in my review.
The scope of this review is confined to whether the Department was justified in its decision to refuse access to the following records in full or in part on the basis of sections 11(4)(a), 31(1)(a), 35(1)(b) and 42(f) of the Act:

  • 2, 3, 8, 9, 10, 11, 12, 14, 19, 20, 21, 37, 44, 53, 60, 68, 71, 73, 81, 82, 87, 95, 102, 103, 107, 109, 115, 128, 146, 148, 158, 163, 180, 200, 203, 266, 293, 294, 309, 311, 313, 318, 325, 329.

 

Preliminary Matters

Section 13(4) of the FOI Act provides that, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional the paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 42(f) - Records held by the Office of the Attorney General
Section 42 (f) provides that the FOI Act does not apply to a record held or created by, in particular, the Office of the Attorney General, other than a record relating to general administration. Record 3 is a legal opinion provided to the Office of the Attorney General by external Counsel. Record 103 is a letter from Advisory Counsel in the Office of the Attorney General to the Department concerning legal advice. I am taking it that both of these were held or created by that Office. Record 325 is a letter from the Department to the Office of the Attorney General requesting legal advice. It is not held or created by that Office so I deal with it below under section 31(1)(a) of the Act. The Department stated that it would be willing to release record 103. I am satisfied, however, that records 3 and 103 do not concern the general administration of the Office of the Attorney General. I find that, as provided for by section 42(f) of the FOI Act, records 3 and 103 are not subject to the FOI Act.

Section 11(4) Pre-commencement Records
Section 11(4) provides that a right of access under the FOI Act does not normally arise in the case of records created before the commencement date of the Act (21 April 1998 in the case of the Department of Health). Records 1, 3 and 14 were created before 21 April 1998. Record 1 is the Deed of Indemnity which was released to the applicant. Record 3 is not subject to the FOI Act as provided for by section 42(f) of the FOI Act.

Record 14 is described as a "Handwritten note for the Minister's Attention." Section 11(5) of the Act provides two separate grounds on which (subject to other provisions of the FOI Act) a right of access to pre-commencement records arises. These two grounds are:

"(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or

(b) records created before such commencement relate to personal information about the person seeking access to them."

In this case, unless (a) or (b) applies there is no right of access to the record in question. Paragraph (a) requires that there be another record - created after 21 April 1998 - which cannot be understood without access to the earlier record. From my examination of the records, I am not satisfied that there is any such record; paragraph (a) does not, therefore, apply. Paragraph (b) covers records that relate to personal information. Record 14 does not contain personal information relating to the applicant so that paragraph (b) does not apply. Thus, there is no right of access to record 14 under Section 11(4) of the Act.

Section 31(1)(a) - Legal Professional Privilege
Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

  • confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
  • confidential communications made between the client and a professional legal advisor or the professional legal advisor 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)

 

Section 31(1)(a) does not require the consideration of the public interest.

The applicant submits that legal privilege has been applied broadly to the records, that in many cases the record is exchanged between parties who are not legal professionals and therefore cannot possibly attract legal professional privilege. The applicant also submits that legal privilege only applies to independent legal professionals and not to in-house legal advisors.

The applicant states that litigation privilege is a separate concept but again only applies to documents produced for the sole or dominant purpose of litigation which has already commenced. The applicant submits that, in the case of records over which this privilege is claimed, no such privilege exists.

The Department submits that section 31(1)(a) offers protection for communications between FOI bodies and their independent legal advisors concerning legal advice or in relation to expected litigation and would also include very closely related material which would disclose the substance of such advice. The Department submits that most of the records to be considered under this review contain either requests for or the provision of legal advice or were created as part of a continuum of communication between the Department and its legal advisors.

The Department also argues that records of correspondence with the Congregation's Solicitors are exempt under litigation privilege as the dominant purpose for the creation of these records is the preparation for contemplated/pending litigation.

Advice Privilege
The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that the fact that the professional legal advisor concerned is employed as an in-house legal advisor, does not prevent the client from being able to assert legal privilege over the communications at issue.

Records refused in part
The Department refused to release the following records in part on the basis of section 31(1)(a) of the Act:

  • Record 266 - pages 3-4, section headed "Legal Opinion";
  • Record 293 - page 1, paragraph starting "Legal advice received by";
  • Record 294 - page 2, paragraph starting "Attorney General's Advice" and page 4 paragraph starting "Legal Advice";
  • Record 309 - page 3 last line and pages 5-6, paragraphs headed "State Claims Office and Office of the Attorney General";
  • Record 311 - page 4, paragraph starting "The Attorney General in particular has pointed to";
  • Record 329 - pages 2-3, paragraphs headed "State Claims Agency and Office of the Attorney General".

 

The information contained in record 318, which the Department has agreed to release, is identical to information that the Department has released from record 329. I am satisfied that the above sections contain confidential communications between the Department and Professional Legal Advisors for the purpose of giving legal advice. I find that this information is exempt under section 31(1)(a) of the Act.

Records refused in full
The Department refused to release the following records in full on the basis of section 31(1)(a) of the Act:

  • Record 2 - Legal Opinion provided to the Department by Senior Counsel;
  • Records 44 and 128 - Minutes of Department meetings with its Internal Legal Advisor;
  • Record 313 - Note on Interpretation of Deed of Indemnity including request for legal advice;

 

I also include record 325 in this category, as it is a request to the Attorney General's Office for legal advice. I am satisfied that the above records contain confidential communications made between the Department and Professional Legal Advisors for the purpose of obtaining and/or giving legal advice. I find that these records are exempt under section 31(1)(a) of the Act.

Records which form part of a continuum
In case 020281 (Mr. X and the Department of Education and Science) the former Commissioner considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. She 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; [1988] 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."

From my examination of them, I consider that the following records amount to a continuum of communications (mainly emails) between the Department and its Legal Advisors that resulted from an original request for legal advice:

  • Records 9, 10, 11, 12, 19, 20, 71 and 163 contain information gathered by Department staff and passed to Legal Advisors so that legal advice may be given;
  • Record 60, 73, 81, 82, 107, 115, 180, 200 and 203 contain information in relation to meetings and correspondence with Legal Advisors.

 

I find, therefore, that these records are exempt under section 31(1)(a) of the Act as they would attract Legal Professional Privilege.

Records marked "Without Prejudice"
The following records contain correspondence between the Department and the Congregation's Solicitors which is marked "without prejudice"

  • Records 8, 21, 37, 53, 68, 109, 146 and 158

 

The Commissioner has drawn a distinction between records which are marked "without prejudice" and records which are covered by LPP. In case 010314 (Mr. X and the former South Eastern Health Board) the former Commissioner made it clear that while records marked "without prejudice" may be covered by privilege, this privilege is a separate category from that of Legal Professional Privilege and section 31(1)(a) does not apply to them. I find, therefore, that the above records are not exempt under section 31(1)(a) of the Act. I consider whether these records are exempt under section 35 of the Act below.

Records marked "Confidential"
The following records contain correspondence between the Department and the Congregation's Solicitors which is marked "Private and Confidential", "Highly Confidential", and "Strictly Private and Confidential"

  • Records 87, 102 and 148

 

Record 95 is not marked as confidential; however, it relates to the same subject matter and was created on the same date as record 102. I am satisfied that it is appropriate to treat it in the same manner. I am not satisfied that these records qualify for legal advice privilege.

I have also considered whether these records could be covered by litigation privilege. In considering litigation privilege the judgment of Finlay Geoghegan J. in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Finlay Geoghegan J. stated:

  • the onus is on the party asserting litigation privilege to "establish ... as a matter of probability that litigation ... was apprehended or threatened from [a particular date]";
  • the dominant purpose threshold is not met in a case where there are two equal purposes for a document's creation, even if one of those purposes is preparation for litigation; and
  • unlike legal advice privilege, litigation privilege does not "automatically continue beyond the final determination of either that litigation or ... closely related litigation."


I do not accept that the dominant purpose for the creation of the above records was preparation for litigation. An equal purpose was to discuss particular issues in relation to the Deed of Indemnity and Charge. I consider these records under section 35 of the Act below.

Section 35 -Information provided in Confidence
The Department also argues that records 8, 21, 37, 53, 68, 87, 95, 102, 109, 146, 148 and 158 are exempt under section 35(1)(b) of the Act. According to the Department, the Congregation's Solicitors contacted it in an "off the record" capacity to share very sensitive information in the context of various on-going legal proceedings. However, I have found above that the content of the records is such that they do not attract litigation privilege. The Department states that it would consider these records to be given in confidence. The Congregation is not a public body for FOI purposes. Further, the Congregation's Solicitors are the administrators to the fund established under the deed.

Section 35(1)(b) provides a mandatory exemption for records whose disclosure would result in a breach of a duty of confidence provided for by a provision of an agreement, or enactment or otherwise by law. Under section 35(2), the confidentiality exemption does not apply to a record prepared by a staff member of a public body or a person who is providing a service for a public body under a contract for services "in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services". As noted above, the Congregation is not a public body for FOI purposes and the Congregation's Solicitors were not providing a service for a public body. I am satisfied that the records concerned do not fall within the ambit of section 35(2) of the FOI Act.
A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J. confirmed that the requirements for a successful action based on breach of an equitable duty of confidence, at least in a commercial setting, are to be found in the judgment of Megarry J. in Coco v. A.N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47

"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 importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

The Commissioner has adopted this approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence.

I accept that the records contain private information provided in the context of various on-going legal and related issues and I accept that the records have the necessary quality of confidence.

The records are marked "Private and Confidential", "Strictly Private and Confidential" and "Without Prejudice". Record 95 is not marked as confidential, however it relates to the same subject matter as record 102 which is marked "Highly Confidential." While the marking of a record is not, of itself, evidence that the information was imparted in circumstances importing an obligation of confidence, I accept that the parties expected that these communications would be treated as confidential. Having regard to the content of the records, I am satisfied that this expectation was reasonable and that release of the records would breach a duty of confidence owed to the Congregation and to its Solicitors.

I understand that "detriment" can arise simply where information is disclosed (which, under FOI, is equivalent to publication of the material concerned to the world at large) without the consent of the party to whom it relates. Thus, I accept that release of the records at issue would result in detriment to the Congregation and to its Solicitors.

The public interest grounds on which the Courts have found a breach of a duty of confidence to be authorised, or excused, are narrow. Grounds recognised by the Courts include the exposure or avoidance of wrongdoing or danger to the public, and ensuring the maintenance of the principles of justice. I do not consider these to be relevant here given the content of the records. Accordingly, I find 8, 21, 37, 53, 68, 87, 95, 102, 109, 146, 148 and 158 to be exempt under section 35(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department's decision:

  • I find that section 11(4) applies to exempt record 14;
  • I find that, as provided for by section 42(f) of the FOI Act, the following records are not subject to the FOI Act: 3 and 103;
  • I find that section 31(1)(a) applies to exempt the following records in full or in part: 2, 9, 10, 11, 12, 19, 20, 44, 60, 71, 73, 81, 82, 107, 115, 128, 163, 180, 200, 203, 266, 293, 294, 309, 311, 313, 318, 325 and 329;
  • I find that section 35(1)(b) applies to exempt the following records: 8, 21, 37, 53, 68, 87, 95, 102, 109, 146, 148 and 158.

 

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 by the applicant not later than four weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.


Elizabeth Dolan
Senior Investigator