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Mr X and the Department of Justice and Law Reform (FOI Act 2014)

Case Number: 160217

Whether the Department was justified, under section 31(1)(a) of the FOI Act, in refusing to grant access to a report relating to the applicant that was submitted to the Minister by the Independent Review Mechanism

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

Background

The applicant's complaint against the Gardaí was referred to the Independent Review Mechanism, a panel of seven barristers that was established to review certain allegations of Garda malpractice. Having reviewed the file, counsel concluded that no further action should be taken in relation to the applicant's complaints. The applicant was informed of this outcome by letter dated 27 August 2015.

By letter dated 21 February 2016, the applicant sought access to records comprising "[the Department's] report on my civil rights case". The Department issued its decision on 8 April 2016. The decision maker interpreted the applicant's request as referring to the report prepared by counsel making recommendations in relation to the applicant's case. The request was refused under section 31(1)(a) of the FOI Act, on the basis that the record attracts legal professional privilege. On 11 April 2016, the applicant sought an internal review of the Department's decision. The internal reviewer's decision issued on 28 April 2016, in which he affirmed the original decision. The applicant sought a review by this Office of the Department's decision by way of letter dated 7 May 2016.

In conducting this review I have had regard to the Department's communications with the applicant as set out above and to the communications between this Office and the Department on the matter. I have also had regard to the contents of the record at issue that was provided to this Office for the purposes of this review. I note that the applicant was invited to make a submission on the matter but that he did not do so. Accordingly, I have decided to conclude this review by issuing a binding decision on the matter

 

Scope of Review

The Department identified one record as directly relevant to the request; namely, a report prepared by counsel advising the Minister in relation to the applicant's complaints against the Gardaí. I am satisfied that this was a reasonable interpretation of the applicant's request and note that the applicant has not at any stage of the process challenged this finding.

Accordingly, this review is solely concerned with the question of whether the Department was justified in refusing access to the record sought under section 31(1)(a) of the FOI Act, on the basis that the record attracts legal professional privilege

 

Analysis and Findings

Section 31(1)(a) of the FOI Act 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. In deciding whether section 31(1)(a) applies, I must consider whether the record concerned would be withheld 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:

(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).

In correspondence with this Office, the Department has provided detailed clarification of the role of the Independent Review Mechanism. It stated that counsel were nominated by the Attorney General and "were engaged on a contract for services basis to provide legal advice to the Minister". Their role was to undertake a review of files referred to them and to make recommendations to the Minister as to an appropriate course of action in the individual case. The Department stated that the functions of a Panel member included:

"(i) an examination of the individual file assigned taking account of provisions of the Garda Síochána Act 2005, the Minister's responsibilities, the statutory functions and powers of the Garda Síochána Ombudsman Commission (GSOC).

(ii) consideration of documentation including any representations from a Complainant or other parties. This consideration was based on a review of the papers, and did not involve interviews or interaction with Complainants or any other form of investigation.

(iii) identifying whether other information was needed and communicating same with [the Department's] Garda Division, who were responsible for sourcing that information.

(iv) on completion of a case the provision of a reasoned, balanced and legally robust report in writing summarising the case and making recommendations on whether further action is needed and, if so, what options for action should be considered by the Minister.

(v) counsel were required to give an undertaking not to act for or give advice to any persons arising out of the matters contained in the allegations"

The Department further stated that while it did not provide complainants with the reports prepared by counsel, it "sought to ensure that letters to complainants should not only set out the recommendation of counsel, but also outline, as far as possible, the reasons for the recommendation. To that end the Minister appointed a retired judge, Mr Justice Roderick Murphy, to advise on the preparation of the letters and independently vouch for the fact that the summaries of conclusions and the reasoning behind them were a fair reflection of counsel's advice." It is noteworthy, also, that the Minister at all times retained discretion to accept or reject the advice of the Panel Counsel.

Having carefully considered the matter, I am satisfied that counsel's role in this case was essentially that of legal advisor, rather than as an administrator or decision maker. Moreover, the Department submits that the Attorney General has advised, in line with my own conclusions, that, "the individual assessments, having regard to the applicability of diverse statutory frameworks, made by counsel could only be described as legal advice." For these reasons, I am satisfied that the record at issue in this review attracts legal advice privilege.

I note that privilege can be said to have been waived where the contents of legal advice have been disclosed. However, I take the view that a mere reference to, or a brief summary of, legal advice, even if placed in the public domain, will not generally amount to waiver. Furthermore, if a very limited disclosure does not reveal the reasoning behind the conclusion or a considered examination of the relevant case law precedents, and the way they apply to the case, then it seems to me that waiver will not have occurred. Having examined the contents of the record at issue and the contents of the letter of 27 August 2015 wherein the Department notified the applicant that no further action would be taken in relation to his complaints, I am satisfied that no such waiver took place in this case.

Accordingly, I find that the Department was justified in deciding to refuse access to the record under section 31(1)(a) of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse access to the record at issue.

 

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.

 

Stephen Rafferty
Senior Investigator