Decision
Mr X and Sea Fisheries Protection Authority
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141672-R4Z0J7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141672-R4Z0J7
Published on
Whether the SFPA was justified in refusing access to environmental information on the basis of legal professional privilege under articles 8(a)(iv) and 9(1)(b) of the AIE Regulations
11 June 2024
1. On 11 May 2023 the appellant requested of the Sea Fisheries Protection Authority [SFPA] ‘information on any enforcement action that has been taken as a result of a breach of the Non-Commercial Pot Fishing (Lobster and Crab) Regulations 2016.’ The appellant also posed eight questions that he requested be answered in the event that it is decided by the SFPA that an exemption, resulting in a refusal to provide the information, applies.
2. On 29 May 2023 the SFPA wrote to the appellant stating that they consider his request ‘too general’ and asked that he refine his request. On 29 May 2023 the appellant clarified that his request was for ‘entire files, redacted to remove personal data which involve the enforcement of [the 2016 Regulations]’.
3. The appellant was notified on 12 June 2023 that the request was refused pursuant to the provisions of Article 9(1)(b) of the AIE Regulations which states that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
4. The request was also refused by the SFPA pursuant to the provisions of Article 8(a)(iv) which states that a public authority shall not make available environmental information in accordance with Article 7 where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts). In this original decision dated 12 June 2023 the decision maker further explained her view that s31, s32 and s42(f) of the Freedom of Information (FOI) Act applied. The decision found that the interests of the SFPA as a regulatory authority in maintaining legal professional privilege (LPP) and confidentiality with regard to proceedings and methods of conducting investigations outweighed the public interest in disclosure of the information.
5. It is evident that two enforcement actions were identified by SFPA as relevant to the request. Attached to the decision was an Appendix consisting of answers to the questions posed by the appellant as referred above. The list related to ‘Case 1’ and ‘Case 2’ and for each case half of the questions were answered. It was explained that the reason the remaining questions were unanswered was because the answers were ‘not disclosable in accordance with Article 9(1)(b), Article 8(a)(iv) as detailed in the body of the letter’.
6. On 21 June 2023, the appellant requested an internal review of the initial decision. The SFPA made its internal review decision on 5 July 2023 upholding the original decision and refusing the request on the grounds that inter alia the SFPA have provided specific detail, referring to Article 9(1)(b), Article 8(a)(iv) of the AIE Regulations and s31(1)(a), s32(1)(a)(i), and s42(f) of the FOI Act 2014 outlining the circumstances with which it has chosen to refuse access to records requested.
7. The appellant appealed to this Office on 21 August 2023.
8. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Sea Fisheries Protection Authority. I have also examined the contents of the records at issue. In addition, I have had regard to:
(a) the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
(b) Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
(c) the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
(d) The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with Article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
11. The AIE Regulations transpose the provisions of the AIE Directive which gives effect in law to one of the underlying objectives of the Aarhus Convention, namely ensuring that members of the public can have access to all relevant information concerning the environment. The obligation on Member States to make available environmental information to the public is subject to discretionary exceptions. The exceptions are set out in Article 8 and 9 of the AIE Regulations.
12. Article 12 of the AIE Regulations confers jurisdiction on the Office of the Commissioner to conduct a de novo consideration of a request for environmental information. Appeal proceedings before this Office are inquisitorial rather than adversarial in nature and the extent of the enquiry is determined by the Commissioner and not the parties to the appeal.
13. The issue for determination in this appeal was whether legal professional privilege (which encompasses both legal advice and litigation privilege) applies to the relevant records and, if so, are they exempt from disclosure under the provisions of the AIE Regulations.
14. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited.
15. Before considering the substance of this appeal, I wish to first note that the original decision of the SFPA sought to charge the appellant a fee of 30 euro if he wished to make an internal review. This practise has absolutely no basis in law, and the SFPA should ensure this does not happen in relation to future AIE requests. Secondly, the internal review decision did not inform the appellant that he should make his appeal to this Office not later than one month of receiving that decision. The SFPA should ensure that in future appellants are informed of this timeline for the making of an appeal. The SFPA has apologised for these errors and states that it has put in place procedures to ensure that these are not repeated.
16. The appellant in his submissions requested that I require the SFPA to pay the costs that he had incurred in relation to this matter. This is not something that I am empowered to do under the AIE Regulations.
17. In support of his appeal, the appellant furnished written submissions dated 18 August 2023 and supplemental submissions dated 4 September 2023. In relation to the grounds for refusal under Article 9(1)(b) the appellant submits that:
(a) The SFPA submission, that release of the information could reveal methods of investigation which could enable suspects to evade detection, is hypothetical and not reasonably foreseeable. The SFPA has failed to explain how disclosure would specifically and actually undermine the course of justice.
(b) The SFPA has adopted a blanket approach to refuse access regardless of the nature or contents of the records.
(c) The SFPA has failed to show that all the contents of the file are subject to Article 9(1)(b).
18. In relation to the grounds for refusal under Article 8(a)(iv) and s31(a), s32, s42(f) of FOI, the appellant does not dispute that certain records are exempt on the grounds of LPP but questions how all the information could fall under LPP. The appellant accepts that s32 of FOI may apply to some records but submits that the blanket approach of the SFPA is not appropriate. The appellant also accepts that s42(f) will apply to some records but submits that the explanation provided is inadequate.
19. The SFPA furnished written submissions dated 3 October 2023. It accepts that all of the requested information is environmental information. It submits that all the documents but one are subject to litigation privilege and some are subject to legal advice privilege. The document that is not subject to privilege is a letter dated 14 August 2018 from an enforcement office to the accused to attend for voluntary interview. The Authority states in its submissions that it is satisfied that this document, the invitation to interview, can be released to the appellant subject to appropriate redactions.
20. The SFPA clarify that it does not hold any statement of an accused person in either case and the original decision mistakenly indicated that they did hold such. The original schedule furnished to the appellant with the original decision indicated that the records included a statement of an accused but this was an error and was meant to have referred to the statement of the SFPA officer instead.
21. The SFPA clarifies that all of the relevant records relate to one recently concluded investigation and one extant set of criminal proceedings which relate to the same individual. It states that the requested records were created in contemplation of actual enforcement proceedings against a particular individual and the records falls within the following three categories;
(a) Communications between the SFPA and its legal advisors, State Solicitors for Wexford, in connection with the particular prosecution, including preparations for hearing and attendance at court;
(b) Communications by the SFPA Legal Case Management Unit (also referred to as the Enforcement Unit) regarding communications with the SFPA’s solicitors in connection with the particular prosecution/preparing for hearing; and
(c) Communications between the SFPA and the Office of the Director of Public Prosecutions (DPP) in connection with the particular prosecution, with various attachments such as the relevant case file and statements of officers of the SFPA.
22. The Authority submits that:
(a) Legal advice privilege attaches to certain records that relate to legal advice regarding the approach to the enforcement proceedings.
(b) Disclosure of the requested records could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of same. It submits that s32(1)(a)(i) of the FOI Act would apply to all of the records which are subject to LPP and to the questions posed by the appellant which were unanswered.
(c) Article 8(a)(iv) applies by virtue of the confidentiality applied to the relevant proceedings of the SFPA under s31(1)(a), s32(1)(a)(i) or s42(f) of the FOI Act.
(d) Release of the requested information would prejudice or impair the current prosecution as well as the detection, investigation and prosecution of future offence under the 2016 Regulations.
(e) By reason of being subject to LPP, disclosure of the requested information would adversely impact the course of justice and should be withheld pursuant to Article 9(1)(b) of the AIE Regulations.
(f) The public interest balancing test falls in favour of withholding the information which is subject to LPP.
(g) With regard to Article 10(5) of the AIE Regulations it is not possible to disclose partial elements of the requested information and to do so may constitute a waiver of the protection of LPP.
23. I considered whether it was necessary to seek any further submissions from the appellant, however I am satisfied that the appellant’s submissions sufficiently address all material issues and that no further submissions were required in the circumstances of the case.
Analysis
24. The SFPA have refused access to the requested records and assert that the requested records are exempt from disclosure due to Legal professional privilege (LPP). LPP involves two distinct yet overlapping strands: legal advice privilege which protects confidential communications between lawyer and client, and litigation privilege which protects information gathered or exchanged in connection with court proceedings. Legal advice privilege can attach to any communication between a client and his or her lawyer made for the purpose of giving or receiving legal advice provided that the communications pass in confidence in the course of a professional legal relationship. Litigation privilege can attach to communications between either a client or his or her lawyer and third parties made in preparation for litigation which is pending or reasonably apprehended and to the ‘work product’ of a lawyer preparing for litigation.
25. I have examined the requested records (other than the invitation to interview document) and these records, are either (1) communications made in confidence between the SFPA and its lawyer, the State Solicitor in the relevant district, made for the purpose of giving and or receiving legal advice in relation to one or other of the two pending prosecutions, or (2) communications between the SFPA and either the State Solicitor or SFPA officers or the Office of the Director of Public Prosecutions made in preparation for litigation/the prosecution which is pending or reasonably apprehended. From my examination of the records it is clear that each document meets the criteria for LPP and I accept the claim that LPP attaches to each of the requested records. I do not find that any environmental information can be separated from information to which LPP attaches.
Does an exemption under the AIE Regulations apply?
26. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). Article 9(1)(b) seeks to implement Article 4(2)(c) of the AIE Directive, which is in turn based on Article 4(4)(c) of the Aarhus Convention. In relation to this exception the Aarhus Guide states that “If the release of information would adversely affect the ‘course of justice’, public authorities may have a legal basis to refuse to release it. The course of justice refers to active proceedings within the courts.” The Guide continues to clarify this exception and further states:
(a) Public authorities also can refuse to release information if it would adversely affect the ability of a public authority to conduct a criminal or disciplinary investigation. In some countries, public prosecutors are not allowed to reveal information to the public pertaining to their cases. The Convention clearly does not include all investigations in this exception, but limits it to criminal or disciplinary ones only.
27. The Supreme Court has considered the existence of a privilege which restricts proper disclosure in relation to the public interest in the proper conduct of the administration of justice. In Smurfit Paribas Bank Ltd v AAB Export Finance Ltd [1990] 1 IR 469, Finlay CJ stated at 477;
The existence of a privilege or exemption from disclosure for communications made between a person and his lawyer clearly constitutes a potential restriction and diminution of the full disclosure both prior to and during the course of legal proceedings which in the interests of the common good is desirable for the purpose of ascertaining the truth and rendering justice. Such privilege should, therefore, in my view, only be granted by the Courts in instances which have been identified as securing an objective which in the public interest in the proper conduct of the administration of justice can be said to outweigh the disadvantage arising from the restriction of disclosure of all the facts.
28. In Fyffes Plc v DCC Plc [2005]1 IR 59, the Supreme Court held that the principle of privilege is based on ensuring the proper administration of justice, and that a litigant should be protected in the ability to communicate freely with their legal advisors and third-party experts. Fennelly J further clarified the above extract of Finlay CJ in Smurfit:
The learned Chief Justice did not, in my view, by those words, mean to suggest that, in cases where reliance is placed on legal professional privilege in respect of documents the courts should balance the two considerations, as it were, on a case-by-case basis. He was referring to what the policy of the law should be. In my view, whether or not documents are privileged will be determined by the application of these principles to the facts of the case. Once it is found to exist, there is no judicial discretion to displace it.
29. The importance of LPP in the proper administration of justice was also emphasised in the judgment of McCracken J in Fyffes Plc v DCC Plc:
The principle of privilege arising in the preparation or conduct of a case is based on the proper administration of justice. This requires that a litigant must be in a position to communicate freely with his or her legal advisors, and further must be entitled to obtain expert evidence from third parties to assist, not only in the preparation of the case, but in the assessment as to whether there is any case to be made… it is important to remember at all times that privilege does not exist merely for the protection of a party, but also exists to ensure the proper administration of justice.
30. It is evident from the case law that LPP is an essential feature of the administration of justice. I am of the view that the disregard of LPP would adversely affect the course of justice as it would undermine the general assurance that privileged material will remain confidential. More specifically in this case it would adversely affect criminal inquires conducted by the SFPA and the resulting criminal prosecutions. In light of all the above, I find that article 9(1)(b) applies to the information sought.
The Public Interest
31. The Aarhus Convention recognises that public participation relating to the environment is to be achieved, inter alia, by making available to members of the public the information necessary to fully so participate. The object of that AIE Directive was to ensure freedom of access to information on the environment held by public authorities in order to ensure that environmental information is progressively made available and disseminated to the public to achieve the widest possible systemic availability.
32. Even where protection from disclosure is identified, either directly or by reference to existing provisions of law, a further step is required. Within Article 4(2)of the Directive it states that:
(a)The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case the public interest served by disclosure shall be weighed against the interest served by the refusal.
33. Articles 10(3) and 10(4) of the AIE Regulations give effect to this provision and state:
(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.
(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
34. There is an important public interest in the disclosure of environmental information as elucidated in the recitals to the AIE Directive. There is a public interest in the openness and transparency of the decision making and enforcement process of Public Authorities in relation to environmental matters. In this case I have examined the requested records and they are clearly covered by legal professional privilege. The importance of LPP has been emphasised in case law including that referenced above and the existence of this privilege has been deemed an essential feature in the administration of justice. The proper administration of justice requires that clients can communicate freely with their legal advisors and third party experts. There is a strong public and private interest in protecting the proper administration of justice and so in protecting LPP. I find that in this case the public interest in disclosure is not sufficient to outweigh the interest in the SFPA’s right to LPP in respect of the requested records.
35. Accordingly, I affirm the decision of the SFPA to refuse access to the requested information on the basis that Article 9(1)(b) applies to the information by reason of LPP and the interest in refusal outweighs the public interest in disclosure. This is for all the documents other than the document specified by the SFPA as being not subject to LPP as referred to above. I accept the claim that LPP attaches to each of the remaining requested records and, as noted above, I do not find that any environmental information can be separated from information to which LPP attaches.
36. In light of this finding it is not necessary to address the application of Article 8(a)(iv) of the AIE Regulations in this case.
37. Having carried out a review under article 12(5) of the AIE Regulations, I vary the Public Authority’s decision. I direct release of the of the single document over which LPP does not attach, the “invitation to interview” with the exclusion of any third party personal information contained therein. I affirm the refusal of the remainder of the information sought on the basis that Article 9(1)(b) applies to the information and the interest in refusal outweighs the public interest in disclosure.
38. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information