Decision
Dr Fred Logue and Department of Public Expenditure and Reform
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136661-W9W3K2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136661-W9W3K2
Published on
Whether the Department 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
14 February 2024
1. On 18 January 2023, the appellant requested of the Department “a copy of the Q1 2022 review of the implications of the outcome of Judicial Review of the River Bride scheme in Crossmolina.” By way of clarity, the information requested relates to a review commissioned by the Minister of the Department of the implications of the Department’s conceding a judicial review challenge in the case of Chris Moody et al. v Minister for Public Expenditure and Reform et al, relating to a proposed flood relief scheme for the River Bride in County Cork.
2. On 17 February 2023, the Department issued its original decision to the appellant stating that, following examination of material held by the Department, it had been unable to locate any records which readily matched the description of the request. It went on to state its conclusion that the information requested referred to the actions of receiving and consideration of specific legal advices following the outcome of the aforementioned judicial review of the River Bride consent order. The letter identified two records relevant to the request, which the Department considered exempt from disclosure under article 8(a)(iv) of the AIE Regulations arising from the fact that they comprise “entirely” of legal advices and are protected by legal professional privilege (LPP).
3. On 20 February 2023, the appellant requested an internal review of the Department’s decision, noting that there is no exception for LPP under the AIE regime and the Department seemed to have misinterpreted the Regulations.
4. On 16 March 2023, the Department issued its internal review decision, which affirmed its original decision. It was of the view that the two records previously identified as relevant to the request were exempt from disclosure under article 8(a)(iv) of the AIE Regulations by virtue of the fact that they represent legal advices which are protected by LPP.
5. On 20 March 2023, the appellant brought this appeal to this Office.
6. I have now completed my review of the appeal under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the observations made by the appellant when seeking an internal review, and submissions made by the appellant and the Department to this Office. In addition, I have had regard to:
• Directive 2003/4/EC (the “AIE Directive”), upon which the AIE Regulations are based;
• 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 ”);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the “Aarhus Guide”); and
• 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”).
7. What follows does not comment or make findings on each and every argument advanced but I have considered all materials received in the course of the investigation and the proceedings.
8. 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.
9. The scheme of the AIE Regulations, and of the AIE Directive, makes it clear that there is a presumption in favour of release of environmental information. Subject to that presumption, a public authority may refuse to release environmental information where an exemption under articles 8 or 9 applies and the interest in maintaining that exemption outweighs the public interest in disclosure.
10. The question that arose in this appeal was whether the Department was justified in refusing access to environmental information on the basis of article 8(a)(iv) and LPP. In the course of the review of this case, the investigator sought submissions from the parties as to whether article 9(1)(b) was a more appropriate and relevant provision in the context of the appeal. Accordingly, my review considers whether the Department would have been justified in refusing access to the information sought on the basis of that provision.
11. It is the position of the appellant that the Department has manifestly misunderstood article 8(a)(iv) of the AIE Regulations which, he maintains, applies to the confidentiality of the proceedings of a public authority and says nothing about LPP. The appellant further denies that the information requested is privileged and contends that no specific harm resulting from disclosure has been identified to justify the Department’s refusal.
12. The information refused comprises an email from the Chief State Solicitor’s Office (CSSO) to officers of the Department (record no. 1 on the schedule of records), contains legal advice and has a document attached to it with the title ”220220.general advices (as settled).pdf”. This document (record no. 2) has as its heading “Memorandum of Advices” and is dated 21 February 2022. It cites the client as the Department of Public Expenditure and Reform and cites, as (law) agents, the CSSO and the Office of the Attorney General (AGO). The email states that the advices contained in the attached document were sanctioned by the AGO for release to the Department.
13. The Department’s decision was that the exemption in article 8(a)(iv) of the AIE Regulations applied to the two records on the basis of LPP. It makes explicit reference in its submissions to the principle of LPP as practiced in common law as the basis for refusal. Article 8(a)(iv) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of its proceedings, where such confidentiality is otherwise protected by law, including the Freedom of Information (FOI) Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts. The Department notes that the contents of the records are clearly identified as legal advices “which are of a privileged nature.” It maintains that LPP is a common law privilege that has been incorporated into section 31(1)(a) of the FOI Act 2014, previously section 22(1)(a) of the FOI Acts 1997 to 2003.
14. In Commissioner for Environmental Information v Coillte & People over Wind [2023 IEHC 227 ], the High Court considered the interaction between the FOI Act and article 8(a)(iv) of the AIE Regulations. Hyland J held that “[t]he FOI Act only protects the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act. Records are only exempt where the public body seeking to withhold access is a body subject to the FOI Act, as defined by section 6 of the FOI Act, and where (if applicable), both limbs of the test for exemption are met: the records come within an exemption protecting the confidentiality of proceedings of public bodies and the public interest does not warrant disclosure” (paragraph 111).
15. Hyland J held that the FOI Act can be used in conjunction with article 8(a)(iv) where it already protects the confidentiality of proceedings, stating, “[t]he reference to the FOI Act in Regulation 8(a)(iv) is for the purpose of identifying one instance in domestic law where the confidentiality of the proceedings of public authorities is otherwise protected by law. It does not create law; it simply recognises existing law. As such it does not create a new species of confidentiality of proceedings for the purpose of refusal of access to environmental information” (paragraph 113).
16. In relation to s. 31 of the FOI Act, Hyland J specifically found that it did not protect the confidentiality of the proceedings of the public authority: “[s]ection 31 is less obvious in my view since its purpose is not to protect the proceedings of public authorities but rather to protect communications between lawyer and client” (paragraph 64).
17. While the Department has relied on article 8(a)(iv) to justify refusal, it is my view that, in this case, protection for LPP would most appropriately fall within the exception in article 9(1)(b) of the AIE Regulations. This is because section 31(a) of the FOI Act does not provide for the confidentiality of proceedings of public authorities, but rather relates to parliamentary, courts and certain other matters. As such, this section cannot be used in conjunction with article 8(a)(iv) to show that the confidentiality of relevant proceedings is protected by law. Legal professional privilege, being a key tenet of the administration of justice is, however, relevant to article 9(1)(b) of the AIE Regulations. The Department and the appellant were each invited to comment on the applicability of this exemption to the information sought.
18. The Department’s position following this request for further submissions is that it can rely on article 9(1)(b) in this instance.
19. The appellant is of the view that it is not appropriate for the Commissioner to advance a new ground of refusal that has not been advanced by the Department. He considers that if the Department has not advanced a valid justification for refusing the information, the Commissioner is entitled to direct its release based on the presumption of access. He further points out that article 9(1)(b) does not protect legally privileged information in and of itself, and that internal legal advice to a public authority is a special case, adding that there is no current or envisaged legal proceedings and no question that the Department would be prejudiced in any way by releasing the information. He argues that, on the other hand, it would be very helpful for the public to understand the lessons learned by the Department in its review of a case where it was forced to concede a judicial review.
20. I note that I have a broad jurisdiction on review to conduct a de novo consideration of a request for environmental information, see M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020 IEHC 430, paragraph 18 ], where the High Court made clear that article 12 of the AIE Regulations confers on me jurisdiction to conduct a de novo consideration when dealing with an appeal. Further, the Court of Appeal has made clear in Redmond v Commissioner for Environmental Information [2020] IECA 83, that proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the enquiry is determined by the Commissioner, not by the parties” (at paragraph 51). I therefore consider that it is within my jurisdiction to consider the application of article 9(1)(b) to this request.
Does the exception in article 9(1)(b) apply?
21. 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. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting “the course of justice” as referring to “active proceedings within the courts”. However, I also note that the Aarhus Guide, while a source of helpful guidance, is but a Guide, is not legally binding and is not determinative ( Right to Know CLG v Commissioner for Environmental Information IEHC 353, paragraph 20).
22. LPP is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Irish Constitution. The existence of LPP is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (see Martin v Legal Aid Board [2007 IEHC 76 ] and Miley v Flood [2001 IEHC 9 ]). In light of this, I accept that the disclosure of information which would breach LPP would, as a result, adversely affect the course of justice, within the meaning of Article 9(1)(b) of the AIE Regulations.
23. LPP encompasses legal advice privilege and litigation privilege. Legal advice privilege covers a communication between “a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice whether at the instigation of the client or the lawyer” (Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469). In light of the guidance set out in McMahon v Irish Aviation Authority [2016 IEHC 221 ], I understand that for legal advice privilege to apply: (a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General); (b) the communication must have been made in confidence; (c) the communication must have been made during the course of a professional legal relationship; and (d) the communication must have been made for the purposes of the giving or receiving of legal advice.
24. In this case, I accept the contention of the Department that legal advice privilege attaches to the entirety of the information in each of the two records the Department has refused to release, for the following reasons:
a. It is clear on its face that the information records a communication between the Department (a client) and the CSSO (a lawyer, effectively the Department’s solicitor), regarding advices sanctioned by the Office of the Attorney General (a lawyer);
b. the Department’s submission that the communication was made in confidence and has not been shared with any other party with the express intention of maintaining the privilege attaching to the advices;
c. the relationship between the Department and both the Chief State Solicitor and the Attorney General in this context is a professional legal relationship; and
d. It is clear on its face that the communication involved the receipt of legal advice.
25. I have not seen anything to indicate that LPP has been waived by the Department in this instance. Accordingly, my view is that release of the information would breach LPP. The appellant is correct in his assertion that article 9(1)(b) does not protect legally privileged information in and of itself. However, I am satisfied that the disclosure of this information would adversely affect the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. I consider that this applies regardless of whether there are current or envisaged proceedings in place. LPP does not require related proceedings to be in being. I therefore find that article 9(1)(b) applies to the information sought.
Does the public interest served by refusal outweigh the interest served by refusal?
26. I will now proceed to consider whether the interest in withholding the relevant information is outweighed by the public interest in its disclosure, having regard to the provisions of article 10(3) and 10(4) of the Regulations.
27. The Department has sought to apply the public interest test in correspondence with both the appellant and this Office. In its original decision letter it considers that the public interest served by disclosure of the information would not outweigh the interest in upholding the principle of LPP, considered a “cornerstone of the administration of justice.” Its internal review decision letter considered that maintaining the principle of LPP outweighed any public interest served as a result of releasing the records. In submissions to this Office, in applying the public interest test in article 10(3) and (4) of the AIE Regulations, the Department has acknowledged an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, and in the openness and transparency of the Government’s decision-making processes in environmental matters, but submitted that this interest does not outweigh the fundamental protection of LPP. It maintains that it is settled law that LPP does not exist merely for the protection of a party seeking legal advice from a lawyer but also to ensure the proper administration of justice. It further states that a party seeking legal advice must not be inhibited by fear of disclosure when they are seeking legal advice as this would affect the overriding public interest of the proper conduct of the administration of justice. The Department’s position is also that the release of information protected by LPP could have adverse effects on its ability to access such advice in the future. It states that this would in turn have negative consequences on the Minister’s ability to discharge his statutory role effectively and efficiently as a consent authority under the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations 2019 and to have due regard for the most up to date legal interpretations and opinions informed by evolving case law.
28. In favour of refusal, I note that the case law referred to above makes it clear that the protection of LPP is of fundamental importance to the administration of justice. The courts have emphasised the importance of the principle to facilitating free and frank communication with legal advisers (see, for example, Barr J’s summary of the rationale for protection in McMahon v Irish Aviation Authority [2016 IEHC 221 ] at paragraphs 7-11). I also consider that that the existence of legal professional privilege encourages public authorities to seek legal advice freely and frequently, and that there is a public interest in ensuring that public authorities seek legal advice about their obligations, particularly in relation to environmental matters.
29. In considering the public interest served by disclosure in this case, there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive. There is also a general interest in the openness and transparency of the Government’s decision-making processes in relation to environmental matters. I note also the appellant’s argument that it would be very helpful for the public to understand the lessons learned by the Department in its review of a case following its having been “forced to concede a judicial review.” In this case, the advices released to the Department relate to implications arising from the Department’s conceding the judicial review challenge of a flood relief scheme in Chris Moody et al. v Minister for Public Expenditure and Reform et al. The challenged scheme affecting the River Bride is also known as the Blackpool Flood Relief Scheme. According to the Blackpool Flood Relief Scheme website, by virtue of the Arterial Drainage Acts, 1945 and amending legislation and regulations, flood relief schemes require formal confirmation to proceed from the Minister for Public Expenditure and Reform. This is a statutory requirement under those Acts. According to the same website, the European Union (Environmental Impact Assessment) (Arterial Drainage) Regulations 2019 also require the Minister to carry out a separate and independent Environmental Impact Assessment (EIA) of a proposed scheme with a public consultation on the EIA and other related material. The additional responsibilities of these regulations aim to provide a high level of protection of the environment and human health. I am of the view that increased transparency around the internal deliberations of public authorities on how they achieve this protection is an important consideration in applying the public interest test.
30. However, having considered the interest in directing release of the specific legal advice at issue in this particular case, I have come to the conclusion that the public interest in disclosure is not sufficient to outweigh the fundamental importance of the interest of preserving the Department’s right to LPP in relation to the advice that it received from the CSSO and sanctioned ultimately by the Attorney General. Legal professional privilege is a significant feature of our legal system and the Courts have noted on numerous occasions the strong public interest which exists in protecting it. I note that a client receiving confidential legal advice is open to giving consent to its release, or part release, and this is a matter the Department is at liberty to consider in the course of time in the interests of openness and transparency in the furtherance of more effective participation by the public in environmental decision-making and, eventually, a better environment.
31. I do note, however, that the matter of release or non-release of information where LPP and article 9(1)(b) may apply to a request for environmental information is case-specific and there may be situations where release of such information is warranted under the public interest balancing test. It is important that public authorities remember that since 2007 it is open to them to release legally privileged information, and to this Office to direct such release following receipt of an appeal, under the public interest balancing test. However, in the circumstances of this particular case, I do not find that the public interest in disclosure outweighs the interest served by refusal.
32. Accordingly, I affirm the decision of the Department to refuse access to the information sought, but I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information and that the interest in refusal outweighs the public interest in disclosure.
33. 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.
34. I note for the sake of completeness the Department’s submission that, as the information at issue in this appeal is, in its “entirety”, exempt from disclosure by reason of article 9(1)(b) of the AIE Regulations, it is not possible to separate out from it information that is not so exempt, as the whole of each record benefits from LPP under that provision. I concur with the Department’s position in this respect.
35. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision to refuse access to the information sought. I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information and that the public interest in refusal outweighs the public interest in disclosure.
36. 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