any tribunal or other body or individual appointed by either or both of the Houses of the Oireachtas to inquire into specified matters

• 
  exempt from production in court because of legal professional privilege, or
  
• 
  such that the head knows or ought to have reasonably known that its disclosure would constitute contempt of court, or
  
• 
  private papers of an MEP, a member of a local authority, or
  
• 
  deliberations (opinions, advice, recommendations, or results of consultations) considered by certain persons for the purposes of proceedings in the Houses of the Oireachtas, or a committee of either or both such Houses.
  

While section (31(2) and 31(3)) also provides for the discretionary refusal (“may”) of records held by an FOI body relating to the appointment, proposed appointment, or the business or proceedings of:

• 
  a tribunal to which the Tribunals of Inquiry (Evidence) Act 1921) or
  
• 
  any other tribunal or other body or individual appointed by the Government or a Minister to inquire into specified matters where at least one member or the sole member holds or had held judicial office or is a barrister or solicitor or
  
• 
  any tribunal/body/person appointed by either or both Houses of the Oireachtas)
  

This would include preparatory work related to the establishment of a tribunal. However the discretionary exemption only applies where the request is made at the time of the appointment of the tribunal or where the work of the tribunal has not been completed.

• 
  it is mandatory and must be applied where an FOI request seeks material coming within its parameters,
  
• 
  there is no application of an injury test before it can be invoked
  
• 
  there is no public interest override.
  

While Section 31(2) is discretionary, there is no injury test and no public interest override.

• 
  attract legal professional privilege
  
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  concern a matter before the courts, or regarding which the courts have imposed restrictions, and its disclosure might constitute contempt of court,
  
• 
  consist of the private papers of a member of the European Parliament or a local authority
  
• 
  consist of advice, consultations or recommendations etc. considered by the Ceann Comhairle, or the Leas Ceann Comhairle of the Dáil, the Cathaoirleach or the Leas Cathoirleach of the Seanad for the purposes of proceedings at a sitting of either House. Similar material considered by any other Member, or by a member of staff is also protected
  
• 
  consist of advice, consultations or recommendations etc. considered by a committee of either House, or a joint committee, or a Member, or a member of staff, for the purposes of the proceedings at a meeting of such a committee
  
• 
  relate to the appointment, proposed appointment, business or proceedings of a tribunal or inquiry as outlined above
  

To fall within this area material must constitute a record which was brought into existence in relation to -

1. 
   litigation or expected litigation or ‘litigation privilege’;
   
2. 
   for the purpose of seeking legal advice.
   

In relation to litigation, the courts have applied “the dominant purpose test”. This means that legal privilege applies to communications where the dominant purpose of such communications is in contemplation of actual or expected litigation. Communications do not necessarily need to be with legal advisers for them to be covered by litigation privilege. Rather, litigation privilege applies to documents which come into being for the purpose of contemplated or actual litigation.

0. 
   Once legal professional privilege attaches to a document that position is not changed by the passing of time.
   
1. 
   It promotes the public interest in that those in government bodies who bear responsibility for decision making have free and ready confidential access to their legal advisers.
   

0. 
   Legal professional privilege does not attach to documents brought into existence for the purpose of guiding or helping in the commission of a crime or fraud, or for the furtherance of an illegal purpose, including an abuse of statutory power,
   

0. 
   Precedent abroad indicates that records created in contemplation of legal proceedings must have a dominant purpose of being produced for litigation and there must be reasonable prospect of litigation on their creation.
   

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  communications between FOI bodies and their independent legal advisers concerning legal advice or in relation to legal proceedings,
  
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  such material held by an FOI body in respect of a third party. (This might arise in the case of a department gaining access to legal advice received by a state body under its aegis.)
  
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  Very closely related material which would disclose the substance of such communications
  

A record held or created by the Attorney General or the Director of Public Prosecutions (DPP) or their offices is with limited exception (a record relating to general administration) excluded from the FOI Act by section 42.

This subsection requires the refusal of records the disclosure of which would constitute contempt of court.

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  likely to interfere with the conduct or outcome of an ongoing court case
  
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  which are routinely prohibited court documents,
  
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  a court had prohibited public access to, and/or received an undertaking that such material would not disclosed.
  

Records likely to interfere with the conduct/outcome of an ongoing court case would be a relevant medical report on a health related case, or statements likely to influence a jury’s deliberations, or the outcome of a case.

Routinely prohibited court documents are those which are expressly confidential under court rules and should not be disclosed. An example is the content of notice of lodgment in litigation cases.
Obviously there are considerable records to which a court may prohibit public access, particularly during the currency of a case. An obvious example would be one which would disclose the identity of a child.
5.2.5 Records subject to Orders of Discovery
Under a decision of the High Court in April 2001 (E.H. and E.P.H. v the Information Commissioner) records held by an FOI body which have been the subject of an Order of Discovery must be refused under Section 31(1)(b) if access is sought by means of an FOI request. The willful release of such records would constitute contempt of court. This places an onus on FOI bodies to take reasonable steps to ascertain whether records sought under FOI have been discovered in the course of litigation. CPU Guidance Notice 14 contains additional guidance in this area.
5.2.5.1 In Camera Rule
It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases where the records might be connected with in camera proceedings, section 37 (personal information) may be relevant.
5.2.6 Section 31(1)(c) consists of­



(i) the private papers of a representative in the European Parliament or a member of a local authority, or

This subsection requires a request for a record, which constitutes the private papers of an MEP or a member of a local authority to be refused. This links with section 42(k) of the Act which protects the private papers of members of the Oireachtas. The concept and basis for the protection of “private papers” of Members of the Oireachtas is established under Article 15.10 of the Constitution.

• 
  correspondence with constituents which does not relate to an FOI body, or which are not submitted by the member to an FOI body for action
  
• 
  personal correspondence such as letters to/from family and friends and which does not concern the work of an FOI body
  
• 
  personal diary/memoirs of a member, or
  
• 
  functions and activities of a person as a member of a political party,
  

Section 31 requires that where material falls into this category access must be refused to such records. Such material will frequently not be in the possession of officials in an FOI body, but rather be held by the member him/herself.

This subsection is to protect opinions, advice, consultations, etc. for the purposes of parliamentary proceedings which have been considered by the Ceann Comhairle, or the Leas Ceann Comhairle of the Dáil, the Cathaoirleach or the Leas Cathoirleach of the Seanad. Similar material considered by either House, an Oireachtas committee, any Member of the Houses, or by a member of staff is also protected where such material consists of advice, recommendations etc. on, or for the purposes of the proceedings of either House, a committee of either House, or a joint committee.

At the outset two restrictions in the exemption are worthy of note: firstly the material must consist of a record described above, rather than broadly relate to such matters. Secondly, before this exemption applies, the material involved must have been considered by one of the following:

• 
  the Ceann Comhairle
  
• 
  the Leas Ceann Comhairle
  
• 
  the Cathaoirleach of the Seanad
  
• 
  the Leas Cathaoirleach
  
• 
  the Dáil or Seanad
  
• 
  an Oireachtas committee
  
• 
  a Member
  
• 
  a member of staff of the Office of the Houses of the Oireachtas.
  

This subsection upholds the independence and integrity of certain tribunals and inquiries and should be read in conjunction with section 42(a). It provides for the discretionary refusal of records held by a public body relating to the appointment, proposed appointment, or the business or proceedings of certain tribunals or inquiries i.e.

1. 
   to which the Tribunal of Inquiry (Evidence) Act applies
   
2. 
   that is appointed by the Government or a Minister to inquiry into specified matters where at least one member holds/held judicial office or is a barrister or solicitor or
   
3. 
   is appointed by either or both Houses of the Oireachtas to inquire into specified matters.
   

This subsection permits a decision-maker to exercise a certain amount of discretion. For example, a decision maker may decide not to invoke this subsection to refuse records containing purely personal information relating to a requester notwithstanding the fact that a relationship might exist between the records and the business of a tribunal or inquiry.

This provision requires a head to refuse to confirm or deny the existence of a record which would be exempt in a court on the grounds of legal professional privilege where the head is satisfied that disclosure of the existence or non-existence of the record would be contrary to the public interest.

• 
  Their use will be justified only in rare situations
  
• 
  It is not appropriate where it is the contents of the record rather than its existence that warrants protection
  
• 
  Persons should always be advised of their rights of appeal when notifying them of such a decision
  

A difficulty with such provisions is that their use can convey a signal that the body is alarmed about the request. There is also a danger that inferences may be drawn and the response could lose some or all of its value. However, experience suggests that this can be tackled through a number of approaches.

A requester seeks material which is a mix of records, some of which may be subject to the “confirm or deny” provision, and others which may not. For example, a taxpayer seeks access to her tax files. Unknown to her these include records relating to an ongoing highly confidential investigation of serious tax fraud. In an instance such as this the FOI body may need to consider remaining entirely silent about the investigation. This is justified by section 13(5) of the Act which states that a statement of reasons need not include any information which is itself exempt. Such an approach should be employed only in cases of extreme sensitivity.

A requester directly asks for extremely sensitive material the disclosure of which would have the effect of causing damage to matters which the exemption seeks to protect. The options here are either the direct use, or a refusal to confirm or deny response in relation to the request, or a response on the lines of “the organisation has no records which fall within the ambit of the Act” (6) Depending on the circumstances, it may be equally beneficial to invoke upfront the neither confirm or deny provision e.g. a request for records which seeks to ascertain whether a meeting between certain parties has taken place.

A significant criminal investigation is underway and at a particularly sensitive stage. The subject matter suspects that an investigation is underway. He/she asks for the records and other matters relating to him/herself. Here the request for the other material should be treated as per normal. The refusal to confirm provision or a variation thereof, as set out at scenarios (1) and (2) above should be used as to request for the investigation records.