Court dismisses appeal upholding legal advice privilege refusal for employer data access request.

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF CITY OF DUBLIN

Record No. 2019/03674

IN THE MATTER OF THE DATA PROTECTION ACTS 1988 & 2003 AND IN

THE MATTER OF AN APPEAL UNDER SECTION 26 OF THE DATA PROTECTION

ACTS 1988 & 2003

Between

AIMEE SCOTT

APPELLANT

-and-

THE DATA PROTECTION COMMISSIONER (NO. 1)

RESPONDENT

Judgment of His Honour Judge John O’Connor delivered on the 4th of May 2022:

Introduction:

1. The Appellant, Aimee Scott (Ms Scott), appeals a decision of the Respondent (the “Commissioner”) dated the 20th May 2019 (the “Decision”) in respect of a complaint dated the 12th November 2017 (the “Complaint”) and issued under Section 10 of the Data Protection Acts 1988 and 2003 (the “Acts”).

2. Ms Scott alleged failure by Mason Technology Limited (“Mason”) to comply fully with an access request pursuant to Section 4 of the Acts, which was made by Ms Scott on 15th August 2016 and to which Mason Technology responded on 22nd September 2016.

3. In their response to the Commissioner, Mason submitted that certain personal data should be refused on the basis of legal professional privilege pursuant to Section 5(1)(g) of the Acts and this submission was accepted by the Commissioner.

4. Ms Scott submits that the Commissioner erred in the course of the Decision, in deciding that her former employer, Mason, was entitled under the Acts to decline to disclose to her certain documents on the basis that they attracted legal advice privilege. She maintains that there was no solicitor-client relationship between the IBEC solicitor and Mason.

Legal Advice Privilege:

5. The four elements that are required in order for a claim of legal advice privilege to succeed are summarised by the Commissioner in its submission as:

(i) there must be a communication between a client and a lawyer;

(ii) such communication must be made in confidence;

(iii) such communication must be made in the course of a professional legal relationship; and

(iv) such communication must be made for the purpose of giving or receiving of legal advice.

6. Specifically, the Commissioner found that an employed solicitor of IBEC, which provides consultancy employment legal advice to clients of that firm, would meet the criteria of being a “lawyer”. In coming to that view, the Commissioner stated it had regard to the nature of the engagement between Mason and IBEC, whereby an annual fee is paid by Mason to IBEC for the receipt of services, including legal advice and representation. The Commissioner stated at paragraph 5.3 of the Decision: “I have also had regard to the fact that the legal advice was provided by the solicitor in their capacity as a qualified and practising solicitor, providing legal advice in relation to an employment-related dispute.” Effectively the Commissioner found that the solicitor in question was acting in their capacity as a lawyer to provide legal advice to their client.

7. Ms Scott maintains that the Commissioner erred in law in this regard and that the Law Society Guide to Good Professional Conduct (3rd edition) and case law indicates that an inhouse, employed solicitor can have only one client namely his or her employer. Furthermore she maintains in detailed submissions that the burden of proof in establishing a right to privilege rests on the entity asserting privilege, namely Mason. She also submits that Mason and IBEC were not joined in the proceedings and the solicitor contract was not put before the Commissioner to demonstrate solicitor-client relationship. In addition, she submits that there was no letter of engagement with the compliance requirements of the Solicitors Acts 1954-2015 as amended [Solicitors Acts] between Mason and the solicitor produced to the Commissioner and that in general there was a lack of compliance with the regulatory requirements under the Solicitors Acts to demonstrate a solicitor-client relationship.

8. Among the case law referred to by Ms Scott’s Counsel in their submission were:

• Ryanair v Revenue Commissioner [2018] IECA 222

• Smurfit Paribas Bank Ltd v A.A.B. Export Finance Ltd [1990] 1 IR 469

• University College Cork v ESB [2014] IEHC 135

• Prendergast v Mc Loughlin [2010] 3 IR 445

• F & C Reit Property Asset Management Plc v Friends First Managed Pension Funds Ltd [2017] IEHC 383

• Geraghty v Minister for Local Government [1975] IR 300

• John F Condon v The Law Society of Ireland [2010] IEHC 52

Appeal to the Circuit Court and Test to be Applied:

9. Section 26(1)(d) of the 1988 Act, as amended, provides for an appeal to the Circuit Court against any decision of the Commissioner in relation to such a complaint. In Nowak v. Data Protection Commissioner [2016] 2 IR 585, (“Nowak”) the Supreme Court (O’Donnell J.) held that the test to be applied, on any appeal of this nature, is that promulgated by Keane CJ in Orange v. Director of Telecommunications Regulations [2000] 4 IR 159 at pages 184 to 185 (“The Orange Test”): “In short, the appeal provided for under this legislation was not intended to take the form of re-examination from the beginning of the merits of the decision appealed from culminating, if may be, in the substitution by the High Court of its adjudication for that of the first defendant. It is accepted that, at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the first defendant was being challenged by way of judicial review. In a case of this legislation at least, an applicant will succeed in having the decision appealed from set aside where it establishes to the High Court as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error, or a series of such errors. In arriving at a conclusion on that issue, the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the first defendant.”

10. Therefore, an appeal under Section 26 of the Acts is not a full re-hearing on the merits and is limited in nature. In doing so, in applying the Orange Test as outlined by O’Donnell J above, the following three principles are applicable to this case:

(i) First, the appeal is not intended to take the form of a re-examination from the beginning of the merits of the decision, culminating in the substitution by the Court of its adjudication for that of the statutory decision-maker.

(ii) The Court is not confined to the issues which could be raised solely by way of judicial review. However, an applicant must establish as a matter of probability that taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or series of such errors.

(iii) In its decision, the Court will necessarily have regard to the degree of expertise and specialized knowledge available to the Commissioner.

11. In coming to its judgment, the Decision should be assessed by the court on the basis of the evidence that was before the Commissioner at the time of the Decision. [King & Others v Minister for Finance & Others [2010] IEHC 307; Governey v Financial Ombudsman & Anor [2013] IEHC 403; Millar v Financial Services Ombudsman [2015] IECA 126.

12. In addition, the court should not consider complaints about process or merits in isolation but rather should consider the adjudicative process as a whole. [Millar v Financial Services Ombudsman [2015] IECA 126]

13. The burden of proof is on the appellant which in this case is Ms Scott and the standard of proof is the balance of probabilities. [Millar v Financial Services Ombudsman [2015] IECA 126] Application of the Law to the Facts:

14. Essentially the Court has summarised the questions to be answered by it in this case as follows. The questions below are outlined in sequential order. The Court must be satisfied that the answer to the question is in the affirmative before it can consider the following question:

1 Was it possible or not for Mason to be a client of a solicitor employed by IBEC?

2 Did, in fact, a solicitor-client relationship exist between Mason and the solicitor?

3 Did legal advice privilege exist between Mason and the solicitor?

4 Was the Commissioner correct to conclude that certain personal data should be refused on the basis of legal professional privilege pursuant to Section 5(1)(g) of the Acts?

15. At the outset I accept the definition in Evidence (2nd edition) of Declan McGrath, at paragraph 10.12, as setting out the law, namely that: “Legal advice privilege entitles a client to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. Although that legal advice will often be sought in connection with litigation, the proximity or otherwise of litigation is irrelevant provided that the communications pass in the course of a professional legal relationship” At paragraph 10.36 he states:

“In order to ground privilege, the communication must be made to or by a lawyer during the course of a professional legal relationship or with the intention of establishing one. The definition of lawyer for this purpose incudes, obviously, solicitors and barrister but also salaried in-house legal advisors, foreign lawyers and the Attorney General . However it does not include persons without professional legal qualification who give legal advice or persons who have ceased to practise as a lawyer or have been struck off, on the basis that “privilege should be strictly confined to legal advisors such as solicitors and counsel, who are professionally qualified, who are members of professional bodies, who are subject to the rules and etiquette of their professions, and who owe a duty to the court” And at 10.37: “Nevertheless, because legal professional privilege exists for the benefit of the client, it will apply where the client does not know of the disability and reasonably believes the person to be a practising lawyer. However the onus is on the client to establish this, and there should be reasonable grounds for the client’s belief.”

16. In answer to Question 1, the solicitor in question was a solicitor within the meaning of the Solicitors Acts and is therefore a qualified lawyer. In this case the solicitor was employed by IBEC. IBEC employs lawyers who provide legal advice to its members and Mason was a member of IBEC. In this courts view, it is possible for Mason to be a client of the solicitor even if employed by IBEC, as the solicitor was employed to provide legal advice to its members.

17. The legal and ethical regulatory requirements are for the benefit of clients and the public and to promote best practice. They are not there to ensnare clients in their own litigation. So the answer to Question 1 is “yes”.

18. In answer to Question 2, did a solicitor-client relationship actually exist? In the courts view this is a question of fact to be decided in each case. It appears to me that the Commissioner was satisfied in reaching the Decision that this was the case and Ms Scott in my view has not demonstrated a cogent reason as to why the Court should take an alternative view. I answer this question in the affirmative.

19. In answer to Question 3, at the outset, I accept that the communication between the solicitor, employed by IBEC, to Mason, even though a client of the solicitor, does not automatically attract privilege. The communication must also be done by the solicitor in their professional capacity. The concern here is that the solicitor does not end up creating a conflict of intertest in acting for IBEC and Mason [Doyle v Bergin [2010] IEHC 531]. While this issue of conflict would give rise to legal regulatory concerns, it could also give rise to issues for solicitor-client privilege in respect of data retention.

20. However, in this case, I am satisfied that on reading the Decision, the Commissioner concluded after careful consideration that the legal advice was provided in relation to an employmentrelated dispute and that the solicitor in question was acting in their capacity as a lawyer to provide legal advice to their client. I therefore am satisfied to answer Question 3 as “yes”.

21. In relation to Question 4, bearing in mind the curial deference owed to the Commissioner and the assessment on whether the adjudicative process as a whole was conducted fairly, the law as interpreted by the Commissioner was set out correctly i.e. the four elements that are required in order for a claim of legal advice privilege. I accept that the Commissioner was correct to conclude that certain personal data should be refused on the basis of legal professional privilege pursuant to Section 5(1)(g) of the Acts.

22. Therefore, the Appeal is dismissed.