Pádraig Mac Lochlainn (Donegal North East, Sinn Fein) | Oireachtas source

I thank Dr. Muldoon for his presentation. In relation to the issue of legal professional privilege it is most helpful that Dr. Muldoon is before us here today. I am particularly mindful of the March 2012 report by the then ombudsman, Emily O'Reilly, and it was on the operation of the Ombudsman for Children Act 2002. Section 4 of that report deals with investigation of complaints procedure and access to information. I know Dr. Muldoon does not have the report before him but I draw his attention to points 4.2 and 4.3, which state:

An issue that has arisen in this context is access to documents in respect of which public bodies claim legal professional privilege. It is not uncommon for this office to have difficulty obtaining documents germane to an investigation due to a claim of such privilege. This can give rise to serious concerns if, as has been the experience of ombudsmen in other jurisdictions, such an approach is adopted primarily to frustrate an investigation.

It then goes on to say:

This is not to call into question the importance of legal professional privilege as such. It is to advocate for its proper use. Understanding decision-making by public bodies is the core of the Ombudsman for Children's investigation and there are instances in which much may turn on the legal advice received by a public body. The purpose of obtaining and considering such documentation is to see what light it can cast on the administrative actions of the public body. It should be emphasised that this relates to legal advice received by an organisation under investigation and not any given individual.

I note from that report how the Australian federal ombudsman is empowered by section 9 of the Ombudsman Act 1976 to obtain such information. How much of an issue is this for Dr. Muldoon as a new ombudsman coming in? How does his office find or suspect that the claiming of legal professional privilege is adopted primarily to frustrate an investigation?