Case 98011

Legal professional privilege - section 22(1)(a) - sufficiency of search for records - section 10(1)(a) - whether records contained personal information about the requester - whether access necessary or expedient to understand records created after commencement - section 6(5)(a).

Case Summary

Facts

The requester had been employed in a health board and sought records from the Department relating to this employment. Some records were released but the Department, relying on section 22(1)(a), refused access to legal advice. The requester also sought records explaining the difference in responsibilities between two posts and the Department claimed that no such records were held by it and refused access under section 10(1)(a).

Decision

The Commissioner affirmed the decision of the Department not to release the record containing legal advice under section 22(1)(a). During the course of the review, records were discovered which the Commissioner considered came within the scope of the request. He decided that those records need not be released since, although relevant to the review, they were created prior to the commencement of the Act and did not contain personal information about the requester. Accordingly, he varied the decision of the Department not to release the information sought on the grounds that section 10(1)(a) of the Act applied

Date of Decision: 23.10.1998

Case 98011 - Mr. AAI and the Department of Health and Children

Background:

Mr AAI was employed as a social worker in a health board. In 1990, consequent upon a re-organisation of social work services in some areas, a new grade with a higher salary was created. Mr AAI was not appointed to the new position and the health board transferred him to another area, at his existing grade and salary. Mr AAI contended that the re-organisation involved the abolition of his existing post, without his consent. A health board official who is aggrieved at a decision of the board in relation to his terms or conditions of employment is entitled under Section 14(6) of the Health Act l970 to appeal to the Minister for Health. Mr AAI appealed to the Minister on 5 April l990 contending that his post was being abolished and asking the Minister to direct the health board not to do this. The Minister declined to issue such a direction.

On 21 April 1998, Mr AAI sought copies from the Department of Health and Children, under the Freedom of Information Act, of "all correspondence, meetings etc. relating to his appeal including written and oral contributions from the health board and Local Government and Public Services Union now known as 'IMPACT'". While some information was released, including a submission by Department officials to the Minister on the matter, the Department initially withheld two documents. The first was a copy of legal advice sought by a Department official, while preparing the submission to the Minister. The second record was a 1981 Annual Report on Social Work in the health board, partly prepared by Mr AAI himself.

Mr AAI applied for internal review of the decision not to release the legal advice. He also referred to the submission to the Minister which stated that the new grade created in 1990 carried additional responsibilities over and above those of his (then) existing post. He sought a detailed list of these extra responsibilities.

The decision not to release the legal advice was affirmed on internal review. The reviewer also stated that the Department had no further records relating to the job descriptions for the two posts but suggested that Mr AAI might contact the health board. Mr AAI then applied to this Office for a review of two aspects of the decision made by the Department at internal review, viz.

- The refusal of access to legal advice received by the Department, and - The failure to explain the extra responsibilities attaching to the new post.

In reviewing the decision of the Department, I examined the records available and considered the arguments in the submissions made by the parties relevant to the review. Two separate issues initially appeared to fall to be decided - whether the Department is correct in withholding the record of the legal advice and whether any records exist which explain the difference between the two posts. These are dealt with separately, below.

Legal advice:

The record consists of a letter dated 11 July 1990 from a legal adviser employed by the Department of the Environment whose services were also available to the Department of Health. It was written in response to a letter from the Personnel Unit of the Department which sought legal advice as to whether it was possible for Mr AAI to claim that his post had been abolished without his consent contrary to Section 12 of the 1955 Local Government Act. The Department has refused to release this record under section 22(1)(a) which provides that

"A head shall refuse to grant a request under Section 7 if the record concerned (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

The Department has, however, released the original request for this legal advice in respect of which they did not claim privilege.

The Department's submission quotes the Smurfit Paribas Bank Ltd v AAB Export Finance Ltd case in support of its claim for privilege and also Silver Hill Duckling v Minister for Agriculture in which the court accepted that legal advice given to the Minister by his legal advisers was privileged. They also referred to the Crompton case which was relied upon in the Silver Hill case, where an English court ruled that the privilege attaching to legal advice applied to advice from in-house lawyers as well as to advice from external legal advisers. They referred to SPUC V Grogan (No3) which held that advice by officials of the Office of the Attorney General was privileged and Breathnach v Ireland (No3) which held similarly in relation to officials of the Office of the Director of Public Prosecutions.

Mr AAI submitted that he was entitled to see legal advice on his terms of employment. He was not satisfied with the Department's decision that the position he held before his transfer was not an office for the purposes of the Local Government Act 1955.

The Department is aware that legal professional privilege resides with the client and that the Department has the right to waive this privilege if it so wishes. Thus the Department could release the record outside of the Freedom of Information Act. Nonetheless, it has chosen not to waive privilege - despite the fact that it is difficult to see what adverse consequences could accrue from doing so, in this particular case.

The nub of the issue here is whether the record in question would be exempt from production in a court on the ground of legal professional privilege. In considering this matter, I have to ignore the likelihood or otherwise of court proceedings taking place. The question comes down simply to whether or not the Department would succeed in withholding the document on the ground of legal professional privilege in court proceedings.

There are some situations in which legal professional privilege may not attach to communications between lawyer and client such as non-confidential communications or legal assistance other than the giving of advice or communications in furtherance of a criminal offence. I am satisfied that these exceptions do not apply here. Accordingly, I must hold that the Department is entitled to claim exemption in respect of this record.

Difference between the two posts

In the course of making his original request under the Freedom of Information Act, his request for internal review and his application to my office for review, Mr AAI has expressed his requirements, in relation to information about the differences between the two posts in different ways. He initially sought all correspondence etc., relating to his l990 appeal to the Minister. Having seen the submission to the Minister dated 31 July 1990 which states that the new post carries additional responsibilities, Mr AAI specifically asked what those additional responsibilities were. Despite phrasing this latter request as a demand for an explanation, it seems clear that what Mr AAI is looking for are any records which might explain the extra responsibilities. Indeed, on internal review, the Department dealt with the matter as a request for such records, and refused the request on the grounds that no such records exist. I have conducted this review on the basis that Mr AAI's request is a request for records as opposed to a request for an explanation.

The Department searched its file tracking system for files likely to contain relevant records and examined these files without finding any records that they considered relevant to Mr AAI's request. They submitted that they had thus taken all reasonable steps to find the records, and were therefore entitled to refuse the request under Section 10(1) of the Act. Two of my officials subsequently examined records in the Department and found a record which related to the difference between the two posts. This was contained in the Report of the Committee on Social Work which was produced in September 1985. The Department has refused to release this record to Mr AAI on the grounds that it was created before the commencement of the Act and does not contain personal information. I accept that the Department is entitled to refuse access on these grounds. While the Department also states that the report was not fully accepted by it and as such gives only a partial picture of an extensive process, refusing access seems rather pointless as the report was widely circulated at the time it was produced and it is quite possible that Mr AAI will obtain a copy from other sources.

My officials also discovered a file, entitled "Implementation of the Report of the Committee on Social Work 1985" (S116/393) on the file tracking system, which had not been examined by the Department. It is not necessary for the purposes of this decision to describe each record on the file. It is sufficient to note that the records consisted of internal Department minutes, notes of discussions and correspondence with the LGPSU concerning the implementation of the Report, and dealing with, inter alia, the revised grading structure for health board social workers. The papers on this file appear to be incomplete. Nevertheless, they do contain references to the differences in the responsibilities of the two posts which are the subject of Mr AAI's concerns. To that extent, some of these records fall within the terms of Mr AAI's request. However, the Department now contends that these records should not be released because they were created before 21 April l998, and they do not contain personal information about Mr AAI.

I am satisfied that these records are not covered by the Act because they were created before the commencement of the Act and do not contain personal information about Mr AAI, nor are they needed in order to understand records created after the commencement.

The examination of records by my officials showed an apparent further gap in the records in that there were references to discussions and meetings for which records were not found. The Department was instructed to question individuals who were involved in the case at the time and to contact the health board to see if they had any file references that would assist in the search for records relating to Mr AAI. No further records were found as a result. I am satisfied that all reasonable steps have been taken at this stage to locate files containing personal information about Mr AAI which might be covered by his request. I should add that I consider unsatisfactory the Department's reply to Mr AAI's request, on internal review, for details of the differences between the two posts. It now transpires that records relating to this matter do exist - although, as indicated above, the Department is entitled to refuse to release them on other grounds

Submissions

Findings

Decision

Having carried out a full review of the original and subsequent decisions of the Department in this case, and having considered the arguments put forward in the submissions made to me by the relevant parties, I have decided that the record containing legal advice is exempt under Section 22(1)(b) in that it would be covered by legal professional privilege and I affirm the decision of the Department not to release the record.

With regard to the other records, I have decided to vary the decision of the Department on internal review not to release the information sought on the grounds that Section 10(1)(a) of the Act applies, insofar as that decision relates to the records on file S116/393 and the Report of the Committee on Social Work. I have decided in this instance that these latter records should not be released since they were created prior to the commencement of the Act and do not contain personal information about Mr AAI.

Information Commissioner

23 October 1998