Case 100127

The Senior Investigator affirms the Council's decision having found that the correspondence is exempt under section 22(1)(a) of the FOI Act.

Case Summary

Whether the Council is justified in its decision to refuse a request for access to correspondence for the reason that the correspondence concerned is exempted by section 22(1)(a) of the FOI Act.

Date of Decision: 29.08.2011

Review Application to the Information Commissioner Freedom of Information Acts 1997 and 2003 (the FOI Act)

Background:

On 11 December 2009, the Applicant completed an FOI request form for access to the following

"Personal record relating to me (the Applicant) only.  The record is a copy of correspondence from Valerie Morrison to Ger O'Halloran dated 17th April 2009."

The FOI request was received and acknowledged by the Council on 14 December 2009. In a decision dated 22 December 2009, the Council refused the requested access for the reason that the correspondence was legal advice, subject to legal professional privilege and exempt under section 22(1)(a) of the FOI Act. 

The Applicant requested an internal review of the Council's decision to refuse the requested access and stated that "Privilege is lost in this instance when the parties concerned know or ought to know of serious criminality within Cork City Council".  That request was acknowledged on 26 January 2010. 

On 4 February 2010, a decision following internal review issued to the Applicant from the Council.  That decision affirmed the original decision to refuse the requested access for the reason that, being legal advice from Valerie Morrison, Law Agent's Office to Ger O'Halloran, Personnel Officer, the correspondence was exempt in accordance with section 22(1)(a) of the FOI Act. 

The application for review of the Council's decision was received in this Office on 28 May 2010.  The Applicant included additional correspondence relating to events preceding the FOI request with his application. 

In a letter to the Applicant dated 9 June 2011, Marie O'Brien of this Office outlined her preliminary views to the Applicant following her examination of the decision of the Council in the matter.  In his response to those views, the Applicant advised Ms O'Brien that he was satisfied with the views and wished to have the Commissioner issue a decision in the matter.  In these circumstances, the matter is being brought to a conclusion with the issue of a formal and binding decision.

Preliminary Matters

In conducting this review I have had regard to the following:

• the application for review;
• the correspondence / communications between the Applicant and this Office;
• the correspondence between the Council and this Office;
• the content of the correspondence sought by the Applicant;
• the provisions of the FOI Act. 

This review was conducted in accordance with section 34(2) of the FOI Act by Mr Fintan Butler, Senior Investigator, Office of the Information Commissioner, who is duly authorised by the Information Commissioner to do so.

Scope of Review

The correspondence in question is internal Council correspondence dated 17 April 2009 between the Personnel Officer and a Senior Executive Solicitor.  That is the full extent of the scope of this review.

Submissions

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Findings

Preliminary Matters

It is important to be clear that, as outlined by Ms O'Brien in her preliminary views, a review of an FOI decision by the Commissioner under section 34 of the FOI Act is concerned only with the matter of information as it is contained in records within the meaning of records for purposes of the FOI Act.  This review is so confined and does not extend in any way to the administration or events behind the creation of any records held by the Council. 

While the Council relied only on section 22(1)(a) of the FOI Act (Parliamentary, Court and Certain Other Matters) in its decision to refuse the requested access to the Applicant, in subsequent submissions to this Office, it added the exemption at section 21(1)(a) and (b) of the FOI Act (Functions and Negotiations of Public Bodies).  I am satisfied that the review can be conclusively dealt with by reference to section 22(1)(a) only of the FOI Act and it is not necessary therefore to proceed to any consideration of the section 21 exemption. 

Section 22(1)(a) of the FOI Act

Section 22(1)(a) of the FOI Act 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,"

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

• confidential communications between a client and a legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications between a client and a legal adviser or a legal adviser and a third party or between a client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

Section 22(1)(a) is a mandatory provision and unlike some other exemptions in Part III of the FOI Act, it is not subject to a public interest override where a balancing of public interest factors for and against granting access is required.

Legal professional privilege is a fundamental feature of the administration of justice which protects confidential communications and exists to ensure that a client may fully instruct their lawyer freely and openly, safe in the knowledge that what is said to the lawyer in confidence will never be revealed without specific consent. 

In considering whether the correspondence in question would be exempt from production in a court on the ground of legal professional privilege, the Commissioner has to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client.  The question comes down to whether the client, in this case the Council, would, in the event of court proceedings, succeed in withholding the correspondence on the grounds of legal professional privilege.

The correspondence in this case is from the Council's Law Department to the Council's Personnel Officer.  It is clear that the correspondence constitutes legal advice which, of its nature, is confidential to the parties concerned. On this basis alone, therefore, it is clear that the correspondence is protected by legal professional privilege. While it may also be the case that the correspondence meets the test of having been prepared with the dominant purpose of preparation for contemplated/pending litigation, it is not necessary to take a decision on this.

The Applicant makes the argument that privilege "is lost in this instance when the parties concerned know or ought to know of serious criminality within Cork City Council". There is nothing in the correspondence sought which supports this argument and it is not for the Information Commissioner to take any view as to whether there has, or has not, been "serious criminality" within the Council.

I am satisfied that legal professional privilege applies to the correspondence and that the Council's application of the exemption at Section 22(1)(a) of the FOI Act is justified.  I find, therefore, that the correspondence is protected by legal professional privilege and is exempt from disclosure under section 22(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Council to refuse access to the correspondence requested. 

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision.  Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal. 

Fintan Butler

Senior Investigator

29 August 2011