Whether the University was justified in its decision to refuse access to records concerning an appeal of a decision regarding promotion under sections 30(1)(b), and 31(1)(a) of the FOI Act.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 9 December 2014, the applicant made an FOI request to the University for access to records relating to his appeal of its decision on his application for promotion in 2012/13, and in relation to the conduct of the appeal. The applicant sought, in an itimised list covering eight areas, correspondence, minutes of meetings and emails from selected dates held by the Department of Human Resources (HR), the Lecturer Promotions and Establishment Board (LPEB), the Academic Promotions Appeals Board (APAB), the Governing Body (GB) and certain named University Officials. On 5 February 2015, the University granted partial access to the records requested. The applicant sought an internal review of this decision. On 27 March 2015, the University upheld its original decision. On 15 April 2015, the applicant applied to this Office for a review of the University's decision. Both the applicant and the University made submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the University, to correspondence between the University and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to the following two questions: (i) whether the University was justified in redacting record 15 held by a named University Official on the basis that the information redacted from this record is exempt under section 30(1)(b) of the FOI Act. (ii) Whether the University was justified in withholding records 1, 3, 4, 5, 8, 11, 15, 16, 17, 21, 25, 27, 28, 30, 31, 33, 36, 37, 45 and 46, held by the Office of Corporate and Legal Affairs, on grounds that these records are exempt under section 31(1)(a) of the FOI Act. On 25 July 2015, the applicant confirmed that parts of records withheld under section 37 of the Act could be excluded from the scope of this review. Therefore, I will not examine those redactions/records which contain solely the personal information of individuals other than the applicant.

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the University to satisfy me that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is limited.

Finally, the applicant made submissions in relation to the inadequacy of the University's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the University's practice and procedures, if it were deemed necessary, would have to be carried out under section 44 of the FOI Act, while this review under section 22 of the FOI Act, must be confined to reviewing whether the University has justified its refusal of the request. The Commissioner does not intend to carry out an investigation under section 44 at this time. The applicant complains about a number of issues concerning the University's handling of the FOI request. While I have taken his submissions into account insofar as they are relevant to this review, I do not comment on every element of them.

Analysis and Findings

Section 30(1)(b) - Record 15
The University redacted record 15 held by a named University Official on the basis that the information redacted is exempt under section 30(1)(b) of the Act. Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management including industrial relations and management of its staff. Section 30(2) provides that the exemption does not apply where the public interest would, on balance be better served by granting the FOI request.

The applicant points out that this exemption may only be applied if access to the record could reasonably be expected to have a "significant adverse effect" on the performance by the body of its management functions. The applicant says that, in applying a public interest test under section 30(1)(b), the University referred to three factors in favour of disclosure in the public interest but decided that these were "greatly outweighed" by one factor against disclosure. The applicant argues that the public interest test was incorrectly applied in relation to record 15. The applicant submits that there is an important public interest in transparency in relation to how the promotions process operates within the University. He points to previous decisions of the Commissioner and stresses that the avoidance of embarrassment for management would not justify withholding of the record.

The University submits that, disclosing internal discussion between members of management, with regard to views in relation to the promotions process, would damage the University's ability to manage staff issues and resolve disputes with staff. The University argues that it correctly applied the public interest test by identifying the public interest factors in favour of disclosure of the information under the Act. These factors include the public interest in (i) upholding the applicant's right under the FOI Act to access records held by the University, (ii) increasing the openness and transparency of the University, and (iii) ensuring that members of the public have confidence in public bodies by highlighting the manner in which those public bodies are run. The University considered however, that these factors are greatly outweighed by the public interest in public bodies being able to discuss matters of significance to the management of their institutions, without prejudicing the position of the institution by releasing information which could adversely affect the institution's ability to resolve internal disputes and staffing issues.

In arriving at a decision to claim a section 30 exemption, a decision maker must identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In section 30(1)(b), I note that "significant adverse effect" requires stronger evidence than the "prejudice" standard of section 30(1)(a). To show that the expectation that harm will occur is reasonable, the decision maker must explain how and why he or she believes release of the particular records will give rise to the harm envisaged. The University has, in this case, identified the management function at issue and I consider that it is one to which section 30(1)(b) potentially applies. I accept that cases arise in which release of records disclosing information about a particular difficulty or dispute could have a significant adverse effect on staff management and industrial relations management of a body. The University states that it is attempting to resolve ongoing disputes involving staff (not just the applicant) who were unsuccessful in their applications for promotion. According to the University, these matters have not been resolved and have been escalated to external fora. Having examined record 15, in the context of the dispute management that the University is engaged in, I accept that release of the redacted parts of the record could have a significant adverse effect on the staff management and industrial relations management of the University. I am satisfied that section 30(1)(b) applies to those parts of record 15 and I find accordingly.

Section 30(2) requires that I consider the public interest. There is a public interest in ensuring openness, transparency and accountability in how public bodies perform their functions and in ensuring the right to exercise one's entitlements under the FOI Act. There is also a public interest in public bodies conducting fair procedures in the selection of staff for promotion. In this case, I must balance those considerations against the public interest in public bodies being able to discuss matters of significance and consider opinions, including legal advice, in the context of staff management and dispute resolution without adversely affecting the public body's ability to mange and resolve disputes involving staff. This is particularly so when disputes are ongoing. Having considered the record and the submissions of both parties, I am satisfied that, on balance, the public interest would be better served by refusing rather than by releasing the relevant parts of records 15.

Section 31(1)(a) Legal Professional Privilege

The University has refused to release records 1, 3, 4, 5, 8, 11, 15, 16, 17, 21, 25, 27, 28, 30, 31, 33, 36, 37, 45 and 46 which are held by the Office of Corporate and Legal Affairs on the basis that they are legally privileged.

Section 31(1)(a) of the Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the grounds of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• - confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• - confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege)

 

LPP belongs to the client who has the right to waive this privilege if he or she so wishes. Waiver may also be implied in certain circumstances. There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice; and, communications in furtherance of a criminal offence. The LPP exemption contains no public interest balancing test.

The applicant points out that LPP has been claimed for several records which comprise emails between staff of the University, such as part or all of Office of Corporate and Legal Affairs records 1, 3, 4, 5, 11, 16, 25, 28, 30 and 45. The applicant argues that records which do not involve communications with legal advisers should not be legally privileged. The applicant also points out that records 8 and 46 contain minutes of Governing Body meetings/records assembled for a Governing Body meeting and argues that these records should not be subject to LPP.

The University states that the records which it claims are exempt under 31(1)(a) include: (i) emails/letters requesting legal advice and the provision of legal advice by the University's legal adviser, (ii) minutes of governing body meetings which refer to confidential legal advice, and confidential documentation assembled for governing body meetings which includes legal advice from the University's legal adviser, and (iii) emails/letters which form part of a continuum of correspondence between the University and its legal adviser.

Records containing legal advice and attachments to such records

I am satisfied that records 1, 3, 4, 5, 11, 15, 17, 21, 25, 27, 28, 31, 33, and 37 contain either confidential professional legal advice or requests for such legal advice. I find that these records are exempt under section 31(1)(a). However, records 1, 3, 5, 11, 27 and 31, contain one or more attachments. I consider that each attachment needs to be examined in its own right to determine whether or not it is subject to LPP. It is my understanding that where an attachment is either a request for or the provision of legal advice or where it was created for the purposes of obtaining legal advice, privilege will attach. However, where an attachment is a document created for a purpose other than seeking legal advice, such an attachment is not generally privileged. Records 1, 3, and 11 contain attachments which comprise emails either created by or sent to the applicant. These attachments are not privileged. I have set out my findings in relation to these attachments below:

• - Record 1: there are two emails of 5 December 2014 and a forwarding email of 10 December 2014 attached to record 1 which are not privileged.
• - Record 3: there is one email of 17 November attached to record 3 which is not privileged.
• - Record 5: there is one letter of 5 November 2014 attached to record 5 which is privileged in that it contains legal advice.
• - Record 11: there are two emails of 18 September 2014 attached to record 11 which are not privileged.
• - Record 27: there is one letter of 18 July 2014 attached to record 27 which is privileged in that it contains legal advice.
• - Record 31: there are two emails of 10 July 2014 attached to record 31 which are privileged in that they contain or disclose legal advice.

 

Records containing Governing Body Minutes and records assembled for such meetings
The University claims that record 8 (draft minutes of a governing body meeting of 4 November 2014) is privileged as it refers to confidential legal advice. The minutes are divided into seven sections. Sections 1, 2 and 7 do not contain legal advice (or personal information). I find that these sections are not exempt under section 31(1)(a) and should be released to the applicant. The remainder does disclose legal advice and is exempt under section 31(1)(a).

The University claims LPP for record 36 which consists of five documents assembled for a Governing Body meeting of 17 June 2014, based on advice from the University's legal adviser. When a lawyer uses their skill and judgment to select pre-existing documents that were not already held by their client, for the purposes of advising their client, legal professional privilege can apply. I note that the documents which comprise record 36 were already held by the University.

• - Document 1 is titled "file note" this document refers to legal advice and is privileged.
• - Document 2 is minutes of a governing body meeting of 17 June 2014. I find that sections 1 and 2 do not qualify for LPP and should be released to the applicant. The remainder is outside the scope of this review as it contains personal information of a third party.
• - Document 3 is a letter of 4 June 2014 to the applicant; I find that Document 3 is not legally privileged.
• - Document 4 is letter of 4 June 2014 to a third party; I find that Document 4 is outside the scope of this review as it contains personal information of a third party.
• - Document 5 is a letter of 16 June 2014; I find that it is legally privileged in that it contains legal advice.

 

The University claims LPP for record 46 which consists of 22 documents assembled for a Governing Body meeting of 4 November 2014, based on advice from the University's legal adviser. I am satisfied that, with two exceptions, the documents assembled are either legally privileged or contain the personal information of third parties or are otherwise in the possession of the applicant. The exceptions to this are as follows:

• - Document 1 comprises minutes of a governing body meeting of 4 November 2014. This document appears to be the final version of the minutes referred to in document 8 above. The minutes are divided into eight sections. Sections 1, 2, 7 and 8 do not contain legal advice (or personal information). I find that these sections are not exempt under section 31(1)(a) and should be released to the applicant. The remainder does disclose legal advice and is exempt under section 31(1)(a).
• - Document 4 is a letter of 4 June 2014. I find that that this letter should be released to the applicant as it does not contain legal advice or personal information with one exception; the name of a third party in the heading of the letter should be redacted and the remainder of the letter should be released to the applicant.

 

Records which form part of a continuum of correspondence
The University claims that records 16, 30 and 45 are exempt as they form part of a continuum of correspondence between the University and its legal advisers. The former Commissioner has considered records which may not satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. In case 020281 (Mr. X and the Department of Education and Science available at www.oic.ie), she referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

I have adopted this approach and take the view that privilege applies to records that form part of a continuum of correspondence that results from the original request for advice. I am satisfied that records 16, 30 and 45 form part of the continuum of correspondence between the University and its legal advisors and are privileged.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the decision of the University. I affirm the University's refusal of access to information redacted from one record as exempt under section 30(1)(b) of the Act. I annul the University's decision to refuse access to certain records which it found exempt under section 31(1)(a) of the Act and I direct release of the records in question. I affirm the University's decision to refuse access to certain other records as exempt under section 31(1)(a) of the Act (legal professional privilege).

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. Such an appeal must be initiated by the applicant not later than eight weeks from the date on which notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator