Case Number: 170105

Whether the Service was justified in refusing access to records relating to the applicant on the basis that the records are exempt from release under section 31(1)(a) of the FOI Act

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

Background

On 19 September 2016, the applicant made an FOI request to the Service for the following records:
"All documentation to and from the Office of the Parliamentary Legal Advisor pertaining to:
- my application for a [named] position;
- the internal appeals process carried out on foot of the Section 8 appeal made by me under the CPSA Code of Practice; and
- subsequent correspondence from and/or actions taken by me relating to, but not confined to the above processes."

On 13 October 2016, the Service refused access to the records under section 31(1)(a) of the Act on the basis of Legal Professional Privilege (LPP) and under section 30(1)(b) of the Act on the basis that access to the records could have an adverse effect on its functions relating to management (including industrial relations and the management of its staff). On 13 November 2016, the applicant requested an internal review of the Service's decision. On 2 December 2016, the Service affirmed its original decision. On 28 February 2017, the applicant applied to this Office for a review of the Service's decision.

During the course of the review, the applicant confirmed to this Office that he did not require the personal information of third parties where this information was contained in the records requested. The applicant also argued that the Service ought to have provided him with a schedule identifying the number and nature of the records considered relevant to his request. Following communications with this Office, the Service provided the applicant with two schedules listing the 66 records which fall within the scope of his request. At that stage, the Service released 50 records in full, it refused access to 4 records on the basis of LPP and it part released or refused the remaining 12 records on the basis that the records contain the personal information of third parties which falls outside the scope of the applicant's request. The Service also confirmed that it was no longer relying on section 30(1)(b) of the Act in support of its decision.

I have decided to conclude this review by issuing a formal binding decision as the applicant requires this. In conducting this review, I have had regard to correspondence between the applicant and the Service, to correspondence between the Service 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

Records 9-18 were refused in full and records 49, 54 and 66 were refused in part on the basis that they contain third party personal information. I have examined these records and I am satisfied that the withheld information is the personal information of a third party and falls outside the scope of the applicant's request. The scope of this review is confined to whether the Service has justified its decision to refuse access to the records 1, 2, 3 and 53 on the basis of section 31(1)(a) of the Act.

Preliminary Matters

The applicant states that the FOI Code of Practice for Public Bodies (published by the Central Policy Unit of the Department of Public Expenditure and Reform) provides that in responding to the requester, the decision maker should set out clearly the number and nature of records considered. The applicant argues that the Service's failure to provide him with a schedule as part of its decision making process, was not in accordance with best practice. He also argues that the schedule provided during the course of the review was deficient, as the correspondence with the Parliamentary Legal Office omitted important details such as origin and destination (author/to/from) and nature of legal advice.

This Office has no powers to compel a public body to create a schedule in a specified form, or at all, as this is not a requirement of the Act. Nevertheless, this Office considers that in keeping with good administrative practice as outlined by the CPU in its Code of Practice, a public body should generally provide a schedule of records which contains sufficient particulars to allow the requester to fully understand the public body's decision to refuse access to each record, whether in whole or in part.

In this case, following communications with this Office, the Service provided the applicant with a schedule which lists the records released and a schedule which lists the records which the Service argues are exempt from release. I am satisfied that the schedules contain sufficient particulars to allow the applicant to understand the Service's decision. It would not be appropriate to require a public body to include the nature of legal advice withheld on the schedule of records.

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

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 and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege
Section 31(1)(a) 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). LPP enables the client to maintain the confidentiality of two types of communication:

- confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
- confidential communications made between the client and a professional legal advisor or the professional legal advisor 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)

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 Commissioner accepts that, provided the ingredients of the relevant type of LPP (legal advice privilege or litigation privilege) are present in any given case, the fact that the professional legal advisor concerned is employed as an in- house legal advisor does not operate to prevent the client from being able to assert the privilege over the communications at issue.

The applicant argues that the public good would be served through release of the missing elements of the schedule and/or the records to allay fears that the Parliamentary Legal Advisor's Office is being used to deal with normal internal HR processes which would normally fall within the competence of the HR secretariat. He argues that the seeking of legal advice may be a mechanism used by the Service to frustrate the meaning and intention of the Freedom of Information legislation, particularly where the use of a taxpayer funded resource the Parliamentary Legal Advisor, is used for purposes other than which it was established.

The Service argues that the records at issue are exempt on grounds that they are confidential communications consisting of instructions to the Office of the Parliamentary Legal Advisor seeking legal advice and legal advice provided in response. The Service argues that it is entitled to seek confidential legal advice without persons interested in the issue having a right of access to the correspondence with the Service's Legal Advisor.

The LPP exemption contains no public interest balancing test. However, in exceptional circumstances, the courts may refuse a claim of privilege on public policy grounds. For instance, it is an established principle that privilege may not attach to communications in furtherance of a criminal offence. I am not satisfied that any such exceptional circumstances apply in this case. Having regard to the content of the records and the context in which they were created, I am satisfied that the records contain either requests for legal advice or the provision of legal advice. There is no information before me to suggest that the Service sought to use legal advice as a mechanism to refuse release of records under the FOI Act. I find therefore, that records 1, 2, 3, and 53 are exempt under section 31(1)(a) of the Act.

Decision

I affirm the Service's decision and I find that section 31(1)(a) applies to exempt records 1, 2, 3 and 53.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after 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