28 May 2018

Whether the WRC was justified in its decision to refuse access to certain records relating to legal advice about a Labour Court recommendation, under section 31(1)(a) of the FOI Act

Background

On 22 November 2017, the applicant made an FOI request to the WRC for access to records relating to WRC inspection services. The WRC did not issue a decision and the applicant submitted a request for an internal review on the basis of his request being deemed refused under the provisions of section 19(1) of the Act. However, when the WRC did not issue a decision on the internal review request either, under the provisions of section 19(2) of the Act, the applicant was entitled to regard that request as being deemed refused. On 14 February 2018, following communications with this Office, the WRC advised the applicant of its effective position in relation to his request. In its effective position, the WRC identified 25 records. It granted access in full to some records and withheld one record on the basis of section 31(1)(a) of the FOI Act. On 19 February 2018, this Office received an application for review of the WRC's decision from the applicant.

I am disappointed with the decision making process of the WRC in this case. Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). Clearly, the WRC did not adhere to the statutory time periods and both the applicant and this Office had difficulty in relation to its lack of response. 

During the course of the review, the WRC released a number of additional parts of the withheld record. However, following queries from this Office and from the applicant, the WRC also identified an additional record that came within the scope of the applicant's request. The WRC issued a new decision schedule to the applicant and this Office in which it stated that of the 29 records it had identified, all were granted with the exception of records 13 and 29, both of which were refused on the basis of section 31(1)(a) of the FOI Act. No explanation was given by the WRC as to why it failed to identify the additional records when the application was received, or indeed, when this Office first became involved in the matter in January 2018. 

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the applicant and to correspondence between the WRC, the applicant and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. 

Scope of Review

This review is concerned with whether the WRC was justified in deciding to refuse access, in full and in part, to certain records on the basis of section 31(1)(a) of the FOI Act.

Preliminary Matters

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. 

In his submission, the applicant explained why he wanted access to the records. Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.  In this case, however, requests falling to be refused under section 31(1)(a) are not subject to a public interest balancing test.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited. 

Findings

Section 31(1)(a)- Record considered to attract legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege 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 (legal advice privilege), and 
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege). 

Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal advisor in a situation where the legal advisor is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. In case 020281 (Mr.  X and the Department of Education and Science),the former Commissioner considered records which may not, on an individual basis, 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. 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... 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."

The Commissioner takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. 

The WRC contends that legal advice privilege applies to the withheld records. Record 13 is a string of emails arising from a request for legal advice. It includes a detailed request to a professional legal adviser seeking legal advice. Record 29 is a reply by the legal adviser which sets out legal advice given.

Having examined the records, I accept that they qualify for legal advice privilege and disclose legal advice sought or received from the WRC's professional legal adviser. Accordingly, I uphold the WRC's refusal of access to the withheld information in records 13 and 29 under section 31(1)(a) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the WRC's decision to refuse access to the records under section 31(1)(a) of the Act on the basis of legal professional privilege. 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator