Case number: 180375
Whether the Department was justified in refusing access to records relating to a request for legal advice under sections 29 and 31 of the FOI Act
19 December 2018
Background
This case arose from the applicant's application to the Department for credit in relation to certain service. On 29 June 2018, the applicant requested, among other things, records relating to legal advice being sought by the Department in relation to the definition of "first appointment" in applications for incremental credit. On 20 July 2018, the Department responded that legal advice was being sought from the Chief State Solicitor's Office representative in its Legal Services Unit and that, as this was an ongoing request, no documentation would be made available until any legal advice had issued. No section of the FOI Act was applied to refuse this part of the request. The applicant sought an internal review of that decision and on 30 August 2018 the Department stated that access was being refused to the submission requesting legal advice and its appendices under section 29(1) (deliberations of FOI bodies) of the FOI Act. The applicant sought a review of that decision by this Office.
I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the Department-™s correspondence with the applicant on the matter and to the correspondence between this Office and both the applicant and the Department on the matter as well as to the provisions of the FOI Act and the contents of the records the subject of this review.
Scope of the Review
During the course of this review the Department agreed to release a number of appendices, described as Attachment 2, to the request for legal advice. These comprised circulars and material already in the public domain.
This review is therefore concerned solely with whether the Department was justified in refusing access to a request for legal advice, a covering email and two appendices (Attachments 3 and 4) under sections 29(1) and 31(1)(a) of the FOI Act.
Preliminary Matters
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, 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". Therefore in this case, the onus is on the Department to satisfy the Commissioner that its decision is justified.
While I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the circumstances at issue in my analysis is very limited.
Analysis and Findings
As noted above, the records consist of a request for legal advice (described as Attachment 1 by the Department), a cover email (described as Email 1 by the Department) outlining the nature of the request and two attachments. Attachment 3 consists of the minutes of a meeting of the Second Level Incremental Credit Appeal Committee dated Wednesday 23 March 2016 and Attachment 4 is three letters to various Education and Training Boards. It is worth noting that there are redactions on these records; however, the records were redacted upon inclusion with the request for legal advice and so I propose to treat these records as they existed at the time of the applicant's request. For the sake of clarity therefore, those redactions are not the subject of this review.
In submissions to this Office the Department relied on section 31(1)(a) of the FOI Act in addition to section 29(1). It seems to me that section 31(1)(a) is the most relevant exemption and so I will address that in the first instance.
Section 31(1)(a)
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. Legal professional privilege (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 (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).
The communication in this instance is a request for legal advice and therefore falls to be considered under the category of legal advice privilege.
Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser 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.
The Department advised that the Chief State Solicitor's Office representative in the Legal Services Unit is a solicitor and I am therefore satisfied that they are considered to be acting in a professional legal capacity. Further, having examined the content of the request and covering email, I am satisfied that the records described as Attachment 1 and Email 1 disclose the Department's confidential request for legal advice.
Accordingly, I consider that the Department's refusal of access to Attachment 1 requesting legal advice and also to the cover email (Email 1) to the Legal Services Unit outlining the nature of the request is justified under section 31(1)(a) of the FOI Act.
Attachments
Attachments 3 and 4 comprise minutes of a meeting and three letters. Each of these records predates the request for legal advice.
It is not unusual for documents which already exist to be attached to requests for legal advice. The normal principle is that a document is not privileged if it is not brought into existence for the purpose of seeking or giving legal advice. In Case 020281 the previous Commissioner found that, in general, LPP would not apply to an attachment to a request for legal advice unless it was a copy of a document that would not ordinarily be in the possession of the client (i.e. a copy of a document, the original of which was not held by the client, that the client had to take certain steps to acquire, possibly for the purposes of collecting evidence in anticipation of litigation) or unless release would result in the disclosure of legal advice previously received.
Attachments 3 and 4 in this case are both records that would ordinarily be held by the Department and neither disclose legal advice previously received. The Department has not argued that they disclose confidential legal advice. I find therefore that section 31(1)(a) does not apply to these records.
However, two records (marked as 35 and 38 by the Department) contain a reference to a company which might lead in conjunction with the other information to the identification of a private individual other than the applicant. I consider that this should be redacted under section 37(1) of the FOI Act and I find that no public interest in its release exists which would, on balance, outweigh the privacy rights of the third party.
Section 29
The Department also relied on section 29 in relation to these records and, as I have found that section 31(1)(a) does not apply to Attachments 3 and 4, I must consider whether section 29(1) applies.
As noted above, section 22(12)(b) states that 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".
Section 29(1) allows for the refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations) and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.
It should be noted at the outset that the public interest test at subsection (b) is a higher one than the public interest balancing test contained in other provisions of the FOI Act. It must be shown that the granting of the request would be contrary to the public interest.
In the internal review decision, the Department did not address the public interest at all. Neither did it do so in submissions to this Office. I find therefore that section 29(1) cannot apply in circumstances where the Department has not justified its decision that granting the request would be contrary to the public interest.
I therefore direct that Attachments 3 and 4 should be released to the applicant subject to the redactions detailed above.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I affirm refusal of access to the request for legal advice (Attachment 1) and the cover email (Email 1) on the basis that section 31(1)(a) applies. I annul the decision to refuse access to Attachments 3 and 4 and direct release of those records subject to the redaction of personal information under section 37(1).
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.