Whether the Council was justified in refusing access to all records relating to the recovery of costs from a notice party to legal proceedings involving the applicant

18 May 2020

Background

This review has its background in judicial review proceedings the applicant brought against the Council and a specified notice party. The applicant was successful in his action and the High Court made an order for costs against the Council. The order also provided that the Council was to recover a third of the applicant’s costs from the notice party to the proceedings. I understand the applicant’s costs were discharged in full by the Council.

On 25 July 2019, the applicant submitted a request to the Council for information relating to the costs, including details of the amount of costs recovered from the notice party. In its decision of 2 August 2019, the Council informed the applicant that no costs had been recovered. In a subsequent request dated 6 August 2019, the applicant sought access to all records relating to the work taken by the Council to recover costs from the notice party or alternatively, if the Council had not taken steps to recover costs from the notice party, all records relating to that decision by the Council. In a decision dated 3 September 2019, the Council refused the applicant’s request under section 31, on the basis that the records sought were exempt on the grounds of legal professional privilege. The applicant sought an internal review of that decision and on 30 September 2019, the Council affirmed its refusal of the request. On 30 December 2019, the applicant sought a review by this Office of the Council’s decision.

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Council and the applicant outlined above, and to the communications between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for records relating to the recovery of specified legal costs under section 31 of the Act.

Analysis and Findings

In correspondence with this Office, the Council identified four records as having been refused under section 31(1)(a). The records in question comprise emails between a legal adviser within the Council and staff members of the Council’s Planning Department. Having considered the contents of those records, Mr O’Gorman of this Office made enquiries with the Council as to whether further relevant records might exist. In response, the Council stated it had confined its search for relevant records to those in the legal file in the County Solicitors Office.

While I am required by section 25(3) of the Act to take all reasonable precautions during a review to prevent the disclosure of information of exempt information, I can say that I agree with Mr O’Gorman’s conclusion that the contents of the four records identified by the Council suggest that other relevant records may well exist. I believe it is also appropriate to say that while the Council confirmed to the applicant that it did not recover costs from the notice party, the four records identified by the Council shed no light whatsoever on that matter.

In the circumstances, I consider it appropriate to remit the request back to the Council for a fresh decision, having regard to my finding that it may hold other relevant records coming within the scope of the request.

On the matter of the four records identified, the Council argued that section 31(1)(a) applies to exempt those records. Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege.

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

(a) 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

(b) 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).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

Having carefully examined the four email records, I accept that the records contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice or arising from an initial request for legal advice.

I find, therefore, that the Council was justified in refusing access to the four email records, under section 31(1)(a) on the basis that the records attract legal professional privilege.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council. While I find that it was justified in refusing access to the four email records under section 31(1)(a), I hereby direct the Council to conduct a fresh decision-making process in respect of the applicant’s original request on the basis that it may hold additional relevant records coming within the scope of the request.

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

Stephen Rafferty

Senior Investigator