Whether the Department was justified, under section 31(1)(a) of the FOI Act, in refusing access to certain records relating to the processing of his appeal of a decision on his pension

18 December 2020

Background

On 4 May 2020, the applicant sought access to a wide range of records, from 25 March 2019 onwards, relating to his pensions appeal. In its decision of 15 June 2020, the Department identified 37 records as coming within the scope of the applicant’s request. It released 33 of the records and refused access to four records under sections 29(1), 30(1)(a) and (b), and 31(1)(a) of the FOI Act.

The applicant sought an internal review of that decision. On 16 July 2020, the Department issued its internal review decision in which it varied the original decision. It granted access to two of the previously withheld records and affirmed its decision to refuse access to records 34 and 35 under section 31(1)(a) of the FOI Act.

In an application received on 1 October 2020, the applicant sought a review by this Office of the Department’s decision to refuse access to the two records at issue. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the communications between the parties, as above, and to those between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified, under section 31(1)(a) of the FOI Act, in refusing access to records 34 and 35.

Analysis and Findings

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.

In submissions to this Office, the Department argued that the records at issue attract legal advice privilege. Record 34 is an internal email seeking legal advice from the Department’s in-house professionally qualified legal adviser while record 35 is comprises a series of emails between the parties concluding with the advice given by the in-house legal adviser.

In his correspondence with this Office, the applicant argued that a Department policy on Internal Dispute Resolutions for pension appeals, which issued on 9 October 2020, provides that he should be given access to the advice in question. The Circular in question is Circular 16/2020 - Internal Dispute Resolution (IDR) procedure for pension appeals in relation to beneficiaries/disputed beneficiaries of pre-existing civil service pension schemes and of certain public service pre-existing pension schemes. That Circular, at paragraph 5 of Appendix 1, provides that if the Department decides to seek expert advice at formal appeal stage, including legal advice, it will

• inform the parties of their intention to ask for expert advice;
• on receipt of the advice, inform the parties of the nature of the advice obtained; and
• give the parties an opportunity to make submissions in regard to the advice.

In submissions to this Office, the Department stated that legal advice was sought on both the validity of the appeal and the grounds for appeal. While Circular 16/2020 provides that the nature of legal advice will be disclosed, the Department argued that the pension appeal determination in question was issued prior to Circular 16/2020 issuing and therefore the Circular does not apply to the legal advice obtained in this case. Notwithstanding this, it also stated that the pension appeal determination on this case, which was issued to the applicant, contains references to the legal advice received on the some of the more substantive issues in relation to the appeal and therefore meets the requirement to provide the applicant with the nature of the advice obtained. The Department also argued that the Circular expressly provides for circumstances where legal advice might be withheld from an appellant on the basis of legal privilege.

It is noteworthy that the records at issue in this case were created before Circular 16/2020 issued. As such, having regard to their contents, I am satisfied that the Department appropriately treated the communications as confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. I find, therefore, that the Department was justified in refusing access to the 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 affirm the decision of the Department to refuse records 34 and 35 under section 31(1)(a) of the FOI Act.

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