Whether the Council was justified in refusing access, under section 31(1)(a) of the Act, to the body of an email coming within the scope of the applicant’s request on the ground that it attracts legal professional privilege

1 July 2021

Background

Following correspondence between the parties, the applicant reached an agreement with the Council on 13 February 2021 to process a refined request for all correspondence exchanged between (1) any individuals in the Council’s Planning Department who deal with applications made under Section 5 of the Planning and Development Act 2000 (as amended) and (2) any staff of the Council’s Infrastructure & Climate Change Department who are working on the Active School Travel programme, in the period 30 October 2020 to date.

On 10 March 2021, the Council decided to part-grant the applicant’s request. It released one record (Record 2) and refused access to a second, (Record 1, described as email correspondence comprising two pages), under section 31(1)(a) of the FOI Act on the ground that it attracts legal professional privilege.

On 16 March 2021, the applicant sought an internal review of the Council’s decision to refuse access to record 1. The Council issued its internal review decision on 31 March, in which it varied its original decision. It affirmed the refusal of Record 1 but granted access to the attachment to the email. Following further correspondence between the parties, it appears that the Council granted partial access to record 1, with one part (the body of an email contained within an email chain) redacted under section 31(1)(a). On 26 April 2021 the applicant sought a review by this Office of the Council’s decision to withhold the information in question.

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 correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the content of the relevant record.

Scope of the Review

This review is concerned solely with whether the Council was justified, under section 31(1)(a) of the FOI Act, in refusing access to the body of an email dated 21 January 2021 coming within the scope of the applicant’s request.

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. It is also relevant to note that section 31(1)(a) is a mandatory exemption and does not require a consideration of the public interest for or against release.

In submissions to this Office, the Council argued that the email at issue attracts legal advice privilege. It explained that the email was sent to the Council’s in-house professionally qualified legal adviser for the purpose of seeking legal advice on a particular matter.

In his correspondence with this Office, the applicant argued that the Council should have identified which branch of legal professional privilege attaches to the record in the first instance. He also argued that because the email was also addressed to other parties who are not lawyers, privilege could not attach to the record in question.

While it would have been helpful if the Council had identified the relevant branch of privilege it deemed to apply, it is not a requirement of the Act that it must do so. Under section 13, a public body must provide reasons for its refusal of a request and any provisions of the Act pursuant to which the request is refused. In this case, the Council explained that it was refusing access to the information at issue under section 31(1)(a) and that the reason it did so was because it deemed the record to attract legal professional privilege. It seems to me that this explanation was sufficient for the applicant to make an informed decision as to whether or not to apply for a review of the refusal.

Furthermore, I am satisfied that the fact that the email was also addressed to other officials within the Council does not, of itself, mean that the record cannot attract privilege. Having examined the email at issue, I am satisfied that its sole purpose was to seek the legal advice of the Council’s in-house legal adviser. I find that the Council was justified in refusing access, under section 31(1)(a) of the Act, to the information redacted from the email.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse access to the withheld information 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