Whether UCC was justified in refusing access to records relating to a particular allegation which the applicant said had been made about him by UCC staff

3 February 2022

Background

In a request to UCC dated 11 August 2021, the applicant sought access to records relating to a particular allegation which he said had been made about him by UCC staff, including a list of witnesses that came forward on his behalf and transcripts of what they said. He also requested access to all records relating to the investigation that UCC had said it had carried out into the matter, including a list of all persons spoken to and transcripts of what was said.

The applicant did not receive a decision from UCC within the statutory timeframe, which is an effective refusal of his request. On 8 September 2021, he sought an internal review by UCC and also applied to this Office for a review of UCC’s decision. On 13 September 2021, UCC part-granted the request. It released a number of records but refused the rest on the basis that they were exempt under section 31(1)(a) of the FOI Act (legal professional privilege). The applicant wishes to proceed with the review.

During the review, UCC said that it is willing to grant access to record 7. 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 above exchanges, correspondence between this Office, UCC and the applicant, the contents of the records at issue and the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is confined to the sole issue of whether UCC’s refusal of various records covered by the applicant’s request of 11 August 2021 was justified under the provisions of the FOI Act.

The applicant says that this Office should ensure to get records from the UCC therapist whom he attended. He says that he has asked for these records separately but that they have been refused.

It is unclear whether the applicant wants me to decide in this review whether he is entitled to access to his therapist records, or whether he thinks I should have regard to their contents in carrying out my review. However, I do not accept that his request of 11 August 2021 extends to any therapist records. Furthermore, UCC says that the applicant has not made any FOI request for such records. It remains open to him to do so and, in due course, to seek a fresh review by this Office in relation to the matter. Finally, the contents of any therapist records are of no relevance in deciding whether the withheld records the subject of the applicant’s 11 August 2021 FOI request attract legal professional privilege.

Preliminary Matters                                                                                         

Section 13(4) of the FOI Act requires me not to take into account any reasons that the applicant has for making his FOI request.

I confirm that I have examined all of the withheld records. However, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. I note that UCC’s schedule describes the withheld details in general terms. I must limit the level of any further detail I can give about the records and also parts of UCC’s submission because of the requirements of section 25(3).

The release of records under FOI is generally understood to have the same effect as publishing them to the world at large. 

Analysis and Findings

Section 31(1)(a) – legal professional privilege

Section 31(1)(a) of the FOI Act must be applied to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• 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).

In relation to advice privilege in particular, this 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 Commissioner takes the view that privilege also attaches to records that form part of a continuum of correspondence that results from an original request for advice. Furthermore, the Commissioner accepts that, provided the ingredients of legal advice privilege or litigation privilege are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not prevent the client from being able to assert the privilege over the communications at issue. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.

The applicant was invited to make submissions in relation to the review but has not done so. As he knows, it is UCC’s position that the withheld records comprise communications between its in-house legal section and other UCC staff for the purpose of seeking and/or giving legal advice, and otherwise are records forming part of a continuum of correspondence resulting from an original request for advice on the same matter. I have examined the records concerned and am satisfied that this is the case. I accept that the records attract legal advice privilege and I find that they are exempt under section 31(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCC’s decision. I find that the withheld records are exempt 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.

Deirdre McGoldrick

Senior Investigator