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Whether the Defence Forces was justified in its decision to refuse access to a record relating to the applicant's redress of wrongs complaint on the basis of section 22(1)(a) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made a request to the Defence Forces on 4 April 2014 for access to records relating to a particular promotion competition within the Defence Forces and to the complete file on his redress of wrongs complaint. On 22 May 2014 the Defence Forces released a number of records to the applicant, with three redacted on the ground that they contain personal information relating to third parties and access was refused to one further record on the basis of section 22(1)(a). On 30 May 2014, the applicant submitted an application for an internal review of the decision to refuse access to the record under section 22(1)(a). In its internal review decision of 19 June 2014, the Defence Forces upheld its original decision relating to the outstanding record and the applicant subsequently applied to this Office for a review of that decision on 21 July 2014.

I note that during the course of the review, Mr David Logan of this Office informed the Defence Forces of his view that the decision to refuse access to the requested record was not justified. The Defence Forces did not accept this view and I consider that the review should now be brought to a close by the issue of a formal binding decision.

In conducting this review I have had regard to the submissions of the Defence Forces and the applicant, to the communications between the applicant and the Defence Forces, to the contents of the records considered by the Defence Forces when processing the FOI request and to the provisions of the FOI Act. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is confined to the sole issue of whether or not the decision of the Defence Forces to refuse access to a particular record under section 22(1)(a) of the FOI Act was justified.

Analysis and Findings

Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. This provision does not require the consideration of the public interest.

The Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

confidential communications made between a client and professional legal adviser for the purpose of obtaining and/or giving legal advice; 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 or pending litigation.

In considering whether a record would be exempt from production in a court on the grounds of legal professional privilege, the Commissioner must ignore whether or not proceedings took place and bear in mind that legal professional privilege resides with the client. He must simply consider whether the public body, in the event of court proceedings, would succeed in withholding the records on the grounds of legal professional privilege. I have adopted the above position in arriving at my decision in this case.

The record at issue has its background in a complaint made by the applicant in connection with a selection process for a particular post. An Investigating Officer was appointed to investigate the applicant's complaint and he made a ruling on the complaint in November 2013 that the applicant had not suffered a wrong requiring redress. The applicant was not satisfied with the ruling and the file was forwarded to the Chief of Staff for a decision. The record in question is a report prepared for the Chief of Staff on the applicant's redress of wrongs complaint.

In a submission to this Office the Defence Forces stated that author of the report is the legal advisor to the Chief of Staff concerning redress of wrongs matters. It stated that the record was submitted to the Chief of Staff explaining all aspects of the complaint and giving advice as to the justice of the matter in the relevant legal context. In essence, the position of the Defence Forces is that the report is a confidential communication prepared by a professional legal adviser acting in that capacity for the purpose of giving legal advice.

On the face of it, I agree that the report is such a record that might attract the protection of legal professional privilege. However, as Mr Logan of this office explained to the Defence Forces, it is clear that the information contained in the record at issue was already released to the applicant in so far as it was contained in other records released on foot of the FOI request. Indeed, in response to Mr Logan's view that the right to maintain the record as confidential had been waived, the Defence Forces, in its submission to this Office of 23 October 2014, acknowledged that the information contained in the refused record has already been released to the applicant. It further argued that as that the information has already been disclosed, the objectives of the Freedom of Information Act have therefore been met. This clearly does not provide a basis for refusing access to the record at issue.

The Defence forces also expressed concerns in relation to setting a precedent whereby reports of this nature would be released under the FOI Act and that the release of the record wold disclose the manner and process in which legal advice was given to the Chief of Staff in dealing with such matter. Again, these are not valid arguments for refusing access to the record under section 22(1)(a). In any event, it should be noted that each review before this Office is decided on its merits and the circumstances that apply in the particular case.

Having regard to the provisions of section 34(12)(b) of the FOI Act, which places the onus on the Defence Forces of satisfying this Office that its decision to refuse access was justified, I find that the Defence Forces has not justified its decision to refuse access to the record at issue under section 22(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Defence Forces in this case and direct the release of the record in question.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator