Whether UCC was justified in refusing access to certain records under section 31(1)(a) of the FOI Act

 

OIC-111136-N0D5B1

 

Background

 

In a request dated 8 April 2021, the applicant sought access to a copy of the Code of Conduct for UCC staff as well as all records held by UCC relating to him including emails between staff, his student record, and records relating to fees for specific years. In a follow-up email, he named a number of staff members in UCC and in another third level institution who he believed exchanged emails in relation to him.

 

As UCC did not make a decision within the statutory time-frame of four weeks, the applicant sought an internal review of the deemed refusal of his request on 4 June 2021. On 30 July 2021, UCC issued a decision, apologising to the applicant for the delay. In response to the first part of the FOI request, it provided a link to the Code of Conduct available on the UCC website. It identified 125 records relevant to the second part of the request. Records numbered 1 to 104 were listed in a Schedule as being held by the Office of the Deputy President and Registrar, and the remaining records 105 to 125 were listed in a separate Schedule as being held by the Student Records & Examinations Office. Most of the records were released to the applicant in full, but 21 records were withheld under section 31(1)(a) of the FOI Act. On 3 August 2021, the applicant sought a review by this Office of UCC’s decision to withhold these records.

 

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 submissions made by UCC and the applicant’s correspondence with this Office and with UCC. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by UCC in the schedules of records it prepared when responding to the request.

 

 

Scope of Review

 

In his communications with this Office, the applicant raised questions about fees and about records which he believes are held by a named staff member of another third level institution, Munster Technological University (MTU). Firstly, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Secondly, records potentially held by other FOI bodies are outside the scope of this review. I note that a separate review of a decision made by MTU is being undertaken by this Office.

 

My review in this case is concerned solely with whether UCC was justified in its decision to refuse access, under section 31(1)(a) of the FOI Act, to records 9, 22, 24 to 27, 29, 30, 44, 80 to 86, 102, 111, and 114 to 116.

 

 

 

 

Preliminary Issues

 

Before I address the substantive issues arising in this case, it is important to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25(3). This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

 

 

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. It does not require a consideration of the public interest for or against release.

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).

Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. 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 may, in certain circumstances, 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 its submissions to this Office, UCC stated that the records at issue are exempt records under the FOI Act on the basis of legal advice privilege, because they consist of confidential communications made between a client (UCC) and its professional in-house legal advisors for the purpose of giving or receiving legal advice. It stated that the records were generated to facilitate legal consultation and contain confidential and legally privileged information.

As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by providing the following descriptions. Records 9, 22, 24, 25 - 27 and 102 consist of draft documents prepared by UCC staff members that contain comments and suggested amendments from one of the internal legal advisors. Records 30, 44, 80 to 86, 111, and 114 to 116 comprise emails and email threads between various staff members in UCC and the internal legal advisors which include either legal advice from the legal advisors, or requests for such advice. Record 29 is an email from one UCC staff member to another, copied to the legal advisors, and refers to an attachment which contains queries from one of the legal advisors.

 

I am satisfied that all of these records contain confidential communications made between UCC and its internal legal advisers for the purpose of obtaining and/or giving legal advice. As such, the records attract legal advice privilege and I find that UCC is justified in refusing access to Records 9, 22, 24 to 27, 29, 30, 44, 80 to 86, 102, 111, and 114 to 116 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 the decision of UCC to refuse access to the withheld records 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