Whether the CCPC was justified in refusing access, under section 31(1)(a) of the FOI Act, to certain records, in whole or in part, relating to a complaint the applicant made to the CCPC, on the ground that the records attract legal advice privilege

13 December 2021

Background

In a request dated 25 August 2021, the applicant sought access to all records related to a formal complaint he had made to the CCPC. The CCPC clarified the date of the complaint with the applicant, and he also confirmed that correspondence between him and a named staff member of the CCPC could be omitted from the scope of the request. In a decision dated 10 September 2021, the request was part-granted. Ten records were identified as relevant to the request and listed in a Schedule. Six records were released to the applicant with some information redacted under section 37(1) of the FOI Act (personal information of third parties), access to three records was refused under section 31(1)(a) of the Act (legal professional privilege), and one record was released in part with information redacted under sections 31(1)(a) and 37(1).

The applicant sought an internal review of that decision on 10 September 2021 on the ground that the claim of legal privilege was not sustainable. The CCPC affirmed its decision on 30 September 2021. On 15 October 2021, the applicant sought a review by this Office of the CCPC’s decision to refuse access to records 5, 7 and 9 and to redact part of record 8 under section 31(1)(a).

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 the applicant and by the CCPC, and to the contents of the records concerned. 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 CCPC was justified in refusing access to records 5, 7 and 9, and in redacting certain information from record 8, under section 31(1)(a) of the FOI Act.

Preliminary Matters

In a submission to this Office, the applicant explained the background of his complaint to the CCPC. He raised concerns that it is not implementing changes he sees as necessary as a result of a decision in the European Court of Justice, in a case regarding the rights of a consumer who returned a mattress purchased online after he had removed the protective seal from it (Case C-681/17).

It is important to note as a preliminary matter that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (not applicable in this case).

Furthermore, 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.

Finally, 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, the CCPC stated that each of 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 (the CCPC) and its legal advisor (the Legal Services Division of the CCPC, its in-house legal department) for the purpose of giving or receiving legal advice. It said that the advice sought and given arose during a professional legal relationship and the advice was given by a legally qualified professional advisor.

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 5 and 7 consist of a series of emails between a legal advisor in the Legal Services Division and a member of staff in the CCPC’s Communications Division, in which legal advice is sought and then given. The information in record 8 that was refused under section 31(1)(a) is contained, in its entirety, in record 7. Record 9 comprises another email from the same staff member to the Legal Services Division with a follow up question; I am satisfied that this part of a continuum of communications arising from the initial request for legal advice.

The applicant speculated in his submissions to this Office that the records may contain legal information rather than advice. Having carefully examined the records, I am satisfied that this is not the case.

I am satisfied that records 5, 7, 9, and part of record 8, contain confidential communications made between the CCPC 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 the CCPC was justified in refusing access to the records at issue 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 CCPC’s decision to refuse to release records 5, 7 and 9, and certain information from record 8, 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