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Case Number: 160321

Whether the Council was justified in refusing to release any further records to the applicant it held relating to him

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 15 February 2016, the applicant sought access to all information held by the Council relating to him. On 13 April 2016, the Council decided to grant the request with the exception of two documents that were refused on the ground of legal professional privilege and it also indicated that two other records (attachments to an email) were still being sought.

On 21 April 2016, the applicant sought an internal review of that decision. The Council affirmed its original decision to withhold the two documents mentioned above and indicated that the two attachments referred to in its original decision had still not been located. The applicant sought a review by this Office of the Council's decision on 2 August 2016.

During the course of the review, the Council located the two attachments and released them to the applicant. It also confirmed to this Office that all records listed in the Schedule of records provided to the applicant were released in full, with no redactions. Subsequently, Ms Sandra Murdiff of this Office wrote to the applicant and informed him of her view that the scope of this review related solely to the two documents withheld on the ground of legal professional privilege. She also informed him of her view that the Council was justified in its decision to refuse to release the two records. She invited him to make a submission on the matter but he has not responded to date. Accordingly, I have decided to bring this review to a close by way of a formal, binding decision.

In conducting this review I have had regard to correspondence between the applicant and the Council in relation to his request and to correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

This review is solely concerned with whether the Council was justified in its decision to refuse to release two records to the applicant under section 31(1)(a) of the FOI Act.

Analysis and Findings

Section 31(1)(a) of the Act is a mandatory exemption which provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must consider whether the records would be withheld on the ground of LPP in court proceedings. LPP 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).

The Council contended that the records at issue fall under advice privilege at (a) above). The records concerned are emails from the Council's Director of Regulation to/from its external legal advisor. Having carefully examined both records, I am satisfied that they comprise confidential communications made between the Council and its professional legal adviser for the purpose of obtaining and/or giving legal advice and are protected by legal advice privilege. I find, therefore, that the Council was justified in refusing access to these records under section 31(1)(a).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Council's decision to refuse to release the two records at issue to the applicant 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