Decision
Mr N and University College Cork ("UCC")
From Office of the Information Commissioner (OIC)
Case number: 140027
Published on
From Office of the Information Commissioner (OIC)
Case number: 140027
Published on
Whether UCC was justified in its decision to refuse access to records relating to the applicant under section 22(1)(a) of the FOI Act
22 May 2014
The applicant submitted a request under the FOI Act to UCC by way of letter dated 1 October 2013, seeking "[c]opies of all reports, correspondence memorandums and all other documentation held by University College Cork" relating to him. A decision issued on 8 November 2013 in relation to this request. Certain records were furnished to the applicant, together with a schedule setting out those records over which an exemption under section 22(1)(a) of the FOI was asserted. On 12 November 2013, the applicant requested an internal review of that decision, which resulted in it being upheld. On 27 January 2014, the applicant requested a review by the Information Commissioner of UCC's decision.
On 17 April 2014, Mr. Niall Mulligan of this Office wrote the applicant explaining his preliminary view that UCC was justified in refusing access to the records in question. The applicant responded, seeking a binding decision in this case. In conducting my review, I have had regard to details of the submissions of UCC, to correspondence between the applicant and UCC and to correspondence between this Office and the applicant, to the schedule of records furnished by UCC and to the contents of the relevant records. I have also had regard to the provisions of the FOI Act.
The records which are the subject of this review are correspondence between the staff of UCC and the University Solicitor. Accordingly, this review is concerned with the question of whether the Council was justified in refusing access to certain records on the basis that they are exempt from release under the provisions of section 22(1)(a) of the FOI Act.
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. The Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:-
Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.
The applicant cited the judgment of the European Court of Justice in Akzo Nobel Chemicals Limited and Akcros Chemicals Limited v. Commission of the European Communities (Joined Cases T-125/03 and T-253/03) in support of his contention that the withheld records were not legally privileged. The Akzo Nobel case was concerned with the powers of the European Commission to demand certain documents under provisions of European Union law relevant to its investigation of alleged anti-competitive practices, and the extent to which it is necessary to restrict legal professional privilege to enable the Commission exercise its specific powers of investigation in this regard. It seems to me, therefore, that the judgment has limited effect in that, in principle, it applies only to the exercise by the European Commission of specific powers under European Competition Law. Furthermore, I understand that the judgment recognises that information obtained at European level may only be used for the purpose it was obtained (i.e. the investigation of anti-competitive behaviour) and that the authorities concerned are prohibited from using or disseminating this information for any other purpose.
The Commissioner has recently considered the applicability of Akzo Nobel in similar circumstances to this case, in Case 080216 AB & Co. Solicitors on behalf of Mr X & The Department of Agriculture and in Case 090138 Mr. X, X & Co Solicitors & The Department of Finance (available from
The applicant further contended that the University Solicitor was not acting as a professional advisor, that the persons with whom she was communicating were not clients of hers and that "no professional legal relationship exists" between them. The general position of this Office in relation to privilege vis-à-vis inhouse lawyers may be found in Mr. X and the Department of Education and Science (Case No. 020281), the facts of which are similar to this case. There, the Commissioner confirmed that the fact of a professional legal advisor's having been in the employment of a public body will not serve to prevent legal professional privilege being attached to communications made by them in their professional capacity.
It seems to me that, at all material times, the University Solicitor was enrolled as a solicitor in the State. The records over which privilege is asserted consist of requests for legal advice to the University Solicitor by other members of staff at UCC, the University Solicitor's responses to those requests, and requests for advice from external professional legal advisors. I accept UCC's contention that the University Solicitor was, in each instance, acting as a professional legal advisor and that the records contain "professional communications [made] in a professional capacity", as countenanced by Finlay CJ in Smurfit v. Paribas [1990] 1 I.R. 469.
UCC also contends that the records are exempt on the basis of the litigation limb of legal professional privilege. As I am satisfied that all of the records in question are subject to legal professional privilege under the category of legal advice privilege, it is not necessary for me to consider the litigation privilege aspect of UCC's contention further.
Therefore, for the foregoing reasons, I am satisfied that the exemption set out section 22(1)(a) of the Act was properly applied by UCC in this case, and I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm UCC's decision.
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.
Sean Garvey
Senior Investigator