Legal affairs gets to keep advice under wraps

(CNS): In the most recent decision by the InformationCommissioner’s Office (ICO), Acting Commissioner Jan Liebaer has found in favour of the Portfolio of Legal Affairs, which had refused part of a freedom of information request as it said the records were protected on the grounds of professional privilege. The request had asked for any correspondence, including email, memorandums and messages, relating to a criminal prosecution in which the applicant was involved. The requester was granted partial access following an internal review but some records were withheld as the public authority said they fell into both litigation privilege and legal advice privilege.

Legal said the records were created for the dominant purpose of actual litigation as the applicant was before the court charged with a criminal offence. While some of the records were in direct preparation for criminal proceedings, others were communications between legal advisers on the matter. The prosecutors had claimed that a fundamental premise of legal privilege was that counsel must be able to prepare for a trial without the apprehension that their materials will be disclosed to the opposing party.

Although under no obligation to do so, as it is up to the public authority to demonstrate why records shouldn’t be released, the applicant provided a submissions arguing that in order for the privilege to be applied there must be a client-solicitor relationship, which they contended could not be the case within the legal department.

In his analysis the acting commissioner accepted that the dominant purpose of all the records in dispute was to prepare for, advise on, or conduct litigation. He also decided that the communications between legal advisors within the legal department was akin to a client-solicitor relationship in that the client in the criminal matter was “Regina” or “The Crown”.

“It would be inappropriate to contend that the Portfolio of Legal Affairs should, because it is a public authority under the FOI Law, be any less protected by legal professional privilege than a private law firm,” stated Liebaers.

A fundamental premise of FOI is to enable public access to records in order that the public may hold government accountable and better participate in national decision making, not to circumvent other rules, he noted.

“To allow the FOI process to be used to circumvent the normal discovery rules and proceedings of the courts would erode the fundamental concept of legal professional privilege, which clearly applies to the responsive records in this case,” Liebaers said.

Several recent ICO decisions have highlighted procedural weaknesses in the handling of requests and appeals but not on this occasion.While Liebaers revealed that the Portfolio of Legal Affairs declined from participating in the ICO’s mediation process, which is voluntary, the  procedural handling of the request was exemplary with no infractions identified.

The Applicant can within 45 days, apply to the Grand Court for a judicial review of the ICO’s tenth decision.

See the full decision below.