Case number: 020281

Case 020281. Whether records should be withheld on the basis of legal professional privilege - section 22(1)(a) - whether the applicant is entitled to a statement of reasons for the introduction of a nationality clause in the Schemes of Student Support - section 18

Case Summary

Facts

The applicant sought, in two separate FOI requests covering different time periods, access to records concerning the entitlement of non-EU nationals to third level grants and the reasons for the introduction of a nationality clause in these grant schemes. The Department refused access to the relevant records on the grounds of the legal professional privilege (LPP) exemption provided in section 22(1)(a) of the FOI Acts, 1997 and 2003.

Decision

Having carried out a review under section 34(2) of the FOI Acts, the Commissioner decided to affirm and vary aspects of the Department's decisions. The most important aspects of this decision relate to the records that were withheld by the Department on the basis of the LPP exemption provided by section 22(1)(a) of the Act. The records withheld comprise various correspondence between the Department's Student Support Unit and its Legal Services Unit. The key aspects of the Commissioner's decision are summarised below.

  • There was a slight correction of emphasis in relation to the LPP reference quoted by the previous Commissioner in his decision in the case of Phelim McAleer & DEJLR (ref. 98058) whereby the present Commissioner clarified that LPP attaches to records of correspondence with a "professional legal adviser" as opposed to with a "legal adviser".

    In this particular case, correspondence took place between in-house legal staff who were not professionally legally qualified and officials from the Department's Student Support Unit. The issue that therefore arose was whether LPP can attach to such correspondence. The Commissioner's decision was that it did because, arising from the responses received to questions put to the officials concerned, she noted that the head of the Legal Services Unit, who is a barrister and is therefore professionally legally qualified, has stated that he met with the staff concerned on at least two occasions before any advice was communicated thereby ensuring that the advice provided was effectively cleared by him. The decision finds that staff working in the Unit, in this particular case, were effectively agents for receipt of queries and for the communication of advice. In this regard, the decision also noted that the various officials that were contacted generally considered that ultimate responsibility for advice issuing from the Unit rested with its head.
  • As regards independence, the Commissioner found that the fact that a professional legal adviser may be employed as an in-house legal adviser did not prevent privilege being attached to the communications at issue given that possession of a professional legal qualification entails being either a member of the Law Society (for solicitors) or the Honourable Society of King's Inns (for barristers). Quoting Lord Denning in the case of "Alfred Crompton Amusement Machines Limited v. The Customs and Excise Commissioners" [(1972) QB 102, 109, (1972) 2 All ER 353, 376], the Commissioner noted that regardless of employment status such persons must "... uphold the same standards of honour and of etiquette ..." and are "... subject to the same duties to their client and to the Court ... [and have to] respect the same confidences."
  • Regarding records that are merely reminders sent by officials in the Student Support Unit to the Legal Services Unit in relation to advice previously sought, the Commissioner found that privilege attaches to the records in question on the basis that they are part of a continuum of correspondence that resulted from the original request for advice. In this regard, the Commissioner referred to the case of Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.] wherethe Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach.
  • The Commissioner's decision also addresses the issue of whether LPP can attach to appendices or attachments to a request for legal advice. In her decision, the Commissioner found that LPP can attach to an appendix to a request for advice if, by releasing the appendix, the content of legal advice previously received would be disclosed.

Date of Decision: 21.10.2003

Our Reference: 020281

21.10.2003

Re: Freedom of Information (FOI) Acts, 1997 and 2003

Dear Mr. X

I refer to your two applications made to this Office for reviews of the decisions of the Department of Education and Science (the Department) in relation to your FOI requests of 17 May 2001 and 5 March 2002 in which you sought access to records relating to the entitlement of non-EU nationals to third level grants and the reasons for the introduction of a nationality clause in these grant schemes. As your second request was directly related to your first request, I have carried out both reviews simultaneously i.e. as one review and therefore this decision letter is in respect of both of your review applications. This review has been carried out in accordance with the provisions of the FOI Acts, 1997 and 2003 and therefore all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.

I have now completed my review of the Department's decisions. In carrying out this review, I have had regard to the following;

  • your two original applications and the Department's subsequent decisions dated 14 June 2001 and 8 April 2002,
  • your two internal review requests that were received by the Department on 26 June 2001 and 17 April 2002 and the Department's subsequent decisions of 27 November 2001 and 14 May 2002 respectively,
  • your two review applications to this Office dated 27 August 2001 and 22 May 2002,
  • Mr. Cathal Duffy's letter to you dated 10 July 2002 which narrowed the scope of this review,
  • various telephone conversations that you had with Mr. Duffy,
  • the Department's submissions to this Office dated 17 June 2002, 18 September 2002, 1 October 2002, 1 November 2002 and 18 January 2003,
  • the responses received in recent months to various questions asked of certain officials who worked in the Department at the time the relevant records were created, and
  • the provisions of the FOI Act, as amended.

Background

On 17 May 2001 you applied to the Department for access to all records held in the Department's Student Support/Third Level Access Unit that were created since 1 April 1998 "relating to the:

  • Entitlement of Non-EU Nationals to the Student Support Services and the Maintenance Grant Schemes for Third Level and Further Education, and the Free Tuition Fees Initiative.
  • Reasons pertaining to the introduction of the Nationality clause in the above schemes and initiative."

Following your request, the Department made its decision and wrote to you on 14 June 2001 advising you that your request was being refused under section 20(1) of the Act. The decision maker considered "that the documents relating to the issue of nationality under the Department's four student support schemes are currently part of a deliberative process and, therefore, should not be released at this time". You subsequently made an internal review request which was received by the Department on 26 June 2001 but the Department failed to issue a decision within the appropriate three week timeframe and consequently you applied to this Office for a review of the Department's decision to refuse your request.

Your review application was accepted by this Office on 28 November 2001 which was the day after the Department finally issued its internal review decision which resulted in the release of 26 records and an indication that further records were being withheld, details of which were to follow. The Department subsequently wrote to you again on 20 December 2001 and provided two appendices which listed the various records that the Department was not releasing on the grounds of either section 20(1) [deliberative process], section 22(1)(a) [legal professional privilege], section 46(1)(b) [records held or created by the Attorney General's Office], or section 46(1)(c)(iii) [records relating to an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980].

On 5 March 2002 you made a further original request to the Department which effectively extended the date pertaining to your first request i.e. up until 5 March 2002 from 17 May 2001. The Department's decision on this latest request issued on 8 April 2002 and resulted in the release of a further seven records whilst a number of other relevant records were identified but were withheld on the basis of either section 46(1)(c)(iii) or section 20(1). An internal review request was subsequently received from you by the Department on 17 April 2002 and on 14 May 2002 the Department upheld the original decision but also decided that a further exemption, under section 22(1)(a), also applied to the records that were originally withheld on the basis of section 20(1). The Department also withheld a further record on the basis of section 20(1) of the Act but unfortunately it omitted to refer to this record in its original or internal review decision letters. This record is an extract on the nationality clause from a draft report prepared by a Special Project Team established in November 2000 by the then Minister to carry out a comprehensive review of the maintenance grants and other student supports.

On 22 May 2002 you requested this Office to carry out a review of the Department's decision and your request was accepted on 31 May 2002. I note that in Ms. Sarah Lynch's letter to you dated 31 May 2002 you were advised of your entitlement to make a submission to this Office. In this regard, I have also noted that, in your telephone conversation with Mr. Duffy on 23 July 2002, you indicated that you would not be making a written submission and I have therefore progressed this review on the basis of the information available to me.

Scope of Review

In your telephone conversation with Mr. Duffy on 10 July 2002 you acknowledged that the Department was justified in claiming certain exemptions under the Act. After the telephone conversation, Mr. Duffy wrote to you confirming, insofar as records are concerned, that the scope of this review is confined to the Department's decision to withhold the following;

  • the records referred to in Appendix 2 of the Department's letter dated 20 December 2001 with the exception of record numbers 16, 17, 19 and 20 which you agreed are outside the scope of the Act, and
  • the records referred to in its internal review decision letter of 14 May 2002 with the exception of the Department's letter to the Office of the Ombudsman dated 12 June 2001 which you accepted is outside the scope of the Act.


Furthermore, in your original request of 17 May 2001 you also requested copies of records relating to the "reasons pertaining to the introduction of the Nationality clause" in the "Maintenance Grant Schemes for Third Level and Further Education, and the Free Tuition Fees Initiative". The Department did not make any formal decision in relation to this aspect of your request and this issue is also included in the scope of this review.

Following the commencement of this review there has been regular correspondence between this Office and the Department regarding the records at issue and the exemptions claimed. These communications have led to the scope of this review being narrowed further. In this regard, the Department wrote to you on 26 September 2002 advising that it was prepared to release a number of records that it had previously withheld. As a result, the only records listed in Appendix 2 of the Department's letter to you of 20 December 2001 that are still withheld and therefore subject to this review are numbers 5, 6, 7, 9, 10 and 12. These records were all withheld by the Department on the basis of sections 20(1) and 22(1)(a) as are the attachments to record numbers 13 and 18. An attachment to record number 14 was also withheld but, as this document was created by the Office of Attorney General, I will not be reviewing the Department's decision in this regard as you have previously indicated that you accept that the Act does not provide for access to such records. Furthermore, in relation to record number 18, I understand that the Department wrote to you on 21 November 2002 explaining that a further record that is relevant to your original request had been inadvertently overlooked and therefore not released to you on 20 December 2001. However, I have noted that this further relevant record has now been released to you in full.

I am also aware that the Department wrote to you again on 16 September 2003 in relation to a record (number 25) which it had previously withheld, solely on the basis of section 20(1), when it made its internal review decision of 14 May 2002. This record is a relevant extract from a draft report prepared by a Special Project Team, comprising senior officials of the Departments of Finance and Education and Science, established in November 2000 by the then Minister, Dr. Michael Woods TD to carry out a comprehensive review of every aspect of the maintenance grants and other student supports. This record is now outside the scope of this review as a result of the fact that it has recently been released to you.

Arising from recent correspondence between this Office and the Department, the latter has now acknowledged that it can no longer justifiably claim the deliberative process exemption [section 20(1)] in respect of any of the records that are still withheld. Accordingly, all records that are the subject of this review have been withheld by the Department solely on the basis of the legal professional privilege exemption [section 22(1)(a)].

Findings

Before dealing with each of the individual records at issue, I wish to outline my views generally in relation to the exemption claimed by the Department, under section 22(1)(a) of the Act, which provides that;

"a head shall refuse to grant a request under section 7 if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege, ...".

In a previous case (ref. 98058 - Phelim McAleer & DEJLR - see 'www.oic.ie'), my
predecessor found that "legal professional privilege enables the client to maintain the confidentiality of two types of communication;

  • communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
  • communications made between the client and a legal adviser or the 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".

For absolute clarity I am refining this further and I refer to "legal adviser" as a "professional legal adviser" throughout this decision. On this basis, I have examined each of the records withheld in order to decide whether this exemption claimed by the Department is justified on the basis of my above understanding of legal professional privilege (LPP). In this regard, I have noted that the basis for the decision of the Department to exempt records from release on the grounds of LPP is because they relate to internal correspondence between the Student Support Unit and the Department's own Legal Services Unit in relation to the nationality clause in the student support schemes.

In reviewing the Department's claim for an exemption under section 22(1)(a), I have to decide whether communications between in-house professional legal advisers and their client are privileged. In summary, I am satisfied that such communications are privileged if conducted confidentially and for the purpose of giving or receiving legal advice. Cases such as "Alfred Crompton Amusement Machines Limited v. The Customs and Excise Commissioners"
[(1972) QB 102, 109, (1972) 2 All ER 353, 376] and "Geraghty v. Minister for Local Government" [(1975) IR 300, 312] are authority for this proposition. Provided, therefore, the ingredients of the relevant limb of the LPP rule are present in any given case, the fact that the professional legal adviser concerned is employed as an in-house legal adviser does not operate to prevent the client from being able to assert the privilege over the communications at issue.

I have also had regard to Australian High Court authority in the case of "Waterford v. The Commonwealth of Australia" [(1987) 163 CLR 54] where, in relation to in-house lawyers, reference was made to the criterion of independence. However, I am satisfied that this is not a requirement in this jurisdiction per se. This is not to say that it does not exist as a requirement or part of a requirement in another guise, such as the requirement that the legal adviser communicating with the client (or third party, as the case may be) be "professionally" legally qualified. In this jurisdiction, professional legal qualification entails being either a member of the Law Society or the Honourable Society of King's Inns, depending on whether the legal adviser concerned is a solicitor or barrister. As Lord Denning, M.R. pointed out in Crompton, such persons are regarded by the law as being in the same position as those who practice on their own account. As regards independence and professional qualification, however, I note that Lord Denning drew particular attention to in-house, professionally qualified lawyers having to "... uphold the same standards of honour and of etiquette ..." and of their being "... subject to the same duties to their client and to the Court ... [and havingto] respect the same confidences."

In referring to these matters, Lord Denning might be said to have been reflecting the rationale often expressed for the existence of the privilege, that is to say, the furtherance of the whole administration of justice. The point here would be that, given the oversight and regulation exercised by solicitors’ and barristers’ professional organisations and given the duties of both solicitors’ and barristers’ to their clients and to the Court (as officers of the Court) as laid down by law and by the rules, ethics and codes of their individual professions, the administration of justice may be said to benefit from clients being able to consult professional legal advisers in full confidence, to be advised accordingly and to maintain the confidentiality of the communications involved.

I have also noted the comments of Mr. Justice Tucker in the English Employment Appeals
Tribunal in "New Victoria Hospital v. Ryan" [(1993 ICR, 201] when he stated that;

"... [T]he privilege should be strictly confined to legal advisers such as solicitors and counsel, who are professionally qualified, who are members of professional bodies, who are subject to the rules and etiquette of their professions and who owe a duty to the court."

Furthermore, in "Miley v. Flood" [(2001) 1 I.L.R.M., 756], Mr. Justice Kelly stated that LPP
"is more than a mere rule of evidence. It is a fundamental condition on which the administration of justice as a whole rests."

Having established these principles and satisfied myself that LPP does apply to any confidential correspondence between a professional legal adviser and a client, I must now address an issue that arises, in relation to this review, concerning the applicability of LPP to records of correspondence that took place between in-house legal staff who were not professionally legally qualified and other officials in the Department. In a number of the records at issue in this review, at least one of the parties to the correspondence was not professionally legally qualified at the time the communications were made. On the face of it, therefore, one might take the view that one of the ingredients for the existence of LPP is absent.

Whilst there appears to be a paucity of direct authority on this issue, I have noted that the leading evidence textbook, Phipson on Evidence [Fifteenth Edition, Common Law Library, Sweet & Maxwell (2000)], states as follows:

"Where there are unqualified staff involved in the giving of advice in a department supervised by qualified lawyers, it may be possible to claim privilege. The problem may arise in law firms, where there are paralegals or other unqualified persons giving advice under supervision. It may arise for in-house lawyers where tax advice may be given by members of a department some of whom are lawyers and some accountants. If the person who gives the advice is a paralegal and is working supervised by solicitors under law society rules, then the advice is in truth the advice of the firm (and not the advice of the paralegal) and will be privileged."

In a similar vein, I note that Mr. Paul Matthews, co-author of leading textbook, Matthews &
Malek on Discovery
, observed in the Legal Executive Journal of September, 1996 in an article
entitled “Legal Executives and Legal Privilege” that;

"So far as legal executives are concerned, the number of cases in which the question [as to the privileged status of their confidential communications] could properly arise has, hitherto, been small. This is because most legal executives are employed by solicitors, and in law it is the firm of solicitors that is advising the client or acting for the client in litigation.

Even a completely unqualified person employed by solicitors could, when acting as agent of the solicitors, fall within the scope of the privilege.

It may be the case that, if the legal executive is not directly employed by another solicitor, but is supervised by that solicitor or assists that solicitor, for example, in local or central government, or in industry, still the legal executive can be regarded as simply the agent of the solicitor, with the same consequences.

.... [T]he only case of a legal executive likely to fall fairly and squarely outside the agency situation would be the legal executive employed in the legal department of a company where there was no solicitor or barrister in charge."

It is in this context that I reviewed the Department's decision to claim LPP in respect of records created for the purpose of seeking or providing legal advice. I have been advised that the Legal Services Unit operates within the Policy Directorate of the Department which comprises a number of policy, advisory and administrative functions. The Unit comprises a distinct functional area within the Directorate and combines;

  • policy advice with particular reference to the legal and constitutional environment in which the education system operates,
  • legal advice to the Department and the Minister, and
  • management of the legal affairs of the Department, including the Minister's legislative programme and all litigation involving the Minister.

The work of the Unit covers the wide range of issues that arise in the Department and advice is generally provided directly to operational areas without reference to the Office of the Attorney General or the Office of the Chief State Solicitor. However, I understand that the Unit does liaise closely with those Offices in certain cases and assists them in formulating legal advice in relation to issues arising in the Department. In particular, the Unit seeks the views of the Office of the Attorney General in matters likely to give rise to litigation or which are already the subject of litigation as well as issues which set a significant legal precedent or relate to a particular specialist area of law.

The present Director of Policy in the Department, who is head of the Legal Services Unit, is recognised by those Offices as Legal Adviser to the Department and takes ultimate responsibility for all advice provided by the Unit. In this regard, the head of the Unit, who is a barrister and is therefore professionally legally qualified, discusses matters arising in relation to the provision of legal advice and agrees strategies with the staff of the Unit on a regular basis. In relation to the records that are at issue in this review, I am advised by the Department that the head of the Unit met with the staff concerned on at least two occasions before advice was communicated to the Student Support Unit thereby ensuring that the advice provided was effectively cleared by the head of the Unit.

In these circumstances, I am satisfied that, in general, the records at issue attract LPP; principally on the basis that given the delegation and supervision/oversight exercised by the head of the Unit, and given his status as a professionally qualified lawyer, staff in the Unit may be said to have been his agents for both the receiving of requests for, and the communication of, legal advice. In this regard, the responses received from the various individuals who worked in the Student Support Unit at that time, and who were recently consulted by my Office, indicated that the individuals concerned considered themselves to be addressing their legal queries to the Legal Services Unit generally or to a member of the Legal Services Unit in circumstances where not only was that officer considered to be a recognised contact point in the Unit but also where the identity of the Unit was considered by respondents generally to be bound to that of its head, who is a professionally qualified lawyer.

Given the level of supervision, oversight and discussion that the Department has advised took place between the head of the Unit and staff dealing with requests for advice in relation to this case and given the responsibility of the head of the Unit, I am satisfied that the advice provided to the Student Support Unit was effectively that of the head of the Legal Services Unit and that staff working in the Unit are effectively agents for receipt of queries and the communication of advice. In this regard, I have also noted that in terms of the Legal Services Unit being bound to the identity of its head, the various officials contacted by my Office generally considered ultimate responsibility for advice issuing from the Unit to rest with its head. Furthermore, staff in the Unit were authorised generally by the head to deal with queries, with their work then being discussed, supervised and/or reviewed by the head.

On the basis of the foregoing, I am satisfied as a general principle that LPP broadly attaches to the records at issue in this review. However, there are a number of relevant matters that I should clarify before I make a decision in respect of each of the records separately. In this regard, I wish to state that I am satisfied that the records at issue relate to the provision of legal advice rather than legal assistance and furthermore I am also satisfied that all communications were confidential in nature and made in the course of a professional legal relationship and not in any more casual context. In any event, insofar as any of the series’ of communications concerned in this case may not, on an individual basis, satisfy the criteria for the attraction of privilege, I have borne in mind the following comment, by leading evidence textbook author, Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R., 246, CA.], the respondents ...... sought discovery of communications between the appellants and their solicitors (other than those seeking and giving legal advice): drafts, working papers, attendance notes (of meetings between the appellants and their solicitors) and memoranda written by the appellants’ solicitors and internal communications of the appellants. The Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach. Accordingly, the documents in question were privileged."

A further factor that needs to be considered in relation to the normal principle that a document is not privileged if it is not brought into existence for the purpose of seeking or giving legal advice is where a document, which might be described as a "pre-existing document", could, if disclosed, reveal the nature or trend of the legal advice being sought by the client or being provided by the legal adviser. In this regard, I should point out that insofar as this review is concerned there are no documents appended to any legal advices transmitted to the Student Support Unit by the Legal Services Unit.

However, there are a number of documents, which I will specifically deal with later, that are pre-existing records that would not in their own right be privileged but which are attached to requests from the Student Support Unit for legal advice. I have received legal advice that, in general, LPP would not apply to such an attachment unless it is a copy of a document that would not ordinarily be in the possession of the client i.e. a copy of a document, the original of which is not held by the client, that the client had to take certain steps to acquire, possibly for the purposes of collecting evidence in anticipation of litigation. This latter exception is not however applicable in this particular case and accordingly any records selected by the Student Support Unit and attached to their requests for legal advice will not be privileged unless their release will result in the disclosure of legal advice previously received from, for example, the Office of the Attorney General. I am advised that the reason why LPP does not attach to documents appended to requests from clients for legal advice is, at the very least, in order to avoid the possibility of a client attaching a document relevant to a matter in issue and seeking advice thereon, in the context of litigation or contemplated litigation, thereby allowing the client to later claim privilege over the very documents that ought to be produced in the subsequent proceedings to ensure the proper determination of the matter by the court.

I now propose to go through each of the records at issue and to outline my decision in respect of each.

The first set of records that have been either fully or partly withheld by the Department and that I wish to deal with are numbers 5, 6, 7, 9, 10 and 12, as well as the attachments only to record numbers 13 and 18, all of which were listed in Appendix 2 of the Department's letter dated 20 December 2001. Of these, record number 5 comprises copies of a series of correspondence between the Student Support Unit and the Legal Services Unit. In effect, what the Department classified as "record number 5" actually comprises several individual records in their own right.

The first such record within this series of correspondence is a memorandum, with attachments, from an Executive Officer in the Student Support Unit to a colleague in the Legal Services Unit dated 3 March 2000. This initial correspondence was not originally identified by the Department as being relevant to this review and it was not until 3 April last that it was included amongst these relevant records when the apparent absence of any initial request for legal advice was noted by my Office and brought to the Department's attention. Apart from the memorandum, this initial request for legal advice also comprises three separate attachments, A, B and C. I am satisfied that the content of the memorandum meets my understanding of LPP as outlined previously i.e. it is a request from a client for legal advice. As regards the first attachment, marked A, I am satisfied that this should also be withheld on the basis that its disclosure will reveal the nature of legal advice previously received by the Student Support Unit. However, as regards attachments B and C, LPP does not attach to these documents, and they should therefore be released in full, as they would not in themselves be privileged i.e. they do not contain or betray the thrust of any legal advice previously received.

The remainder of the records within "record number 5", as classified by the Department, comprise six separate e-mails, one with an attachment, between the same two officials and I find that all of these records should be withheld on the basis of the exemption provided by section 22(1)(a) of the Act. In this regard, I should clarify that I am satisfied that the official concerned in the Legal Services Unit, although not professionally legally qualified at the time these communications were made, was working under the supervision and direction of the head of the Legal Services Unit in relation to the issues under consideration.

As regards record numbers 6, 7, 9, 10 and 12, all of these records comprise e-mail correspondence between two officials from the Student Support Unit and the official in the Legal Services Unit who had provided the initial advice referred to in "record number 5" above. In total, record numbers 6, 7, 9, 10 and 12 comprise seven separate e-mails and having examined each communication, I am satisfied that an exemption under section 22(1)(a) of the Act is justified in respect of each.

I have also examined the attachments to record numbers 13 and 18 which were also withheld by the Department, on the grounds of LPP, as explained in their letter to you dated 26 September 2002. In both cases, the attachments comprise two separate records of legal advice provided to the Student Support Unit by the official in the Legal Services Unit previously referred to. I am satisfied that these attachments were properly withheld by the Department on the basis of the LPP exemption provided by section 22(1)(a) of the Act.

The second block of records withheld by the Department are those referred to in its internal review decision letter of 14 May 2002 which related to your second FOI request dated 5 March 2002. Of the 26 records identified by the Department as being relevant to this request, seven of these, specifically numbers 2, 3, 5, 6, 7, 8 and 18, were released to you and referred to in the Department's original decision letter of 8 April 2002. A further record, number 25, was released to you on 16 September last whilst of the remainder, a total of 17 are still withheld on the grounds of LPP whilst one further record, a letter to the Office of the Ombudsman dated 12 June 2001 cannot be considered for release, as previously acknowledged by you, in accordance with the provisions of the Act.

I now propose to go through and outline my findings in relation to each of the remaining 17 records that the Department continues to withhold.

Record number 1 is a memorandum dated 22 May 2001 from an official in the Student Support Unit which was submitted to his Assistant Secretary General and to the head of the Legal Services Unit. The memorandum, which also has five separate attachments, relates to the nationality clause in the schemes of student support. The Department has claimed the LPP exemption due to the fact that the memorandum contains legal advice received from the Office of the Attorney General and also seeks the provision of further advice from the Legal Services Unit in relation to how the Department should proceed in light of your complaint under the Equal Status Act, 2000 regarding an alleged act of discrimination. Having examined the content of the memorandum, I am satisfied that it contains advice from the Office of the Attorney General, which is both quoted and interpreted in this record and it also represents a communication, the dominant purpose for the preparation of which was contemplated litigation. Accordingly, I find that the exemption claimed under section 22(1)(a) of the Act is justified.

As regards the various appendices which were attached to the memorandum, I have examined each separately and I find that appendices II and V should be released to you in full on the basis that they do not reveal the nature or trend of any legal advice previously received. I am also satisfied that Appendix I should be released to you in full but with the exception of the two attachments which are copies of separate legal advices received by the Student Support Unit which should be withheld as they meet my previously explained understanding of LPP. Turning to Appendix III, this is a letter from the Office of the Attorney General to the Secretary General of the Department that clearly contains legal advice and therefore I find that the LPP exemption claimed is justified. Similarly, having considered the content of Appendix IV, I am satisfied that it should not be released as to do so would result in you being provided with an insight into the thrust of the advice received, as per Appendix III, from the Office of the Attorney General.

The next record withheld by the Department following its internal review decision of 14 May 2002 is record number 4 which is an e-mail sent on 4 July 2001 by an official in the Student Support Unit to a colleague in the Legal Services Unit referring to the previous memorandum of 22 May 2001. Whilst this record does not contain any reference to the nature of the legal advice sought or to any legal advice previously received, it does nevertheless meet my understanding of LPP having regard to the decision of the Court of Appeal in the "Balabel v. Air India" case referred to previously.

The position in relation to record numbers 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23 and 24 is similar in that of record number 4. Despite the fact that none of these records of further
correspondence between the Student Support Unit and the Legal Services Unit, in relation to
the 22 May 2001 memorandum, reveal anything in relation to the legal advice sought or provided, I find that they are nevertheless exempt on the basis that they are part of a continuum of correspondence that resulted from the original request for advice.

The one remaining record is number 19 which is an e-mail sent to the Student Support Unit by the Legal Services Unit on 16 November 2001 outlining the preliminary advice of a member of the Legal Services Unit in response to the submission of 22 May 2001. Having regard to my previously explained understandings of LPP, I am satisfied that the exemption claimed by the Department under section 22(1)(a) is justified and that the official in the Legal Services Unit, although not professionally legally qualified at the time the advice was provided, was nevertheless working under the supervision and direction of the head of the Legal Services Unit in this regard.

A further issue that arose in the course of this review concerned the letter which issued to the Free Legal Advice Centre on 18 June 2001 in response to your complaint under the Equal Status Act, 2000. The Department had failed to include this record amongst the records previously identified as relevant but nevertheless I am satisfied that it should also be released to you in full as it cannot attract LPP given that it is open correspondence that took place with your solicitors.

The final matter that my review has to address is your application to the Department for records relating to the "reasons pertaining to the introduction of the Nationality clause" in the "Maintenance Grant Schemes for Third Level and Further Education, and the Free TuitionFees Initiative". As you are aware, the nationality clause was introduced into the Schemes of Student Support in 1995. This effectively means that records that provide details of the reasons for the introduction of the nationality clause would all have been created before the commencement of the FOI Act. Of course any records in this regard that post-date the commencement of Act would be within the scope of your two requests to the Department.

By virtue of section 6(5) of the Act, a right of access to pre-commencement records only exists when access "is necessary or expedient in order to understand records created after such commencement" [section 6(5)(a)] or, if the records "relate to personal information about the requester seeking access to them" [section 6(5)(b)] .

In a previous case (ref. 98117 - Mr. ABE and the Department of the Marine and Natural Resources - see 'www.oic.ie'), my predecessor explained his approach to interpreting the phrase "necessary or expedient in order to understand". Having considered his findings, I am in agreement with his interpretation that the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. My predecessor made it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood. He also defined the word "expedient" as "fit, proper or suitable to the circumstances of the case". He concluded that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record.

I have examined all records released or to be released to you in the light of the above interpretation of section 6(5)(a) and, having done so, I am satisfied that there are no records that were created after the commencement of the Act in respect of which it could be said that
access to any pre-commencement records is necessary or expedient in order to understand them.

As regards the possibility that there may be pre-commencement records that provide details of the reasons for the introduction of the nationality clause and, which also contain personal information about you, I am satisfied that that there are no such records in existence.

However, having regard to your original request which, based on a strict interpretation of its wording, was for access to "records" relating to the reasons for the introduction of the nationality clause, I am nevertheless willing to treat your original application as, apart from a request for records, an application under section 18 of the Act. In this regard, I have noted that under Statutory Instrument No. 519 of 1998 (passed on 22 December 1998), a requirement was introduced that a request under section 18 of the FOI Act "shall be expressed to be made under that section". Whilst your request was not expressed to be under section 18, I am nevertheless persuaded by the fact that this Statutory Instrument also provides;

"where a public body receives either -

(a) an application which purports to be an application under section 18 but which is not in the proper form, or

(b) an application which does not purport to be an application under section 18 but which requests information access to which can be obtained only by way of an application under section 18,

the head shall assist, or offer to assist, the individual in the preparation of an application under that section."

In these circumstances, where you do not appear to have been assisted in preparing a proper section 18 request, I have decided to proceed on the basis that your original application included a valid request for a statement of reasons for the introduction of the nationality clause. Section 18(1) of the Act provides;

"The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person -

(a) of the reasons for the act, and

(b) of any findings on any material issues of fact made for the purposes of the act."

In a previous case dealt with by my predecessor (ref. 98095 - Mr. AAV and the Department of Social, Community and Family Affairs - see 'www.oic.ie'), it was found that section 18 is not retrospective and does not require public bodies to furnish a statement of reason for acts which occurred prior to the commencement of the Act on 21 April 1998. However, in the same case, my predecessor also indicated that the position might be different if the acts in question had continuing effect after 21 April 1998. In this particular case and specifically in relation to the decision to introduce a nationality clause, I am satisfied that the decision has a continuing effect and therefore a section 18(1) request for a statement of reasons may apply.

However, I must also have regard for the provisions of section 18(5) of the Act which provide;

"For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

In summary, for Section 18 to apply, a person who is affected by an act of a public body must have a material interest in a matter affected by the act or to which it relates. A person has a material interest in a matter affected by an act of a public body if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size.

In this particular case, the "act" of the Department was its decision to introduce a nationality clause into the Schemes of Student Support from 1995. Clearly, you are not the only person affected by this decision, as evidenced by the official notification of your complaint under the Equal Status Act, 2000 as submitted to the Department on your behalf by the FLAC on 11 April 2001. In the formal complaint, you referred to the fact that "the current practice affects not just me - it affects all non-nationals who are excluded by the nationality clause". Furthermore, I have noted that it is stated in record number 13 (per Appendix II of the Department's letter to you of 20 December 2001), which was released on 26 September 2001, that in the period 1996 to March 2000 there were 2,169 persons placed in the same category as you i.e. persons granted leave to remain in the State on the basis of being parents of Irish born children.

In these circumstances, it is clear to me that the 1995 decision, which has continuing effect, affects a group of persons of significant size of which you are a member and therefore, in the context of section 18, you are not personally affected by the "act" of the Department. Accordingly, I find that you are not entitled to a statement of reasons from the Department.

I have also noted that in your telephone conversation with Mr. Duffy on 27 September 2002, you stated that whilst there may be others in the same category as you, you felt that you are "affected" by virtue of the fact that, unlike others, you had actually applied for a grant and were refused. In this regard, I agree with Mr. Duffy's reply to the effect that, in those circumstances, the "act" of the Department would have been the decision that you did not meet the eligibility criteria for a grant rather than its decision to introduce a nationality clause into the schemes, as per your original request. In any event, whilst it is beyond the scope of this review, it is apparent that a request for reasons for the decision not to accept your application for a grant under the Schemes of Student Support would probably result in the Department simply advising you that you did not meet the eligibility criteria for a grant under these schemes.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Acts, 1997 and 2003 I hereby;

  • vary the Department's decision to withhold access to the following records which should be released to you in full;

(i) attachments B and C of the original record of correspondence between the Student Support Unit and the Legal Services Unit dated 3 March 2001,

(ii) appendices I (except the two attachments containing legal advice), II and V of the memorandum to the Legal Services Unit dated 22 May 2001, and

(iii) the letter which issued to the FLAC dated 18 June 2001,

  • affirm the Department's decision to refuse access to all other records, and
  • decide that you are not entitled to a statement of reasons in accordance with section 18 of the Act.

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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this eight week time limit.

Yours sincerely




Emily O'Reilly
Information Commissioner