Legal advice obtained prior to the Assembly Sitting on Monday 21st October 2019

Information Standards Freedom of Information Response

Our Ref: FoI 30-19

22nd November 2019

Freedom of Information Act 2000

I am writing to confirm that the Northern Ireland Assembly Commission holds information relevant to your request of 25th October 2019.

In your request, you asked for the following information:

"I write under the Freedom of Information Act 2000 to request a copy of the legal advice you obtained prior to the Assembly Sitting on Monday 21st October 2019"

I wish to advise you that the information is exempt from disclosure under section 42(1) of the Freedom of Information Act 2000. The reasons for this are set out in the attached Appendix.

You have the right to request a formal review by the Northern Ireland Assembly Commission and if you wish to do so, please write to me at the above address.

If after such an internal review you are still unhappy with the response, you have the right to appeal to the Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF who will undertake an independent review.

If you have any queries about this letter, please contact me. Please remember to quote the reference number above.

Yours sincerely

Information Standards

Appendix A

Legal Professional Privilege – section 42 FOIA

Section 42(1) of the Freedom of Information Act 2000 (FOIA) provides that:

"Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information".

Section 42 FOIA provides an exemption from disclosure for information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

Legal professional privilege provides for the special protection from disclosure of communications between legal advisers and their clients, protecting the confidentiality of communications and exchanges on legal matters between client and legal adviser.

Information will attract legal professional privilege if it is comprised of confidential communications between the client and legal adviser made for the dominant purpose of seeking or giving legal advice.

The requested information attracts legal professional privilege and so the exemption provided for in section 42(1) FOIA is engaged.

The exemption under section 42(1) is a qualified exemption and is subject to the public interest test provided for in section 2(2)(b) of the FOIA.

Therefore, the information must be disclosed unless, in all the circumstances of the case, the public interest in disclosure is outweighed by the public interest in maintaining the exemption.

The Northern Ireland Assembly Commission (the Commission) has considered the application of the public interest test to determine if, in all the circumstances of this case, the public interest in maintaining the exemption under section 42(1) FOIA outweighs the public interest in disclosing the information.

The Commission has considered the public interest in disclosure. The Commission has considered the strong public interest in transparency and openness and the very significant public interest in facilitating public understanding of the work of the Assembly.

The Commission has considered the public interest in maintaining the exemption. The Commission recognises that freely seeking and obtaining frank legal advice is crucial to a public authority's ability to make informed and legally supported decisions and that there is a need for confidentiality between legal advisers and their clients so that legal advice can be given freely, frankly, and without fear of intrusion.

The Commission recognises the inherent public interest in maintaining legal professional privilege and has considered the public interest in ensuring that the Assembly may obtain candid and confidential legal advice as to its legal rights and obligations.

Having considered the public interest in disclosure and the public interest in maintaining the exemption under section 42(1) FOIA, the Commission is satisfied that, in all of the circumstances of this case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption provided for under section 42(1) FOIA.