FOI 50-24: Information regarding the legal advice referred to by Connie Egan MLA before the Executive Committee on 23 October 2024

Information Standards Freedom of Information Response

11 November 2024

Our ref: FoI 50-24

Freedom of Information Act 2000

I am writing to confirm that the Northern Ireland Assembly Commission (Assembly Commission) has processed your request dated 23 October 2024 in line with the Freedom of Information Act 2000 (FOIA). In your request, you asked:

'Under the [FOIA]… please provide the following information: a copy of the legal advice referred to and in part read from by Connie Egan MLA before the NI Executive committee on 23 October 2024… please note, the legal professional privilege exemption cannot apply… privilege [has been] waived'.

 

Our response

The Assembly Commission has assumed that by reference to the Executive Committee, which did not meet on 23 October, you intended reference to the Committee for the Executive Office (CEO), which did.

The Assembly Commission considers the information you have requested to be exempt from disclosure for the following reasons:

 

Section 21 of the FOIA

The Assembly Commission considers part of this information to be exempt from disclosure under Section 21(1) of the FOIA (information accessible to applicant by other means), which provides, so far as is relevant, that 'information which is reasonably accessible to the applicant… is exempt information'.

The legal advice disclosed by Ms Egan is available to read at page 6 of the Official Report of the CEO's proceedings on 23 October 2024. Please click here to view.

 

Section 42 of the FOIA

The Assembly Commission considers the remainder of the information to be exempt under section 42 of the FOIA because it is information in respect of which a claim to legal professional privilege ('LPP') could be maintained in legal proceedings. The information is contained in a document headed 'legal advice'. It was requested by the Clerk to the CEO and was prepared by a solicitor employed in-house by the Assembly Commission. The dominant purpose of the document was the provision of legal advice to the CEO.

The Assembly Commission has noted reference in your request to 'waiver'. In this regard the Assembly Commission has noted guidance published by the Information Commissioner's Office ('ICO') in respect of the section 42 exemption, which states:

'Waiver is a term that describes disclosures made to a legal opponent within the context of specific court proceedings… arguments about waiver and cherry picking have no relevance in the context of considering disclosure of information under FOIA... In an FOI context, LPP will only have been lost if there has been a previous disclosure to the world at large and the information can therefore no longer be considered confidential...

If the disclosure did not reveal the content or substance of the remaining information, then the remaining part will keep its quality of confidentiality. Therefore, a brief reference to or summary of the legal advice that does not reveal its substance is unlikely to lead to a loss of privilege'.

 

The Assembly Commission has considered the content of the legal advice provided to the CEO. The Assembly Commission is satisfied that the statement by Ms Egan published in the Official Report did not result in the disclosure of the 'content or substance' of the detailed legal advice provided to the Committee for the Executive Office, which was not principally concerned with the matter referred to by Ms Egan.

 

Section 42 is a qualified exemption and the Assembly Commission has considered whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information ('the public interest test'). In considering the public interest test, the Assembly Commission has identified the following points in favour of maintaining the exemption:

  • The ability for committees of the Assembly to receive confidential legal advice on their legal powers and obligations, and benefit from free and frank advice on the extent of their powers as well as legal risks which may arise from the exercise of those powers. This is particularly important when a key function of statutory committees is to scrutinize government departments, which have access to their own in-house legal advice.
  • The prejudice to the legal position of committees of the legislature should legal advice on their powers be published.
  • The strong element of public interest inbuilt into maintaining and safeguarding legal professional privilege, particularly where it contributes to the scrutiny of government by elected representatives.

 

The Assembly Commission has identified the following points in favour of disclosing the information:

  • Disclosure of information held by public authorities, including legal advice, may promote transparency and accountability.
  • Disclosure of information held by public authorities can aid in understanding the reason why certain decisions were made, as can disclosure of the advice which informed those decisions.

 

The Assembly Commission has concluded in this case that the public interest in maintaining the section 42 exemption in respect of the legal advice outweighs the general public interest in transparency about the work of public bodies.

 

Further Information

You have the right to request an internal review of this decision by the Assembly Commission. If you wish to request such a review, please write to me at the above address. If, after that review, you are dissatisfied with the way in which the Assembly Commission has handled your request for information, you may complain to the Information Commissioner's Office (ICO) at Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

Your request for information and our response may be published in the disclosure log maintained by the Assembly Commission under a publication scheme agreed with the ICO. The request and our response will be anonymised.

Yours sincerely

Information Standards