Ethics Committee opinion
The Ethics Committee has approved for publication this opinion from the past year - as guidance for the profession as a whole.
Whether FOI requests can be made to public body represented by a lawyer
Chapter 4, Rule 1.1 of the Professional Conduct Handbook
(Ethics Committee: March, 2001)
A lawyer asked whether she is required to make freedom of information requests to a public body through another lawyer in relation to a matter in which the other lawyer is acting for the public body.
The Committee noted that Chapter 4, Rule 1.1 of the Professional Conduct Handbook prevents a lawyer from communicating directly with a client who is represented by another lawyer in a matter. On the other hand, section 5 of the Freedom of Information And Protection of Privacy Act ("the FIPP Act") contemplates that, to obtain access to a record, an applicant must make a written request to the public body that the applicant believes has custody or control of the record. Section 79 of the FIPP Act states that, if a provision of that Act is inconsistent or in conflict with a provision of another Act, the provision of the FIPP Act prevails.
It was the Committee's view that Rule 1.1 must be read as subject to section 5 of the FIPP Act. For that reason, it is proper for lawyers to make freedom of information requests directly to a public body in a matter where the public body is represented by a lawyer.