Tribunal rejects call for disclosure of council's legal advice in Church of Scientology rate relief case

The First-Tier Tribunal (Information Rights) has upheld a decision by the City of London Council to refuse a request for access to legal advice in a case involving the Church of Scientology religious education college (COSREC).

It is the second time in a month that the tribunal has turned down a request for legal advice – last month it refused an applicant’s request in a right of way dispute involving St Albans City and District Council.

In this case, William Thackeray v IC (EA/2009/0095), the appellant submitted a request for the City of London Council to provide a copy of legal advice that led to it charging business at a reduced rate to COSREC.

The council had decided in October 2006 that COSREC enjoyed mandatory rate relief (80%) under the Local Government Finance Act 1988 on the basis that it was a charity or the trustees of a charity and was used “wholly or mainly for charitable purposes” with the meaning of the Act. This was worth £274,000.

The council refused Mr Thackeray’s request, citing the legal professional privilege exemption under s. 42 of the Freedom of Information Act 2000.

Mr Thackeray then demanded an internal review, asking for “the legal reasons behind this decision be released in a summary, paraphrased or redacted form which will not inhibit the free and frank exchange of views between the [council] and its legal advisors in the future”.

The council declined again to provide the information, a decision that was subsequently upheld by the Information Commissioner.

Mr Thackeray appealed to the Information Rights Tribunal over the application of the public interest test.

The tribunal ruled that Mr Thackeray had been seeking the legal reasons for the council’s decision, not the wider reasons as he claimed, because the appellant subsequently made requests asking for information relating to the factual basis for the decision to grant rate relief.

It also agreed with the Information Commissioner and the council that the disputed information “could not be sensibly be redacted, summarised or paraphrased without disclosing the majority of the contents subject to legal professional privilege”.

The tribunal acknowledged that there was a considerable public interest in understanding the council’s decision to grant rate relief, on the basis that the Church of Scientology was an organisation that attracted controversy (although it made no finding on the veracity of the issues raised by Mr Thackeray).

It said it was of the view that “given this was public funds at issue and sectors of Government had clearly been concerned as to the Church’s conduct, a public interest factor in favour of disclosure definitely existed”.

The tribunal suggested there were significant factors operating on both sides of the balance between disclosure and maintaining the s.42 exemption. But it dismissed Mr Thackeray’s appeal, saying “it would be fanciful not to acknowledge that frequent disclosure of information subject to legal professional privilege would inevitably have some impact on those officers seeking and those lawyers providing legal advice.”

It ruled that “this case lacked the clear compelling factor that would be required to outweigh the in-built weight accorded to maintaining the legal professional privilege exemption”.

It nevertheless called on the council to reconsider its separate refusal to disclose the underlying facts it took into account when making its decision on rate relief. The tribunal said the case for disclosure “was likely to be stronger in relation to material that was not legally professionally privileged given the significant public interests that arise”.