Tribunal backs refusal by transport body to disclose 2005 legal opinion

The First-tier Tribunal has upheld a transport body’s refusal to disclose, following a freedom of information request, advice given by counsel in 2005.

The case of Tobias Paul Shaw v IC concerned a request for information made by the appellant, Mr Shaw, who submitted what was described as a lengthy multi-part request for information to Transport for Greater Manchester ("TfGM"), the statutory body responsible for coordinating public transport within Greater Manchester.

The request included a request for the following information:

“3. Procedures, actions and processes undertaken in the formulation, adoption, authorisation and review of the Metrolink Byelaws, MCOC and TfGM Official Fares Table (insofar as those documents were in force on or after Sunday 28 September 2014) and any related material, including but not limited to minutes, correspondence (internal and external), advice, consultations, policies and other records.”

In its substantive response, TfGM said: “We do not hold any records or information in relation to the formulation, adoption, authorisation and review of the Metrolink Byelaws, MCOC and TfGM Official Fares Table. With regard to the Byelaws, these were made on 9th January 1992 and confirmed on 24th February 1992. In 2005, we did seek Counsel's opinion on the application of the Byelaws to any new extensions. TfGM consider this information to be exempt under section 42 of the Act - Legal Professional Privilege.

“In this instance, having considered the balance of the public interest test, TJGM has concluded that the likely prejudice to TJGM is greater than the public interest in disclosure. We believe release of such information would prejudice future reviews of the Byelaws and/or MCOC. Communications between client and legal adviser are protected by Legal Professional Privilege….”

Mr Shaw complained to the Information Commissioner who in turn investigated and then decided to uphold the decision of TfGM. This was on the basis that the counsel’s opinion was protected by legal advice privilege and that the balance of the public interest was in favour of maintaining the exemption due to the "inherent necessity for TfGM to be able to seek and receive confidential legal advice, without the expectation that it will be disclosed to the public'' and the absence of any sufficiently weighty countervailing factors.

Mr Shaw appealed to the First-tier Tribunal. He argued that:

1. The Decision Notice was 'defective' because of the unfair way in which the Commissioner had carried out his investigation;

2. The DN was defective because the Commissioner did not consider TfGM's failure to undertake an internal review in respect of one part of the original request;

3. The DN was 'misleading';

4. The Commissioner struck the wrong balance under the public interest test.The arguments in favour of disclosure outweighed the arguments in favour of maintaining the exemption at section 42 FOIA.

The F-tT rejected all four grounds of appeal. It concluded that it was not the role of the tribunal to scrutinise the manner in which the Information Commissioner had carried out his investigation, ”but rather to consider whether the conclusions reached in the DN are in accordance with the law and/ or whether the Commissioner has exercised his discretion correctly: see section 58 FOIA”.

It was similarly outside of the tribunal’s jurisdiction to consider any alleged failure of the public authority with regard to an internal review.

The F-tT also decided that, as regards the alleged factual inaccuracies, there were insufficient to raise any inference that the Information Commissioner had made an error of law or exercised his discretion inappropriately.

On the public interest balancing test, the tribunal did not, given the age and particular contents of the counsel’s opinion, consider that there would be likely to be a high level of prejudice arising from disclosure of the opinion.

“That said, the tribunal was, in line with other tribunal cases, persuaded of the significant weight which should be accorded to the public interest in maintaining legal professional privilege and the ability thereby of public authorities to obtain confidential legal advice, safe in the knowledge that absent some clear and compelling consideration in favour of disclosure, the advice would remain confidential,” the F-tT said.

It added: “In this case, the counsel’s opinion whilst relatively old, did apply to continuing circumstances, such that it was credible and indeed likely that its disclosure would erode the confidence in which legal advice could be sought. This was not to elevate a qualified exemption to the status of an absolute exemption – rather by acknowledging the potential actual harm to legal professional privilege that could be triggered by disclosure, it underscored the need for a clear and compelling public interest in favour of disclosure to counterbalance this.”

The appellant, Mr Shaw, had not adduced any particularly strong public interest factors in favour of disclosure, the tribunal concluded. “Beyond the generally desirable goals of accountability, good administration and transparency, he had not been able to identify or evidence any particular public interest in the subject matter of the counsel’s opinion and its disclosure.”