Tribunal rejects appeal for disclosure of details of council review of education law firm

March 13, 2018

The First-tier Tribunal (FTT) has dismissed an appeal calling for the disclosure of information on a council’s review of its working arrangements with Baker Small and the authority’s use of the education law firm.

In refusing the FOI request the London Borough of Croydon had relied on the following exemptions under the Freedom of Information Act 2000:

S.36 (prejudice to the conduct of public affairs)
S.41 (information provided in confidence)
S.42 (legal professional privilege)
S.43(2) (prejudice to commercial interests)

In Gillingham v The Information Commissioner & (Dismissed : Freedom of Information Act 2000) [2018] UKFTT 2017_0152 the FTT upheld Croydon’s reliance on the first three of these exemptions, but did not do so for s.43(2).

The background to the case was that, like many other local authorities, Croydon had retained Baker Small to present its case to Special Educational Needs tribunals.

In June 2016, Mark Small, the director of Baker Small, sent a number of what the FTT described as “grossly insensitive tweets, apparently mocking parents who had lost appeals in which he represented the local authorities”.

The text of the tweets spread rapidly and was eventually picked up in national and local media. Mr Small emailed Croydon on 13 June, acknowledging what he had done.

A number of local authorities then cut or reviewed their ties to the law firm.

On 15 June, the Leader of Croydon announced its decision to suspend immediately any work with Baker Small pending review. “That evidently provoked vigorous responses from members of the public and calls to terminate the retainer,” the FTT said.

On 16 July, the appellant, Richard Gillingham, requested disclosure “of all information held by the Legal, Contracts and Leader’s Office departments concerning this review and the use of (BS) by (LBC)”.

Croydon respondent the following month, saying it held the information requested but refused to disclose it on the basis of the FOI exemptions mentioned above.

Mr Gillingham complained to the Information Commissioner’s Office.

The ICO concluded that s.36(2)(b)(i) and (ii) were engaged in respect of all the withheld information on the basis that the QP’s [qualified person’s] opinion as to the likely effect of disclosure was reasonable and that the public interest favoured withholding it.

The ICO also concluded that the s.41 was engaged as regards material received from a third party but not documents created by Croydon. Sections 42 and 43(2) were engaged in respect of a very limited number of documents and, again, the public interest in maintaining those exemptions prevailed.

Mr Gillingham, a retired civil servant, appealed on the following grounds:

As to s.36 that the QP (who was the Acting Council Solicitor and Acting Monitoring Officer) had been engaged in the handling of the Baker Small issue amounted to a breach of natural justice. Disclosure of the information was also not likely to be prejudicial to free and frank advice or discussion. The ‘chilling effect’ of disclosure was grossly exaggerated by public authorities in such cases. If the public interest was engaged, the public interest in disclosure outweighed the argument for withholding this information.
As to s.41, he questioned whether the law firm should be regarded as a party independent of the council.
As to s.42, he questioned whether it could be engaged in respect of a request for advice on ‘options’ but argued that the public interest required disclosure, if it did.
As to s.43(2), the late reliance by Croydon on this exemption amounted to an abuse of process and there was no evidence of prejudice to a third party. If the exemption was engaged, the public interest was in disclosure.

The First-tier Tribunal rejected the appeal. Amongst other things it said:

The QP does not occupy a quasi-judicial role when delivering the opinion relied on, although she must have regard to arguments on both sides when deciding whether disclosure would be likely to inhibit free and frank advice or discussion on this or later occasions. “The opinion is likely to be better informed where, as here, the QP has been tackling the issue herself. Certainly, no question of a breach of natural justice arises in these circumstances.”
The QP had taken account of the state of deliberations within the council when the request was made on 16 July 2016. This was not a case where the potential inhibition was simply to future advice and debate. It was clear that at this time the council’s future relationship with the law firm was under close consideration and steps were being taken to protect the council’s interests in the immediate future. “The legitimate and powerful public interest in what LBC was doing was acknowledged but so was the need for deliberation free from the immediate stress of the public searchlight. This was clearly a reasonable opinion.”
The public interest in withholding the requested information outweighed the interest in disclosure. There was a significant public interest here in knowing how Croydon intended to balance "the practical problems arising from these unpleasant tweets with an appropriate reaction to the widespread revulsion at such disgraceful insensitivity by its solicitors". There was a strong public interest in prompt disclosure of decisions taken by a local authority and the reasons for those decisions, where sensitive issues of this kind are involved. "However, the precise content of discussions, arguments and negotiations, which precede such decisions, as recorded in Emails, and the formulation of the reasons for them, will generally be of less consequence." That would not be true if they revealed improper conduct – for example a scheme to mislead the public on some aspect of the affair. "That is not the case here. No “wrongdoing” would be exposed."
A sensible debate and a calm appraisal of the problems involved were inevitably more difficult if every option or undigested proposal, every request for advice was exposed to public scrutiny, while the outcome of the debate was in the balance. "This is not just another case about the “chilling effect” on future candour; it relates more immediately to the effects on the decision-making taking place at the date of the request." S.36(2)(b) was engaged in respect of the email exchanges.
S.41 was invoked only in respect of a small number of documents. Those that were not information obtained from another person could not be exempted by virtue of s.41. However, the rest were communications from Baker Small, which was clearly “any other person” despite its contractual links to the council. Though not sent expressly in confidence, it was fair to infer that the firm assumed that its communications would be treated as confidential, having regard to the circumstances in which they were sent. The information contained, including the steps the law firm intended to take to deal with the issue, was probably confidential in nature, given the commercial interests involved. Its disclosure could damage the interests of Baker Small.
The FTT agreed with the ICO that the value to the public of disclosure of the Baker Small emails in the context of the information otherwise in the public domain was very slight. “On balance, we consider that a public interest defence to an action for breach of confidence would probably fail.” The three requirements for an actionable breach of confidence set out in Coco v A.N. Clark (Engineering) Ltd [1968] FSR 415 were, on balance, met.
The s.42 exemption was relied on in relation to only one email from an in-house solicitor to other council officers engaged in the Baker Small problem. It was clearly privileged legal advice. “There is no compelling public interest in overriding the strong policy argument for preserving that privilege. The public would learn little or nothing to further its understanding of LBC's stance in relation to BS."
The council was entitled to raise s.43(2) when it did. It could have done so for the first time in response to the appeal. There was no abuse of process. This exemption was only relied on for a letter from the council to Baker Small. The law firm claimed this gave a false impression of Baker Small and was damaging to its commercial interests. The council asserted that disclosure of such material might prejudice its own commercial interests by discouraging outside contractors to provide services because of the risk that such material would be made public. The FTT said it doubted that disclosure would cause any further damage to Baker Small beyond what it had already suffered. Prejudice to the council’s commercial interests seemed “fairly speculative”. It therefore did not consider that s.43(2) was engaged. The document in question did however fall within the FTT’s finding on s.36(2)(b).

In a unanimous decision the FTT dismissed the appeal.

A Croydon Council spokesperson said: “The council was pleased its decision to apply relevant exemptions under the Freedom of Information Act was upheld by the court.”