Information Rights Tribunal upholds legal professional privilege in right of way dispute

The First-Tier Tribunal (Information Rights) has rejected an appellant’s request for disclosure of legal advice given by counsel and an in-house legal department to a local authority.

In Woodford v Information Commissioner (EA/2009/0098), the appellant was involved in a protracted dispute with St Albans City and District Council concerning a right of way over council land near his property.

The matter was referred to an adjudicator, but prior to the hearing, the appellant was offered a limited right of way. According to the Information Commissioner’s decision notice, the appellant “accepted the offer having been assured by the council’s Estates Department that the offer was a genuine attempt to bring about an agreement and not related to advice given by Counsel instructed to conduct the case for the council”.

However, he then took the view that counsel had advised that St Albans would have lost the hearing before the adjudicator, and that the assurances he had been given were false.

The appellant then requested that he be informed of the “nature and circumstances and full details of all and any legal advice given by your Department, and/or to your Department by Counsel, concerning my application to the Land Registry for the registration of a Right of Way, and the evidence then before Counsel, in the period immediately before and leading to the decision, after two years to make me an offer of a restricted Right of Way over the Council’s land beside my house.”

The request was rejected by St Albans, relying on s. 42 of the Freedom of Information Act 2000.

Mr Woodford then appealed, arguing that the information requested was not subject to legal professional privilege and that the competing public interests militated in favour of disclosure.

He claimed that there was no need for privilege as the proceedings had come to an end, the authority would not suffer “material disadvantage” if the information was disclosed, and privilege did not extend to in-house lawyers. In subsequent correspondence, he insisted that his interest was to establish whether or not the council’s officers acted in good faith.

Upholding the Information Commissioner’s decision notice, which rejected the appeal, the tribunal ruled:

• The appellant’s approach was at the very least misguided and that it appeared to be “based on completely unfounded allegations of dishonesty”
• The information sought constituted environmental information under the Environmental Information Regulations 2004, which has a presumption in favour of disclosure
• The disputed information – save for one document, which was covered by litigation privilege – was subject to legal professional privilege
• It was entirely satisfied that the Akzo Nobel and AM&S (Europe) cases on legal professional privilege and in-house lawyers “do not provide any authority which might otherwise seek to limit the general scope of legal professional privilege in the way suggested”
• It concurred with the decision in Calland v Information Commissioner and FSA (EA/2007/0136) that “the same requirements of confidentiality and candour apply, whether or not there is advice provided by an employed lawyer or from an independent legal professional”.

It said: “In all the circumstances, the present tribunal is entirely convinced by the submissions made on behalf of the Commissioner, which in turn reflect those of the Council, that disclosure in this case would provide a very clear indication of the relevant arguments, as well as any strengths and weaknesses, which the Council might have in any particular case with regard to rights of way over public amenity land, placing it potentially or in fact in a position of disadvantage in any future litigation or dispute.”

The tribunal also endorsed the Commissioner’s findings that future disputes might be at risk were the information sought by the appellant to be disclosed.

As a result the public interest in maintaining the exception to disclosure contained in Regulation 12(5)(b) of the EIRs outweighed the public interest in disclosing the information.