Tribunal rules that monitoring officer report was not legally privileged

A report prepared by a council’s monitoring officer who was also a qualified solicitor was not legally privileged, the First-Tier Tribunal (Information Rights) has ruled.

In Surrey Heath Borough Council & Keith McCullen v IC EA/2010/0034, Mr McCullen had complained to the council in relation to its decision to permit the felling of 200 trees within a property. He also claimed that in relation to the grant of planning permission a council planning officer had been treated more favourably than an ‘ordinary’ applicant.

The council’s monitoring officer produced a report into these and other concerns in June 2007. Mr McCullen was not supplied with a report but given a précis. He then requested a full copy of the report including “copies of the advice given by the two ‘experts’….together with the originating letters from the council”.

Surrey Heath refused to disclose these items, claiming that they were legally privileged and so exempt under s.42 of the Freedom of Information Act. Mr McCullen then challenged the refusal, but the local authority maintained its position after an internal review.

Mr McCullen then took the case to the Information Commissioner, where a case officer told the council the matter should be considered under the Environmental Information Regulations. When the council reconsidered the matter, it refused again, citing regulation 12(5)(b) of the EIRs (legal privilege).

The Information Commissioner found that there had been several procedural breaches (which Surrey Heath did not subsequently challenge) and that regulation 12(5)(b) was not engaged in relation to the originating letter or the report. He did rule that regulation 13 was engaged in that the contents of the report were the personal data of a third party. The Commissioner ordered the council to disclose the originating letter.

The case was appealed to the Tribunal, which was asked to consider:

• Whether the request fell under EIR or FOIA
• Whether the information was personal data
• If it was, whether it fell to be withheld under regulation 13 (if proceeding under the EIRs), and
• Whether any other exemption – such as regulation 12(5)(b) – applied.

The Tribunal ruled that the request should be considered under the EIRs, that most of the disputed information was personal data and some small sections of personal data should be withheld under the first data protection principle. It ordered Surrey Heath to disclose a redacted version of the disputed information within 28 days.

It refused Surrey Heath’s supplementary grounds of appeal and said regulation 12(5)(b) was not engaged. “There is no evidence, beyond assertion, before the Tribunal that [the monitoring officer] was acting in her professional capacity as a solicitor,” it ruled.

The Tribunal cited correspondence where she referred to “my investigation as the council’s monitoring officer” and the fact that “any further evidence which has arisen from commencing this investigation will be passed to the council’s new monitoring officer to consider”.

The Tribunal added that even if regulation 12(5)(b) had been engaged, the public interest in withholding the disputed information would have been substantially outweighed by the public interest in disclosure.