First-Tier Tribunal rejects request for disclosure of legal advice

The First-Tier Tribunal has rejected an appellant’s request for a copy of legal advice obtained by North Somerset Council in relation to an alleged breach of planning control.

In Skinner v IC & North Somerset Council [2011] UKFTT EA_2010_0184, Mr Skinner had complained to the council in June 2009 about an alleged breach at the property neighbouring his own. At issue were regulations in relation to the use of decking.

North Somerset replied to him the following month, saying that in its view there had been no breach of planning control. The council added that it would not be taking any further action in relation to the complaint and that it considered the matter closed.

Mr Skinner then put in a request for information about his property and the one next door. In later correspondence he specifically asked for the “legal advice provided by the council’s solicitors”, which he understood formed the basis of the council’s decision not to take enforcement action.

North Somerset wrote back to say it held the opinion but considered it to be exempt by virtue of sections 31 and 42 of the Freedom of Information Act 2000. The appellant was unhappy and the council offered to hold a meeting with his solicitor. It did not appear to have conducted an internal review of its decision to withhold the legal opinion.

Mr Skinner complained to the Information Commissioner about the handling of his request for information. His complaint was now focused only on the legal advice.

The IC, which was given a copy of the legal advice by North Somerset and clarification of the council’s position on it, decided that the information in dispute was “environmental information” and the correct access regime was the Environmental Information Regulations.

The Commissioner backed the decision by the council to refuse to disclose the legal advice, although he did hold that the refusal to reconsider its decision meant the council was in breach of Regulation 11(3) and (4).

Mr Skinner appealed to the General Regulatory Chamber of the First-Tier Tribunal. However, it also rejected his request for disclosure.

The Tribunal found:

• The legal opinion from one of the council’s solicitors “clearly" attracted legal professional privilege and it had not been waived
• On the balance of probabilities, the public interest in disclosure of the information in dispute did not outweigh the interest in maintaining the exception. “The advice was recent and the IC noted that the appellant indicated that he intended to challenge the council’s decision that there had been no breach of planning control,” the Tribunal said. “The advice was therefore very much ‘live’”
• While complaints about decking may be frequently made to the council, the number or proportion of complaints “alone was not of sufficient weight to outweigh the strong public interest factors in maintaining the exception in this particular case”.

The Tribunal added that the appellant appeared to be under a misapprehension as to the likely nature of legal advice attracting privilege, especially when that advice is provided in contemplation of possible litigation.

It said it agreed with the view expressed in Rudd v Information Commissioner and the Verderers of the New Forest (EA/2008/0020), where the Tribunal noted that “a legal opinion is not a definitive interpretation of the law and, whatever its contents, it is unlikely to resolve any uncertainty, it would just add to the debate. The only true way to resolve the situation is a ruling from a court.”

Dismissing Mr Skinner’s appeal, the Tribunal said: “Particularly when litigation is in prospect, legal advice is as likely to discuss a range of uncertainties as it is to provide certainty. It may well assess the relative merits of a range of litigation tactics and advise the client of the possible consequences of these. It is in the interests of the proper administration of justice that such advice should be exempt from disclosure and it would take a substantial public interest to the contrary to justify disclosure.

“In the nature of privileged legal advice it is unlikely to provide the unambiguous clarity for which the Appellant hoped in making his request for the information.”

Philip Hoult