ICO backs reliance on professional privilege exemption for legal advice amid claims council did not have “client-adviser” relationship

The Information Commissioner's Office (ICO) has dismissed a complaint that the London Borough of Haringey was wrong to rely on legal professional privilege grounds when it refused to disclose legal advice that it had received, despite a claim that it did not have the proper client-adviser relationship.

The complainant's FOI request asked for correspondence between a councillor and the council's monitoring officer. The council sent the correspondence but redacted a paragraph containing legal advice under section 42 (legal professional privilege) of the Freedom of Information Act 2000.

The complainant then wrote to the ICO to complain. 

In the course of its investigation, the ICO heard that the redacted paragraph detailed legal advice that the council had received from Homes for Haringey (HfH).

HfH's services were set to re-merge with the council at the time.

The complainant questioned whether the council could apply legal professional privilege when it did not have the necessary client/adviser relationship in place under the circumstances. This was because the advice was originally sought and provided by a legal adviser at HfH to HfH, not the council.

The council argued that the information was subject to legal professional privilege due to ongoing litigation or the prospect of future litigation, which it was soon to become involved in.

It clarified that the initial advice was provided by a professional legal adviser to their client, HfH. It was shared with the council in the context of the anticipated transfer of HfH's services - including the day-to-day management of the ongoing litigation with the complainant - back to the council.

HfH shared the paragraph solely with the council's Head of Legal and Monitoring Officer.

In its decision notice, the ICO said: "The information was clearly subject to litigation privilege whilst it was retained by HfH.”

The ICO also stated that the council received the information as an intended future party to the litigation, and it retained its status as privileged information under these circumstances.

The information was shared in confidence, with a limited number of people at the council, for the purposes of the council continuing that litigation, the ICO stated.

The ICO was also satisfied that even with the transfer of information between the council and HfH, the information retained its privileged status, given that only the relevant individuals at the council were privy to it.

Applying the public interest test, the ICO found that the balance of public interest lay in withholding the information and protecting the council's ability to obtain free, frank, and high-quality legal advice.

The decision notice said that a "weakening of the confidence that parties have that legal advice will remain confidential undermines the ability of parties to seek advice and conduct litigation appropriately and thus erodes the rule of law and the individual rights it guarantees".

In this context, it noted that very strong countervailing factors were required for disclosure to be appropriate.

It added that the Commissioner was not aware of any public interest arguments that were enough to outweigh or override the inbuilt public interest in the information remaining protected by legal professional privilege. 25. “The Commissioner has concluded that the public interest in maintaining the exemption at section 42(1) outweighs the public interest in disclosure. Therefore, the council has correctly applied section 42(1).”

The Commissioner therefore required no further action to be taken by the council in relation to the request.

Adam Carey