Tribunal dismisses appeal against refusal of FOI request for legal advice held by external law firm in relation to CPO inquiry two decades ago

The First-Tier Tribunal has dismissed an appeal by a requester over documents held by an external law firm that advised Sheffield City Council on a CPO inquiry for a proposed redevelopment nearly 20 years ago.

The background to the case of Robert Angus Hill v Information Commissioner & Anor [2025] UKFTT 98 (GRC) was that in 2007 a redevelopment called the New Retail Quarter was proposed in the city. An inquiry was held into a compulsory purchase order.

The appellant in the case before the FTT is a director of a company which owned a property affected by the proposed CPO.

The Tribunal noted that as a result of the financial crisis triggered by the reckless management of financial risk in the USA sub-prime mortgage market through the use of collateralised debt obligations (CDOs) the envisaged development did not take place in the way originally planned.

There has been litigation by the company against the city council and the appellant has made a significant number of FOI requests to the local authority.

In July 2023 the appellant wrote to the city council thanking it for providing two agreements he had requested, and noting that those agreements were not placed before the ‘September CPO NRQ Public Inquiry’.

He then requested under FOIA a copy of the advice given to the council that lead to those documents being withheld from the inquiry.

The council responded the following month, relying on s.12(2) FOIA (exemption where cost of compliance exceeds appropriate limit) and confirming that it could neither confirm nor deny holding the information in according with its duty under S1(1) of FOIA by reason of the cost of of ascertaining whether it did would exceed the financial limit of £450 or 18 hours’ work.

The appellant complained to the Information Commissioner, who investigated and issued a decision notice.

The Information Commissioner recorded that Sheffield had told him that it had “no records that go back to when such advice would be given. We are unsure if it ever was. Any Sheffield City Council records that were contemporaneous with the public inquiry have long since been destroyed or lost.”

The council further explained that any such advice would have been given by one of the two firms acting for it at the time, these were DLA LLP and Herbert Smith (now Herbert Smith Freehills).

The local authority said DLA’s records had been searched for a previous information request and accordingly if the information existed in recorded form it would be held by Herbert Smith Freehills at its London offices.

It also explained that there were 28 boxes of records held by that firm and it would be necessary to dispatch officers to London to search.

Herbert Smith Freehills had confirmed that the records had not even superficially been examined and it was not known what they held.

The Information Commissioner’s view of the travel, subsistence and accommodation costs as well as travelling time totalled £500 before any search was undertaken. If the records were in Sheffield the Information Commissioner considered that 14 hours would be needed to search them which would not leave enough money to pay the transport costs. There was also a need to meet the cost of an HSF employee accompanying the files.

He was satisfied that s12(2) FOIA applied.

When the appellant appealed, the FTT felt that significant issues had not been properly addressed by the parties.

In its ruling the Tribunal said: “It is clear that in assessing this information request neither SCC [Sheffield City Council] nor IC thoroughly assessed the request, the information, where the information (if it existed) was held and the reason it was where it was. SCC had indicated during the IC’s investigation:

“no records that go back to when such advice would be given. We are unsure if it ever was. Any Sheffield City Council records that were contemporaneous with the public inquiry have long since been destroyed or lost.”

"However instead of recognising that this clearly indicated that within the Council’s records management policy the retention period for such a record had elapsed and accordingly the Council no longer held any such information, the Council (under the pressure and in the context of the litigation the Appellant’s company had commenced) considered the question of records held by the firms of solicitors which it had instructed nearly two decades before.

“What is clear is that any records held by those solicitors were their own records; hence the requirement of DLA’s insurers that DLA control and supervise access to the records at considerable expense to the Council. While from the Council’s perspective such expenditure may be appropriate in obtaining any necessary evidence to assist in the defence of high value litigation there is no requirement to seek information which it does not hold for the purposes of FOIA.”

The FTT suggested that the position of the firms of solicitors was equally straightforward.

It said: “The firms will have their own retention periods for information which they hold; such periods determined in the light of risk management in respect of possible claims against the firm. As long as they hold the information they will have certain obligations with respect to it; notably a duty of confidentiality to the client which instructed the firm with respect to the transaction or proceedings to which the records relate, however these are the firm’s records – there are duties owed to the former client but the records do not belong to the client and they are not held on behalf of the client.”

The Tribunal conclude that it was clear, on a consideration of the evidence, that the Information Commissioner erred in not determining as a first step whether, in the light of the clear statement that Sheffield had destroyed contemporary records, the city council now held any such record.

“The tribunal is satisfied, taking into account the evidence reviewed above (in particular the significant costs incurred on the previous request) that the records held by Herbert Smith Freehills are the firm’s own records and not those of SCC,” it said.

“The IC proceeded on the basis that information held by solicitors was held by SCC. On that premise it concluded that the costs of determining whether the information was held meant that the costs provision in s12(2) applied. Having tested the evidence with relation to costs the tribunal is satisfied that the IC’s decision on this point is robust.”

Accordingly the tribunal dismissed the appeal and further found that if the Information Commissioner was correct in treating any such information held by the solicitors as within the scope of FOIA then the costs provisions in s12 justified refusal.