Tribunal refuses call to order disclosure of counsel’s opinion obtained by county

A First-Tier Tribunal has refused a call from a retired solicitor to order a county council to disclose counsel’s opinion.

On 12 March 2016 the appellant had made a request to Cumbria County Council in relation to Hayton Woods: “If counsel’s opinion is held on this issue then please supply a copy of the full opinion and of counsel’s instructions”.

Cumbria initially refused the information request in reliance upon s. 42 of the Freedom of Information Act 2000. On internal review, it considered that the applicable disclosure regime was the Environmental Information Regulations 2004 and confirmed it was withholding the requested information under regulation 12 (5) (b).

The Information Commissionr agreed that the EIRs was the applicable regime, that regulation 12 (5) (b) was engaged and that the balance of public interest favoured withholding the information.

In Andrew Holmes v IC & Cumbria County Council [2017] UKFTT 2016 0256 (GRC) (12 May 2017) the appellant sought to argue at the hearing that legal professional privilege had been waived by the council, and the balance of public interest favoured disclosure in all the circumstances.

The appellant’s argument in respect of waiver was that the terms of the committee report had waived privilege by stating “expert legal advice has been sought from counsel on the matter and counsel has confirmed that this is an appropriate way to proceed”.

The county council denied that privilege had been waived and submitted that the balance of public interest favoured maintaining the exception to disclosure.

The FTT concluded that:

• It was satisfied that the information requested was correctly considered under the EIRs as it was information “on” a measure affecting land.
• The advice concerned was obtained in relation to a contentious decision and that, at the time of the request, judicial proceedings were considered likely. Those proceedings were now in train so the advice remained of value. “We acknowledge the strength of the arguments for obtaining and holding confidential legal advice in such circumstances and we are satisfied that the information requested in this case touches on “the course of justice” so as to engage regulation 12 (5) (b) EIRs.”
• It was satisfied that the very brief reference to the effect of counsel’s advice in the committee report could not be described as a summary of the totality of advice given by counsel. In the circumstances, the FTT agreed with the decision notice that the substance of the advice had not been made public or lost the quality of confidentiality and it had “no hesitation in upholding the decision notice to the extent of rejecting the appellant’s case that the council had waived its privilege”.
• The presumption of disclosure in the EIRs meant that the FTT did not start with the scales weighted evenly but with some weight on the side of disclosure.
• The appellant’s case was that the weight in favour of disclosure was to be increased by the impropriety of council officers. However, the FTT’s noted that there was no evidence before it of a complaint being made to the relevant authorities, nor of any on-going criminal or disciplinary proceedings, nor of any relevant findings of impropriety in relation to the conduct the appellant relied on. Its assessment was that the evidence of alleged impropriety in this case “consists entirely of the appellant’s bare assertions.” The FTT concluded on the balance of evidence before it and to the relevant standard of proof that there was a serious cause for concern here which deserved to be considered in the public interest balancing exercise.
• On the side of maintaining the exception was the considerable weight of the decision of a three judge panel of the Upper Tribunal, chaired by the then Senior President of Tribunals, in DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC), underlining the importance of the system of legal professional privilege to a fair and proper judicial process. “Mr Holmes’ submission that there would be no injustice to the council in releasing its legal advice to the world at large (which would be the effect of disclosure under FOIA or EIRs) was, we found, a surprising one for a retired solicitor.”
• In the circumstances of this case, the course of justice would be adversely affected by the disclosure of the council’s legal advice because it would place the council at a disadvantage in legal proceedings which were reasonably anticipated at the time of the request and have since come to pass. The FTT also found that the public interest generally favoured maintaining the exception so as to withhold from disclosure information subject to legal professional privilege. “There may be exceptions to that approach, but we are not satisfied that this is such a case.”

The FTT said that for these reasons, it discerned no error of law in the Information Commissioner’s decision notice and so it dismissed the appeal.