Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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Public bodies can take some comfort from a recent decision of the First Tier Tribunal which reasserts that legal advice they obtain should only be disclosed under the access to information legislation where there is a particularly strong public interest in so doing.
The First Tier Tribunal, in Cheshire East Council v Information Commissioner, has overturned a controversial decision by the Information Commissioner that the Council should disclose legal advice that it received relating to the proposed development of a town centre. The Tribunal also allowed the Council's appeal against disclosure of redacted sections of a consultant's appraisal report on the grounds that disclosure would harm a legitimate economic interest and is not in the public interest.
The dispute arose in relation to the proposed redevelopment of Macclesfield town centre. The Council had refused to disclose the legal advice it had received about the proposed scheme, and had redacted those sections of a report in which the legal advice had been discussed. The Council had also redacted sections of a consultant's appraisal report ("the consultant's report") on the proposed scheme. The complainant sought disclosure of the redacted sections of the reports. The request was governed by the Environmental Information Regulations 2004 because the information sought concerned land and the policies and plans affecting it.
Under reg.5 of the Environmental Information Regulations 2004 (SI 2004/3391), public authorities that hold environmental information have a duty to provide such information on request. That duty is subject to certain exceptions. Regulation 12(5)(b) provides that disclosure can be refused if it would adversely affect "the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a disciplinary or criminal nature." Regulation 12(5)(e) provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect "the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest."
Both exceptions are subject to the public interest test: does the public interest in exempting the information from disclosure outweigh the public interest in disclosing the information?
The ICO decided that the Council had wrongly applied the exception in reg.12(5)(e) in relation to the appraisal report, and that although the 'course of justice' exception in reg.12(5)(b) was engaged in relation to the legal advice, the public interest arguments in favour of disclosure outweighed those in favour of withholding the information.
The ICO had been influenced by a report written by the Council's Audit and Governance Committee in relation to an unrelated proposal to build a waste transfer station in Macclesfield ("the Lyme Green report"). That report had criticised and made recommendations in relation to the Council's governance and procurement arrangements. The ICO considered that the findings of the Lyme Green report created a heightened expectation in favour of transparency and disclosure of the advice in relation to the Macclesfield development. The ICO also considered that the size of the proposed redevelopment, the fact that it involved publicly owned land and the potential environmental impact, were factors weighing in favour of disclosure. The ICO considered that disclosure of the advice would reassure the community that the Council's approach was not based on flawed processes or deficient legal advice. The ICO noted that the public interest in maintaining the exception in relation to the information covered by legal professional privilege (the 'course of justice' exception) is strong. However, the ICO considered that the factors in favour of disclosure in this case outweighed the strong public interest in maintaining the legal privilege exception.
In relation to the appraisal report, the ICO accepted that the report was provided in confidence and was protected by an obligation of confidence. The Council argued that disclosure would harm its ability to do business with third parties in future, and would prejudice the ability of third parties to negotiate with landowners and prospective tenants. The ICO rejected the Council's arguments as speculative and found that the arguments were not explicitly linked to the specific information that it sought to withhold. The ICO found that the Council had not demonstrated that disclosure would harm its own or the third party's economic interests and so did not need to consider any public interest arguments.
The Council appealed to the First Tier Tribunal.
The Tribunal found that the withheld information was "undoubtedly" covered by legal professional privilege (LPP). The Tribunal noted that it was bound by the decision of the Upper Tribunal in DCLG v Information Commissioner and WR  UKUT 103 (AAC) which provided a detailed analysis of the importance of maintaining legal professional privilege and the adverse consequences for the course of justice of a failure to do so. The Tribunal found that "far more weight" attaches to the importance of maintaining LPP than was afforded by the ICO. The ICO was wrong to consider only the effect that disclosure would have on the Council's willingness to seek legal advice; it made clear that the public interest attaches to the freedom of public authorities generally to seek legal advice in confidence and without being forced to disclose it.
The Tribunal also doubted whether the size of the project would have any bearing on whether to disclose legal advice, though it conceded that it might be a factor in connection with other information. The Tribunal also doubted the importance that the ICO attached to the findings of the Lyme Green report into an unrelated development. Finally – and importantly – the Tribunal did not accept that disclosure would in any case reassure the public that the Council's approach was not flawed or based on deficient legal advice. The Tribunal noted:
"It seems to us that knowledge of the fact that external advice from a very well known firm of solicitors had been sought would itself provide that comfort to those seeking such reassurance. Actually reading the advice would add very little."
The Tribunal received substantially more information than had been before the ICO in relation to this issue. That was closed material so it is not known exactly what material was provided or what submissions were made. The Tribunal's view was that the additional material provided cogently argued and fairly assessed factors in support of redactions and against disclosure, which outweighed those factors put forward by the requestor. It should also be noted that the ICO, after considering this additional information, also changed his mind and supported the view of the Tribunal.
This decision reaffirms that the presumption against disclosure of information covered by legal professional privilege will only be rebutted by very strong public interest arguments in support of disclosure. The decision should give comfort to public authorities that they can seek and obtain legal advice without fear of having to disclose it, and that in the absence of very strong public interest arguments in favour of disclosure the Tribunal will robustly defend their ability to do so. The decision is also a reminder to public bodies dealing with ICO referrals in relation to legal advice of the importance of setting out their arguments regarding privilege.