11 November 2019

Public interest disclosure of legal advice

The First Tier Tribunal has ruled against the Information Commissioner in the withholding of information covered by legal advice privilege under the “course of justice” exception.

Brooksbank v The Information Commissioner (Allowed) [2019] UKFTT 2018_0226 (GRC) (31 October 2019)

Background

In the course of a long running dispute over the appropriate site for development of a supermarket in Malton, Yorkshire, Ryedale District Council (the Council) requested advice from Nathalie Lieven QC.

The request was made by way of written Instructions, and concerned advice on whether the Council could invite the Secretary of State to “call in” the competing planning applications, as well as on the Council’s dual position as landowner and planning authority for one of the sites.

A member of the public subsequently requested disclosure of these Instructions from the Council, a request which was turned down by the Council, who sought to rely on exception 12(5)(b) of the Environmental Information Regulations 2004 (the EIR).

This exception provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect “the course of justice”. Information covered by legal advice privilege, such as the Instructions, is accepted to fall under this exception.

The exception is, however, a qualified one, and the public authority must show that the public interest in withholding the information outweighs that in disclosing it.

Decision and reasons

The Tribunal ruled “by a fine margin” that the public interest favoured disclosure of the Instructions.

While accepting there is considerable weight to be placed on the importance of maintaining legal advice privilege, in the particular circumstances of this case the Tribunal found that this was outweighed by the public interest in showing that a public authority “acted properly in a particular respect”.

It further commented that, in scenarios where there are question-marks about a public authority’s handling of a particular issue, this argues for “maximum transparency” in the decision making process. The general nature of the advice in question further supported disclosure, as this type of general legal advice “should not be kept from members or residents” wishing to understand the broad issues.

Arguments by the Council that it would be deterred from seeking legal advice in the future were dismissed by the Tribunal, together with a claim that the information sought would make it vulnerable to legal action in future.

Importantly, the Tribunal found the presumption in favour of disclosure which runs throughout the EIR was determinative in a finely balanced case such as this, and that the public interest favoured disclosure.

The Council is required to release the information within the later of 28 days from the date of the decision or an unsuccessful appeal to the Upper Tribunal.

Conclusions

This case reaffirms that, where there is a clear public interest in disclosure for transparency, scrutiny and public participation in decision making, even the preservation of legal advice privilege may not be sufficient to outweigh it.

Combined with the presumption in favour of disclosure, arguments to withhold information under qualified exceptions have to unambiguously demonstrate the public interest in favour of withholding, or are open to successful challenge at either the Information Commissioner or the Tribunal.

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