Council wins FOI battle over legal advice for whistle-blowing investigation

A council has won an appeal to the First-Tier Tribunal over its refusal to meet a freedom of information request for the disclosure of legal advice given to a consultant conducting an investigation on the authority's behalf.

The request, made in February 2012, had asked Wirral Borough Council to supply copies of all correspondence with DLA Piper.

The local authority had appointed Anna Klonowski Associates (AKA) in December 2010 as an independent consultant to undertake an investigation of whistleblowing claims made by a former employee alleging defects and impropriety in the charging of fees for social care work.

AKA then instructed DLA Piper to advise as regards this inquiry and on risk mitigation measures which needed to be put in place in connection with the draft and final report provided to the council.

The consultancy reported on the findings and conclusions of its inquiry on 9 January 2012. The report, which was critical of the council, was published afterwards.

Wirral’s response to the FOI request was to refuse to provide the requested information. It did so relying initially on the exemption for confidential information under s. 41 of the Freedom of Information Act.

Following an internal review, the council maintained this reliance on s. 41 but it also argued that the requested information was exempt as well under s. 42 of the Act (legal professional privilege).

In a decision notice served on 3 October 2013, the Information Commissioner concluded that Wirral was not entitled to rely on s. 41 in relation to some of the information as it was not provided by another party and had not provided sufficient justification for the application of s. 41 to the remainder of the information. The Commissioner therefore required Wirral to disclose the requested information.

The council appealed, arguing that:

• The Commissioner erred in failing to conclude that s. 42 was engaged with respect to the withheld information on the basis that the withheld information would attract ‘common interest privilege’, an aspect of legal professional privilege and that the public interest in maintaining the exemption outweighed the public interest in disclosure.
• The Commissioner erred in failing to conclude that the exemption for law enforcement under s. 31(1) was engaged.

In its ruling the FTT revealed that since the appeal was lodged, the Commissioner had changed its stance in relation to a large proportion of the withheld information and had conceded that the council was not obliged to make disclosure.

In relation to correspondence from DLA Piper to AKA, the Commissioner told the FTT – and the tribunal agreed – that the disclosure of certain of the withheld information (for which section 41(1) was claimed) would, on the facts of the case, give rise to an actionable breach of confidence by the law firm against the council.

The FTT continued: “The Commissioner believes that AKA would have agreed to the council being provided with correspondence between the company and DLA on the reasonable expectation that the information contained therein would remain confidential in the hands of the council. The Commissioner therefore accepts, and the Tribunal agrees, that the information had the necessary quality of confidence and was transmitted in circumstances imparting an obligation of confidence.”

Following reconsideration of the matter, the Commissioner came to the view that disclosure of the withheld information (for which s. 41 was claimed) would be likely to cause detriment to DLA as confider of the information to the council.

The Tribunal added: “The Commissioner has already accepted that the information would otherwise be the subject of legal professional privilege as it constitutes legal advice communicated between DLA and its client (AKA). AKA would have had a reasonable expectation that that advice would remain confidential even if it chose to share that advice with a third party as it would not have expected the same to be disclosed more widely.

“The Commissioner considers that disclosure of this information to the public would undermine the concept of the confidential nature of legal professional privileged material. If such a disclosure were permitted under FOIA in such circumstances, a legal adviser would not be able to advise a client that its advice would remain confidential in the event that the client chooses to share that advice with a third party.”

The Commissioner accepted – and the FTT again agreed – that disclosure of the information would affect the reputation of DLA Piper if it were known that its confidential legal advice would be disclosed under FOIA in certain circumstances.

The tribunal also said it was of the view that the public interest in disclosure of this particular information was “very limited” and that, in the circumstances of the particular case, it was unlikely that a public interest defence would have succeeded.

“In light of the above, the Tribunal has accepted the Commissioner’s view that the council has correctly applied section 41(1) to the information withheld in reliance upon this exemption," it said.

Wirral also changed its stance to a degree and accepted that some previously withheld information should be disclosed.

The council had sought to rely on the s. 31(1) exemption for all of the disputed information that remained at issue. However, the FTT said it was not satisfied that the exemption was engaged.

But the Tribunal was of the view that the particular disputed information attracted common interest privilege.

The Commissioner had accepted the principles underpinning common interest privilege but sought to argue that there was insufficient commonality of interest between AKA and the council. "AKA and the council could have conflicting interests."

The FTT, though, said it was of the view, that that might have been correct as regards the relationship between AKA and the council on some issues, but it was not correct as regards the particular issues with which the disputed information was concerned.

“The council argued and the Tribunal agreed, that there is no requirement for the parties to have harmonious interests in all respects….What matters is whether on the issues with which the communications are concerned, the parties’ interests were harmonious,” the ruling said.

Evidence from Wirral’s head of legal (a Mr Tour) suggested that this was precisely what was happening here. “On the confidentiality/disclosure issue both the council and AKA risked being sued. Both wanted the same advice from the same source so they could ensure they were doing things correctly. The council and AKA faced the same potential legal questions.”

The head of legal also told the Tribunal that as part of Klonowski’s appointment, the council had agreed to provide AKA with independent legal advice services. “The initial plan was for DLA to be instructed by AKA and the council on a joint basis, but it was thought that the parties’ interests could potentially come into conflict on some issues. It was therefore decided that DLA would be instructed by AKA, with the council covering the cost of their services to AKA in connection with her work. On this issue regarding the tension between confidentiality and disclosure, however, the interests of the council and AKA were directly aligned. If they deliberated and acted jointly on this issue, there could be no conflict between their interests. Mr Tour told the Tribunal therefore, that it was therefore agreed that DLA Piper would on this issue advise both AKA and the council.”

The FTT concluded that the information attracted common interest privilege.

It said: “Section 42(1) FOIA is engaged and given the inherent weight given to documents attracting legal professional privilege, the public interest in maintaining the exemption under section 42(1) with respect to the information in this particular document would outweigh the public interest in disclosure.

“The Tribunal took into account that the contents of most of this information was particularly anodyne and insofar as it contained anything of substance, did not, on the face of it, contain anything of particular public interest which might otherwise call for disclosure. Thus, albeit [certain] documents…. were not exempt by virtue of section 31, they were by virtue of section 42.”