ICO backs refusal of council to supply legal opinion over certificate of lawfulness

The Information Commissioner last month upheld a decision by a London borough to refuse to supply a copy of a legal opinion obtained by the council relating to an application to grant a certificate of lawfulness for a property.

The complainant who had made the freedom of information request sought to argue that:

  • The requested information should be treated as part of planning matters and therefore it should be treated as part of public records. He maintained that in this case the legal opinion was not part of a planning enforcement matter, consequently it should be accessible to the public at large.
  • The use of the legal opinion was not confined only to this particular case. Since the planning officers were not expected to be qualified in legal matters, they would use it in other cases in similar circumstances and therefore it was in the interest of the public to have access to the withheld information.
  • The council, when acting as a quasi-judicial decision maker in planning matters, should be required to disclose all relevant documents, including independent legal opinion, in order to prove it had acted fairly and lawfully. It was in the interest of the members of the public to know whether the council had acted accordingly.
  • The information no longer attracted legal professional privilege, since the council had already included its substance in its Delegated Decision Report.
  • The legal opinion obtained by Bromley was sought to assist the council in making a decision on the planning application. Once the council had made that decision, which it had, the purpose of the legal opinion was complete. The legal opinion was not obtained for the purpose of assisting a party in a litigation procedure, as there was none.

The council rejected the complainant’s approach. It said it considered that the withheld information attracted legal professional privilege as legal advice privilege.

Bromley noted that, to date, the complainant had submitted five planning applications relating to the site, all of which had been refused. Two of them had also been dismissed on appeal, and one of these appeal decisions was also challenged in the High Court, which resulted with a dismissal.

The council rebutted the assertion of a loss of privilege by denying that any part of the legal opinion was published in any other document. Bromley maintained that the report did not even refer to the council having obtained advice. In support of this argument the council provided to the ICO, as part of withheld information, the legal opinion that it had obtained and also the report which was published on the council’s website.

In a decision notice, which can be viewed here, the Commissioner said she was satisfied that regulation 12(5)(b) of the Environmental Information Regulations 2004 was engaged and that the public interest in disclosure was outweighed by the public interest in maintaining the exception.

She found amongst other things that:

  • Disclosure of legal opinion obtained by Bromley would adversely affect the council’s ability to defend itself should it be faced with a legal challenge in connection with this issue. The council had advised the Commissioner that the matter was still current and remained subject of threatened litigation.
  • No substantial part of the legal opinion which constituted the withheld information was quoted in the report. Therefore it could not be considered that there was unrestricted disclosure of the information. There was no evidence which indicated that the withheld information had been shared with any third parties to the extent that its confidential character had been lost.
  • The public interest in maintaining this exception was a particularly strong one in terms of not undermining the principle of legal professional privilege. To equal or outweigh that public interest, the Commissioner would expect there to be stronger opposing factors. In this case, the Commissioner considered that whilst there was a public interest in disclosure, it did not equal or outweigh the strong public interest that was inherent in maintaining the council’s right to obtain legal advice in confidence.

However, the Commissioner also said that as Bromley had not issued a refusal notice within 20 working days, she found that the council had breached regulation 14(2). The Commissioner required no steps to be taken as a result of this decision.

Regulation 1(5)(b) of the EIR Regulation 12(5)(b) provides an exception from the duty to disclose information where the disclosure 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 in inquiry of a criminal or disciplinary nature”. The exception is designed to cover information that would be covered by legal professional privilege.