| SPOTLIGHT |
The London Borough of Bexley has fought off an attempt by a group of leaseholders to see a legal opinion on the sale of around 4,000 of its council houses in 1998.
In West v Information Commissioner EA/2010/0120, the appellant, Mr Stephen West, was a member of the Orbit Bexley Housing Association Independent Leaseholders Group.
The members objected to having to pay service charges to the housing association for the cost of the maintenance of roads and footpaths within housing estates. Their argument was that this maintenance was and remains the legal responsibility of the council.
On 28 January 2009 Mr West wrote to a councillor stating that the leaseholders’ group wanted his support in backing their right to challenge the legality of the stock transfer agreement and to overturn it.
The council then sought instructed a barrister for advice, which was delivered in April last year. The appellant subsequently asked to see the advice.
Bexley refused, citing the legal privilege exemption under s. 42 of the Freedom of Information Act 2000. After an internal review it upheld its original decision.
Mr West, whose group had also started proceedings before the Leasehold Valuation Tribunal, then complained to the Information Commissioner about the handling of his request.
In a decision notice dated 9 June 2010, the Information Commissioner ruled that the information was not covered by the s. 42 exemption but was covered by the Environmental Information Regulations 2004. The council could therefore rely on regulation 12(5)(b) of the EIR, which is analogous – but not identical – to s. 42.
Mr West then appealed to the Information Rights Tribunal on two grounds:
He did not take issue with the Commissioner’s conclusion in relation to the applicability of regulation 12 of the EIR 2004 and s. 42 of FOIA 2000.
The Tribunal said: “Although differently constituted Tribunals appear to have treated the two provisions as invariably giving rise to the same result, we are not sure that that is necessarily so in every case; for example, it may be arguable that regulation 12(5)(b) cannot apply in a case where there is no prospect of litigation and pure “legal advice privilege” is relied on and/or that some consideration must be given in each case to the effect of disclosure of the particular piece of information in question, albeit that such effect may be at the general level.
“On the facts of this case, however, and regardless of such arguments, we are satisfied that ‘the course of justice’ would have been adversely affect by disclosure of legal advice obtained by the council.”
The Tribunal said it was satisfied that the advice would have been covered by litigation privilege, and that such litigation was still in prospect in June 2009 when Mr West sought to see the advice.
It also rejected the appellant’s contention that the only litigation that could arise was between the leaseholders’ group and the housing association, and the only recourse against Bexley was judicial review. “It is clear from the background we have recited that the leaseholders’ group were contemplating litigation against the council; and legal professional privilege applies as much to judicial review proceedings as to any other type of litigation.”
The Tribunal then weighed up the competing public interests. Factors in favour of maintaining the exception included: the strong built-in public interest in upholding legal professional privilege generally; the advice related to a very “live” dispute and had been obtained in contemplation of litigation; if there had been disclosure, one side would have had access to legal advice obtained by the other without reciprocal rights the other way, and that would have been unfair.
Factors in favour of disclosure included: the underlying dispute between the leaseholders’ group and the council had a bearing on the financial position of a large number of leaseholders and, indirectly, a larger number of rate and council tax payers in Bexley; disclosure would have promoted transparency and accountability in relation to the council’s decision-making concerning the dispute; and it would also have provided some information to the public about the stock transfer and the legal position (at least as understood by the advisor).
The Tribunal added that, having seen the advice, it could safely say that disclosure would not have revealed any wrongdoing on the part of the council or anyone else. Nor was the information in the advice of any great intrinsic interest to the public, it said.
The Tribunal concluded that – despite the presumption in favour of disclosure – the public interest in maintaining the exception outweighed that in disclosure in this case.
