Council wins tribunal appeal over disclosure of legal advice and EIR

A local authority has won an appeal in the First-Tier Tribunal over an Information Commissioner decision that it should disclose legal advice related to the redevelopment of a town centre.

The case of Cheshire East Borough Council v IC (Environmental Information Regulations 2004) [2014] UKFTT EA_2013_0114 (GRC) related to the redevelopment of Macclesfield and a request made under the Environmental Information Regulations by Beverly Moore.

The FTT acknowledged that the scheme had generated “great local interest”, though work has yet to start.

The council disclosed most of the original information requested. There were two issues that remained in dispute before the Tribunal:

  • The legal advice issue: Moore wanted to see legal advice supplied to Cheshire East by a leading firm of solicitors. That advice was summarised in a report to the council's Cabinet for its meeting on 3 May 2011. The summary had been redacted from a copy of the report which had been supplied to Moore.
  • The commercial confidentiality issue: Moore had received an appraisal report of the development written by a consultant, but again with some redactions. Some of those redactions she was content with. However, there was other redacted material and dates she still wanted to see.

When Cheshire East refused to disclose this information, Moore successfully appealed to the ICO.

The council then took the case to the FTT, relying on regulation 12(5)(b) EIR. This regulation supports a refusal if disclosure would adversely affect the course of justice and, in all the circumstances of the case, the public interest in exempting the information from disclosure outweighs the public interest in disclosing the information.

The disputed information was “undoubtedly” the subject of legal professional privilege (LPP), the Tribunal said.

Moore argued in favour of disclosure, pointing in part to the importance of transparency and accountability in connection with a very important issue concerning the development of the town.

She also suggested that there might be legal risks attached to the scheme and told the Tribunal she did not want legal advice to be a ‘cloak’ covering the facts on which advice had been sought. Moore also raised a number of possibilities about flawed and vulnerable decisions.

The Tribunal upheld Cheshire East’s appeal, however.

“When it comes to balancing the public interests, we have concluded that far more weight attaches to the importance of LPP – and therefore the importance of not disclosing the information – than appears to have been afforded by the ICO,” it said.

“For example, …. the ICO seems to have weighed only the impact on Cheshire East in terms of being discouraged from obtaining legal advice; but, as the Upper Tribunal has made clear the public interest attaches to the freedom of public authorities generally to be able to seek legal advice in confidence and without being forced to disclose it.”

The FTT said it also differed from the ICO in connection with the arguments in favour of disclosure. “We doubt whether the size of the project influences the arguments in favour of disclosing legal advice – although it might be a factor in connection with other information. Nor would we have attached the same importance as the ICO seems to have done to an event involving a waste transport station.”

The Tribunal added that it was unable to accept that disclosure of the legal advice would reassure the people of Macclesfield that the council’s approach was not based on flawed processes or deficient legal advice.

“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 FTT said it would have reached this conclusion even if its members had not read the closed material. “For slightly different reasons the ICO has changed his position and now supports this outcome,” it added.

On the commercial confidentiality issue, the Tribunal said it had before it much more detailed information than was before the Information Commissioner. The ICO had, after considering this further evidence, changed his mind.

The FTT said it had looked carefully at the closed material which provided, in the Tribunal’s judgment, “cogently argued and fairly assessed” factors in support of the redactions and against disclosure.

“We take into account all Ms Moore’s concerns but they are, in our judgement, outweighed by the arguments contained in the witness statements filed on behalf of East Cheshire. The public interest favours non-disclosure….”

The Tribunal therefore also allowed the appeal in respect of the redacted information under regulation 12(5)(e).

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