Tribunal dismisses councillor appeal over request to see legal advice obtained by own authority

In Derrick v Information Commissioner [2023] UKFTT 428 (GRC) (18 May 2023), Stephen Cragg KC concluded that if the FOI request was fulfilled, the information would effectively be in the public domain as there were no provisions in the Freedom of Information Act 2000 (FOIA) which allow a public authority to stop a requester from further disseminating the information.

The dispute centred around legal advice the council obtained about notices of objection it had received at the Land Registry about payments from the council to the Hughenden Community Support Trust (HCST). It also asked for advice on whether 99-year leases between the council and HCST were valid.

The appellant, Cllr Linda Derrick, was asked to recuse herself from the discussions as she was one of the main objectors at HCST.

She later asked to see the legal advice, but the council said it would be inappropriate to share the information with her, prompting her to make a freedom of information (FOI) request. This request was rejected.

Cllr Derrick went on to complain to the Information Commissioner, who found that the public interest in maintaining the exemption in section 42(1) FOIA (legal professional privilege) outweighed the public interest in disclosure and that the council had correctly applied section 42(1) FOIA.

In discussing the case, the tribunal judge noted that if the information were to be released, it would effectively be in the public domain as there were no restrictions on what the appellant can do with the information under FOIA.

There were no provisions which allowed a public authority to place any conditions as to whom a requester might further disseminate information once it had been disclosed under FOIA.

In that context, Judge Cragg, who considered the case with tribunal members Susan Wolf and Jo Murphy, said the central question was whether the Information Commissioner was correct to find that the public interest in relation to any documents covered by legal professional privilege favoured the withholding rather than the disclosure of those documents.

He accepted that there was a public interest in knowing the content of legal advice obtained by the council in relation to controversial issues and that this would support transparency and accountability.

He also accepted that there was a public interest in the disclosure of legal advice to a member of the council, such as the appellant, who had been elected to represent members of the public.

"However, in relation to this latter we must also bear in mind that disclosure to the Appellant would also mean disclosure to the world at large."

The judge continued: "We recognise that there may be cases where the public interest in disclosure will outweigh the in-built public interest in protecting legal professional privilege, and that s42 FOIA does not provide for a blanket exemption. However, in our view this is not one of those cases and the Commissioner was correct to find that the balance of public interest lies in withholding the information and protecting the council's ability to obtain free, frank and high quality legal advice without the fear of premature disclosure.

"The public interest in disclosure is not strong enough to outweigh that built-in public interest against disclosure in legal professional privilege cases, and we agree that the public interest balance is in favour of non-disclosure.

Finally, he noted that: "This decision is not a decision that the appellant should not see the legal advice. There may be other avenues to explore where this might be appropriate. However, this decision does find that access for the appellant to the legal advice through FOIA, which would effectively amount to disclosure to the public at large, is not permitted."

The appeal was dismissed.

Adam Carey