The First-Tier Tribunal has ruled that a freedom of information case involving a town council and relating to charitable land was one of those "rare and exceptional" cases where the public interest favoured disclosure of legal advice ahead of maintaining legal professional privilege (LPP).
In Hewlett v Information Commisioner the appellant had written to Beccles Town Council to ask for a plan of land being registered as charitable land. She also asked for copies of documents mentioned in an agenda, including a barrister’s opinion, advice, map and statutory declaration from Waveney District Council.
The town council provided a copy of the plan but refused to provide the other documents as it argued that they were covered by LPP. After the appellant asked Beccles to check whether the response was correct, the town council stated that the information from the QC was exempt.
Following the intervention of the Information Commissioner, the council said that the barrister’s opinion was exempt under s. 42 FOIA. It also said the appellant could view the document outside of FOIA at the council’s offices provided a waiver was signed.
The appellant said she was still seeking disclosure of the barrister’s opinion, statutory declaration and advice. She acknowledged that unofficial copies (with the exception of the ‘advice’) had been put through her letter box – by an anonymous source – but she wanted to be provided with official copies as she believed that they should be made available to the public.
The Tribunal noted that s. 42 FOIA is a qualified exemption, which means it had to conduct a ‘public interest balancing exercise’, ie consider whether the public interest in maintaining the exemption outweighed the public interest in disclosing the information.
The Information Commissioner, in a decision notice dated 23 February 2015, determined that the LPP exemption had been appropriately claimed in relation to the barrister’s opinion and statutory declaration. The IC also decided that the balancing exercise favoured upholding the exemption. The same arguments were also considered to apply to the barrister's 'advice', the Commissioner suggested in the later stage of the appeal proceedings.
The FTT allowed the appeal and ordered Beccles Town Council to provide a copy of the information requested by the appellant in her communication of 16 July 2014.
On the first issue, as to whether LPP had been appropriately claimed, the tribunal agreed with the Information Commissioner’s submissions noting that the reading out of the barrister’s advice at a council meeting was at most partial disclosure of that advice.
“In relation to the disclosure of the documents to the appellant the Tribunal noted that this was not a disclosure which was sanctioned by the public authority and it would not be appropriate to hold that the public authority had consequently waived LPP,” the FTT said.
“To determine otherwise, the Tribunal felt, would have the consequence that a stolen privileged document would lose its privileged nature through the unlawful act of stealing. In any event the disclosures to the appellant occurred after the request by the appellant to the public authority and….. the time for consideration of the applicability of the claimed exemption was time that the initial request was made.”
But the Tribunal said it was unanimous in considering that the public interest balancing exercise favoured disclosure rather than the maintenance of the exemption.
The FTT said it accepted the Commissioner’s submissions that there was "a strong inherent public interest in maintaining LPP”. The Tribunal said it was, however, influenced by the following factors:
- The history of the land in question was labyrinthine and dated back to the (first) Elizabethan era. It was a highly relevant factor that the land in relation to which the public authority had sought advice was not land owned by the public authority but land held in trust for the inhabitants of Beccles. “The advice was therefore about a public asset – one in which the people of Beccles had a clear and direct interest rather than, for example, an office block owned by the council where the public interest was far more indirect.”
- The Commissioner had “failed to give sufficient weight to the very particular arrangement for the land in question – that it was held in trust for the inhabitants of Beccles – and failed to distinguish the land from other property that might be owned directly by the council.
- The Commissioner had been “wrong to assert that ‘it is fundamental to the operation of local authorities that they act in the interests of the inhabitants of their area’ in a case where even on the Commissioner’s own account of the history of the land there was clear evidence of the local authority failing to act in the interests of the inhabitants of the land”. On the Commissioner’s own account various public authorities ‘forgot’ about the trust, started to treat the land as their own asset and sold parts of it off. “The Tribunal felt that this constituted clear evidence of a public authority failing to ‘act in the interest of the inhabitants of their area’.
- In relation to the Commissioner's assertion that there was nothing to suggest that Beccles Town Council had acted inappropriately, the Tribunal "considered that while this might be largely true in relation to the public authority in its current form and in relation to the loss of the trust land, there was clear evidence of general inappropriate behavior by the public authority in its previous incarnations (and possibly in its current form too) in relation to the loss of trust land (the Tribunal were not provided with any dates of any relevant land transfers and so it was not possible to attribute responsibility to any particular form of the public authority). The Tribunal felt that such clear inappropriate behavior should be subject to openness and scrutiny and not secrecy.” The documents in relation to which the appellant sought disclosure fell into the category of documents which should be the subject of scrutiny.
The Tribunal also noted on this latter point that, in relation to the public authority in its current form, "the Charity Commission had had to intervene in March 2000 to draw the attention of the council to the continuing existence of the charitable trust and to require the council to hold the income from the trust land separately from its other income, The Tribunal considered that the fact that the council was failing to do so was also indicative of the public authority failing to act in the interests of the local population."
- The Commissioner had stated in his response that the documents were "only likely to be of interest to the residents of a small town of around 14,000 people”. But the FTT “felt that 14,000 was rather a large number to apply the qualifier ‘only’ to. The Tribunal were also unaware of any authority (and noted that the Commissioner cited none) which suggested that there were a minimum number of people who might be interested in disclosure before a genuine public interest in disclosure could be established.”
The FTT said: “In conclusion therefore, the Tribunal, whilst acknowledging and embracing the principle that there is a strong inherent public interest in maintaining LPP, considered that this was one of those rare and exceptional cases where the public interest favoured disclosure.
“As a general proposition there must be such cases otherwise FOIA would have made LPP an absolute and not a qualified exemption.”