Tribunal rejects call for disclosure of legal advice on amusement park project

An attempt by a former councillor to have Thanet District Council disclose legal advice obtained from law firm Trowers & Hamlins in relation to the operator chosen for the Dreamland Amusement Park has failed.

The council had compulsorily purchased the park and planned, with assistance of the Heritage Lottery Fund and Kent County Council, to secure its restoration redevelopment and re-opening.

Thanet found a new operator, Sands Heritage Limited (SHL), to take on and re-open the park. The operator went into liquidation causing delay and disruption to the redevelopment of the facility.

On 31 January 2016 Ian Driver, the appellant in Driver v Information Commissioner & (Dismissed : Freedom of Information Act 2000) [2017] UKFTT 2017_0040, wrote to Thanet asking for a copy of legal advice from Trowers received prior to consideration of the previous tender submission from SHL.

He claimed there was “an overwhelming public interest in this information being made available to the public”. He also argued that the information had, he believed, already been shared with the Heritage Lottery Fund and no court case related to the matter was pending therefore rejection of his request on the basis of client confidentiality could not be sustained.”

However, Thanet refused to provide the information, relying on s.42 of the Freedom of Information Act (legal professional privilege). This decision was upheld on internal review and backed by the Information Commissioner, to whom Mr Driver complained.

Mr Driver appealed to the First-tier Tribunal where he argued that “the extensive public interest, the need to know whether the council had acted wisely, the significant loss to the public purse, the concerns of elected members about the events, the lack of transparency of the council and the irrelevance of the advice to current legal issues meant that the advice should be disclosed".

In its response the ICO argued that contrary to the appellant’s claim, the advice remained live at the time of the request in January 2016.

The ICO did broadly acknowledge the public interests in favour of disclosure.

However, it also argued that disclosure would enable the public to know whether the council had acted wisely underscored the strength of public interest in the maintenance of the exemption as explained in the Morgan Grenfell case, where it was explained that “such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice”.

The ICO added that review of legal advice in private by members of the council was an aspect of the proper working of the council structure and not inappropriate lack of transparency.

Mr Driver submitted that this was not a strong claim to privilege given the passage of time. He added that the position was not in flux, a new investor had 99.9% of the equity and had invested £25m over six months and everyone, including Thanet, was optimistic about the future.

His analysis had pointed to the legal advice being instrumental in the appointment of SHL, which had resulted in financial loss to every household in the council area and significant losses to the council. He also claimed that privilege had been waived.

The First-tier Tribunal, however, rejected the appeal, saying there were significant problems with his case – “perhaps the most significant is with respect to the timeframe”. It said the correct point of time to consider in evaluating the significance of any claimed exemption was the time when the request was made and answered – the request was made on 31 January 2016, refused on 2 March and that refusal was upheld in internal review on 19 April.

At that time, the FTT said, everything was in flux. The rights of the various parties affected and the decisions as to the way forward which each or any might take were uncertain, it noted.

The FTT added that with such a project it was likely that legal advice might have significance over a period of time in shaping and reflecting the approach of the public body to unfolding events. “It will remain current for a long period.”

The tribunal described the appellant’s arguments based on the scale of the numbers of people affected, the lack of transparency and the need for more information to ensure accountability as “unsatisfactory”.

It said the reality was that substantial information had been put in the public domain through the various accountability processes (excluding FOIA).

It also said it was satisfied that the council had not either in a letter to the Heritage Lottery Fund nor in a committee report, waived legal professional privilege.

The FTT concluded: “The tribunal is satisfied that while there are arguments for disclosure the weight that they carry is not substantial when weighed in the balance. The principle of legal professional privilege carries substantial weight.

“Furthermore the specific circumstances of this case are the request was made at a time when the advice was live and the risk of litigation real.”