The First-tier Tribunal has refused a request for the disclosure of legal advice obtained by a city council on the correct use of its car parking enforcement powers, and clarified how the public interest balance should be assessed in cases where the legal professional privilege exemption in s.42(1) of the Freedom of Information Act is involved.
The case of Ivan Murray-Smith v Information Commissioner (Dismissed)  UKFTT 2021_0039 (GRC) concerned a request for information from Oxford City Council over the legal basis it had to issue excess charge notices, and the legal basis it had to pursue criminal prosecutions for parking contraventions.
Following an internal review the council revealed that it had obtained legal advice on the correct use for its enforcement powers for its off-street car parks.
It said that this legal advice had supported its conclusion the city council’s off-street car parks were excluded from the county council’s 1996 submission to the then Department of Transport (DoT) which led to the 1996 Order [The Road Traffic (Permitted Parking Areas and Special Parking Areas) (City of Oxford and Parish of North Hinksey) Order 1996], and therefore they remained subject to ‘criminal’ enforcement by way of section 35A(1) Road Traffic Regulation Act 1984 (RTRA 1984).
The council asserted that the legal advice was subject to legal professional privilege and exempt from disclosure under s.42(1) of FOIA. It said it was not willing to waive that privilege.
In a decision notice of 12 January 2021 the Information Commissioner was satisfied that the s.42(1) exemption was engaged. She considered that, in all the circumstances of this case, the public interest in maintaining the exemption at section 42 of the FOIA outweighed the public interest in disclosing the information.
Before the FTT the appellant argued that the public interest factors in favour of maintaining the exemption were not strong, and that the Commissioner had failed to explain how the council would be prejudiced if disclosure was made.
The appellant argued that the public interest in disclosure was very strong on the basis that:
(a) In Mersey Tunnel Users Association v Information Commissioner EA/2007/0052, the fact that the public authority had been pursuing a settled course of action of questionable legality over many years was considered highly relevant to the public interest in disclosure (at paragraph 46).
(b) The public interest in the present case was equally strong, if not stronger: The council had been pursuing its criminal enforcement activities in respect of off-street parking for many years, potentially affecting a very large number of people and involving large sums of money levied as penalties. If those activities were unlawful, the council had been engaged in illegality of the most serious type, and the public interest in disclosure was overwhelming so that the illegality might be exposed and stopped.
(c) Even if the legal advice confirmed that the council had acted correctly, there was still a strong public interest in clarifying the matter.
(d) In the event that the council’s description of its position thus far was misleading or impartial, that was a further factor in favour of disclosure.
The FTT said it seemed important to clarify how the public interest balance should be assessed in cases where the exemption in s42(1) FOIA was involved. “Although the Appellant has relied heavily on the Mersey Tunnel case, that is a first-tier tribunal case and, as we have said, is not binding on us. We think it is important to concentrate on the approach set out in the DBERR case [DBERR v O’Brien v IC  EWHC 164 QB] which is a High Court case which is binding upon us and post-dates the Mersey Tunnel case by two years (2009).
“Thus, when considering the in-built significant weight to be afforded to legal professional privilege is something to be considered ‘in any event’ and ‘it is not necessary to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question’ (see paragraph 51). That means, it seems to us, that neither the council nor the Commissioner need to establish either that council officials would be inhibited from seeking advice if disclosure were made in this case, or that advisers would be less likely to provide frank advice. The Tribunal needs to give significant weight to the public interest in maintaining LPP ‘in any event’.”
The FTT said that did not mean that the exemption in s42(1) FOIA was an absolute exemption for public authorities and all would depend on the public interest factors weighed in the balance in favour of disclosure. “Indeed, cases like the Mersey Tunnel case show that disclosure under FOIA is always a possibility which depends on public interest factors which are not in the control of public officials or those who advise them.”
The Tribunal noted that the appellant in this case was convinced that most probably the council was mistaken as to its parking policy and had got the law wrong, and had not considered his legal argument that relevant legal provisions which allowed the council to issue criminal parking tickets had effectively been repealed.
“His approach seems to be that, when added to general public interest factors such as transparency and accountability, then that should be enough to entitle him to disclosure of the information.”
However, the FTT said, “in many cases it cannot be right that simply because a public authority is presented with a legal argument that it may be acting unlawfully (with which it disagrees) then the balance of the public interest is will outweigh the significant weight to be given to legal professional privilege.
“A public authority will most often be entitled to obtain legal advice on an issue and to rely on LPP to withhold it even when a request is made under FOIA, because of the in-built public interest established by the courts in maintaining LPP.”
The Tribunal concluded that in this case there was clearly a public interest in disclosure as it related to accountability and transparency in decision making, especially where the advice in question had been obtained with public funds and concerns a council policy which allowed criminal penalty notices to be issued. “But the council has explained the legal basis for its position when the request for information was made, and that it considered that it was acting lawfully.”
The FTT continued: “The Appellant argues that the Tribunal ‘is entitled to find that my suspicion of wrongdoing is plausible and reasonable’ and take that into account when deciding on the balance of the public interest. But, as he acknowledged, it is not the role of the Tribunal to decide on the substantive legal issue he has raised. We would go further, in this particular, case and say that where the ‘suspicion of wrongdoing’ is based on complex legal arguments in a specialised area of law, we are not the forum to consider whether the Appellant’s suspicions are reasonable or plausible or not.”
The Tribunal said that in this case they were doubtful as to the public interest in disclosure, over and above general issues of accountability and transparency. “It is clear that the Appellant himself is interested in the legal issue and has been for some time. But we have no evidence before us of other specific public interest factors in favour of disclosure beyond the Appellant’s engagement with the issue.”
The FTT added: “As in other cases where it is believed that a public authority is acting unlawfully, but the public authority disagrees that that is so, it seems to us relevant that the Appellant and others have other routes that can be taken if he wants to challenge the council’s legal position.
“There are other legal routes such as judicial review or an application for case stated, which could determine whether the council is correct in its assertion as to the law. The Appellant (or anybody else) does not need to have access to the council’s legal advice covered by LPP to challenge the council and of course if access is given that would not actually resolve any dispute.”
The FTT said that in general their conclusion in this case was that the public interest factors in favour of disclosure in this particular case did not outweigh the in-built significant weight the case-law says they had to give to non-disclosure of LPP material.