Line to take - LTT15 - Public interest in legal professional privilege

• FOI/EIR: FOI
• Section/Regulation: s2, s42, reg 12(5)(b)
• Issue: Public interest in legal professional privilege
• Source: Information Tribunal
• Details: Pugh / Ministry of Defence (17 December 2007); Bellamy / Secretary of State for Trade & Industry (4 April 2006); Shipton (11 January 2007); Mersey Tunnel Users Association / Merseytravel (15 February 2008); Kessler / Ministry of Defence (29 November 2007); Kitchener & Derby City Council (20 December 2006); Foreign & Commonwealth Office (29 April 2008); Boddy / N.Norfolk District Council (23 June 2008); Sweden & Maurizio Turco / Netherlands & European Union Council; Fuller / Ministry of Justice (5 August 2008); DBERR / Dermod O’Brien (High Court - 10 February 2009)
• Related Lines to Take: LTT6, LTT14, LTT113
• Related Documents: EA/2007/0055 (Pugh), EA/2005/0023 (Bellamy), EA/2006/0028 (Shipton), EA/2007/0052 (Merseytravel), EA/2007/0043 (Kessler), EA/2006/0044 (Kitchener), EA/2007/0092 (FCO), Enforcement Notice, Awareness Guidance 4 (LPP), Awareness Guidance 3 (PIT), EA/2007/0074 (Boddy), Judgment of the Court of Justice in Joined Cases C-39/05 and C-52/05 (Turco), EA/2008/0005 (Fuller), [2009] EWHC 164 (QB) (DBERR), Legal Services Internal Guidance
• Contact: HD
• Date: 30/04/2010
• Policy Reference: LTT15
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

There will always be a strong element of public interest inbuilt into the legal professional privilege exemption. However it is not an absolute exemption and where there are equal or weightier countervailing factors, then the public interest in maintaining the exemption does not outweigh the public interest in disclosing the information.

Further Information

Development of Public Interest Arguments

Paragraphs 26-56 of the Tribunal’s decision in the case of Pugh provide a useful summary of the development of LPP starting with the often used quote from the Tribunal in the case of Bellamy (2005):-

“...there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt interest … it is important that public authorities be allowed to conduct a free exchange of views as to their legal rights and obligations with those advising them without fear of intrusion, save in the most clear case..."

In the same case, the MoD and the Commissioner also contended that the public interest factors in favour of disclosure needed to be “exceptional” to result in disclosure where the LPP exemption is engaged. The Tribunal did not believe that this was the correct test to be applied under the Act. The Tribunal stated the position as follows:

“The fact there is already an inbuilt weight in the LPP exemption will make it more difficult to show the balance lies in favour of disclosure but that does not mean that the factors in favour of disclosure need to be exceptional, just as or more weighty than those in favour of maintaining the exemption.”

In Pugh, the Tribunal went onto suggest that the public interest in maintaining the exemption would be outweighed by the public interest in disclosing the information “where the privilege holder no longer has a recognised interest to protect”. The Tribunal also said that there may be an argument in favour of disclosure where the subject matter of the requested information would affect “a significant group of people”. In the case of Shipton, a differently constituted Tribunal suggested that the public interest in maintaining the exemption would be outweighed by the public interest in disclosing the information “when the harm likely to be suffered by the party entitled to LPP is slight, or the requirement for disclosure is overwhelming” (para 14b).

The Commissioner accepts the position as set out by the Tribunal namely that s.42 decision notices should not refer to a need for exceptional public interests to be present to result in disclosure although to date on only one occasion has the Commissioner found that the factors in favour of maintaining the exemption were did not outweighed by those in favour of disclosure - this being in respect of an enforcement notice request for relating to requests for the Attorney General’s advice on the legality of the war in Iraq.

The only case to date where the Tribunal has found that the public interest factors in maintaining the exemption were outweighed by those in favour of disclosure is the case of the Mersey Tunnel Users Association and the Information Commissioner and Merseytravel (2008).

This case concerned the operator’s (now Merseytravel) running of the Mersey Tunnel at a loss in the 70’s and 80’s with the deficit being made up from a levy on the five district councils of Merseyside.

In the 1990’s the Tunnel became profitable and in August 1994 the operators sought legal advice as to whether they should use the profits to reduce the tolls, thus benefiting toll users, or alternatively whether the funds should be used to repay district councils and therefore benefit a wider cross-section of Merseyside. The operators adopted the latter option.

At para 51, the Tribunal concluded: “to quote Bellamy: ‘there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that public interest’. In our judgment, the countervailing considerations adduced here are not equally strong, they are stronger. The opinion should be disclosed”.

The Commissioner’s Approach

The Commissioner will now consider the following:-

Factor in favour of maintaining the exemption

The concept of legal professional privilege and the rationale behind the concept (i.e. ensuring frankness between lawyer and client which goes to serve the wider administration of justice etc)

Additional weight may be added to the above factor if the advice is:-

• Recent
• Live
• Protects the rights of individuals .

Factor in favour of disclosure

The assumption in favour of disclosure and the rationale behind the assumption (i.e. accountability, transparency, furthering public debate etc)

Additional weight may be added to the above factor if the following issues are relevant on the facts of the particular case:-

• Large amount of money involved
• Large number of people affected
• Lack of transparency in the public authority’s actions

1. General Arguments

There will always be an initial weighting in favour of maintaining the exemption due to the importance of the concept behind LPP, namely, safeguarding the right of any person to obtain free and frank legal advice which goes to serve the wider administration of justice. This position was endorsed by Justice Williams in the High Court case of DBERR v Dermod O’Brien who said:

“...Section 42 cases are different simply because the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise (para 41)...The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight” (para 53).

However, Justice Williams indicated that this did not mean that s.42 should be elevated “by the back door” to be an absolute exemption and instead indicated that the proper approach to take was to:

“...acknowledge and give effect to the significant weight to be afforded to the exemption in any event, ascertain whether there were particular or further factors which pointed to nondisclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least...”(para 53).

2) Case Specific Arguments

Other factors should also be considered, where appropriate, as below:

a) Recent legal advice

With the exception of the Tribunal in the case of Frank Adlam and HM Treasury in November 2007 which said that the principle of LPP was undiminished with age (para 72), a number of differently constituted Tribunals have indicated that the passage of time does favour disclosure. Although not a straight line, the Commissioner accepts this principle.

This position is based on the principle that if advice has been recently obtained, it is likely to be used in a variety of decision-making processes (i.e. allowing the client to determine a course of action/issue court proceedings/raise challenges through other channels, e.g. ombudsman). The Commissioner recognises that these processes would be likely to be affected by disclosure.

However, the older the advice, the more likely it is to have served its purpose and the less likely it is to be used as part of a decision making process. This may mean that any harm to the privilege holder is slight and gives weight to arguments in favour of disclosure.

For these reasons, it seems unlikely that the Commissioner would find in favour of disclosing recent legal advice but in any event the definition of ‘recent’ will very much depend on the specific circumstances as in some cases advice can remain relevant for a long time whilst in others it may be less relevant where legislation and case law have changed rapidly, for example, advice which was weeks old was described as “relatively recent” in Kessler whilst advice which was 6 years old was described as “still relatively recent” in Kitchener whereas in Mersey Tunnel, advice which was over 10 years old was considered “not recent”.

Consideration should also be given to cases where the advice is over thirty years old as the s.42 exemption can no longer be claimed (s.63 FOIA). However if the public authority claims the advice is still being relied on it would be best to seek the advice of a team leader/policy at the start of the investigation.

b) Live advice

Advice is live if it is still being implemented or relied upon and therefore may continue to give rise to legal challenges by those unhappy with the course of action adopted based on that advice. To disclose legal advice where litigation is in contemplation or in prospect would be to upset the delicate balance of fairness between legal adversaries. Also legal advice may not only consider legalities but also tactical and non-legal issues and it would be unfair to require a public authority to reveal its advice whilst their (private) opponent would not be so compelled.

However whilst the prospect of litigation can never be completely ruled out, where it is not in contemplation, it may be possible to take this into account along with other factors within the public interest test although care will be needed to ensure fairness to public authorities who may face prejudice in possible future proceedings if previous legal advice is disclosed.

c) Significant personal interests -v- public/administrative issues

The Tribunal in the Mersey Tunnel case introduced the idea that the context of the case may affect the weight to be given to LPP. For example, they suggested that where the matter involves “significant personal interests” (para 49) or where there is a human rights element, then the doctrine of LPP is at its most important. Unfortunately the Tribunal used the language of lessening or increasing the ‘inbuilt weight’ of the LPP concept to describe this point:

“...can we say that the doctrine has less inbuilt weight in some situations than others? …if the issues addressed in the advice do not affect individuals significantly, there is less inbuilt weight attaching to the exemption...” (paras 49 & 50).

They gave the examples of the Crown Prosecution Service in criminal cases or local authorities in childcare cases and said that these authorities could rely on the doctrine attracting its ‘full inbuilt weight’. However the Tribunal indicated that the Merseytravel case was at the opposite end of the spectrum in that it concerned pure administration and thus the LPP attracted less in-built weight.

The Commissioner will not adopt the Tribunal’s approach in reducing the starting weight to the given to the concept of LPP where the subject relates to administrative or non-personal issues. This approach is supported by a later decision of the Tribunal in the case of Fuller and the Ministry of Justice where it was said that the principles behind the legal professional privilege “...are as weighty in the case of a public authority as for a private citizen seeking advice on his position at law...” (para 12).

However, in cases where significant personal interests/human rights issues are involved then weight can be added to the concept of legal professional privilege.

4) Amount of money involved

In the Mersey Tunnel case, the total repayment was likely to be in the region of £70 million. In Pugh, the pension fund at the heart of the request for information was worth £1 billion. Quite a large amount of money therefore needs to be at stake to justify including this factor in considering where the public interest lies.

5) Number of people affected

In the Mersey Tunnel case, the decision of Merseytravel to repay the councils rather than reducing the toll fees would impact upon all the users of the Mersey Tunnel (approximately 80,000 people per weekday) and to a lesser extent all the council-tax paying residents of the five districts of Merseyside (approximately 1,485,900). In the Pugh case, some 19,500 people and their dependents would be affected by the material pension fund. In the case of Gillingham however the Tribunal indicated that the number of people affected by a decision concerning a public footpath was small and as such was not a significant factor to be taken into consideration.

6) Transparency of public authority’s actions

A number of differently constituted Tribunals have indicated that weight must be attached to a general principle of accountability and transparency - “...the public interest factors in favour of disclosure...can take into account the general public interests in the promotion of transparency, accountability, public understanding and involvement in the democratic process” (para 53 Pugh).

In the Merseytravel case, the Tribunal felt the lack of transparency in Merseytravel’s actions and reasons was “crucial” in reaching their conclusion. For example, Merseytravel indicated on their website that they had a legal duty to repay the district councils and yet could offer no statute to support this so-called legal duty and instead referred to the legal advice in question. The Tribunal also noted that the repayments had not always been clearly identified in the annual accounts which would thwart proper scrutiny and a fully informed public debate about Merseytravel’s operation and again demonstrates a lack of transparency in the financial dealings of this public authority.

The Tribunal did however point out that the circumstances in Merseytravel were “striking”. They said that their concern in this case was the public interest in transparency because “the public authority has pursued a settled course of action over a period of years, involving tens of millions of pounds, and in effect preferring one sector of the public over another in circumstances where legitimate and serious questions can readily be asked about both the power to make the payments and the obligation to do so” (para 46).

This argument in relation to transparency was also considered in the FCC case where a differently constituted Tribunal said at paragraph 29:

“...what sort of public interest is likely to undermine (this]... privilege? ...plainly it must amount to more than curiosity as to what advice the public authority has received. The most obvious cases would be those where there is reason to believe that the authority is misrepresenting the advice which it has received, where it is pursuing a policy which appears to be unlawful or where there are clear indications that it has ignored unequivocal advice which it has obtained...”

The Tribunal also said that such arguments of misrepresentation should be supported by “cogent evidence” (para 33). This approach was also adopted in the later case of Boddy and North Norfolk District Council in which the Tribunal’s judgement suggests that where the public authority’s legal advice shows that they are misleading the public or acting unlawfully then this “...would be likely to be a significant factor in favour of disclosure...” (para 45).

Where part of the advice has already been disclosed, consideration must be given to whether the full advice should be disclosed for reasons of transparency, for example, where the part disclosure has led to misrepresentation or a misleading picture being presented to the public. In light of the FCC decision this is not a default public interest argument in these types of cases, but can only be used on the basis of the particular information. In the FCC decision the Tribunal found that there was little public interest in disclosing the remaining advice.

The Commissioner takes the view that the more evidence that can be provided, the more weight will be given to arguments in favour of disclosure, although generic arguments of transparency and accountability can be taken into account albeit that they may attract less weight.

7) Other case specific circumstances

There will of course be other factors which are relevant to the specific circumstances of each case and these must also be weighed in conjunction with the above.

Note:

Although not binding upon him, the Commissioner is aware of the recent decision by the European Court of Justice of 1 July 2008. The legal advice in question related to a proposal for a European Council Directive to lay down minimum standards for the reception of applicants for asylum within Member States to include the Community’s powers regarding access by third country nationals to the labour market. The Court of First Instance accepted the arguments of the Council of the European Union who refused to disclose the advice. The European Court however held that the legal advice should be disclosed because “...it is a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole” (para 59). Insofar as the independence of the legal advisors was concerned, the European Court said that “...even if members of that legal service were subjected to improper pressure, it would be that pressure and not the possibility of the disclosure of legal opinions, which would compromise that institution’s interest in receiving frank, objective and comprehensive advice” (para 64).

The Commissioner notes that this decision supports the approach adopted in the LTT particularly in terms of the importance of considering the transparency and lawfulness of the authority’s course of action in weighing up the public interest test to determine whether legal advice should be disclosed.