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Full Disclosure - The Difficult Balance Between Privilege and Public Interest

on Wednesday, 06 May 2020.

Local authorities are often concerned about striking the difficult balance between the protection afforded by legal professional privilege and the need for transparency in public affairs.

A recent decision on this topic will be of interest to those wondering how this balancing act might be approached in context of requests made under the Freedom of Information Act 2000 ('FOIA').

In 2018 the Greater London Authority ('GLA') decided to convene two meetings on the topic of rising knife crime in private without any media attendance. Following a request for information on this decision under FOIA, the GLA relied on the legal professional privilege ('LPP') exemption in s.42(1) to withhold legal advice on the decision from disclosure.

The Exemption

S.42(1) FOIA states that information in respect of which a claim to LPP could be maintained in legal proceedings is exempt information. LPP protects certain communications between a professional legal adviser their client from being disclosed without the client's permission.

S.42 is a qualified exemption. This means that even if the exemption is engaged, the information can only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosure.

Background

At the time the meetings in question took place, increasing knife crime in London was a growing public concern. The GLA and the Office of the Mayor of London convened two meetings in response to this on 10 and 11 April 2018 (together the 'Meetings').

The GLA decided that the press would be excluded from the Meetings. This was due to concerns that allowing the press to attend may give rise to the reporting of comments made by candidates in local elections due to be held in less than a month in contravention of the 'purdah' provisions that are applied to elections. The GLA's Monitoring Officer advised that admitting the media to the Meetings would offend the 'purdah' rules.

A recording of the second meeting on 11 April 2018 was made and released after the local elections on 3 May 2018, but no recording of the first meeting on 10 April 2018 was made.

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The Freedom of Information Request and Response

On 13 April 2018, a FOIA request was made in respect of the decision by the GLA to prevent media representatives, journalists and members of the public from attending the Meetings and the GLA's Monitoring Officer's interpretation of electoral law. The request included "all communications by email and documentation on this issue".

The GLA responded to the FOIA request on 15 May 2018, but withheld some correspondence on the grounds it was exempt from disclosure under s.42 FOIA, as it was legal advice subject to LPP. The GLA concluded that, having considered the public interest test, the public interest in protecting LPP outweighed the public interest in disclosure here. However, the individual requesting the information disagreed, contending that the legal advice was crucial to the reasoning for the GLA's decision which was being challenged.

An internal review was subsequently conducted by the GLA, but the non-disclosure on the grounds of LPP was maintained. The matter was then escalated to the Information Commissioner in September 2018, who sought an explanation from the GLA of the basis upon which it was relying on s.42(1) of FOIA.

The GLA explained the role of the Monitoring Officer (which involves reporting on matters which may be illegal or amount to maladministration), and their need to take legal advice. Here, the documents over which the GLA maintained the exemption under s.42(1) FOIA were emails in which legal advice from Transport for London Legal Services was communicated to GLA's Monitoring Officer.

The GLA highlighted that the issue was not whether the decision to exclude the press was appropriate, but whether the legal advice relating to that decision should be made public.

The Information Commissioner's Decision and the Appeal

On 8 May 2019 the Information Commissioner issued a Decision Notice upholding the GLA's claim of exemption under s.42(1) on the grounds that the requested information was subject to LPP and that the balance of the public interest lay with non-disclosure.

An appeal was then lodged, which centred around the notion that the Information Commissioner had wrongly determined that LPP 'trumped' the public interest in disclosure of the legal justification for excluding the media and public from the Meetings. It was argued that without knowing what this legal advice was, it was impossible for news organisations and journalists to "account for a grotesque breach of Article 10 freedom of expression rights" (under the European Convention of Human Rights).

Findings

The First Tier Tribunal (General Regulatory Chamber) Information Rights ("FTT") heard the appeal. Although the FTT noted the "unusual and controversial nature of the decision to exclude the press and the public from the meetings", it dismissed the appeal, saying that the factors in favour of maintaining the exemption outweighed those in favour of disclosure. Whilst the public interest in the subject matter of the Meetings was not disputed, the FTT considered various factors which meant the public interest balance favoured maintaining the exemption. Some of these factors were:

  • the "in-built weight" afforded to the LPP exemption
  • the fact that the legal advice was given after the decision to hold the Meetings in private had been made, and was not the reason for the decision
  • the timing of the FOIA request (which was made at the time when the decision could have been the subject of legal proceedings in which the GLA would be prejudiced by having to disclose its legal advice)
  • the fact that the legal advice was not necessary in order to understand the GLA's reasoning for the decision it took - understanding or challenging the decision was possible without the requested information

The decision is a useful clarification for public bodies faced with similar difficulties of balancing competing public interests.


If you have any concerns or queries about legal professional privilege or requests for information under FOIA more generally, please contact Ben Holt who heads up our Information Law team on 07715 048 666 or by completing the form below.

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