Legal professional privilege (“LPP”) as an exemption from disclosure under Section 42 of the Freedom of Information Act 2000 (“FoIA”) and Regulation 12 of the Environmental Information Regulations 2004 arose again in West v Information Commissioner, EA/2010/0120.  Bexley Council had transferred a major part of its Council housing stock to a Housing Association.  Mr West is a member of a leaseholders’ group that objected to having to pay service charges for the cost of the maintenance of roads and footpaths within the housing estates.  They said that remained the responsibility of the Council.  They sought to challenge the lawfulness of the stock transfer agreement.  The Council took advice from Counsel.  Mr West sought a copy of Counsel’s Opinion.  The Council refused to provide it, relying on LPP.  The Information Commissioner upheld the Council’s refusal.  The Tribunal dismissed Mr West’s appeal.  Not only might “legal advice privilege” apply.  So too might “litigation privilege”.  Mr West had threatened to bring a case before the Leasehold Valuation Tribunal and/or judicial review proceedings.  The real issue was the Public Interest Test.  The Tribunal duly identified the public interest factors in maintaining the exception, referring to DBERR v O’Brien [2009] EWHC 164, and the public interest factors in disclosure.  Weighing up and balancing the competing public interests, and bearing in mind the presumption in favour of disclosure, the Tribunal (Judge Shanks presiding) agreed with the Commissioner that the public interest in maintaining the LLP exception outweighed the public interest in disclosure.

James Goudie QC