Legal professional privilege under the Environmental Information Regulations

Posted on | by Timothy Pitt-Payne KC

DCLG v Information Commissioner and WR [2012] UKUT 103 (AAC) is an important decision of the Upper Tribunal about the significance of legal professional privilege (LPP) under the Environmental Information Regulations 2004 (EIR). The decision is likely to mean that the approach taken to LPP under the EIR and under the Freedom of Information Act 2000 (FOIA) will in most cases be broadly similar, despite differences in drafting between the two provisions.

The three-member panel hearing the DCLG case was exceptionally strong. It included Lord Justice Carnwath (as he then was), sitting shortly before the end of his term of office as the Senior President of Tribunals; some three weeks after the decision was issued, he was sworn in as a Justice of the Supreme Court.

Under section 42 of FOIA, there is a specific qualified exemption for information in respect of which a claim for LPP could be maintained.  There is no equivalent express provision under the EIR.  However, regulation 12(5)(b) contains a qualified exception for information the disclosure of which would adversely affect the course of justice.  The appeal in DCLG raised two questions:  what was the significance of LPP in determining whether the exception in regulation 12(5)(b) was engaged; and what weight should be attached to LPP in carrying out the public interest balancing test.

The context was an unsuccessful application for planning permission for the erection of an anemometer mast (to measure wind speed and direction).  The applicant appealed against the local authority’s refusal, indicating that if the planning inspectorate (PINS) determined that the appeal should be decided on written representations without a hearing then permission would be sought for judicial review.  Nevertheless, PINS decided that the appeal should proceed on the basis of written representations.  The applicant tried to persuade PINS to reverse that decision. In their response, PINS referred to and relied upon the advice of an in-house legal adviser.

The applicant then sought disclosure of that legal advice, under the EIR; PINS refused to disclose it, relying on regulation 12(5)(b).  The Information Commissioner (ICO) upheld the refusal, but the First-tier Tribunal (FTT) allowed the applicant’s appeal.

The Upper Tribunal referred to the approach taken under FOIA section 42, as set out in DBERR v Information Commissioner and O’Brien [2009] EWHC 164 (QB).  The Upper Tribunal summarised that approach as follows:  in applying the public interest test, a heavy weight was to be given to the exemption, by reason of the risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of LPP; that weight might vary from case to case, so that it would be reduced if the requested information was very old or related to matters that were no longer current; further, the factors in favour of maintaining the exemption would not be limited to these general considerations, and might also include the effect which disclosure would have in the individual case.

In discussing whether regulation 12(5)(b) was engaged, the Upper Tribunal stated that it was material to consider the general effect which disclosure of legal advice would have in weakening confidence in LPP, as well as the effect on the particular case in which disclosure was sought.  The exception would be engaged, only if an adverse effect on the administration of justice would be more probable than not.  The Upper Tribunal doubted whether the requirement for the course of justice to be adversely affected meant that the relevant advice must have been given in a litigious context, while stating that it did not need to decide the point.  Likewise, the Upper Tribunal did not need to decide whether the fact that information was protected by LPP would necessarily mean that regulation 12(5)(b) was engaged.

In relation to the public interest balance, the Upper Tribunal considered that the approach to be taken under regulation 12(5)(b) was broadly similar to that under FOIA section 42, subject to the fact that (by regulation 12(2)) the EIR is subject to a presumption in favour of disclosure.

In relation to the particular appeal, the Upper Tribunal considered that regulation 12(5)(b) was clearly engaged.  The advice was given at a time when judicial review had been threatened; disclosure would have had an adverse effect on the course of jusice, by weakening general confidence in LPP.  This was a strong factor in favour of maintaining the exemption.  A further factor was that it was unfair to require PINS to reveal its legal advice in circumstances where those seeking to overturn its decision would not have to do so.  The factors in favour of disclosure were relatively weak: the presumption in favour of disclosure was rebutted.

Is there now any scope for a difference of approach between FOIA section 42 and EIR regulation 12(5)(b)?

In any case where disclosure is sought under FOIA of material protected by LPP, FOIA section 42 will be engaged.  By contrast, it is still theoretically possible that disclosure could be sought under the EIR of material protected by LPP, without engaging regulation 12(5)(b)  The Upper Tribunal expressly refrained from finding that every LPP case would automatically engage regulation 12(5)(b); but they also doubted whether regulation 12(5)(b) could be confined to cases where there was a threat of litigation. My own view is that, in the light of the decision, arguments that regulation 12(5)(b) does not apply to the disclosure of LPP material will be difficult to maintain, and will succeed (if at all) only in rather unusual circumstances.

Where regulation 12(5)(b) is engaged, the approach to the public interest test will be broadly similar to that under section 42.  The only difference (and its practical significance is doubtful) is that under the EIR there is an express presumption in favour of disclosure.

FOUR NEW LOCAL AUTHORITY DECISIONS BY THE FIRST-TIER TRIBUNAL

Posted on | by Robin Hopkins

The bulk of the First-Tier Tribunal’s most recent decisions under both FOIA and the EIR have concerned local authorities. Adequate searches, deleted emails and hard drives and listed building consent feature prominently. Here are some notable points from four of the decisions.

Deleted email account: Tribunal finds against Council

Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) merits close attention from local authority information officers. Southern Rail carried out work at its Streatham cleaning depot without planning permission. The Council considered taking enforcement action, and instructed a consultancy to report on this option. The requester asked for all reports and communications about the consultant’s draft report. The Council provided some information, but the requester was dissatisfied. He maintained, as requesters often do, that it was ‘incredible’ that further information did not exist. The Council insisted that it had not deleted any relevant information. This was enough to satisfy the Commissioner – but not the Tribunal.

One issue went in the Council’s favour: the Tribunal agreed that information held by its external solicitors was not held on its behalf in the circumstances. Otherwise, the key issues went against the Council.

First, the Tribunal disapproved of the Council’s approach to the wide request for information:

“Lambeth argued that in light of the broad scope of the request it had been reasonable to limit its searches to the planning department which was most likely to hold information. The Tribunal disagrees.  It is not for the public authority unilaterally to redraw the ambit of the request; if the scope is too wide to enable a proper search to be carried out, efforts should be made to refine the request.”

The Council further argued that “the breadth of the request meant that it was too difficult to ensure that every loose end was tied up. They argued that Mr Clyne should resubmit targeted individual requests to follow up these loose ends”. Again, the Tribunal disagreed.

Secondly, as to the adequacy of search and whether, on the balance of probabilities further information was held, the Tribunal applied the established approach from Bromley v IC and Environment Agency (EA/2006/0072) [2011] 1 Info LR 1273. A number of further documents were discovered only after the Commissioner’s decision; the Council had used incorrect or inadequate search terms; important communications about the consultant’s report appear to have gone unanswered (which seemed unlikely) and there was no paper trail accounting for the substantial changes between the draft and final versions of the report. The Tribunal noted that:

“Such a fundamental change as happened between the October 2007 and February 2008 versions of the report in [the requester’s] experience could only happen upon instruction and

not spontaneously. Consequently there ought therefore to be a paper trail.  Planning and legal departments are in different buildings, therefore more likely to communicate by email rather than “pop their head around the corner”. The practice of the Council and their preferred method of communication is by email… The Tribunal has not received an explanation that satisfies it that no recorded information was generated, nor an adequate explanation as to why if generated it has not been retained.”

This led to the third important feature of the decision: following Keiller, the Tribunal ordered the Council to restore the email account of the planning officer who was the focus of the requested information (his account had been expunged some time after the complaint to the Commissioner), to search that account and then to provide the requested information or issue a refusal notice.

Deleted hard drive: Tribunal finds for Council

The requester in Gilbert v IC and Northumberland County Council (EA/2012/0274) was a public transport campaigner seeking records about the 681 bus service (and the Council’s alleged ‘decimation’ of bus services). The Council provided some information, and again the Commissioner was satisfied.

As with Clyne, there were some difficulties with the Council’s case before the Tribunal. The Appellant provided four items he possessed which fell within the scope of his request, including correspondence between the Council and his MP. He argued that: “the Council has withheld or destroyed correspondence which confirms the depth of opposition to its highly unpopular bus cuts.” Further, the Council’s former Head of Transport, to whom the MP had written, had left the Council in March 2011 and his hard drive was wiped on his departure (which was after the handling of the request). The Tribunal observed that:

“the Council’s systems for locating information appear not to have functioned well in this case, as illustrated by the initial failure to identify relevant correspondence with an MP. Wiping the hard disc of a departed senior member of staff, without first checking that it did not contain information which might not be available elsewhere is a practice which might merit review.”

However – again by application of Bromley – the Tribunal was satisfied that on balance the Council had done enough and that no further information was likely to be held. This was largely down to the quality of the searches carried out by the relevant officer in response to the request:

“He circulated a communication to all members of the integrated transport unit  ‘who are either known to be involved in the discussions relating to service 681 or may have been party to documents or other forms of relevant evidence during this period’.  Further he made a search of the Council’s CRM using a range of search terms relating to the bus, the

operator and the route.”

In the Tribunal’s view, that was an adequate search, and the appeal was dismissed.

Statutory nuisance and listed buildings are not ‘private’ interests

In Kuschnir v IC and Shropshire Council (EA/2011/0273), the requester’s (listed) property suffered from damp attributable to a problem at the (listed) bicycle shop next door, Hawk Cycles. The Council deemed this a statutory nuisance and ordered Hawk Cycles to undertake remedial works. Hawk Cycles provided the Council was a schedule of works. The requester sought a copy of that schedule. His request was refused, based on regulation 12(5)(f) EIR (adverse effect on the interests of the person providing the information).

The Tribunal found that the exception was not engaged. It did find there to be sufficient adverse interest to engage the exception, although it saw “no evidence that the disclosure of the information would have made litigation against Hawk Cycles more likely, and if any claim was started by Mr Kuschnir, it is abundantly clear that he would have been entitled to disclosure of the information in the context of the litigation.  In our view the potential litigation context therefore adds little to the debate.”

Another requirement for the engagement of regulation 12(5)(f) is, however, that the provider of the information “was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority”. This was the stumbling block for the Council: the Tribunal construed section 80(1) of the Environmental Protection Act 1990 – which empowers councils to take “such other steps as may be necessary” for requiring the abatement of a statutory nuisance – as meaning that the Council could have compelled Hawk Cycles to provide it with the schedule of remedial works.

The Tribunal went on to find that even if the exception was engaged, the Commissioner and the Council had got the public interest balance wrong. The public interest in disclosure was not great, but the Commissioner had been wrong to find it to be of a private nature. This was in part because the case involved statutory nuisance. The Tribunal added that “it is also relevant we think that Mr Kuschnir’s property was a listed building and one that the Council itself features on guided walks of Shrewsbury.”

The Commissioner had also wrongly characterised the public interest in maintaining the exception. It could not be said that disclosure would undermine the voluntary provision of information to the Council in circumstances Hawk Cycles “where were clearly under threat of an abatement notice requiring them to execute works to prevent a recurrence of the nuisance if they did not co-operate with the Council”.

The requester was therefore entitled to a copy of the schedule.

PDF sufficient

The requester in Forster v IC and Westminster City Council (EA/2011/0235) wanted to park his motorbike in Westminster. He asked for “a list of motorcycle parking bays (the addresses where they are located) so that I can plan trips into town.” The Council refused the request, relying on section 21 FOIA (information accessible by other means). It provided a link to the website which contained about 100 pages of images of a list – in a pdf file – of the names of all the streets in the City of Westminster on which motorcycle bays are located. The requester complained that the information was not “accessible” because it did not allow him to search, re-order or edit the data in the list for his own purposes without having to type the data into another file. He argued that the Commissioner has confused accessibility to a document which contains information, with accessibility to the information contained in a document. The Tribunal found, however, that those arguments were premised on the assumption that the Council held the list in the form that he wanted – but it did not; it had outsourced its IT, and the pdf was all it held. It could therefore rely on section 21.

Robin Hopkins

MINISTERIAL VETO STRIKES AGAIN – MINISTER’S STATEMENT PUBLISHED

Posted on | by Anya Proops KC

On Tuesday, I blogged about the decision of the Secretary of State for Health to veto the order requiring disclosure of the transition risk register in the NHS risk registers case. Today the Secretary of State published his statement as to the reasons for the imposition of the veto. You can read the statement here: https://www.dh.gov.uk/health/2012/05/statement-transition-register/. The statement is notable not least because it suggests that, in the Government’s view, there is a very strong public interest in avoiding the disclosure of risk registers, which are used as a tool across government, particularly where the advice they contain ‘is required at highly sensitive times on highly sensitive issues’. The statement also reveals that, so far as the Government is concerned, despite being concerned with policy implementation rather than policy development, transition risk registers may yet retain a high degree of sensitivity, particularly where they are being used against a backdrop of shifting policy priorities. Finally, it is worth noting that one of the factors which apparently influenced the decision to issue the veto is the fact that the publication of the transition risk register would have acted as ‘a serious distraction from progressing the [NHS reform] proposals’. This is something which is likely to be leapt on by opponents to the reform proposals, many of whom take the view that the Government is deliberately seeking to avoid disclosure of the registers because it is concerned that they will reveal fundamental flaws in the proposals.

THE MINISTERIAL VETO STRIKES AGAIN – BUT THIS TIME NOT IN RESPECT OF CABINET MINUTES

Posted on | by Anya Proops KC
In early April 2012, I posted on the Tribunal’s decision in the NHS risk registers case (you can see my post here and also Robin Hopkins’ follow up post here). In summary, the Tribunal concluded that the ‘transition risk register’ ought to have been disclosed but the ‘strategic risk register’ was lawfully withheld on an application of s. 35 FOIA. Today, the Government has announced that it is exercising its power of veto in respect of the order to disclose the ‘transition risk register’. Apart from the fact that the veto obviously represents an important twist in the NHS risk registers case, what is interesting about the veto decision is that it potentially represents a sea-change in the Government’s thinking on the use of the veto. To date, the veto has been used in only three cases, all of which involved requests for disclosure of Cabinet minutes. What is striking about today’s announcement is that the veto is being applied, not in respect of Cabinet minutes, but rather in respect of a risk assessment document which was prepared in respect of the Government’s controversial plans to reform the NHS. Notably, the statement made by the Secretary of State for Health, Andrew Lansley, confirms that the decision to issue the veto was influenced by the need to ensure that there was a ‘safe space where officials are able to give ministers full and frank advice in developing policies and programmes’ (see further this link to the statement). This compares with the emphasis on providing a ‘safe space’ for cabinet ministers which was highlighted in the context of the previous vetoes. The important question which the use of the veto in the risk registers case effectively poses is whether we are going to see a more prolific use of the powers of veto in the future. If we are, that may well have important political ramifications for the Coalition Government as well as generally recasting the FOIA landscape. See further my posts on the first two vetoes which you can find here and also my 2009 paper which considered the use of the veto which you can find here. The Commissioner has stated that he will report to Parliament on the use of the veto next week.

PROTECTION OF FREEDOMS ACT 2012

Posted on | by Rachel Kamm

The Act was granted Royal Assent on 1 May 2012. Tim Pitt-Payne posted about it back in February 2011, when the Bill was introduced.

In its final form, it includes Parts on:

  • the regulation of biometric data;
  • the regulation of surveillance;
  • the protection of property from disproportionate enforcement action;
  • counter-terrorism powers;
  • safeguarding vulnerable groups, criminal records etc; and
  • freedom of information and data protection.

The key change to the Freedom of Information Act 2000 is a new approach for requests for data-sets. The new Act amends sections 11, 19 and 45 FOIA and inserts new sections 11A and 11B FOIA. The changes are discussed in this article on one of the Guardian’s blogs.

Other changes include:

  • an amendment to the definition in section 6 FOIA of a publicly-owned company;
  • the extension of certain provisions of FOIA to Northern Ireland bodies;
  • an increase in the maximum term of appointment of the Information Commissioner from five years to seven years and amendments to the provisions for his/her removal;
  • changes to the role of the Secretary of State in relation to the Information Commissioner’s guidance powers; and
  • the Secretary of State’s consent is no longer required before the Information Commissioner can exercise his/her fee-charging powers or in relation to various matters concerning staff.

Rachel Kamm, 11KBW

LANDFILL OPERATOR’S INFORMATION NEITHER CONFIDENTIAL NOR COMMERCIALLY SENSITIVE

Posted on | by Robin Hopkins

First-Tier Tribunal caselaw this past week has focused on the intersection between the common law of confidence and statutory rights of access to information. Moss v IC & Home Office (EA/2011/0081) (see Anya’s post here), the Tribunal analysed section 41(2) of FOIA (information provided in confidence). Shortly thereafter, the Tribunal handed down its decision in Rory Jones (on behalf of Swansea Friends of the Earth) v IC, The Environment Agency and SI Green Ltd (EA/2011/0156). This concerned the slightly different provision under regulation 12(5)(e) of the EIR. Regulation 12(5)(e) EIR provides that “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect… the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.

When a landfill operator such as SI Green (UK) Ltd (“Green”) obtains a permit from the Environment Agency (EA”) to operate a waste landfill, financial provision is made for covering the costs of something going wrong. Most commonly, this is done by means of a bond. In the event that any of the events specified by the bond occur, the amount secured by the bond is paid directly to the EA which can then use the funds to put matters right.

In this case, the appellant requested information relating to financial guarantee arrangements put in place by Green pursuant to its EA permit for operating a waste landfill site at Cwmrhydycierw Quarry near Swansea. The EA provided a redacted version of two documents, a performance agreement and the associated bond. It relied on regulation 12(5)(e) EIR in redacting information concerned with the amount of the bonded sum Green is required to secure for each year of operation of the landfill and going forward through a period of 60 years after operations terminate. It contended that this was commercially sensitive confidential information.

The Tribunal agreed with the Appellant that regulation 12(5)(e) was not engaged, because the redacted information was not subject to confidentiality provided by law. First, it was not provided by legislation. The Pollution Prevention and Control (England and Wales) Regulations 2000 enable landfill operators to apply for any information they provide to the EA to be excluded from the public register on the grounds that it is commercially confidential. In this case, Green had made such an application for different information to that redacted here.

Secondly, the information was not subject to common law confidentiality either. As in the Moss case, the Tribunal stuck to the 3-limb test laid down in Coco v AN Clark. In this case, the respondents’ case came unstuck on the second limb, which requires that the information must have been imparted in circumstances importing an obligation of confidence. In this respect, the Tribunal applied regulation 12(5)(e) in a very similar way to s. 41(2) of FOIA. It held that “that element [the second Coco limb] implies the communication of the information by one party to the other. The evidence in the present case, however, is that the information came into existence through a process of negotiation between the parties”. It added that “we recognise that section 41 refers more explicitly to information being “obtained” by the public authority from any other person. That is not the language of regulation 12(5)(e). However, we consider that the same element is imported by the incorporation of the common law test of breach of confidence into regulation 12(5)(e) of the EIR.”

As the exception was not engaged, the public interest test was not necessary. Nevertheless, the Tribunal held that even if the exception had been engaged, the public interest favoured disclosure. The respondents’ cases were based largely on the assumption that the redacted information would reveal useful information about Green’s operating costs in relation to the landfill site in question. The Tribunal found that the evidence before it fell “far short” of supporting that assertion. On the other hand, the public interest in disclosure was made out: “the purpose of the bond is to provide the public with protection should things go seriously wrong. Disclosing the information would allow the public to understand the level of protection that is being provided to them and for them to feel confident that the provision is sufficient to deal with potential difficulties.”

Robin Hopkins