Musings on protecting legal advice from requests for disclosure

Geraldine Swanton

The client-lawyer relationship has always been accorded a special significance in law. That relationship however seemed to be threatened by the introduction of Freedom of Information Act (FOIA) which provided an exemption for legal advice, but only accorded it the status of a qualified exemption. The consequence of that status is that a request for access to legal advice may only be refused if the public interest in maintaining the confidentiality of that advice is outweighed by the public interest in disclosure.

Early FOIA cases identified a strong inbuilt element of public interest in legal professional privilege, partially in deference to the fact that it is recognised as a fundamental human right and a necessary corollary of the right of any person to obtain skilled advice about the law. That advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to its prejudice. Those early decisions appeared however to accord, incrementally, the exemption an absolute status. Once it was decided that the information was privileged, the implicit view was that it would always be in the public interest to refuse a request for disclosure under the FOIA.

The High Court sought to rectify that position. It concluded that the in-built public interest in withholding legal advice commanded significant weight and universities could acknowledge that fact. However, they should then ascertain whether there were particular or further factors which pointed to non-disclosure in relation to particular circumstances and then consider whether the features supporting disclosure (including the underlying public-interest factors which favour disclosure) were of equal weight at the very least. If equal, the advice should be disclosed.

The Upper Tribunal (UT), in an appeal from the First Tier Tribunal, has recently considered the issue of disclosure of legal advice in the context of the Environmental Information Regulations 2004 (EIRS) ( DCLG v ICO & WR [2012] UKUT 103(AAC)). All “exceptions” to the duty to disclose environmental information under the EIRs are subject to a public interest test. There is no express exception in the EIRs for privileged information, but it is caught by the exception for information the disclosure of which would “adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature”. The issue for the UT was whether disclosing legal advice received by the Planning Inspectorate threatened with judicial review if it did not hold an oral appeal hearing would adversely affect the course of justice (i.e. judicial review proceedings) and to weigh the competing public interests for and against maintaining the exception.

The UT decided that the approach taken in relation to legal advice under the FOIA could be applied in relation to the EIRs. In particular, it was relevant to consider the general effect which disclosure of legal advice would have in weakening confidence in legal professional privilege, as well as the particular effect in the circumstances of the case before the UT. The advice was given in view of threatened legal proceedings and it would have been unfair to require the Planning Inspectorate to reveal it when those seeking to quash its decision would not have to disclose any legal advice received by them. The application of the exception is not however limited to circumstances of threatened or actual litigation.

The lesson for universities is that the FOIA and EIRs do not create an open season for access to legal advice. That is good news.

Geraldine Swanton
Senior Associate Solicitor Education Team
For and on behalf of SGH Martineau LLP
0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385

From → General Interest

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