Tribunal dismisses appeal over withheld legal advice on playing fields

Background and Proceedings

The First-tier Tribunal (General Regulatory Chamber) recently dismissed an appeal by Gail Judson against the Information Commissioner's decision to uphold Redcar and Cleveland Borough Council's refusal to disclose legal advice. The case centred on the Council's obligations regarding the King George V Playing Fields in Guisborough, part of which is leased to Guisborough Town Football Club.

Request for Information

Ms. Judson requested access to the legal advice the Council relied upon to assert that it had no legal obligations concerning the playing fields. The Council denied the request, citing regulation 12(5)(b) of the Environmental Information Regulations 2004 (EIR), which allows withholding information if its disclosure would adversely affect the course of justice.

Commissioner's Decision

The Information Commissioner supported the Council's stance, confirming that the requested information was protected by legal advice privilege. The Commissioner argued that disclosing the advice could compromise the Council's legal position by exposing its legal strategies, thus affecting the course of justice.

Tribunal's Analysis

The Tribunal, comprising Judge Sophie Buckley, Dr Phebe Mann, and Miriam Scott, reviewed the case without a hearing. They agreed that the legal advice was privileged and that its disclosure could indeed harm the course of justice by undermining the Council's legal standing in potential future litigation.

Public Interest Considerations

While acknowledging a general presumption in favour of transparency under the EIR, the Tribunal found that the public interest in maintaining legal privilege outweighed the interest in disclosure. They noted that revealing the legal advice could weaken confidence in the legal professional privilege system, which is crucial for the administration of justice.

Legal Framework

The Tribunal's decision was guided by established legal principles, including the need to interpret exceptions to disclosure narrowly and to balance public interest factors. They referenced relevant case law, such as the Upper Tribunal's decision in DCLG v Information Commissioner & WR, which emphasises the weight of legal professional privilege in public interest considerations.

Conclusion

The Tribunal concluded that the Council was right to withhold the legal advice under regulation 12(5)(b) of the EIR. They determined that the public interest in maintaining the exception was stronger than the interest in disclosure, particularly given the potential for future litigation regarding the playing fields.

Implications for Practitioners

This case underscores the robust protection afforded to legal advice under the EIR and the significant weight given to legal professional privilege in public interest assessments. Legal practitioners should note the Tribunal's emphasis on the potential adverse effects of disclosure on the course of justice.

Learn More

For more information on data protection, see BeCivil's guide to English Data Protection Law.