Legal Advice Not Disclosable Under Information Act


Orbit Bexley Housing Association Independent Leaseholders’ Group has failed in its challenge to the Information Commissioner’s decision not to order disclosure of confidential legal advice obtained by Bexley Council. The advice related to the Group’s potential legal claim against the Council.
The Group’s claim follows from the transfer, in 1988, of around 4,000 homes from the London Borough of Bexley’s housing stock to the Orbit Bexley Housing Association. Stephen West and other members of the Group object to having to pay service charges to the Association for the cost of maintenance of roads and footpaths within the estates. They claim that such maintenance was and remains the legal responsibility of the Council despite the transfer.
In January 2009, Mr West wrote to a councillor stating that the Group wanted to challenge the legal basis of the housing stock transfer agreement. The Council sought legal advice on this matter, which they received in April 2009. When Mr West learned of the advice, he asked to be given a copy. In June 2009, the Council refused to comply with the request on the ground that section 42 of the Freedom of Information Act 2000 protects materials, such as legal advice, which are subject to legal professional privilege.
Mr West complained to the Information Commissioner and, when the Commissioner upheld the Council’s decision, appealed to the First-Tier Tribunal. He contended that, among other things, the Commissioner failed to give proper consideration to the public interest argument and did not give sufficient weight to the arguments in favour of disclosure.
At appeal, the Tribunal considered that the disclosure of legal advice relating to potential litigation would have been unfair and could adversely affect the course of justice. The Act allows a public authority, in this case the Council, to refuse to disclose such information.
Although the Act also allows for a public interest argument to outweigh the reasons for refusal to disclose, the Tribunal decided that, having seen the advice, there was nothing of any real value to the public and therefore no compelling reason to overturn the refusal to disclose in this case.
The Tribunal duly dismissed Mr West’s appeal.
“Rights granted by the Freedom of Information Act are not absolute,” says <<CONTACT DETAILS>>. “Rights under the Act are subject to the need to protect confidential information such as advice given by a legal professional, as in this case.”
Partner Note
First-Tier Tribunal (Information Rights) Stephen West v Information Commissioner. See

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