EA_2007_0052 Mersey Tunnel Users Association v Merseytravel [2008] UKIT EA_2007_0052 (15 February 2008)

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URL: http://www.bailii.org/uk/cases/UKIT/2008/EA_2007_0052.html
Cite as: [2008] UKIT EA_2007_0052, [2008] UKIT EA_2007_52

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Information Tribunal Appeal Number: EA/2007/0052
Information Commissioner’s Ref: FS501 36587
Decided in Chambers                                                       Decision Promulgated
On 3 and 23 January 2008                                                15 February 2008
BEFORE
CHAIRMAN
Mr H Forrest
and
LAY MEMBERS
MR R CREEDON
MR D WILKINSON
Between
Mersey Tunnel Users Association
Appellant
and
INFORMATION COMMISSIONER
Respondent
and
Merseytravel
Additional Party
Decision
The Tribunal allows the appeal and substitutes the following decision notice in
place of the decision notice dated 22 May 2007.
Information Tribunal                                Appeal Number: EA/2007/0052
SUBSTITUTED DECISION NOTICE
Dated 15 February 2008
Public authority:                          Merseytravel
Address of Public authority: 24 Hatton Garden
Liverpool, L3 2AN
Name of Complainant:               The Mersey Tunnel Users Association
The Substituted Decision
For the reasons set out in the Tribunal’s determination, the substituted decision is
that the public interest in maintaining the exemption for information subject to
legal professional privilege is outweighed in this instance by the public interest in
disclosing the information.
Action Required
Merseytravel should disclose to the Mersey Tunnel Users Association the
information requested, the advice given by counsel on 2 August 1994.
Dated this 15 day of February 2008
Humphrey Forrest
Deputy Chairman, Information Tribunal
Reasons for Decision
Introduction
1.  Merseytravel is the name used by the Merseyside Passenger Travel
Authority and Executive, a statutory body, which, amongst other duties,
runs the Mersey Tunnels using powers derived from a variety of statutory
sources. The Mersey Tunnel Users Association (MTUA) is an
unincorporated association set up to pursue the interests of its members,
who are users of the Mersey Tunnels; it has been represented in these
proceedings by its secretary, Mr John McGoldrick. They have
campaigned about the level of tolls for tunnel users, and the uses to which
that toll income is put by Merseytravel.
2.  Over the years, local government has been reorganised and the bodies
involved and their various powers have altered. From the late 1960s (and
more specifically, from 1988) until the early 1990s the income from the
tunnels was insufficient to cover operating costs and they operated at a
loss. That deficit was made up by the tunnel operator (now Merseytravel)
from a levy or precept on the five district councils of Merseyside.
3.  A question arose over Merseytravel’s powers to meet the losses made by
the Mersey tunnels between 1988 and 1992 by adding them to the
precept/levy on the district councils. It appeared that the power utilised,
under a Debt Administration Order of 1988, was restricted to repaying
debts that had arisen in connection with the original construction of the
tunnels, rather than meeting operating costs. In August 1994 advice was
received from a barrister. It was decided that the sums paid by the district
councils should be treated as a loan, and the loan could be repaid when
funds permitted, (subject to the other demands on tunnel income), through
adjusting Merseytravel’s levy on the district councils: in other words, the
levy would be reduced to reflect any amount paid off in respect of the
accumulated debt and interest.
4.  After 1992, there were substantial increases in both traffic and tolls and
the tunnels began to show an operating profit. Merseytravel began to
repay the amount levied on the District Councils: some £28 million, which,
with interest over the years, is likely finally to amount to nearly £70 million.
The amounts involved have varied over the years. Currently, and for
several years, it has been set at £3.6 million a year, and it is intended that
repayments should remain at that level until 2014/15, when the debt will
finally be extinguished.
5.  The repayments have been dealt with in Merseytravel’s accounts in a
number of ways: sometimes they have not been separately identified at
all; in the 2005/06 accounts, the sum of £3.6 million is referred to as a levy
repayment. Mr McGoldrick, on behalf of MTUA, has been trying for some
years to find out what this levy repayment was, and why it had to be
made. The underlying dispute, which has given rise to this request for
information, is whether the tunnel surplus should be used to reduce tolls,
and thus benefit tunnel users, or whether it should be used to repay
district councils, and thus benefit a wider cross section of the Merseyside
community. That dispute is not a matter for this Tribunal.
The request for information
6.  The specific request for information, which lead to this appeal, was made
by Mr McGoldrick on 15 January 2005. He refers to past correspondence
about information and what had been made available; refers to the coming
into force of the Freedom of Information Act (FOIA); and requests “to see
all reports, agendas and minutes relating to the loan”.
7.  Merseytravel supplied some information in response. The barrister’s
advice was withheld under section 36 of FOIA (prejudice to effective
conduct of public affairs) and section 42 (legal professional privilege).
Merseytravel explained that in their view the public interest in maintaining
these exemptions outweighed the public interest in disclosing the
information sought. Subsequently, Merseytravel released further
documents, but still withheld the legal advice.
The complaint to the Information Commissioner
8.  On 6 September 2006, Mr McGoldrick on behalf of MTUA complained to
the Information Commissioner about the way Merseytravel had handled
his request for information and about their refusal to release the barrister’s
opinion.
9.  In the Decision Notice, issued on 22 May 2007, the Information
Commissioner found that Merseytravel had breached some of the
procedural requirements in section 17 of FOIA, by not explaining clearly
enough why the withheld information fell under section 42; or the reasons
why it considered the balance of the public interest lay in maintaining the
exemption; and by not giving details of its complaints procedure. No steps
were required in relation to these breaches; and the Commissioner’s
findings on these points have not been disputed in this appeal.
10. Secondly, the Commissioner found that section 42 was engaged, and
after examining the arguments, found that the balance of public interest in
maintaining the exemption did outweigh the public interest in disclosure,
and that therefore Merseytravel were acting properly in withholding the
information. In the light of that finding, the Commissioner did not go on to
consider the application of section 36.
The appeal to the Tribunal
11. Mr McGoldrick appealed against that decision to the Tribunal on 18 June
2007. The question for the Tribunal was identified at a Directions hearing
on 24 September 2007 as “whether the Commissioner erred in concluding
that the public interest arguments weighed against disclosure in the
present case”. That has been the main issue in the case. However,
MTUA were given leave to add a further ground of appeal: whether legal
professional privilege had been waived by prior publication of part of the
advice. No one has sought to argue, in the alternative, that we should
consider the application of section 36, and we have not done so.
12. The information in dispute was disclosed to the Tribunal during the appeal
process, as it had been to the Commissioner, but was not disclosed to the
appellant, MTUA. Both the IC and Merseytravel have made closed
submissions to us about the contents of the barrister’s opinion. Mr
McGoldrick protested against the unfairness of this procedure., which
denied him the opportunity to see or reply to the arguments advanced by
the other parties; moreover, in the unusual circumstances of this
case,(where Mr McGoldrick had in fact seen the disputed information,
since it had earlier been released to him in confidence by the District
Auditor), it denied him the opportunity to use that information. The
Tribunal accepted the principle of his objection, but ruled that the element
of unfairness was inevitable given the particular nature of the Tribunal’s
jurisdiction: if, as fairness requires, the information were to be disclosed
as part of the appeal process, the entire point of the proceedings would be
nullified, since disclosure would have been achieved, whatever our
eventual decision.
Evidence
13. Having considered the agreed bundle of documents submitted and the
witness statements from Mr McGoldrick and Mr Barclay, the Director of
Resources for Merseytravel, the tribunal makes the following findings of
fact. In doing so, we have of course had the advantage of seeing the
disputed opinion. Any references to it are taken from documents already
disclosed, or from Mr Barclay’s witness statement, or from the open
submissions of Merseytravel. The general factual background has been
set out above in paragraphs 1 to 4.
14. In a “Report of the Clerk” dated 11 February 1994, disclosed to Mr
McGoldrick, the Clerk sets out the legal background to the Tunnels’
finances, explaining that the operating deficit of the Tunnels from 1988 to
1992 had been met by the Passenger Transport Authority (PTA) from its
general fund (since toll income was insufficient); and the general fund was
raised by a precept or levy on the district councils. It continues:
“some doubt was expressed as to whether the PTA had power to
provide for the tunnels expenditure in this way and the matter was
raised with the Department of Transport. Legal counsel expressed the
view that in these circumstances there would be a lawful overriding
obligation on the part of the Passenger Transport Authority to finance
the deficit on the tunnels account as banker and in such
circumstances might expect repayment.
However, in the event, the Government made a Debt Administration
Order, which whilst mainly designed to cover wider issues, provided
an express power for the Authority to fund the tunnels and the
Authority took advantage of this power …. .
The order was silent on the question or repayment but in any event
the matter was not thought about at the time because there was no
immediate possibility of payment back arising.”
15. It appears from the date of this Report that there must have been an
earlier legal opinion on the subject, given before February 1994, and
therefore preceding the opinion in dispute. This has not been disclosed by
Merseytravel, though it would appear to be covered by Mr McGoldrick’s
request. Merseytravel say that they have conducted a search for any
earlier legal advice and now have no record of it. No such advice can be
found. We consider this further at paragraph 29.
16. The Report went on to “summarise the legal position” including:
“(e) subject to the above obligations and as a subservient priority there
is an obligation to repay the Authority’s General Fund on a basis to be
annually agreed …. .”
One of the advantages of doing this was that it would enable “the
aspirations of District Councils to see some repayment in respect of
substantial earlier support for the Tunnels [to be] fulfilled”.
17. The report was evidently accepted and the advice of the Clerk
implemented: annual repayment of the sums advanced earlier by the
District Councils commenced.
18. However, as Mr Barclay explained, “shortly after this period it was
recognised that the [Debt Administration] Order did not appear to contain
the powers to meet the losses in this way.” It was to meet this problem
that Counsel’s opinion was again sought. It is this second opinion that
Merseytravel seek to withhold from MTUA under section 42 as legally
professionally privileged, and that is the subject matter of this appeal.
19. In a document dated 25 September 2003 headed “To whom it may
Concern”, which was sent to Mr McGoldrick, the then Director of
Resources for Merseytravel, explained what happened next:
“Counsel’s opinion was sought on this issue, and it confirmed that the
wording of the 1988 Order was flawed and that it failed to provide the
necessary powers to precept/levy for the tunnel losses. The opinion
also indicated that the sums involved should be treated as a loan to be
repaid to District Council’s in the same manner they were obtained,
i.e. through Merseytravel’s levy. Clearly it was not feasible to refund
the debt in full immediately, so repayments were arranged in
instalments with interest. The arrangements were agreed with the
Treasurers of the five District Councils.
Council also advised that the repayments should be kept under
review, implying that they should be equitable to District Councils and
seek to discharge the debt at the earliest opportunity. The
repayments have varied as follows: “and then there is set out a table
showing annual repayments from 1994/5 to 2001/02, rising from £1.9
million to £3.6 million.
20. Mr Barclay confirms that the repayments have continued at the rate of
£3.6 million a year, and are expected to continue until 2014/15, when the
debt should be finally extinguished. The repayment is effected through
reducing the amount that would otherwise be levied on the District
Councils.
21. The disputed opinion was also referred to in 2002 in a document headed
Mersey Tunnel Tolls – Common Misunderstandings, which was published
on Merseytravel’s website. This included: “Merseytravel has though a
legal duty to use toll income to repay District Councils for financing the
Tunnel losses which occurred between 1988 and 1992.” Indeed, it was
this reference which prompted Mr McGoldrick to make his initial query to
Merseytravel, asking for the source of this “legal duty”.
22. In 2003/04 Merseytravel promoted a private Bill in the House of Lords, the
Mersey Tunnels Bill. The Bill was accepted without amendment. The
Mersey Tunnel Act 2004 repeals earlier provisions which had set out the
purposes on which toll income should be spent, substituting an amended
set of purposes, including a power to apply tolls to make payments “to
[Merseytravel’s] general fund for the purpose of directly or indirectly
facilitating the achievement of polices relating to public transport in its
local transport plan, or for other purposes”. MTUA had objected to the Bill;
and the House of Lords required Merseytravel to give an undertaking
restricting the uses which could be made of this power to apply tolls “… for
other purposes”. The restricted powers include “directly or indirectly
repaying to the Merseyside district councils, by whatever means
[Merseytravel] considers appropriate, the money precepted and levied by
Merseytravel between 1988 and 1992 to fund the tunnels’ operating
losses (originally £28 million)”. The legal basis for making repayments to
the district councils is therefore on a statutory footing since the passage of
the Bill, which gives a clear power (though it does not impose a duty) to
make the repayments.
23. In June 2005 Mr McGoldrick made a formal objection to the District
Auditor querying the inclusion of the loan repayment in Merseytravel’s
accounts for 2002/03. His argument was that there was no power to make
toll repayments for this purpose. The District Auditor rejected the
objection, and signed off the accounts. In his reply to Mr McGoldrick, the
Auditor allowed him to see a copy of counsel’s opinion of August 1994
(the disputed information), which was relied on by Merseytravel to show
why the repayment was properly made. Mr McGoldrick was warned that
the disclosure was made in confidence, for the purposes of the objection
only, and that to reveal its contents would expose Mr McGoldrick to
criminal sanctions. Mr McGoldrick has therefore seen the disputed
information, but can make no use of the information disclosed in that way:
he cannot disclose it, for example, to the members of MTUA, nor use his
knowledge in this appeal.
Submissions and analysis
a)   Prior disclosure by the auditor.
24. The relevance of this earlier disclosure can be shortly dealt with. In our
view the fact that Mr McGoldrick has in fact already seen the information
requested is irrelevant to the questions before us, given the particular,
restricted circumstances in which it was disclosed. Disclosure under FOIA
is disclosure, in effect, to the public, an entirely different matter to a
restricted disclosure for the purposes of audit. Nor do we accept any
argument that disclosure in such restricted circumstances could amount to
a waiver.
b) Waiver
25. Both the Commissioner and Merseytravel resist any suggestion that
privilege has been lost because of earlier disclosure. Mr McGoldrick
argued that the various references to the legal opinion or advice quoted
above were sufficient to amount to a waiver of the claim for privilege.
Certainly, once legal advice has been published, privilege can no longer
be claimed. None of the references above reveal the full advice, or
anything approaching that, or quote directly from it. However, there is also
a doctrine of partial disclosure. A party revealing part of a privileged
document cannot thereafter claim privilege for the remainder.
26. Reliance on the doctrine of partial disclosure is resisted by the
Commissioner and Merseytravel on both the facts of the case and the law.
Legally, they cite a number of authorities dealing with the issue, and point
out that all are concerned with claims for privilege in the context of
litigation. Here, no legal proceedings are contemplated, let alone
underway. They argue that the doctrine of partial waiver has no
application until proceedings are at least in contemplation. Factually, they
point out that the Report of the Clerk, dated February 1994, cannot
disclose anything of the later advice in dispute, since that was not
received until August 94. The 2003 document To Whom It May Concern at
most provides a brief summary of the conclusion of the disputed advice,
but reveals nothing of the reasoning or other options considered. The
website contains an even briefer reference. It would be unfortunate if
through such partial references privilege were lost, since that result would
tend to discourage authorities from revealing even that much.
27. We accept the arguments of Merseytravel and the Commissioner, on both
points. Legally, like the Tribunal considering the appeal in Kessler v
Information Commissioner and HM Commissioners for Revenue and
Customs, EA/2007/0043, we do not consider it necessary to go through
the detailed legal authorities on the point. We agree with their conclusion:
“that the rule that by relying upon part of a privileged document before a
court the party doing so waives privilege in the whole document does not
apply to partial disclosure of privileged information outside the context of
litigation”. In any event, on the facts, we are not persuaded that the
limited references to the conclusions of the advice, set out in paragraph 18
above, could amount to a partial waiver in any event. The factual situation
as regards waiver was very different in Kirkaldie v the Information
Commissioner and Thanet District Council, EA/2006/001, and on that
basis, even if we had agreed that the doctrine of partial waiver could apply
in these circumstances, we would still have reached a different conclusion.
The legal background
28. Section 1 of FOIA sets out a general right to information held by public
authorities:
1(1) Any person making a request for information to a public authority is
entitled –
(a) to be informed in writing by the public authority whether it holds
information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
29. Pausing there, it follows from the wording of section 1 that the right in
1(1)(b), to have information communicated, only applies if the public
authority holds the information. It clearly applies therefore to the legal
advice received in August 1994, since that is held by Merseytravel.
However, it appears it does not apply to the earlier advice apparently
received from counsel before February 1994 (referred to in the Clerk’s
Report of February 1994) since that advice is no longer held by
Merseytravel. In an email to the Tribunal on 21 December 2007, copied to
Mr McGoldrick, Merseytravel’s solicitors state: “Merseytravel has reviewed
its files and does not hold any other legal advice concerning this issue,
other than that which is the subject of this appeal.” Mr Mcgoldrick
expresses his “amazement” at this statement. We can understand his
surprise, given the apparent importance of the advice: as summarised by
the Clerk, it establishes “the lawful overriding obligation on the part of the
Passenger Transport Authority to finance the deficit on the Tunnels’
account as banker and in such circumstances might expect repayment”.
Given the underlying dispute, which relates to the obligation to repay, as
well as the propriety of the repayment, we might have expected the
authority to retain a copy. However, on the limited information before us, it
appears that they have not done so, and therefore the duty to disclose in
section 1 cannot apply to this earlier advice.
30. Turning to the advice which is held by the authority, section 42 of FOIA
provides:
(1) Information in respect of which a claim to legal professional
privilege or, in Scotland, to confidentiality of communications could be
maintained in legal proceedings is exempt information.
Having seen counsel’s opinion in dispute, it is clear that a claim for legal
professional privilege could be maintained in legal proceedings for it.
Section 42 is therefore engaged.
31. However, section 42 is a qualified exemption. Under section 2(2) of FOIA,
the duty to disclose information in “section 1(1)(b) does not apply if or to
the extent that
(b) in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in disclosing
the information.
32. The application of section 42 has been considered a number of times in
the relatively short life of this Tribunal, from Bellamy (EA/2005/23) through
to Pugh (EA/2007/0055), the most recent decision. Pugh contains a most
helpful review of these cases, which we gratefully adopt:
Legal Professional Privilege
26. What is LPP? In Bellamy v ICO and Secretary of State for Trade
and Industry [2006] UKIT EA 2005 0023 a differently constituted
Tribunal after reviewing the judicial authority in relation to LPP found:
9. In general, the notion of legal professional privilege can be
described as a set
of rules or principles which are designed to protect the confidentiality
of legal or
legally related communications and exchanges between the client and
his, her
or its lawyers, as well as exchanges which contain or refer to legal
advice which
might be imparted to the client, and even exchanges between the
clients and
their parties if such communications or exchanges come into being for
the
purposes of preparing for litigation. A further distinction has grown up
between
legal advice privilege and litigation privilege. Again, in general terms,
the former
covers communications relating to the provision of legal advice,
whereas the
latter, as the term suggests, encompasses communications which
might include
exchanges between those parties, where the sole or dominant
purpose of the
communications is that they relate to any litigation which might be in
contemplation, quite apart from where it is already in existence.
27. This Tribunal adopts the definition of LPP in Bellamy. Having
considered the
disputed information, the written submissions and all other evidence
before us the Tribunal finds that it is covered by LPP and therefore
agrees with the
Commissioner’s finding in the Decision Notice that the exemption is
engaged.
The public interest test and LPP
28. The Tribunal has considered the public interest test (PIT) in
relation to the s.42 exemption in a number of decisions. Bellamy
undertook a review of the case law on LPP and concluded at
paragraph 35
As can be seen from the citation of legal authorities regarding legal
professional
privilege, there is a strong element of public interest inbuilt into the
privilege
itself. At least equally strong countervailing considerations would need
to be
adduced to override that inbuilt public interest. ... it is important that
public
authorities be allowed to conduct a free exchange of views as to their
legal
rights and obligations with those advising them without fear of
intrusion, save in
the most clear case, of which this case is not one.
29. This finding has been largely adopted by this Tribunal in other
decisions - Shipton v Information Commissioner (EA/2006/0028),
Kitchener v Information Commissioner & Derby City Council [2006]
UKIT EA 2006 0044 and more recently, in Adlam v Information
Commissioner
(EA/2006/0079) where the Tribunal said at paragraph
63:
The real debate between the Appellant and the other parties concerns
whether the public interest in maintaining the exemption in section 42
in this
case outweighed any public interest in disclosure of the particular
information. The exemption is a qualified one. However, the Tribunal
in
Bellamy v Information Commissioner (EA/2005/0023) made it clear
especially at paragraph 35 that there was what it called “a strong
element of
public interest inbuilt into the privilege itself” and that “at least equally
strong
countervailing considerations would need to be adduced to override
that
inbuilt public interest.
30. In Shipton at paragraph 14 the Tribunal having recognised that
s.42 was not an absolute exemption stated that if the qualified nature
of the exemption is to have any meaning
There will be occasions when the public interest in disclosure will
outweigh the
public interest in maintaining privilege. This may arise, for example,
when the
harm likely to be suffered by the party entitled to legal profession
privilege is
slight, or the requirement for disclosure is overwhelming.
The harm may be slight where the privilege holder no longer has a
recognised
interest to protect. However where the particular issue raised by the
legal advice sought remains “live” this would render it particularly
sensitive – see Kitchener at [18].
31. Also recently In Gillingham v Information Commissioner
EA/2007/0028 at paragraph 16 after reciting most of the above
decisions on LPP the Tribunal
....... noted that, generally speaking, the public interest reasons for
maintaining
the legal professional privilege exemption are particularly strong. This
is
because the purpose of the privilege is to serve the administration of
justice and
to safeguard the right of any person to obtain entirely frank and
realistic legal
advice. The privilege is a fundamental human right long established in
the
common law and now supported both by European law and by Article
8 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms.
Nevertheless the balance of public interest must be assessed in each
case to
see whether in the particular circumstances the public interest in
maintaining
the exemption outweighs the public interest in disclosure.
32. At paragraph 8 the Tribunal stated that
A person seeking disclosure of material protected by legal
professional
privilege could argue that Parliament, by making the exemption in the
Act
qualified and not absolute, intended that legal professional privilege
could be
overridden without any particular difficulty. We do not consider that
this is what
Parliament intended. The test which we must apply is that laid down in
s2(2)(b),
namely, that in all the circumstances of the case the public interest in
maintaining the exemption outweighs the public interest in disclosing
the
information. This wording does not give any guidance as to the degree
of
importance of the public interest in maintaining a particular exemption.
On the
inherent importance of the exemption we take our cue from the
decisions
mentioned.
For the public interest in maintaining legal professional privilege not to
outweigh
the public interest in disclosure, the public interest in disclosure needs
to be
particularly strong, because proportionate reasons are required for not
upholding a fundamental human right.
33. Most recently in Kessler v Information Commissioner and HM
Commissioners for Revenue & Customs (
EA/2007/0043) the
Tribunal found in relation to Bellamy at paragraphs 53 to 56
53. This was an early decision from this Tribunal on the exemption
under
section 42 of FOIA and it is clear from the approaches taken in
subsequent
decisions that although there will be powerful reasons for maintaining
the
exemption because of its very nature as a protection from disclosure,
it is not an
absolute exemption, and care should be taken not to accord it higher
status.
There will be occasions when the public interest in disclosure will
outweigh the
public interest in maintaining the exemption.
54. We adopt what was said in Burgess v The Information
Commissioner and
Stafford Borough Council (EA/2006/0091) at paragraph 44;
“The Tribunal wants to make it clear that legal privilege is not an
absolute
[exemption] and furthermore, it is not enough in each case simply to
assert
that the Tribunal’s previous decision in Bellamy effectively makes the
[exemption] an absolute one: that is not correct.”
55. We agree with the Appellant’s assertion that by making section 42
a
qualified exemption subject to the public interest test in section 2(2)(b),
Parliament clearly rejected the view expressed in some judgments that
the
public interest in obtaining legal advice in confidence automatically
prevails over
almost any other interest. By the enactment of FOIA, Parliament has
done
exactly what the House of Lords in R v Derby Magistrates Court, ex
parte B
[1995] 4 All ER 526, per Lord Taylor, said was required to change the
absolute
nature of legal privilege, it has added a public interest balancing
exercise.
56. As to the application of that public interest balancing exercise, we
again
agree with the Appellant’s assertion that FOIA puts no onus on an
applicant to
show that the public interest in disclosure outweighed the public
interest in
maintaining the exemption. The Additional Party points out that “there
is no
suggestion anywhere within the section that any legal burden of proof
is
applicable at all.” The Information Commissioner did not, in our
opinion, place
any burden on the Appellant to show that the public interest lay in
favour of
disclosure.
31. In Pugh, the Tribunal went on to approve the development of the LLP
exemption set out above; and it rejected the argument that there had to be
exceptional factors for the public interest in disclosure to outweigh the
public interest in maintaining the exemption, emphasising the test set out
in section2(2)(b) FOIA, whether “in all the circumstances of the case, the
public interest in maintaining the exemption outweighs the public interest
in disclosing the information
”. However, in considering that balance “the
weight of judicial opinion referred to in the cases above gives the
exemption itself greater weight and to that extent may be described as
having an “inbuilt” weight requiring equally weighty public interests in
favour of disclosure, if the exemption is not to be maintained.”
32. It is clear from the wording of section 2(2)(b) that those seeking to
maintain the exemption must persuade the Tribunal that the factors they
rely on outweigh those in favour of disclosure. If the balance rests equally,
the Tribunal should order disclosure.
33. In considering the balance, the Tribunal can reach its own view, on the
evidence and submissions before it, both of which are fuller and more
detailed than that before the Commissioner. The Tribunal is not restricted
to looking for errors in the Commissioner’s Decision Notice.
34. Finally, we accept and adopt the four principles set out in paragraph 53 of
Pugh:
a. There is an assumption built into FOIA that disclosure of
information by
public authorities on request is in the public interest in order to
promote
transparency and accountability in relation to the activities of
public
authorities. The strength of that interest and the strength of
competing
interests must be assessed on a case-by-case basis.
b. The passage of time since the creation of the information may
have an
important bearing on the balancing exercise. As a general rule,
the public
interest in maintaining an exemption diminishes over time.
c. In considering the public interest factors in favour of
maintaining the
exemption, the focus should be upon the public interests
expressed explicitly or implicitly in the particular exemption
provision at issue.
d. The public interest factors in favour of disclosure are not so
restricted and can take into account the general public interests
in the promotion of
transparency, accountability, public understanding and
involvement in the democratic process.
The Balance of Public Interest
35. What then are the factors that favour disclosure in this case? Mr
McGoldrick urges a number of points: in support of the general argument
for transparency and accountability, he argues “If [the opinion] is kept
secret from the general public then people cannot take an informed view
on what has been done and why it has been done.” He argues “it is in the
public interest that people know whether the actions and motives of an
elected body are consistent with the facts. … If a public body can take
actions that appear to be against the law and then justify them by
reference to an unpublished “opinion”, then this is not democratic. There
are very few people with the financial resources to try and take on a public
body or the District Auditor in court.”
36.  He points out that the opinion has had “material” effects: “On the basis of
what the Authority said that the Opinion said, they were able to take
substantial sums from the toll income … forecast to reach about £70
million. This had a major effect on the finances of the Tunnels. It was
material to whether a toll increase was required or not. It was probably
also crucial in the Mersey Tunnel Bill becoming law in 2004 despite wide
opposition from the local public, many local MPs and local newspapers”.
37. We do not have to accept the specifics of what Mr McGoldrick says to
accept that these are weighty arguments. The IC points out, in answer to
the argument about lack of democracy, that Mr McGoldrick did in fact
challenge the accounts before the District Auditor, who has confirmed that
the payments were properly and lawfully made. The availability of
alternative methods of challenge lessens the argument for public
accountability. However, while a factor, we note that the District Auditor’s
remit is limited: he rules on legality and propriety, that what was done was
done properly; but he does not rule on the merits or desirability of what
was done, or whether alternative courses of action may also, properly,
have been available. (For completeness, we repeat our earlier view that
the fact that Mr McGoldrick has seen the opinion, on conditions of secrecy
imposed by the District Auditor, has no bearing, either way, on the public
interest test. It is simply irrelevant to FOIA.)
38. The IC also argues that because some of the opinion has been published,
the public interest in seeing it is diminished. This seems to us an
argument that cuts both ways: to the extent that it is already in the public
domain, then the argument for keeping the remainder confidential is
weakened. It will inevitably, as it has in this case, give rise to suspicion
that some material and significant point is being held back.
39. An issue on which all parties addressed us is whether the opinion can be
described as stale: Mr McGoldrick says that in view of its age, 10.5 years
in January 2005, the date of the request, the argument for preserving legal
privilege is much weaker. Both The IC and Merseytravel rebut this. As Mr
Barclay’s evidence clearly shows, the opinion is still relied on as the
justification for treating the original levy on the district councils as a loan,
which must now be repaid: the opinion is still instrumental in the annual
repayments of £3.6 million, continuing to 2014/15. We agree that the
opinion is still live; the advice is currently being implemented.
40. Nor are we persuaded by Mr McGoldrick’s arguments that the issues
addressed in the opinion have been rendered academic by the passage of
the Mersey Tunnels Act, with its clear power to make the repayments. We
accept Merseytravel’s argument, in their submission, on this point: “neither
the 2004 Act nor the Special Report [of the House of Lords] says anything
about whether the payments made by District Councils between 1988 and
1992 are to be treated as loans. Merseytravel continue to treat those
payments as loans, not because the 2004 Act or the Special Report
require it to do so, but in reliance on the…. 1994 advice. “.
41.  What of the arguments in favour of maintaining the exemption?
Merseytravel’s submission sets out clearly and powerfully the “inbuilt
public interest that is inherent in legal professional privilege itself. There is
a strong public interest in ensuring that everyone is able to take legal
advice about their rights and obligations, from fully informed legal
advisors. Parties should not be deterred by the fear that information they
provide to their legal advisors may be made public; or that the advice itself
may come into the public domain and may reveal weaknesses or
difficulties in the client’s legal position. It is submitted that these
considerations have particular force where the client is a public authority.
The maintenance of legal professional privilege for advice given to public
authorities helps to ensure that those authorities act within the law.
Ultimately, this contributes to the maintenance of the rule of law.”
42.  We accept, consistent with the earlier tribunal cases referred to above,
the weight that must be given to legal professional privilege, but we have
reservations about the full force of some of the points argued. We
question whether a public official, concerned to see that his authority
acted within the law and therefore seeking advice, would really be
inhibited from spelling out the full picture for fear that publication might
eventually ensue. We have certainly seen no evidence to that effect, and
it would seem self-defeating from the client’s point of view. The very
points that, on this argument, they might feel inhibited from revealing, are
presumably the very points on which they most wish to seek advice. It is
hard to see how an officer could be criticised, even if the weak points are
later revealed, for seeking advice to help put them right, to ensure, as
Merseytravel put it, “that those authorities act within the law”. We discount
the possibility that a public official might seek advice to help his authority
act outside the law; and if that were to occur, it would be hard to see the
public interest in keeping such advice confidential. Nor can we see that
any professional lawyer would temper their advice for fear of later
publication: that would again be self defeating, to both client and lawyer, to
say nothing of the lawyer’s professional obligations.
43. We can see such reservations would be a factor in the context of litigation,
anticipated or actual, if only because legal advice will often involve not just
merits, but also tactical considerations; disclosure at a time when litigation
is in prospect would upset the delicate balance, evolved by the courts
over centuries, of fairness between adversaries. It would be wholly unfair if
one side, a public authority, could be obliged to reveal their legal advice,
while their private opponent was not. But on the facts of this case, we are
reassured by Merseytravel’s assertion to Mr McGoldrick (24 February
2005) : “first, it may be that you propose to mount a legal challenge.
However, any such claim would almost certainly be time barred and
would, in any event, be bound to fail on the basis that the decisions
challenged are non-justiciable”. In fact, so far as we can see, no one has
at any time suggested that litigation was ever even remotely in prospect.
44.  FOIA is of course purpose blind. That none of the parties propose
litigation is neither here nor there: publication of the advice to MTUA would
be publication to the world, and its use in litigation can never be ruled out.
But the age of the advice does become significant here. We do not know
what the limitation period might be for any legal action, but whether it has
passed or not, the fact that the actions taken by the authority in reliance
on the opinion for some 10 years (at the time of the request) have not
faced any legal challenge does reinforce the view, apparently of all
parties, that litigation is unlikely; certainly, it is not in prospect.
45.  We are left with the central argument of the inbuilt weight that must be
given to legal professional privilege. Given the importance of the principle,
it is perhaps surprising, at least to lawyers, that Parliament did not make
the exemption an absolute one. But it has not, and we should be careful
not to erect a qualified privilege into, in practice, an absolute one, through
deference to the importance of legal privilege. Any breach in the principle
of privilege by the Tribunal will involve, if the IC and Merseytravel are right,
the inhibiting effects of possible future disclosure which they describe.
They are serious consequences and a Tribunal could never, in all
probability, order disclosure if their argument is given full force. One way
of squaring this circle is to accept the way the point was put in paragraph
25 of the Decision Notice by the IC, quoting Merseytravel’s argument: “it
also argued that legal advice must be fair, frank and reasoned and be able
to highlight both strengths and weaknesses of an authority’s position and
possible courses of action. If legal advice was routinely disclosed public
authorities would be reluctant to seek advice as it could damage their
position; this in turn would lead to a poorer quality of decision making by
public authorities rendering them less capable of complying with their legal
obligations.” Routine disclosure might lead to those consequences
(though even then we are sceptical, as discussed above.) But disclosure
under FOIA can never be routine. The public interest test balance, with its
inbuilt weight in favour of maintaining the exemption, must be struck in the
particular circumstances of each case. We are not persuaded that there
will be a significant inhibiting effect from disclosure in this case; nor from
the next case, nor from others that may follow. Each will have to be
decided on its individual merits and disclosure will only occur if a heavy
hurdle – the inbuilt weight - is overcome.
46. The circumstances here are striking. A public authority has pursued a
settled course over a period of many years, involving tens of millions of
pounds, and in effect preferring one sector of the public over another in
circumstances where legitimate and serious questions can readily be
asked about both the power to make the payments and the obligation to
do so. In making those remarks we are not to be taken as expressing any
view, or questioning in any way, the propriety or legality of Merseytravel’s
actions. Our concern is in the public interest in transparency. It is striking
that, when Merseytravel addressed that public concern, on their website in
2002, and stated “Merseytravel has though a legal duty to use toll income
to repay district councils for financing the Tunnel losses which occurred
between 1988 and 1992”, they were unable to answer clearly Mr
McGoldrick’s simple question: “which act refers to this legal duty?” Their
reply came down to counsel’s opinion. Hence this appeal.
47.  We have found counsel’s opinion is still live; it is still relied on. However,
it is not recent. It seems to us that different considerations apply to a
request for a recent opinion, a request made before it can be said, as in
this case, that the authority has clearly embarked on a settled course of
action. There would be tactical questions involved, and the prospect of
challenge through other routes (legal, the ombudsman, the auditor) is
more real when action is first taken, than when it has continued for years.
We do not have to lay down a benchmark for “recent”; but 14 years is
enough to take this opinion out of that category. In Kitchener, a barrister’s
opinion, which was 6 years old, was described by the Tribunal as “still
relatively recent”. But the facts of that case were very different. It
involved childcare proceedings, where there is huge sensitivity over
publication: very different to the situation here, which is one of public
administration, with no personal overtones at all.
48. In Kessler, the legal advice in dispute was provided sometime between
January and March 2006, the policy to which the advice related was
announced in March 2006, and the request made in April 2006. Mr
Kessler’s argument was that once the policy decision had been taken,
73 … disclosure would not impair any decision making process. [The
Tribunal] agree with the general principle that where legal advice has
served its purpose there may be a stronger public interest argument in
favour of disclosure, particularly, if, in fact no harm would be created.
We do not consider however that to be the position here. … having
seen the advice it is clear that it may be relevant to other issues.
74. The passage of time is one factor we identified above as being a
factor in favour of disclosure, but we have concluded that it is not one
that has much weight attached in this case bearing in mind the
relatively recent decision and possible further developments.”
If nothing else, that quotation emphasises how fact specific the balancing
exercise is. Weeks was “relatively recent” in Kessler; 6 years was in
Kitchener. In our case, the passage of time favours disclosure; that the
opinion is still live favours maintaining the exemption.
49. The context of this case seems significant to us in applying the public
interest test. The doctrine of legal professional privilege is at its most
important perhaps in the criminal context, such as Gillingham, where
prosecutions were under consideration. Childcare cases must follow a
close second. Can we say that the doctrine has less “inbuilt weight” in
some situations than others? Certainly, it is always important for the
maintenance of the rule of law; but there do seem some situations where
the human rights aspects of the doctrine, stressed in Gillingham, are less
striking. This is one such case. If it is permissible to differentiate between
the weight given to privilege in different contexts – and we think it is, given
that the balance must be struck “in all the circumstances of the case” –
then a question of pure public administration, such as the one in this case,
where no significant personal interests are involved (we discount the cost
to the individual of any increase in tolls from the loan repayments: MTUA
are a representative body) is at the opposite end of the spectrum of
importance to, for example, legal advice in a criminal or childcare case.
50. In reaching that conclusion, we reject Merseytravel’s argument, quoted
above, that the doctrine of privilege is particularly important for public
authorities. We are not persuaded that they would suffer a significant
inhibiting effect from seeking advice by the fear of eventual, possible
publication. We have also considered the view of the tribunal in Pugh, at
paragraph 36: “The Ministry of Defence submits that the reasons why
there is a strong public interest in maintaining the exemption under section
42 are clear, and having regard to those reasons, there is no basis for
drawing any distinction between the position of natural persons, and the
position of bodies that are FOIA public authorities. With this the Tribunal
agrees.” Our position is slightly different: we accept that public authorities
are entitled to the protection of legal professional privilege on the same
basis as natural persons (so the local authority in Kitchener, or the CPS in
Gillingham, could rely on the doctrine attracting its full inbuilt weight when
seeking to maintain the exemption), but that if the issues addressed in the
advice do not affect individuals significantly, there is less inbuilt weight
attaching to the exemption.
51. Finally, we come to strike the balance in the particular circumstances of
this case. Weighed in the round, and considering all the aspects
discussed above, we are not persuaded that the public interest in
maintaining the exemption is as weighty as in the other cases considered
by the Tribunal; and in the opposing scales, the factors that favour
disclosure are not just equally weighty, they are heavier. We find, listing
just the more important factors, that considering the amounts of money
involved and numbers of people affected, the passage of time, the
absence of litigation, and crucially the lack of transparency in the
authority’s actions and reasons, that the public interest in disclosing the
information clearly outweighs the strong public interest in maintaining the
exemption, which is all the stronger in this case because the opinion is still
live. To quote Bellamy : “there is a strong element of public interest inbuilt
into the privilege itself. At least equally strong countervailing
considerations would need to be adduced to override that public interest”.
In our judgement, the countervailing considerations adduced here are not
equally strong; they are stronger. The opinion should be disclosed.
52. Our decision is unanimous.
Signed
Humphrey Forrest
Deputy Chairman                                                         Date 15 February 2008


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