A local resident’s concerns about a major redevelopment of a Cheshire town threw into sharp perspective the difficult balance that has to be struck between commercial confidentiality, legal professional privilege (LPP) and the public’s ‘right to know’.
The local authority had for more than a decade been debating controversial plans to redevelop the town centre but work had still not started. A local woman had successfully complained to the Information Commissioner (ICO) after she was dissatisfied with the local authority’s response to her request for information under the Environmental Information Regulations.
Following the ICO’s decision, the local authority disclosed substantial documentary material to the woman but redacted certain passages on the basis that it had a right to confidentiality in respect of commercially sensitive matters and advice that it had received from a leading firm of solicitors.
In allowing the local authority’s appeal, the First-tier Tribunal (FTT) noted that the legal advice it had received was undoubtedly subject to LPP. Despite the woman’s concerns that legal advice was being used as ‘a cloak’ to cover up the facts, the issue of LPP had deserved far more weight than had been given to it by the ICO.
Balancing the public interest in transparency and public accountability against the countervailing interest in public authorities generally being able to obtain legal advice in confidence, the FTT found that LPP prevailed and that the local authority had, following the ICO’s decision, met its disclosure obligations.
Having read the full terms of the legal advice, the FTT found that its public disclosure would do very little to reassure local residents that correct procedures had been followed. The FTT noted, “It seems to us that knowledge of the fact that external advice from a very well-known firm of solicitors had been sought would itself provide that comfort to those seeking such reassurance." The local authority’s arguments in respect of commercial confidentiality were also upheld.