Factual and Procedural Background
This appeal concerns a request by the Plaintiff for disclosure of legal advice obtained by the Defendant Council regarding statutory nuisance powers related to emissions from neighbours' wood-burning stoves within a designated smoke control area under the Clean Air Act 1993 (CAA). The Plaintiff contended that the emissions included fumes and gases, thus potentially falling under the Environmental Protection Act 1990 (EPA), whereas the Council relied on legal advice concluding that only the CAA applied. The Council provided this advice confidentially to the Second Respondent, the Local Government Ombudsman (LGO), who refused the Plaintiff's request for disclosure citing exemptions under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR).
The Plaintiff appealed the LGO's refusal to the Information Commissioner (IC), who issued a decision notice in March 2012 ruling that the applicable regime was the EIR and that the exception under regulation 12(5)(b) (course of justice) applied, maintaining the refusal to disclose the advice. The Plaintiff then appealed to the First-tier Tribunal (FTT), which dismissed the appeal in October 2012, upholding the IC's decision on grounds including legal professional privilege (LPP) and public interest balance.
The Plaintiff subsequently appealed to the Upper Tribunal with permission. The Upper Tribunal Judge conducted a full review, including an oral hearing, and determined that the FTT's decision was wrong in law and set it aside, re-making the decision as detailed below.
Legal Issues Presented
- Whether the exception under regulation 12(5)(b) of the Environmental Information Regulations 2004, concerning adverse effect on the course of justice, was engaged by disclosure of the legal advice.
- Whether the exception under regulation 12(5)(d), relating to confidentiality of the proceedings of a public authority, was excluded by regulation 12(9) and if not, whether it was engaged.
- Where exceptions are engaged, what is the outcome of the public interest balancing exercise regarding disclosure of the advice.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff contended that the emissions from neighbours included fumes and gases within the EPA definitions and that the Council was obliged to control these under the EPA, not just the CAA.
- The Plaintiff argued that the Council and/or the LGO misrepresented the content of the legal advice by characterising the complaint as concerning smoke alone, thus misleading about the applicability of the EPA.
- The Plaintiff maintained that the refusal to disclose the advice was unjustified and that the public interest favored disclosure, especially to clarify alleged misrepresentations.
- The Plaintiff opposed the LGO's change of position during the appeal regarding reliance on regulation 12(5)(d).
Respondents' Arguments
- The Council and LGO argued that the legal advice was subject to legal professional privilege, and its disclosure would adversely affect the course of justice by weakening LPP and causing unfairness.
- They contended that the Council's characterisation of the emissions as smoke was accurate and that there was no misrepresentation or ignoring of the legal advice.
- The LGO initially relied on regulation 12(5)(d) but did not press this point before the FTT; later, during the Upper Tribunal proceedings, the LGO sought to rely on it again.
- They submitted that disclosure would create an unjust asymmetry in potential litigation and undermine the confidentiality essential to the LGO's investigatory function.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Gotha City v Sotheby's [1998] 1 WLR 114 |
Confidentiality and privilege of documents provided to third parties under confidentiality terms. |
Supported the principle that legal advice provided confidentially to the LGO retained legal professional privilege. |
| DCLG v IC and Robinson [2012] UKUT 103 (AAC); [2012] 2 Info LR 43 |
Legal professional privilege's role in protecting full and frank legal advice; consideration of whether disclosure adversely affects the course of justice. |
Confirmed no absolute rule that disclosure of privileged information necessarily adversely affects the course of justice; required case-specific analysis. |
| Reg v Derby Magistrates Court, Ex p. B [1996] AC 487 |
Fundamental rationale for legal professional privilege as essential to administration of justice. |
Reiterated the absolute nature of LPP and its importance to the administration of justice. |
| R (Prudential) v Special Commr of Income Tax [2013] 2 AC 185 |
Supreme Court's endorsement of the nearly absolute nature of legal professional privilege. |
Supported the high threshold for any exceptions to LPP. |
| Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 |
Distinction between waiver by reliance on content vs. effect of privileged documents. |
Applied to determine that the Council had not waived privilege by referencing the effect but not content of the advice. |
| ACD (Landscape Architects) Ltd v Overall [2011] EWHC 3362 (TCC) |
Adoption of distinction regarding waiver of privilege as per Dunlop Slazenger. |
Confirmed that reliance on content constitutes waiver, reliance on effect does not. |
| DBERR v IC and Friends of the Earth (EA/2007/0072) |
Timing for considering evidence in FOIA appeals; events after compliance deadline generally excluded. |
Supported the FTT's approach to exclude post-deadline correspondence, though the Upper Tribunal considered later correspondence for public interest balance. |
| Foreign and Commonwealth Office v IC (EA/2007/0092) |
Public interest in disclosure where there is reason to believe an authority misrepresents legal advice. |
Guided the court's assessment of the significance of alleged misrepresentation in public interest balancing. |
| Griffiths v Pembrokeshire County Council [2000] Env LR 622 |
Interpretation of "smoke" in statutory nuisance context including smell. |
Referenced by the Council to support its position on the proper legislative regime. |
| Export Credits Guarantee Department v Friends of the Earth [2011] 1 Info LR 1296 |
Presumption in favour of disclosure under EIR and operation of public interest test. |
Supported the court's application of the presumption in favour of disclosure despite exceptions. |
Court's Reasoning and Analysis
The Upper Tribunal Judge undertook a detailed legal analysis of the applicability of the exceptions under the Environmental Information Regulations 2004, focusing on regulations 12(5)(b) and 12(5)(d), and the exclusion under regulation 12(9).
Regarding regulation 12(5)(b), the court rejected the FTT's reasoning that disclosure would adversely affect the course of justice through weakening the doctrine of legal professional privilege (LPP) generally. The Judge emphasized that LPP's protection aims to ensure clients can obtain full and frank legal advice and that disclosure in this case would not realistically deter local authorities from seeking such advice or undermine public confidence in LPP. However, the court accepted that disclosure would cause some unfairness to the Council by exposing the precise terms of its privileged legal advice, which was a factor engaging the exception, though with limited weight.
On regulation 12(5)(d), the Judge found that the LGO's statutory obligation to maintain confidentiality of information obtained during investigations, reinforced by section 32(2) of the Local Government Act 1974 and the LGO's express confidentiality agreement, meant disclosure would adversely affect the confidentiality of the LGO's proceedings. The court concluded that regulation 12(5)(d) was engaged and not excluded by regulation 12(9), as the legal advice related primarily to the interpretation and effect of legislation rather than information directly on emissions.
In assessing the public interest balance, the court recognized the importance of transparency and the general public interest in understanding the construction and effect of environmental legislation. It also noted the confusion caused by inconsistent explanations from the Council and LGO about the legal advice. Nevertheless, the court found that the public interest in maintaining the LGO's ability to obtain confidential, privileged legal advice for effective investigations and the unfairness to the Council outweighed the public interest in disclosure.
The court also addressed procedural issues, including the admissibility of post-request correspondence in the public interest assessment and the question of waiver of privilege, concluding there was no waiver as the Council had only referred to the effect of the advice, not its content.
Holding and Implications
The Upper Tribunal SET ASIDE the First-tier Tribunal's decision and re-made the decision of the Information Commissioner, ruling that the Local Government Ombudsman is not required to disclose the legal advice sought by the Plaintiff.
The decision affirms that legal professional privilege and confidentiality obligations under the Local Government Act 1974 can justify withholding environmental information under the EIR exceptions, provided a proper public interest balancing exercise is conducted. The ruling clarifies the scope of exceptions under regulations 12(5)(b) and 12(5)(d), particularly concerning the nature of information "relating to emissions" under regulation 12(9).
While recognizing the public interest in transparency, the court prioritized the confidentiality necessary for effective public authority investigations and the protection of privileged legal advice. No new precedent was established beyond the application of existing principles to the facts of this case.