Husbands v Information Commissioner (16 February 2007) [2007] UKIT EA_2006

Appeal Number: EA/2006/0048

Appeal Number: EA/2006/0048

Freedom of Information Act 2000 (FOIA)

Decision Promulgated 16 February 2007

BEFORE

INFORMATION TRIBUNAL DEPUTY CHAIRMAN

Chris Ryan

and

LAY MEMBERS

Andrew Whetnall

Gareth Jones

Between

Dr CHRISTOPHER T HUSBANDS

Appellant

and

INFORMATION COMMISSIONER

Respondent

Decision

We have decided, as a preliminary issue, that part of the information requested is not exempt
from disclosure under FOIA section 42. It remains to be decided whether it should
nevertheless be treated as exempt under FOIA section 41 and, if so, whether the public
interest in maintaining that exemption outweighs the public interest in disclosure. That issue
was not investigated by the Information Commissioner in the course of his investigation into
the Appellant’s complaint and we accordingly direct the parties, pursuant to Rule 14 of the
Information Tribunal (Enforcement Appeals) Rules 2005, to lodge with the Tribunal by no later
than [date 21 days after promulgation] written submissions on the question of whether section
41 applies to the non-privileged material and, if so, on the application of the public interest
test

Appeal Number: EA/2006/0048

Reasons for Decision

Introduction

1. This Appeal concerns a request by the Appellant for certain information contained in
bills for legal services delivered to Cardiff University ("the University") in relation to
employment disputes between the University and two of its academic staff. In the
case of one of those disputes the Appellant now accepts that the copy invoices
previously provided to him contained all the information that exists as to the detailed
work in respect of which the invoice was raised. As the matter comes before this
Tribunal, therefore, the Appellant's case relates to the bills delivered in respect of only
one employment dispute, being internal disciplinary proceedings and an Employment
Tribunal case involving an individual who has been referred to throughout as
Professor B. We understand that the case has not yet been concluded.

2. The central issue is whether the information requested is covered by legal
professional privilege, so that it falls within the exemption provided by section 42 of
the FOIA and, if so, whether the public interest in maintaining the exemption is
outweighed by the public interest in having the information disclosed. A secondary
issue is whether the information falls within the exemption provided by section 41 of
the FOIA (confidential information) and, if so, whether the public interest in
maintaining that exemption is outweighed by the public interest in having the
information disclosed.

The relevant Sections of the FOIA.

3. Section 1 of the FOIA provides that any person making a request for information to a
public authority is entitled to be informed whether it holds information of the
description specified in the request, and, if so, to have that information communicated
to him or her.

4. That broad right to disclosure is modified by section 2, which provides:

“(2) In respect of any information which is exempt information by virtue of any
provision of Part II, section 1(1)(b) does not apply if or to the extent that-
(a) the information is exempt information by virtue of a provision
conferring absolute exemption, or

(b) in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in disclosing
the information.”

Appeal Number: EA/2006/0048

5. Both sections 41 and 42 are qualified exemptions, so that if we decide that they apply
we have to go on to apply the test set out in section 2(2)(b) by deciding whether the
public interest in maintaining the relevant exemption outweighs the public interest in
disclosure.

6. 42 of the FOIA is as follows:

“ (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.”

7. Section 41 of the FOIA is as follows:

“(1) Information is exempt information if-
(a) it was obtained by the public authority from any other person (including
another public authority), and

(b) the disclosure of the information to the public (otherwise than under this
Act) by the public authority holding it would constitute a breach of confidence
actionable by that or any other person.”

The request for information

8. The request for information in respect of Professor B. was contained in a letter from
the Appellant dated 7 January 2005 in which he explained that he was writing “on
behalf, and with the authority, of Professor B” and that he wished to “exercise my
right and Professor [B]’s right, as joint and several applicants” under the FOIA to be
provided with:

"documentary or other appropriate evidence to show all monies, itemised as
individually billed by the payee or payees concerned, spent by Cardiff
University for any external legal advice (including that from solicitors, legal
counsel, or whomever) in connection with all aspects of the ongoing case of [
Professor B’s] suspension by Cardiff University since 22 January 2004; this
request includes all monies spent since that date or from any earlier date
upon which Cardiff University may have received external legal advice"

9. By letter dated 2^nd February 2005 the University confirmed that it held information
detailing the University's expenditure on external legal fees in respect of the case of
Professor B but that it had decided not to disclose the information on the grounds that
it fell within section 42 of the FOIA because, it contended, legal fees were covered by
legal professional privilege. The University acknowledged that in applying the
exemption it was required to balance the public interest in withholding information
against the public interest in disclosing it, but concluded that there was no public

Appeal Number: EA/2006/0048

interest in disclosing the information the Appellant had requested. The Appellant
asked for an internal review of that decision in a letter dated 5^th February 2005 in
which he challenged the University's argument that legal professional privilege
applied because, he said, "Legal professional privilege covers the substance of
confidential legal advice, not the amount of money spent in obtaining it - which is
solely what my request had been for." He also said that there were strong public
interest reasons for disclosing information about how much money the University had
spent on the dispute in question.

10. By letter dated 18th February 2005 the Director of Corporate Services and University
Secretary wrote to the Appellant and informed him that he had completed the internal
review and had concluded that the original decision to reject the request for
information had been correct in that the bills of cost in question were privileged and
that the public interest in withholding information relating to the expenses incurred by
the University in relation to the dispute involving Professor B outweighed the public
interest in releasing the information.

The complaint to the Information Commissioner

11. The Appellant presented a complaint to the Information Commissioner on 1 April
2005. In the course of responding to a request from the Information Commissioner
for further information, as part of his investigation into the complaint, the University
stated that it wished to rely on an additional ground to justify its refusal to release the
information requested, namely, the exemption provided by section 41 of the FOIA in
respect of information obtained in confidence from a third party.

12. The complaint was received at a time when the Information Commissioner's office
was evidently very busy and it was unfortunately not until the 5 July 2006, some 15
months later, that it issued a Decision Notice on the matter. The Decision Notice
recorded that Professor B had been suspended by the University and had presented
a case against the University to the Employment Tribunal, which was still pending at
the date when the request was received. It also recorded that the University had
agreed to release to the Appellant copies of the legal bills presented in respect of
another employment dispute because in that case the matter had been concluded,
with the result that the public interest in maintaining the legal professional privilege
exemption was thought to bear less weight. However, in the case of Professor B the
University considered that disclosure of the details of legal fees incurred in
connection with both internal disciplinary proceedings and external tribunal
proceedings would disadvantage it in the context of continuing litigation.

13. The Information Commissioner, having apparently inspected the bills in question,
recorded that the Appellant had made it clear that he required a detailed breakdown

Appeal Number: EA/2006/0048

of legal costs incurred by the University, not simply a global figure for the amounts
charged. On that basis he decided that the information requested fell within the
exemption provided by section 42 of the FOIA. He expressed the view that legal
professional privilege applied to bills of costs which contained a detailed narrative of
work carried out, as well as figures for the amount charged. Having concluded that
the section 42 exemption was therefore engaged, the Information Commissioner went
on to consider the public interest arguments for and against maintaining the
exemption. He acknowledged that there was a public interest in the way that
educational establishments spent public money but considered that there was a
strong generic public interest in maintaining the section 42 exemption based on the
importance of clients being able to communicate with their legal advisers in
confidence. In addition he said that there was a specific disadvantage likely to be
suffered by the University in that disclosure of a detailed breakdown of legal charges
could be advantageous to Professor B, in disclosing information on tactics and
strategies adopted in pursuing the University's case. He concluded that the public
interest that advice on matters such as disciplinary procedures and employment
disputes should be obtained without the prospect of details of the work being
disclosed outweighed the public interest in disclosure. In relation to the section 41
exemption the Information Commissioner expressed the view that, in the light of his
conclusion under section 42, there was no need for him to consider the separate,
confidential information, exemption.

The appeal to the Tribunal

14. The Appellant lodged an appeal against the Decision Notice on 24 July 2006. In the
Grounds of Appeal which accompanied his Notice of Appeal he argued that the
section 42 exemption was not engaged and that, if it was, the Information
Commissioner should have decided that the public interest in disclosing the
information requested outweighed the public interest in maintaining the exemption.
He also included arguments in respect of section 41, in case, despite the decision of
the Information Commissioner not to deal with that aspect of the case, it might be
resurrected in the course of the Appeal.

15. By agreement between the parties the Appeal has been disposed of without a
hearing, on the basis of detailed written submissions and an agreed bundle of
documents.

16. There appears to be some confusion about precisely what information the Appellant
has been seeking. The Information Commissioner has pointed out that the original
request was for itemised accounts that would provide the Appellant with a detailed
breakdown of the work that was carried out by the University’s lawyers. That
certainly appears to have been the Appellant’s approach when he made the original

Appeal Number: EA/2006/0048

request but it is clear that, as the case reaches us, his position is that, while he would
prefer to see what he has described as the “constituent amounts” going to make up
the bill and justify the charge, he would understand a more limited disclosure if we
decide that this is necessary in order to protect privileged information. Indeed, in his
written submission to us he has criticised the Information Commissioner on the
ground that, if he considered that the original request was so broad that it would
encompass material to which privilege would attach, he should have ordered partial
disclosure by requiring the bills to be released with any sensitive material redacted.
In fact he goes so far as to concede that the extent of redaction might have been
such that the only information made available to him would have been the amounts
charged in each of the invoices in question. However, he argues that if we decide to
uphold privilege in principle we should not apply a blanket exemption to the invoices
in question but should consider whether each item of information set out in them is
entitled to be protected under the law of privilege. The Information Commissioner
argues that he should not be criticised for failing to reach a decision on whether a
redacted version might have been released because the Appellant was plainly
seeking disclosure of the detailed, itemised account. However he has also submitted
that if we do order limited disclosure we should ensure that whatever is released is of
a “neutral nature”.

17. The Tribunal’s powers on hearing an Appeal are set out in FOIA section 58, which is
in the following terms:

“(1) If on an appeal under section 57 the Tribunal considers—

(a) that the notice against which the appeal is brought is not in accordance
with the law, or

(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could
have been served by the Commissioner; and in any other case the Tribunal
shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which
the notice in question was based”.

We therefore have wide powers to review the Information Commissioner’s decision
and to reach our own conclusion on the appropriate level of disclosure. We do not
think that it is right to say, as the Information Commissioner appears to have done,
that the insistence by an Appellant that he be given full disclosure precludes the
ordering of a more limited disclosure, if that is thought appropriate in all the

Appeal Number: EA/2006/0048

circumstances of a case. In the present case we are further encouraged to follow
that course in view of the Appellant’s current position, as mentioned above, which
seems to be that, while his first preference would be to have all the information
requested, he understands that it may be necessary to disclose the bills in redacted
form.

The questions for the Tribunal

18. Against that background we have to answer the following questions in order to
determine the Appeal:

a. Was the information Commissioner wrong in concluding that the information
requested was covered by the qualified exemption under section 42, on the
ground that it was subject to legal professional privilege;

b. If the Information Commissioner was right on the first question should he
nevertheless have ordered the information to be disclosed on the basis that
the public interest in maintaining the exemption did not outweigh the public
interest in disclosing the information;

c. If and to the extent that any information set out in the bills should not be
protected from disclosure on the grounds set above did that information fall
within the exemption provided under section 41 FOIA and, if and to the extent
that it did, would the public interest in maintaining that exemption outweigh
the public interest in having the information disclosed.

19. Before we deal with those substantive issues we wish to deal with a preliminary
issue. The Information Commissioner alleges that the Appellant’s request for the
information was made on behalf of Professor B and that he was not therefore a
person who could be said to be disinterested in the litigation to which the invoices
relate. The basis for the allegation is the references made to Professor B in the
original letter quoted from in paragraph 8 above. The Appellant has argued that the
motive of the person making a request for information ought to be irrelevant and has
made the point that if it was a relevant consideration then those making requests in
the future would simply conceal the reason for the request. We agree with him. We
do not think that the motive which may lie behind a request for information should
influence our decision. If we order disclosure of the information requested we must
do so on the basis that it is disclosed to the public as a whole, and not just to the
person who made the original request. It is therefore the consequences of the
disclosure that we must consider, not the Appellant’s reasons for making the request
in the first place.

Appeal Number: EA/2006/0048

20. We will deal with each of the issues in the order in which we have set them out in
paragraph 18 above.

Is the information covered by legal professional privilege?

21. We have been provided with a large number of authorities on this issue and extensive
written submissions. We believe that we should start with a recent statement on the
subject by the House of Lords. It was made in the in Three Rivers DC and ors v
Governor and Company of the Bank of England (no 6) [2004] UKHL 48 and appears
in the judgment of Lord Scott. After reviewing case law authority from the courts of
this country and several Commonwealth jurisdictions he said:

“None of these judicial dicta tie the justification for legal advice privilege to the
conduct of litigation. They recognise that in the complex world in which we
live there are a multitude of reasons why individuals whether humble or
powerful, or corporations, whether large or small, may need to seek the
advice or assistance of lawyers in connection with their affairs; they
recognise that the seeking and giving of this advice so that the clients may
achieve an orderly arrangement of their affairs is strongly in the public
interest; they recognise that in order for the advice to bring about that
desirable result it is essential that the full and complete facts are placed
before the lawyers who are to give it; and they recognise that unless the
clients can be assured that what they tell their lawyers will not be disclosed
by the lawyers without their (the clients’) consent, there will be cases in which
the requisite candour will be absent. … the dicta to which I have referred all
have in common the idea that it is necessary in our society, a society in which
the restraining and controlling framework is built upon a belief in the rule of
law, that communications between clients and lawyers, whereby the clients
are hoping for the assistance of the lawyers’ legal skills in the management of
their (the clients’) affairs, should be secure against the possibility of any
scrutiny from others, whether the police, the executive, business competitors,
inquisitive busybodies or anyone else”

22. It is clear from earlier sections of the judgment that the passage quoted was intended
to provide broad guidance on the policy reasons for the continued existence of legal
advice privilege in the face of some doubts on the point that had been expressed in
the court below. It represents a recent statement of the law on this subject emanating
from the most authoritative source available. We believe that we should treat it as
the basis upon which we should decide this aspect of the Appeal. In other words we
should consider whether disclosure of the information set out in the bills in question
would expose to public scrutiny any of the facts placed before the University’s
lawyers with a view to obtaining legal advice, or any part of the advice itself. We also

Appeal Number: EA/2006/0048

take due note of the guidance provided in the Court of Appeal decision in Belabel v
Air India [1988] 2 All E R to the effect that privilege is capable of attaching to a broad
range of materials created as part of the necessary exchange of information between
solicitor and client in the course of handling a legal transaction or dispute, and not just
to communications that specifically seek or convey legal advice.

23. We should add, for completeness, that elsewhere in his judgment in Three Rivers
Lord Scott suggests that privilege is absolute in that it “cannot be overridden by some
supposedly greater public interest”. We have to interpret those words in the light of
FOIA section 42 which, as we note elsewhere in this Decision, is a qualified
exemption, with the result that it is possible that, in appropriate circumstances,
privilege will be overridden following the application of the public interest test set out
in FOIA section 2(2)(b).

24. It seems to us that Three Rivers and Belabel provide a more reliable basis for our
determination than the other authorities presented to us. It is true that some of those
authorities related specifically to lawyer’s bills and could be said to be of very direct
relevance to the facts of this case. However, there seemed to be very little difference
between the parties’ positions on whether lawyers’ invoices, as a class of document,
require to be given special treatment as being either more or less deserving of having
the law of privilege extended to them. In his final submission to us the Information
Commissioner stated:

“It is not and has never been the [Information Commissioner’s] case that all
solicitors’ bills are subject to legal privilege irrespective of their content and
the general circumstances”

In his submissions the Appellant made it clear that he was not suggesting that
lawyers’ invoices were not entitled to privilege as a class of documents but that those
in this case may have to be disclosed in modified form in order to remove indications
of the nature of the legal advice given to the University.

25. It seems to us that both parties are therefore really saying that lawyers’ invoices are
not to be treated, as a class, as being either covered by privilege or excluded from it.
Nor is either side saying that they should, again as a class, be treated as being either
more or less deserving of being protected. They both appear to agree that we should
approach them as we would any other type of document and apply the appropriate
test to the information that they contain. In this respect we can detect no material
difference between either party’s position on the point and the following summary set
out at paragraph 23-73 in the current (16^th) edition of Phipson on Evidence:

Appeal Number: EA/2006/0048

“There can be no doubt that solicitors’ bills are capable of attracting privilege
if their contents betray or may betray the nature of the legal advice given, and
that such an analysis is consistent with the Balabel approach. It is suggested
that a blanket rule is neither necessary nor consistent with modern principles
of privilege. The way in which bills are submitted is a matter of practice and
will vary with time, and there is no reason why the court should be hidebound
by old authorities. If a bill of costs does not reveal anything as to the
contents of the communications between lawyer and client, why should it
attract privilege?”

26. We do not therefore find it necessary to explore some of the submissions made to us
in respect of matters as diverse as the reputation of individual judges responsible for
judgments in certain 19^th century cases, the development of the text from one edition
to another of certain leading texts, the authorship of each of those editions and the
rigour the author may or may not have applied in reviewing and verifying sections of
text which underwent no, or minimal, change from one such edition to another.

27. We therefore turn to consider the detail of the bills in question in this Appeal, noting
that although they were made available to us they were not, for obvious reasons,
disclosed to the Appellant, with the result that he has not had an opportunity of
making any submissions on their detailed content. There are two bills each of which
comprises a one page VAT invoice which sets out the sums due in respect of
professional charges, disbursements and VAT. It contains no reference to the work
undertaken; it simply states that the professional charges are for “advice and services
rendered in the above matter”. Separately, the University was sent detail of the work
undertaken. In one case this took the form of a letter which summarised the activity
undertaken during the period of time covered by the bill. In the other case it was a
schedule having five columns headed “Fee Earner”, “Date”, “Hours spent”
“Description [of the work undertaken by the fee earner in question during those
hours]” and “Value”. Neither the letter nor the schedule contains a great deal of
detail and we have asked ourselves whether they really disclose very much about
either the facts disclosed by the University to the lawyers, the advice given based on
those facts or the resulting litigation strategy developed by client and lawyer.
However, we are conscious that we know very little indeed about the nature of the
dispute between the University and Professor B and it may be that an element of
information that seems insignificant to us might betray very much more to a person
familiar with the issues at stake. It seems to us that even the amount of effort
apparently applied to the case by an individual fee earner during a particular period of
time might disclose much to an opponent in litigation, but nothing to an outsider. In
those circumstances we have concluded that the whole of the letter and schedule
describing the work undertaken is protected from disclosure by legal professional

Appeal Number: EA/2006/0048

privilege and that the exemption provided under section 42 FOIA is engaged in
respect of those two documents. However, we do not believe that the same applies
to the two single-page VAT invoices. They are not privileged in our view.

28. The Appellant made a further submission on the issue of privilege. He speculated
whether one or more of the exceptions to the application of legal professional
privilege to a bill of costs rendered by a solicitor might apply. In this he relied on an
extract from Halsbury’s Laws of England which states that a bill of costs might not be
privileged insofar as the information that it contained might extend to (1) what took
place in the presence of the opposite party, or (2) communications with the opposite
party. On that basis, he argued, the Information Commissioner should have
considered disclosing information set out in the bills of cost in question, which fell
within one or other of those exceptions. We are not entirely comfortable with that
argument applying in circumstances where disclosure would be made to a third party
and not to the opposite party itself but, in the light of the conclusion we reach on this
point below, we do not need to pursue our concern further.

29. The Information Commissioner has criticised the Appellant for not providing any
evidence in support of his argument on this point. That was an unfair criticism. The
Appellant has not seen the bills in question and has to rely on the Information
Commissioner, and now us, to review them and decide whether they contain anything
that falls within either of those two exceptions. The two single-page VAT invoices do
not, of course, include any information. The letter and schedule justifying the lawyers’
charges do make one or two passing references to matters which could be said to fall
within the exceptions. However, if the documents were to be disclosed with all
information redacted, save for the very few words mentioning a meeting with, or
communication to or from, Professor B, they would have become quite meaningless
and we believe that the whole of their content should therefore be treated as
privileged.

The Public Interest Test

30. Before considering the public interest test we must again deal with the question of
motive as a preliminary issue. The Information Commissioner argues that it is
relevant to both sides of the public interest balance. First, he says that the ulterior
motive which the Appellant had in requesting the information on behalf of Professor B
undermines any public interest argument on which the Appellant relies. Secondly
the Information Commissioner argues that his own case in favour of maintaining the
exemption is strengthened by the fact that disclosure was not sought (he alleges) by
a person who is disinterested so far as the litigation is concerned but was requested
on behalf of the very person who is claiming against the University in the litigation.
He says that it cannot be right that the Appellant can use the appellate procedure

Appeal Number: EA/2006/0048

under FOIA to obtain information which “is plainly being sought on behalf of Professor
B to gain … an unfair advantage in that litigation”. However, we think that motive is
again irrelevant on both of these issues. As to the first, if the Appellant puts forward
an argument as to why the public may have a legitimate interest in receiving the
information in question we should not dismiss it, or give it less weight, because we
suspect that he may not have any real concern on the point, or that such concern as
he does have is outweighed by other motivation. The argument is either a well
reasoned one or it is not. As to the second argument, we think that we should
concentrate on the result of any disclosure and not the motivation for the request. If
the outcome of a decision in favour of the Appellant will be that information will be
released to the public, then we must proceed on the basis that this means that it will
come to the notice of every member of the public, including any individual who might
thereby secure a litigation advantage. If the public authority in question is engaged in
litigation, and the information requested would provide the opponent in that litigation
with an advantage, then we must weigh in the public interest balance the public
authority’s resulting disadvantage. The fact that there are good grounds for assuming
that in this particular case the route of communication to such a litigant will be direct
and immediate need not therefore influence our decision on the point.

31. The argument put forward by the Information Commissioner in support of the public
interest in maintaining the exemption has as its starting point the importance of legal
professional privilege to the rule of law. On that point he relies on the judgment of
Lord Scott in Three Rivers quoted above. He also draws attention to the statement in
the decision of a differently constituted Information Tribunal in the case of Christopher
Bellamy v Information Commissioner (EA/2005/0023) to the effect that “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”. In another Information Tribunal case – Martin Shipton v Information
Commissioner (EA/2006/0028) – a differently constituted panel accepted that
passage as broad guidance on the point but added:

“At the same time we are conscious, as the Appellant reminded us, that the
section 42 exemption is not an absolute one and 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 professional privilege is slight or the requirement for
disclosure is overwhelming.”

32. The Information Commissioner seeks to reinforce the general policy argument in
favour of maintaining the exemption by the particular damage which he says the

Appeal Number: EA/2006/0048

University is likely to face if its opponent in the litigation in question were to obtain the
information set out in privileged material.

33. The Appellant casts doubt on the seriousness of the harm likely to result from
disclosure and argues that it is, in any event, outweighed by the public interest in
disclosure. He says, first, that there is a general public interest in the way that
educational establishments spend public money. In addition he says that there is a
particular interest affecting two sectors of the public. The first sector is said to be
employees of Cardiff University who have, he says, a legitimate interest in knowing
how the University spends its money, since what was spent on legal fees could not
be spent on other matters that the employees might prefer. The second constituency
is said to be those from the wider population in Wales who have had no direct
contract with the University but nevertheless have an interest in how a major
employer in Wales uses its funds. He also made the point that if the information
requested could be modified so as to remove any indication as to the nature of the
legal advice given then the public interest in not disclosing it would be significantly
reduced.

34. We have concluded that public interest arguments in favour of maintaining privilege
over the letter and schedule outweigh the public interest in disclosing the information
they contain, particularly as the disclosure of the non-privileged single-page VAT
invoices will provide the public with the information it needs in order to inform any
debate on the University’s pattern of expenditure. Our conclusion that the single
page VAT invoices can be disclosed, subject to further consideration of the
applicability of section 41, is more an act of editing that application of the balancing
test, as there is nothing in the VAT invoices, once shorn of the accompanying
itemisation, that can reveal either the facts put to legal advisers by the client, or the
nature of the advice given.

The application of section 41.

35. The effect of our decision under section 42 is that we must now consider whether the
two single-page VAT invoices contain information which was obtained by the
University from a third party and, if so, whether that third party would have a
sustainable claim for breach of confidence were they to be disclosed other than under
the protection provided under the FOIA itself. For the reasons given this issue was
not addressed in the course of the Appeal and we believe that we should not dispose
of it finally until each side has had an opportunity to make submissions to us on the
point. Given that the only third party involved would appear to be the firm of lawyers
who rendered the bills to the University we do not think that the parties will need very
much time for this purpose, although the Information Commissioner will obviously
need to communicate with the University. We therefore direct that the Appellant and

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	Appeal Number: EA/2006/0048

	Appeal Number: EA/2006/0048 Freedom of Information Act 2000 (FOIA) Decision Promulgated 16 February 2007 BEFORE INFORMATION TRIBUNAL DEPUTY CHAIRMAN Chris Ryan and LAY MEMBERS Andrew Whetnall Gareth Jones Between Dr CHRISTOPHER T HUSBANDS Appellant and INFORMATION COMMISSIONER Respondent Decision We have decided, as a preliminary issue, that part of the information requested is not exempt from disclosure under FOIA section 42. It remains to be decided whether it should nevertheless be treated as exempt under FOIA section 41 and, if so, whether the public interest in maintaining that exemption outweighs the public interest in disclosure. That issue was not investigated by the Information Commissioner in the course of his investigation into the Appellant’s complaint and we accordingly direct the parties, pursuant to Rule 14 of the Information Tribunal (Enforcement Appeals) Rules 2005, to lodge with the Tribunal by no later than [date 21 days after promulgation] written submissions on the question of whether section 41 applies to the non-privileged material and, if so, on the application of the public interest test

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	Appeal Number: EA/2006/0048

	Reasons for Decision Introduction 1. This Appeal concerns a request by the Appellant for certain information contained in bills for legal services delivered to Cardiff University ("the University") in relation to employment disputes between the University and two of its academic staff. In the case of one of those disputes the Appellant now accepts that the copy invoices previously provided to him contained all the information that exists as to the detailed work in respect of which the invoice was raised. As the matter comes before this Tribunal, therefore, the Appellant's case relates to the bills delivered in respect of only one employment dispute, being internal disciplinary proceedings and an Employment Tribunal case involving an individual who has been referred to throughout as Professor B. We understand that the case has not yet been concluded. 2. The central issue is whether the information requested is covered by legal professional privilege, so that it falls within the exemption provided by section 42 of the FOIA and, if so, whether the public interest in maintaining the exemption is outweighed by the public interest in having the information disclosed. A secondary issue is whether the information falls within the exemption provided by section 41 of the FOIA (confidential information) and, if so, whether the public interest in maintaining that exemption is outweighed by the public interest in having the information disclosed. The relevant Sections of the FOIA. 3. Section 1 of the FOIA provides that any person making a request for information to a public authority is entitled to be informed whether it holds information of the description specified in the request, and, if so, to have that information communicated to him or her. 4. That broad right to disclosure is modified by section 2, which provides: “(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that- (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”

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	Appeal Number: EA/2006/0048 20. We will deal with each of the issues in the order in which we have set them out in paragraph 18 above. Is the information covered by legal professional privilege? 21. We have been provided with a large number of authorities on this issue and extensive written submissions. We believe that we should start with a recent statement on the subject by the House of Lords. It was made in the in Three Rivers DC and ors v Governor and Company of the Bank of England (no 6) [2004] UKHL 48 and appears in the judgment of Lord Scott. After reviewing case law authority from the courts of this country and several Commonwealth jurisdictions he said: “None of these judicial dicta tie the justification for legal advice privilege to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients’) consent, there will be cases in which the requisite candour will be absent. … the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients’) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else” 22. It is clear from earlier sections of the judgment that the passage quoted was intended to provide broad guidance on the policy reasons for the continued existence of legal advice privilege in the face of some doubts on the point that had been expressed in the court below. It represents a recent statement of the law on this subject emanating from the most authoritative source available. We believe that we should treat it as the basis upon which we should decide this aspect of the Appeal. In other words we should consider whether disclosure of the information set out in the bills in question would expose to public scrutiny any of the facts placed before the University’s lawyers with a view to obtaining legal advice, or any part of the advice itself. We also

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	Appeal Number: EA/2006/0048 “There can be no doubt that solicitors’ bills are capable of attracting privilege if their contents betray or may betray the nature of the legal advice given, and that such an analysis is consistent with the Balabel approach. It is suggested that a blanket rule is neither necessary nor consistent with modern principles of privilege. The way in which bills are submitted is a matter of practice and will vary with time, and there is no reason why the court should be hidebound by old authorities. If a bill of costs does not reveal anything as to the contents of the communications between lawyer and client, why should it attract privilege?” 26. We do not therefore find it necessary to explore some of the submissions made to us in respect of matters as diverse as the reputation of individual judges responsible for judgments in certain 19^th century cases, the development of the text from one edition to another of certain leading texts, the authorship of each of those editions and the rigour the author may or may not have applied in reviewing and verifying sections of text which underwent no, or minimal, change from one such edition to another. 27. We therefore turn to consider the detail of the bills in question in this Appeal, noting that although they were made available to us they were not, for obvious reasons, disclosed to the Appellant, with the result that he has not had an opportunity of making any submissions on their detailed content. There are two bills each of which comprises a one page VAT invoice which sets out the sums due in respect of professional charges, disbursements and VAT. It contains no reference to the work undertaken; it simply states that the professional charges are for “advice and services rendered in the above matter”. Separately, the University was sent detail of the work undertaken. In one case this took the form of a letter which summarised the activity undertaken during the period of time covered by the bill. In the other case it was a schedule having five columns headed “Fee Earner”, “Date”, “Hours spent” “Description [of the work undertaken by the fee earner in question during those hours]” and “Value”. Neither the letter nor the schedule contains a great deal of detail and we have asked ourselves whether they really disclose very much about either the facts disclosed by the University to the lawyers, the advice given based on those facts or the resulting litigation strategy developed by client and lawyer. However, we are conscious that we know very little indeed about the nature of the dispute between the University and Professor B and it may be that an element of information that seems insignificant to us might betray very much more to a person familiar with the issues at stake. It seems to us that even the amount of effort apparently applied to the case by an individual fee earner during a particular period of time might disclose much to an opponent in litigation, but nothing to an outsider. In those circumstances we have concluded that the whole of the letter and schedule describing the work undertaken is protected from disclosure by legal professional

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	Appeal Number: EA/2006/0048 privilege and that the exemption provided under section 42 FOIA is engaged in respect of those two documents. However, we do not believe that the same applies to the two single-page VAT invoices. They are not privileged in our view. 28. The Appellant made a further submission on the issue of privilege. He speculated whether one or more of the exceptions to the application of legal professional privilege to a bill of costs rendered by a solicitor might apply. In this he relied on an extract from Halsbury’s Laws of England which states that a bill of costs might not be privileged insofar as the information that it contained might extend to (1) what took place in the presence of the opposite party, or (2) communications with the opposite party. On that basis, he argued, the Information Commissioner should have considered disclosing information set out in the bills of cost in question, which fell within one or other of those exceptions. We are not entirely comfortable with that argument applying in circumstances where disclosure would be made to a third party and not to the opposite party itself but, in the light of the conclusion we reach on this point below, we do not need to pursue our concern further. 29. The Information Commissioner has criticised the Appellant for not providing any evidence in support of his argument on this point. That was an unfair criticism. The Appellant has not seen the bills in question and has to rely on the Information Commissioner, and now us, to review them and decide whether they contain anything that falls within either of those two exceptions. The two single-page VAT invoices do not, of course, include any information. The letter and schedule justifying the lawyers’ charges do make one or two passing references to matters which could be said to fall within the exceptions. However, if the documents were to be disclosed with all information redacted, save for the very few words mentioning a meeting with, or communication to or from, Professor B, they would have become quite meaningless and we believe that the whole of their content should therefore be treated as privileged. The Public Interest Test 30. Before considering the public interest test we must again deal with the question of motive as a preliminary issue. The Information Commissioner argues that it is relevant to both sides of the public interest balance. First, he says that the ulterior motive which the Appellant had in requesting the information on behalf of Professor B undermines any public interest argument on which the Appellant relies. Secondly the Information Commissioner argues that his own case in favour of maintaining the exemption is strengthened by the fact that disclosure was not sought (he alleges) by a person who is disinterested so far as the litigation is concerned but was requested on behalf of the very person who is claiming against the University in the litigation. He says that it cannot be right that the Appellant can use the appellate procedure

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	Appeal Number: EA/2006/0048 the Information Commissioner lodge with the Tribunal by no later than [date 21 days after promulgation] written submissions on the question of whether section 41 applies and, if so, on the application of the public interest test

	CHRIS RYAN Deputy Chairman Date 16 February 2007

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United Kingdom Information Tribunal including the National Security Appeals Panel