Burgess v Information Commissioner and Stafford Borough Council [2007] UKIT EA_2006

Case No: EA/2006/0091

IN THE MATTER OF AN APPEAL TO THE INFORMATION TRIBUNAL UNDER SECTION
57 OF THE FREEDOM OF INFORMATION ACT 2000

Determined on the papers on 8^th May 2007
Promulgation date: 7 June 2007

BEFORE THE INFORMATION TRIBUNAL

Peter Marquand, DEPUTY CHAIRMAN
Steve Shaw and Michael Hake, LAY MEMBERS

B E T W E E N :

MR ROBIN PHILIP BURGESS

Appellant
v.

THE INFORMATION COMMISSIONER

Respondent
and

STAFFORD BOROUGH COUNCIL

Additional Party

Written Representations:

For the Appellant: In person

For the Respondent: Solicitor for the Information Commissioner

For the Additional Party: Richard Kimblin, Counsel

DECISION

The Tribunal dismisses the appeal for the reasons set out below. The Tribunal has come to
the decision that the information sought by Mr Burgess is subject to legal professional
privilege, which has not been waived by the Council. The disclosure is more likely than not to
adversely affect the course of justice and the public interest in favour of maintaining the
exception outweighs the public interest in favour of disclosure, despite the presumption in
favour of disclosure set out in Regulation 12(2) EIR. The Stafford Borough Council is not
obliged to disclose to Mr Burgess the information he seeks.

REASONS FOR DECISION
Background

1. The central facts in this case concern a fence at 37 Glebe Lane, Gnosall,
Staffordshire. The owners of this property (“the Developers”) erected a 1.9 metre
high fence and retrospectively applied for the planning permission that was required.
This was refused by Stafford Borough Council’s (“the Council”) Development Control
Committee on 07.01.2004. The Council issued an Enforcement Notice dated
25.08.2004 requiring the fence to be reduced in height or removed and this was then
appealed by the Developers to the Planning Inspectorate, under the relevant statutory
scheme. The Planning Inspector dismissed the appeal and his decision is recorded
in a letter dated 03.02.2005 (“the Appeal Decision”).

2. Mr Burgess is a neighbour of the Developers and had been in correspondence with
the Council about the fence. By letter dated the 16^th March 2005, the Council
informed Mr Burgess that it was seeking “additional legal interpretation” of the Appeal
Decision. This was expanded upon in letters dated the 23^rd March 2005 and 11^th May
2005 to Mr Burgess as the Council had concerns over what constituted “adjacent” in
the context of the General Permitted Development Order 1995 (GPDO). The GPDO
sets out, amongst other matters, the exceptions from the requirement to obtain
planning permission.

3. Mr Burgess is seeking the written legal advice from a barrister (also known as
“counsel”) provided to the Council in relation to the Appeal Decision. This is referred
to in this judgment as “the Barrister’s Report”.

The request for information

4. By letter dated the 16^th May 2005 and re-confirmed on the 23rd May 2005, Mr
Burgess requested that he was forwarded, “A copy of the Barrister’s report and the
Brief served by the Council. I make this request under the Freedom of Information
Act 2000 and require the documents be submitted within 20 working days.” The
Council replied on the 26^th May 2005 refusing his request, claiming that legal
professional privilege meant that it was exempt from disclosure under the Freedom of
Information Act (FOIA), that “… the advice is still current …” and that it would not be
in the public interest to disclose the information. Mr Burgess then complained to the
Information Commissioner (“the Commissioner”) by letter dated the 3^rd June 2005 in

relation to the Barrister’s Report. The response of the Commissioner, dated the 13^thJune 2005 was a general one but as a result of information provided, Mr Burgess
realised that he had not been advised of the right under FOIA to ask the Council to
review its original decision and he therefore did so by letter dated 16^th June 2005.
The Council replied by letter of the 7^th July 2005 reaffirming its previous decision,
claiming the exemption in section 42 of FOIA (i.e. legal professional privilege) but
also stating that the disclosure may be exempt under section 31 FOIA as it might
prejudice the exercise of the Council’s law enforcement functions, as it was
considering enforcement action in relation to the disputed fence. The letter concluded
by stating:

“It would not be in the public interest to disclose advice on enforcement
action at this stage”.

On 16^th July 2005 Mr Burgess wrote to the Commissioner appealing against the
Council’s decision on review.

5. On the 12^th October 2005 the Council wrote to Mr Burgess, informing him that
following reduction in the height of the fence, no further enforcement action was to
be taken in relation to the fencing at 37 Glebe Lane and a copy of a report to the
Council’s Development Control Committee, dated 21^st September 2005 was included
with that letter. Mr Burgess replied to the Council on the 24^th October 2005 repeating
his request for the Barrister’s Report in the following terms: “As there are no longer
legal proceedings pending by the Council regarding the case to which the report
relates I re-submit my request to receive a copy of the report.” On the same day Mr
Burgess wrote to the Commissioner in similar terms, pointing out the change in
circumstances as the Council was no longer considering legal proceedings.

6. On the 22^nd November 2005 the Council again refused to provide the Barrister’s
Report, (having treated the letter as a “further request”) in the following terms: “The
Barrister’s advice obtained in relation to this matter contained confidential legal
advice between the Barrister and the Council and is the subject of legal professional
privilege. The Council must be able to control legal advice in confidence. Further the
advice remains relevant to the Council’s enforcement functions, therefore, it remains
the position that the Council does not consider that it is the public interest to disclose
the advice in this case.”

7. On the 1^st December 2005 the Commissioner wrote to Mr Burgess, apologising for
the delay in dealing with his complaint and on the 24^th March 2006 and 14^th May 2006
Mr Burgess made enquiries of the progress of his complaint and these were replied to

on the 16^th June 2006 when the Commissioner’s office apologised for the delay.
Samantha Bracegirdle, Senior Complaints Officer at the Commissioner’s office wrote
to Mr Curran, legal services manager of the Council, by letter dated the 1^st August
2006 and stated that the Commissioner was of the view the Environmental
Information Regulations (EIR) were the appropriate regime rather than FOIA and
requested a copy of the Barrister’s Report. Ms Bracegirdle also requested
confirmation that the issues that the legal advice concerned were now closed, and no
further action was contemplated by the Council. The Council replied on the 8^thAugust 2006 repeating its claim for the exemptions and stated there was possible
further legal action. On the 22^nd August Ms Bracegirdle wrote again to the Council
revising the Commissioner’s view on which part of EIR was the appropriate one in
relation to legal advice and informing them that rather than Regulation 12(5)(d) it was
Regulation 12(5)(b).

8. On the 26^th September 2006 Ms Bracegirdle wrote to Mr Burgess and the Council
giving her preliminary view that the Barrister’s Report was exempt from disclosure
and that it was not in the public interest to disclose information to Mr Burgess.
However, Mr Burgess confirmed on the 1^st October 2006 that he still wanted the
Barrister’s Report and therefore the Commissioner issued a Decision Notice, dated
the 14^th November 2006, which concluded: “The Commissioner’s decision is that the
Public Authority dealt with the request for information in accordance with the EIR.”

9. The reasons for that decision can be summarised as follows:

a. The information sought by Mr Burgess was subject to legal professional
privilege and the privilege had not been waived.

b. The exception in EIR 12(5)(b) covered legal professional privilege.

c. The public interest in favour of maintaining the exception outweighed the
public interest in favour of disclosure.

10. For completeness, the Council had claimed the exemption in section 31 FOIA in
relation to their possible enforcement action, but the Commissioner did not consider
this, having reached the conclusion set out above and it is not pursued in this Appeal.

The Appeal to the Tribunal

11. Mr Burgess appealed to the Tribunal on the 22^nd November 2006. It is important to
note that he stated the basis of his appeal was:

a. The Council had waived the privilege as in July 2005 Councillor Williamson
had offered the Barrister’s Report to Mrs Burgess.

b. The Developers were employees of the Council.

12. The Tribunal has dealt with these points below and the issues to be determined in the
Appeal are set out below.

13. The Tribunal joined Stafford Borough Council as a party to the Appeal and with the
agreement of all parties, the Appeal has been determined without a hearing on the
basis of written submissions from the parties and an agreed bundle of documents. In
addition, the Tribunal was provided with a copy of the Barrister’s Report, which is in
fact two documents, but these were not made available to Mr Burgess. This was in
order to preserve the confidentiality of the disputed information. Although the
Tribunal may not refer to every document in this judgment we have considered all the
materials before us.

The Issues

14. At a Directions hearing the Tribunal limited the issues in the Appeal as follows:

a. Whether confidentiality had been waived by the Council through their
disclosure of the Barrister’s Report to Councillor Williamson and his handling
of the report?

b. Whether the Commissioner was correct in law and fact in finding that
Regulation 12(5)(b) of the EIR applied in relation to the withheld information?

c. Whether the public interest test was properly applied by the Commissioner in
relation to the application of the Regulation 12(5)(b) exception?

The relevant statutory provisions

15. The Tribunal’s remit is governed by EIR regulation 18, which applies FOIA as the
relevant enforcement and appeals provisions. The relevant section is 58 and this is
set out below:

“58.— Determination of appeals.

(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.”

16. The starting point for the Tribunal is the Decision Notice of the Commissioner but the
Tribunal also receives and hears evidence, which it is not limited to the material that
was before the Commissioner. The Tribunal, having considered the evidence (and it
is not bound by strict rules of evidence) may make different findings of fact from the
Commissioner and consider the Decision Notice is not in accordance with the law
because of those different facts. Nevertheless, if the facts are not in dispute the
Tribunal must consider whether EIR has been correctly applied. In cases involving
the public interest test in Regulation 12(1)(b) a mixed question of law and fact is
involved. If the facts are decided differently by the Tribunal, or the Tribunal comes to
a different conclusion on the same facts that will involve a finding that the Decision
Notice was not in accordance with the law.

Has privilege been waived by the Council?

17. At the Directions hearing the Tribunal formulated the question at paragraph 14(a)
using the word “confidentiality” but legal professional privilege is a particular form of
confidentiality and that is the issue that we have to look at first. The Tribunal has
seen in full the Barrister’s Report dated the 24^th March 2005 and 4^th May 2005. The
Tribunal’s conclusion is that it is clear that the information in both documents were
obtained by the Council from the Barrister to advise it on the meaning of “adjacent”, in
particular in relation to the specific property, 37 Glebe Lane, but also the advice is of
general application. The second advice is dependent on the first and considers how
the Council took its decision in relation to 37 Glebe Lane and the application of the
legal tests to the particular facts.

18. There are two issues to look at in this section: first, has privilege been lost because
the Barrister’s report was handed to Councillor Williamson and secondly, whether
privilege has been lost because of Councillor Williamson’s handling of the Barrister’s
Report. Mr Burgess’ submissions are that that privilege has been lost. The Council
and the Commissioner maintain that this is not the case.

19. In their letter of the 26^th May 2005 the Council made it clear to Mr Burgess that the
discussions including the Barrister’s Report before the Development Control
Committee would remain confidential. This is confirmed by the agenda for that
meeting on 08.06.2005. In fact, the Council deferred a decision and decided that a
site visit should take place and again the agenda for that visit confirms that the
information is to be confidential and not for publication. The minutes of the visit on 8^thJuly 2005 also record the confidential nature of the proceedings. The witness
statement of Mr Ian Curran, Legal Services Manager of the Council also states that
the meetings were confidential and that the Barrister’s Report was only disclosed to
relevant planning and legal officers and elected members of the Council and all these
persons were involved in the Council’s Developmental Control regulatory functions.

20. Specifically, Mr Burgess has provided evidence from Mrs Burgess that on the 8^th July
2005 at a meeting at her house, Councillor Kenneth Williamson offered to provide her
with a copy of the Barrister’s Report. However, Mrs Burgess declined the offer and
did not take the Report. The fact that there was a discussion between Councillor
Williamson and Mrs Burgess is confirmed by statements from Valerie Sixsmith and
David Sixsmith, although neither of those people are able to give any evidence about
what document Councillor Williamson was offering Mrs Burgess and in any event,
neither of them are able to give first hand evidence of an offer being made. In a
statement from Councillor Williamson, he denies having offered the Barrister’s Report
to Mr or Mrs Burgess. He states that he has visited Mr Burgess’ property on
numerous occasions but cannot remember whether one of those was on the 8^th July
2005. However, in relation to other discussions Councillor Williamson does recall
offering Mr Burgess a copy of a statement that he had prepared for a presentation to
the Development Control Committee but Councillor Williamson states: “This was on
the condition that any reference to the confidential legal advice would be removed
before it was given to him.” Councillor Williamson says that he is well aware of
dealing with confidential information as he is a local magistrate. Councillor
Williamson confirmed that he received the advice as an elected member of the
Council and that “at no time discussed the contents of that advice or offered a copy of
this advice to the Appellant or anyone else outside the Council.”

21. As the Tribunal has already stated in the background section above, it is clear that by
the 12^th October 2005 the Council had concluded that no enforcement action was to
be taken against the developers at 37 Glebe Lane.

22. Mr Burgess’ submissions on the issue of waiver privilege fall into two parts. First,
once the Council was not going to proceed with enforcement action against the
developers of 37 Glebe Lane, the legal privilege was lost. This was not one of the

issues identified by the Tribunal at the Directions hearing (see paragraph 14 above).
Nevertheless, the Tribunal has considered these arguments. Secondly, the disclosure
to Councillor Williamson amounts to a waiver of privilege and that his role was to
represent the residents of the Parish, as their Borough Council are not, as a member
of the Development Control Committee. Furthermore, the offer of the advice to Mrs
Burgess amounts to a waiver of privilege. The Council’s submissions are that
Councillor Williamson is an elected member of the Council and as such, he is entitled
to receive legal advice without that constituting a waiver. Councillor Williamson’s
version of events ought to be believed, but in any event, there was no waiver
because the papers did not come into Mrs Burgess’ possession. The Commissioner
did not accept that conclusion of the litigation meant the privilege was lost and the
other arguments put forward by the Commissioner were essentially identical to those
of the Council, although put forward independently.

23. The Tribunal does not have sufficient evidence to conclude, on the balance of
probabilities, that Councillor Williamson offered to Mrs Burgess or Mr Burgess a copy
of the legal advice that is the subject matter of this Appeal. However, what is clear is
that even if such an offer was made, it was declined by Mrs Burgess. Furthermore,
the Tribunal concludes that the Council took careful steps to maintain the privilege in
the legal advice and it was only disclosed to those elected members of the Council
and those who otherwise required sight of it for the purpose of performing their duty.

24. The Tribunal’s conclusion on this point is that the Council has not waived legal
professional privilege in the Barrister’s Report. The advice was obtained by the legal
officers of the Council to enable the Council to make decisions. It is a necessary part
of that, that the Councillors, as elected members, will see that advice and need to
consider it when coming to a conclusion. Therefore, we do not find that there is any
waiver of privilege by the disclosure of the advice to Councillor Williamson.
Furthermore, we do not consider that if Councillor Williamson offered the legal advice
to Mrs Burgess that that amounts to a waiver of privilege. We have already indicated
above that we cannot reach a conclusion on whether or not he did offer the advice
but, in any event, it was not provided to Mrs Burgess. In those circumstances there
has, as a matter of fact, been no disclosure of the advice and in those circumstances
we do not view the actions, if they took place, to have amounted to a waiver.

25. As to the argument put forward by Mr Burgess that because the litigation had been at
an end the legal advice was not subject to professional privilege the Tribunal was
referred to various authorities, including R v. Derby Magistrates Court ex parte B
[1995] 4 All ER 526 and Three Rivers District Council and Others v. Governor and
Company of the Bank of England [2004] UKHL 48. In R v. Derby Magistrates Court

the argument was that privilege was not absolute in that there were public interest
factors that might justify the use of privileged material and Lord Taylor of Gosforth CJ
reviewed the authorities on waiver of privilege. Lord Taylor stated: “… the principle
[that a relevant public interest might outweigh the client’s interest in asserting
privilege] seems to conflict with the long-established rule that a document protected
by privilege continues to be protected so long as the privilege is not waived by the
client: once privileged, always privileged. It also goes against the view that the
privilege is the same whether the documents are sought for the purpose of civil or
criminal proceedings, and whether by the prosecution or the defence, and that the
refusal of the client to waive his privilege, for whatever reason, or for no reason,
cannot be questioned or investigated by the Court. …” Lord Taylor continued to
review the cases stating: “The principle which runs through all these cases, and the
many other cases which were cited, is that a man must be able to consult his lawyer
in confidence, since otherwise he might hold back half the truth. The client must be
sure that what he tells his lawyers in confidence will never be revealed without his
consent. Legal professional privilege is thus much more than the ordinary rule of
evidence, limited in its application to the fact of a particular case. It is a fundamental
condition on which the administration of justice is as a whole rests.”

26. Lord Taylor went on to reject the argument that public interest could override the
client’s interest and stated: “I am of the opinion that no exception should be allowed
to the absolute nature of legal professional privilege, once established.”

27. In Three Rivers the House of Lords had to consider the extent of legal professional
privilege and whether it went further than just litigation. Lord Scott, at paragraph 34,
stated: “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. …” Further on the Judgment at paragraphs 35-45 Lord Scott
considers the scope of legal advice privilege and states: “In cases of doubt the Judge
called upon to make the decision should ask whether the advice relates to the rights,
liabilities, obligations or remedies of the client either under private law or under public

law. If it does not, then, in my opinion, legal advice privilege would not apply. If it
does so relate then, in my opinion, the Judge should ask himself whether the
communication falls within the policy underlying the justification for legal advice
privilege in our law. Is the occasion on which the communication takes place and is
the purpose for which it takes place such as to make it reasonable to expect the
privilege to apply? The criteria must, in my opinion, be an objective one.”

28. The Tribunal has considered the Barrister’s Report in this Appeal and has concluded
above that it is subject to legal privilege. In the light of the above authorities it is clear
that once a document is privileged it remains privileged unless there has been a
waiver, which we have already concluded there has not been. The advice in this
case is a mixture of advice concerning “liabilities, obligations or remedies”, potential
litigation and advice that may be useful in the context of, as yet, unforeseen or as yet
unthought-of litigation. Objectively it is reasonable to expect privilege to apply.
Accordingly, the Tribunal does not accept Mr Burgess’ argument that the advice is no
longer privileged because the proposed enforcement action at 37 Glebe Lane is no
longer in contemplation.

Is Regulation 12(5)(b) the correct exception?

29. The parties have agreed that the EIR contain the appropriate regime to consider
whether or not the Council is obliged to provide this information to Mr Burgess. For
completeness, the Tribunal views the subject matter of this Appeal as coming within
the definition of environmental information in Regulation 2(1)(a) and (c), namely “(a)
the state of the elements of the environment, such as air and atmosphere, water, soil,
land, landscape and natural sites, including wetlands, coastal and marine areas,
biological diversity and its components, including genetically modified organisms and
the interaction among these elements;” and “(c) measures (including administrative
measures), such as policies, legislation, plans, programmes, environmental
agreements and activities affecting or likely to affect the elements and factors
referred to in (a) and (b) as well as measures or activities to try and protect those
elements;” The Barrister’s Report concerns the landscape and it will affect the
Council’s policy towards the issues it addresses.

30. Regulation 5(1) requires a public authority to make environmental information
available on request. However, Regulation 12 provides exceptions from the duty to
disclose and is as follows:

“(1) Subject to paragraphs (2), (3) and (9) a public authority may refuse to
disclose environmental information requested if -

(a) an exception to disclosure applies under paragraph (4) or (5); and

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

(2) A public authority shall apply a presumption in favour of disclosure.

(3) [Is not relevant to this case]

(4) [Is not relevant to this case]

(5) For the purposes of paragraph (1)(a), a public authority may refuse to
disclose information to the extent that its disclosure would adversely affect –

(a) ….

(b) the course of justice, the ability of a person to receive a fair trial or
the ability of a public authority to conduct and inquiry of a criminal or
disciplinary nature;…”

The remainder of the regulation is not relevant.

31. Mr Burgess raises no points on this issue and the Council and the Commissioner
both support the application of Regulation 12(5)(b) to this information.

32. In Kirkaldie v. The Information Commissioner and Thanet District Council
EA/2006/001 4^th July 2006, the Tribunal considered whether EIR 12(5)(b) applied to
information that was subject of legal professional privilege concerning the variation of
an existing agreement. Although in that case the Tribunal decided that privileged had
been waived, it did have to consider whether the Commissioner had been correct in
relying on the legal professional privilege exemption in FOIA (section 42). In
considering Regulation 12(5)(b) the Tribunal stated: “The purpose of this exception is
reasonably clear, it exists in part to ensure that there should be no disruption to the
administration of justice, including the operation of the courts and no prejudice to the
right of individuals or organisations to a fair trial. In order to achieve this, it covers
legal professional privilege, particularly where a public authority is, or is likely, to be
involved in litigation.”

33. Although we are not bound by this decision we agree with it. The Tribunal is of the
view that Regulation 12(5)(b) is the appropriate exception to be relied upon in the
context of this Appeal. As Lord Taylor of Gosforth CJ, in the extract quoted above,
stated, legal professional privilege is a key element in the administration of justice
(see paragraph 25 above), which is in our view part of the activities that will be
encompassed by the phrase “course of justice” and advice on the rights and liabilities
of a public authority are key to that, whether or not litigation is actually in progress.

34. However, the Tribunal needs to go further as it is a requirement of the exception in
Regulation 12(5) that the disclosure “would adversely affect” the course of justice (in
contrast to the position under the FOIA exemption in section 42).

35. Mr Burgess’ point is again as the current litigation is over there is no adverse affect.
The Commissioner makes the general point that disclosure of legal advice is likely to
lead to prejudice to public authorities in obtaining advice on their legal rights and
obligations. The Council, on the other hand, makes specific submissions about these
pieces of advice. The Council has pointed out in the evidence of Mr Curran “That
although the current situation had been decided on, the advice could still be used if
future activities occurred at that site.” The Tribunal has considered the Barrister’s
Report in detail and although it deals with the specific issues at 37 Glebe Lane, it
could be applicable to other circumstances in the Tribunal’s view, as indicated above.

36. The advice of a barrister is, of course, his/her professional opinion on what a Court is
likely to conclude in a particular set of circumstances. As a result of a disclosure
there is a potential for a negative effect in that it deprives a public authority from
arguing a more favourable position and taking a chance of a better outcome than the
one that has been included in the advice.

37. We have not had any submissions on what meaning should be given to “would
adversely affect” but the Tribunal has considered the decision of a differently
constituted Tribunal in the case of Hogan v. Oxford County Council EA/2005/0026 &
0030 dated 17.10.2006 when looking at the meaning of “would or would be likely to
prejudice” in the context of the exemptions in FOIA. The Tribunal’s conclusion is that
similar principles apply here namely:

a. “Would” means “more likely than not”

b. The adverse affect must be “real, actual or of substance.”

Furthermore, the Tribunal also considers that any disclosure is effectively made to the
general public as a whole as disclosure may not be made subject to conditions
governing the subsequent use of the disclosed information. This was also considered
to be the case in Hogan.

38. In the circumstances of this Appeal the Tribunal is satisfied that it is more likely than
not that disclosure of the legal advice would adversely affect the course of justice.
We have had in mind Regulation 12(2) and the presumption in favour of disclosure
when considering the exception and have taken it to require, in this part of the
application of Regulation 12, that in any case where there is doubt of the applicability

of the exception that doubt must be resolved in favour of the disclosure i.e. the
exception does not apply. The Tribunal has concluded the disclosure would prejudice
the Council’s ability to maintain the position that it takes on in similar circumstances
where there may be an issue over the meaning of “adjoining” and subsequent
enforcement actions. This may be for properties within the Council’s area of
responsibility in general but also potentially those within and around the area of 37
Glebe Lane: this is a real adverse affect.

39. The Commissioner, in the Decision Notice, does not consider in relation to the
application of Regulation 12(5)(b) the question of “would adversely affect” and to that
extent we find the decision wrong in law but for the reasons we have given above, we
have come to the conclusion that Regulation 12(5)(b) does apply.

Was the public interest test properly applied?

40. The Commissioner concluded that the public interest in maintaining the exception in
this case outweighed the public interest in disclosure. Mr Burgess’ submissions can
be summarised as follows:

a. Planning principles should be applied fairly and equally and by not declaring
the Barrister’s Report the Council is not acting in that way.

b. Public money has been expended on obtaining the advice and it therefore
should be made available.

c. Disclosure would not undermine the Council’s ability to defend itself in cases
of actual litigation (as opposed to this case where there is no litigation). The
Council should have appealed the planning inspector’s decision rather than
obtained an “additional legal interpretation”.

41. The Council’s position is that the burden is on the Appellant, legal professional
privilege is of fundamental importance and that the Appellant’s public interest factors
do not approach, or still less, pass, the “clear cut case” test set out in the Information
Tribunal case of Bellamy v. The Information Commissioner and DTI EA2005/0023,
dated 4^th April 2006. The Commissioner’s submissions are similar on the importance
of public interest and maintain that the only potential public interest factor raised by
the Appellant related to whether the developers at 37 Glebe Lane were employees of
the Council. Otherwise the Commissioner states that the Appellant, Mr Burgess, has
not raised any public interest factors that might outweigh the interest in maintaining
the exception.

42. The question of whether or not the developers at 37 Glebe Lane were employees of
the Council, we think can be disposed of fairly shortly. Mr Curran, in his statement,
clarifies that one of the developers was working at the Council’s main offices but was
not an employee in the contractual meaning of the word. This is relevant because
where someone making a planning application is a serving member or officer of the
Council, then the application is “called in” (i.e. not dealt with by the Council’s officers)
but in any event, this particular matter did go to the Development Control Committee
(i.e. as if it had been ‘called in’). The Tribunal does not see that the employment
status of the developers at 37 Glebe Lane is relevant to the public interest issue in
relation to legal professional privilege.

43. Regulation 12(1), as set out above insofar as it is relevant, requires first, the relevant
exception to be identified (in this case 12(5)(b) as stated above) and then
consideration of whether “in all the circumstances of the case, the public interest in
maintaining the exception outweighs the public interest in disclosing the information”.
However, in contrast to FOIA, there is an additional requirement in Regulation 12(2),
namely the public authority must apply a presumption in favour of disclosure and the
Tribunal considers this must also be applied in assessing the competing public
interests. In other cases before the Tribunal the public interest test to be applied
under FOIA in section 2(2)(b), which is identical in wording to Regulation 12(1)(b)
(apart from using the word “exemption” rather than “exception”), has been
considered. However, although it has been stated under FOIA the default setting is in
favour of disclosure and there is an assumption of disclosure being in the public
interest (see Guardian News and Brooke v. The Information Commissioner
EA/2006/0011 & 0013 dated 08.01.2007) in the Tribunal’s view the express provision
of a presumption in favour of disclosure is significantly different. Bearing this in mind
and using the factors set out in Guardian News and Brooke and taking into account
Regulation 12(2) EIR the following are applicable:

a. The presumption is in favour of disclosure and therefore this must be
rebutted by the factors that are against disclosure.

b. If the public interest in favour of maintaining the exception is equally balanced
against the public interest in disclosure, then the exception will not exclude
the duty to disclose.

c. Competing interests must be assessed on a case-by-case basis because
Regulation 12(1)(b) requires the exercise to be considered “in all the
circumstances of the case”.

d. 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 exception diminishes over time.

e. In considering public interest factors in favour of maintaining the exception,
they relate to the particular interest which the exception is protecting.

f. The public interest factors in favour of disclosure are not so restricted and
can take into account the general public interest in the promotion of
transparency, accountability, public understanding and involvement in the
democratic process.

44. At paragraph 35 of Bellamy v. The Information Commissioner and DTI referred to
above, the Tribunal stated: “There is a strong element of public interest inbuilt into
the privilege itself [legal professional privilege]. At least equally strong counter-vailing
considerations would need to be adduced to override that inbuilt public interest. It
may well be that in certain cases, of which this might have been one were the matter
not still live, for example, where the legal advice was stale, issues might arise as to
whether or not the public interest favouring disclosure should be given particular
weight. The Tribunal places no great, if any, store upon the fact that the constituency
of which Mr Bellamy forms part may be small, since it may well be that in any given
case there is a sufficient public interest, even though the actual number of individuals
are affected by an issue, may be numerically low. Nonetheless, 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 for the
most clear case, of which this case is not one.” The Tribunal has already referred to
the Three Rivers above, which emphasis the importance of the public interest in legal
professional privilege. Nevertheless, Parliament through the enactment of FOIA and
EIR, has both done exactly what the House of Lords in R v. Derby Magistrate said
was required to change the absolute nature of legal privilege, it has added a public
interest balancing exercise. The Tribunal wants to make it clear that legal privilege is
not an absolute exception and furthermore, it is not enough in each case simply to
assert that the Tribunal’s previous decision in Bellamy effectively makes the
exception an absolute one: that is not correct.

45. The Tribunal has considered the following public interest factors in favour of
disclosure:

a. The general interest in accountability and transparency of decision making
(which includes Mr Burgess’ point on fair and equal application referred to in
paragraph 40 (a) above).

b. The need for the reasons for the decision in this case to be available to Mr
Burgess and other members of the public. In this point the Tribunal notes
that the Council provided Mr Burgess with a letter dated the 12^th October
2005 with the reasons for the decision and a copy of the report to the
Development Control Committee dated the 21^st September 2005. Mr

Burgess also had available to him a copy of the planning inspector’s Appeal
Decision of the 3^rd February 2005 stating his reasons for determining the
Appeal, which included “to be adjacent to a highway a fence need not be
contiguous with it; in my opinion it is a matter of fact and degree to be
determined in each case.”

c. The Council should be seen to be acting appropriately and with probity on the
issues before it. The Tribunal notes that there is no evidence that the Council
has not been acting otherwise than in good faith and honestly.

d. The current issue of enforcement in relation to 37 Glebe Lane is no longer a
live issue.

46. The Tribunal has considered the factors in favour of maintaining the exception as
follows:

a. There is a strong public interest in maintaining legal professional privilege, for
the reasons set out in Bellamy and the other cases referred to above.

b. Public authorities should be able to obtain free and frank advice and to be
able to give full information to its legal advisors, including matters that would
otherwise adversely affect public authority’s position (for the avoidance of
doubt we make no comment one way or the other as to whether there is in
fact any such issue within the legal advice, we are merely using it by way of
example).

c. The Council’s position on future cases would be undermined as the advice
considers the Council’s legal rights and liabilities as referred to elsewhere
with in this judgment. Not enough time has elapsed to make the advice stale.
The Council is entitled to a “level playing field” in any future litigation.

47. We have had very much in mind in our deliberations the factors set out in paragraph
43 above. We are of the view that the Commissioner’s Decision Notice is wrong in
law in that it does not specifically refer to the presumption in favour of disclosure as
required by regulation 12(2), nor does it appear to apply such a presumption,
although, the Commissioner has considered the competing public interests.

48. The Tribunal is of the view, notwithstanding the presumption in favour of disclosure,
that the public interest in maintaining the exception does outweigh the public interest
in disclosure. It is the Tribunal’s view that the Council has given reasons for its
decision, and in any event, there is another mechanism by which a failure to give
reasons could be challenged by any person (judicial review), there is no suggestion of
dishonestly or improper conduct on the part of the Council nor is there any evidence
that the Council has not made available the “test” or bases upon which they
determine planning applications of this nature. If there was evidence to suggest any

of those factors alone or in combination, then that would seem a circumstance where
the public interest might favour disclosure but otherwise we do not see why the
principle of legal professional privilege, which is so important, should be overridden in
the circumstances of this case. In particular, in relation to the factors advanced by Mr
Burgess, we do not consider that the fact that public money was spent on obtaining
the advice is, in itself, a public interest factor in favour of disclosure. The fact that the
Council relied upon the public interest in order to obtain the advice, does not mean
that, automatically, the public interest is in favour of disclosure of the advice. We also
do not think that the Council’s decision not to appeal the planning inspector’s Appeal
Decision is relevant. In any case, there was nothing to appeal as the decision was in
the Council’s favour. Ultimately, this advice concerns the height of a fence and its
position next to a road. We consider the public interest in maintaining the exception
does outweigh the public interest factors in favour of disclosure notwithstanding the
presumption in favour of such disclosure.

49. However, we also find that in considering the public interest factors the Commissioner
erred in law in that one of the factors that should have been considered was the fact
that the litigation concerning enforcement at 37 Glebe Lane was no longer a live
issue. Part of the reason for this may have been the considerable delay by the
Commissioner in investigating this complaint. We have set this out in the background
and it is clearly difficult to justify no correspondence and no apparent activity in
relation to the claim between June 2005 and August 2006. It is during that time that
Mr Burgess pointed out the change in circumstance by correspondence in October
2005. This change in circumstance seems to have been acknowledged by the
Commissioner in correspondence but was not included as a relevant factor in the
Decision Notice and we are of the view that this was the request that the
Commissioner should have focused on, as it was artificial to rely on the first request
made by Mr Burgess in May 2005.

CONCLUSION

50. The Tribunal dismisses the appeal for the reasons set out below. The Tribunal has
come to the decision that the information sought by Mr Burgess is subject to legal
professional privilege, which has not been waived by the Council. The disclosure is
more likely than not to adversely affect the course of justice and the public interest in
favour of maintaining the exception outweighs the public interest in favour of
disclosure, despite the presumption in favour of disclosure set out in Regulation 12(2)
EIR. The Stafford Borough Council is not obliged to disclose to Mr Burgess the
information he seeks.

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Burgess v Information Commissioner and Stafford Borough Council [2007] UKIT EA_2006_0091 (7 June 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0091.html Cite as: [2007] UKIT EA_2006_91, [2007] UKIT EA_2006_0091



	REASONS FOR DECISION Background 1. The central facts in this case concern a fence at 37 Glebe Lane, Gnosall, Staffordshire. The owners of this property (“the Developers”) erected a 1.9 metre high fence and retrospectively applied for the planning permission that was required. This was refused by Stafford Borough Council’s (“the Council”) Development Control Committee on 07.01.2004. The Council issued an Enforcement Notice dated 25.08.2004 requiring the fence to be reduced in height or removed and this was then appealed by the Developers to the Planning Inspectorate, under the relevant statutory scheme. The Planning Inspector dismissed the appeal and his decision is recorded in a letter dated 03.02.2005 (“the Appeal Decision”). 2. Mr Burgess is a neighbour of the Developers and had been in correspondence with the Council about the fence. By letter dated the 16^th March 2005, the Council informed Mr Burgess that it was seeking “additional legal interpretation” of the Appeal Decision. This was expanded upon in letters dated the 23^rd March 2005 and 11^th May 2005 to Mr Burgess as the Council had concerns over what constituted “adjacent” in the context of the General Permitted Development Order 1995 (GPDO). The GPDO sets out, amongst other matters, the exceptions from the requirement to obtain planning permission. 3. Mr Burgess is seeking the written legal advice from a barrister (also known as “counsel”) provided to the Council in relation to the Appeal Decision. This is referred to in this judgment as “the Barrister’s Report”. The request for information 4. By letter dated the 16^th May 2005 and re-confirmed on the 23rd May 2005, Mr Burgess requested that he was forwarded, “A copy of the Barrister’s report and the Brief served by the Council. I make this request under the Freedom of Information Act 2000 and require the documents be submitted within 20 working days.” The Council replied on the 26^th May 2005 refusing his request, claiming that legal professional privilege meant that it was exempt from disclosure under the Freedom of Information Act (FOIA), that “… the advice is still current …” and that it would not be in the public interest to disclose the information. Mr Burgess then complained to the Information Commissioner (“the Commissioner”) by letter dated the 3^rd June 2005 in



	However, the Tribunal finds that the Information Commissioner was wrong in law in that: 1. He failed to consider the request as at October 2005 given that the Council was not considering enforcement proceedings; and 2. He failed to apply the “would adversely affect” part of the test for the exception contained in Regulation 12(5)(b); and 3. He failed to apply the presumption in favour of disclosure in Regulation 12(1)(b) EIR. Signed: Peter Marquand Deputy Chairman Dated: 7 June 2007

United Kingdom Information Tribunal including the National Security Appeals Panel