GIA 4279 2012, GW v (1) IC (2) L G Ombudsman (3) Sandwell Metropolitan Borough Council

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge C. Turnbull
Judgment Date11 March 2014
Neutral Citation[2014] UKUT 130 (AAC)
AppellantGW
Respondent(1) IC (2) L G Ombudsman (3) Sandwell Metropolitan Borough Council
SubjectInformation rights
Docket NumberGIA 4279 2012
IN THE UPPER TRIBUNAL

IN THE UPPER TRIBUNAL Case No. GIA/4279/2012

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the information requester (Mr W), brought with my permission, against a decision of a First-tier Tribunal made on 24 October 2012. For the reasons set out below that decision was in my judgment wrong in law and I set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I make the findings of fact set out below and re-make the First-tier Tribunal’s decision as follows:

The Information Commissioner’s Decision Notice dated 20 March 2012 is replaced with a decision that, for the reasons set out below, the requested information is subject to the exceptions provided by regulations 12(5)(b)(course of justice) and 12(5)(d)(confidentiality of proceedings) of the Environmental Information Regulations 2004. The Local Government Ombudsman is therefore not required to take any steps as a result of this decision.

Introduction: the facts in outline

2. Mr W lives in what is designated under the Clean Air Act 1993 (“the CAA”) as a “smoke control area”. He objected to what was being emitted from the chimneys of two of his neighbours who were using a make of wood-burning stove and a specification of fuel which were both approved under that Act. He sought to persuade the Third Respondent (“the Council”) to use statutory nuisance powers under the Environmental Protection Act 1990 (“the EPA”) to prevent or control those emissions.

3. The Council obtained written advice from counsel dated 17 April 2011 (“the Advice”) as to the ambit of its statutory powers, in the particular circumstances. The Council informed Mr W that the Advice was to the effect it could not proceed under powers in the EPA, and that its only relevant powers were those in the CAA.

4. In June 2011 Mr W made a complaint to the Second Respondent (“the LGO”) that the Council had failed to control the smell and smoke nuisance from the wood-burning stoves. The LGO sought information from the Council, which provided the LGO with a copy of the Advice, but expressly on the basis that its contents should be kept confidential.

5. On 7 September 2011 the LGO produced a “provisional decision” that he did not intend to investigate the complaint further. So far as material for present purposes the LGO’s reason was that the Council “has now taken legal advice and that very clearly states that the Council should consider whether there are offences under the [CAA] rather than under the [EPA].”

6. On 12 September 2011 Mr W requested the LGO to provide a copy of the Advice. On 30 September 2011 the LGO refused that request. As regards a possible obligation to disclose under the Freedom of Information Act 2000 (FOIA), the LGO relied on the exemption in s.42 of that Act in respect of documents covered by legal professional privilege (LPP). As regards a possible obligation to disclose under the Environmental Information Regulations 2004 (EIR), the LGO relied on the exception in Regulation 12(5)(d) relating to information whose disclosure would adversely affect the confidentiality of the proceedings of a public authority.

7. By a review decision made on 3 November 2011 the LGO affirmed its refusal to disclose the Advice. On 7 December 2011 Mr W complained to the First Respondent (“the IC”).

8. On 20 December 2011 the LGO produced its final decision on Mr W’s complaint, which was to the same effect as its provisional decision.

9. The IC issued his decision notice on 20 March 2012. In summary, he concluded that:

(1) the applicable access regime in respect of the Advice was the EIR, not FOIA; (It was common ground before the FTT and before me that that conclusion was correct).

(2) the LGO could not rely on the exception in reg. 12(5)(d) of the EIR because that provision was excluded by reg. 12(9);

(3) however, the exception in reg. 12(5)(b) applied because disclosure of the Advice would adversely affect the course of justice.

(4) the balance of public interest was in favour of maintaining the exception in reg. 12(5)(b) and therefore the Advice need not be disclosed.

10. By the decision which is now under appeal to me the FTT on 24 October 2012, after considering the matter on the papers without an oral hearing, dismissed Mr W’s appeal against the IC’s decision. Its reasons were in summary as follows:

(1) Regulation 12(5)(b) was engaged in respect of the Advice, which was subject to LPP;

(2) There had been no waiver of LPP;

(3) On an application of the public interest test, the public interest balance weighed in favour of maintaining the exception in reg. 12(5)(b), and the Advice therefore need not be disclosed.

(4) Mr W’s central point in relation to the public interest balance was that the content of the Advice had been misrepresented by the Council and/or the LGO. In support of this case, Mr W had relied primarily on various items of correspondence sent by the LGO and the Council. However, the FTT decided that this central point could not be maintained for two reasons. First, the correspondence relied upon by Mr W postdated the period when the LGO had been dealing with his information request (and the statutory time for compliance with the request) and therefore could not be taken into account. Second, Mr W had in any event misconstrued the relevant correspondence; it did not contain any misrepresentation. The FTT also rejected a contention by Mr W that the Council had ignored the Advice.

11. Mr W now appeals to the Upper Tribunal, with my permission. I held an oral hearing of the appeal on 22 January 2014. Mr W had indicated in a letter to the Upper Tribunal dated 2 September 2013 that, for health reasons, he did not propose to appear at the hearing. He has made lengthy submissions in writing. At the hearing the IC was represented by Mr Edward Capewell of counsel, the LGO by Miss Anya Proops of counsel, and the Council by Mr Paul Nicholls QC. The hearing was conducted for the most part on an “open” basis, but a short “closed” session was held at the end, involving submissions which could not sensibly be made without referring to the contents of the Advice (which I and counsel for each of the Respondents have seen, as had the First-tier Tribunal).

Overview of my approach to this appeal

12. For the reasons set out below the First-tier Tribunal’s decision was in my judgment wrong in law and must be set aside. It was submitted by all three counsel that in those circumstances I should remit the matter to be redetermined by a fresh FTT, albeit with directions on any issues of law which will or might arise before the fresh FTT (such as the reg. 12(9) issue). I accept that that would normally be the appropriate course. The making of findings of fact, and in particular the weighing of competing public interests, in an information rights case is an exercise to which the composition of an FTT, with its lay members with particular experience of such issues, is particularly suited. The appeal structure contemplates that the fact finding will normally be done by the FTT, with the Upper Tribunal deciding only points of law. However, I have concluded that in the present case I should redetermine all issues myself, for the following reasons.

13. First, the context in which the factual issues arise, namely the significance of LPP and confidentiality in relation to legal advice is one which is particularly appropriate for the fact finding and (if necessary) public interest balancing exercises to be undertaken by someone with legal qualifications and experience

14. Secondly, as I understood it both Mr Nicholls and Miss Proops submitted that even if I were to find that the FTT went wrong in law (in relation to reg. 12(5)(b)) in attaching the weight which it did to the general weakening of the sanctity of LPP which compulsory disclosure would involve, there was nevertheless clearly some weight to be attached to that factor, and nothing to put on the other side of the public interest scales, so that I should nevertheless uphold the FTT’s decision on that basis. In addition, there has been very extensive argument directed to the question whether the First-tier Tribunal went wrong in law in finding that the Council had not misrepresented the Advice, and that argument involved looking in detail at the documentary evidence before the FTT. Indeed, as appears below, I was invited by Mr Nicholls to take into account correspondence which postdated the LGO’s review decision on 3 November 2011, correspondence which the FTT did not consider because it held that it could not be taken into account. My decision of this appeal has therefore in any event involved my going into the facts of the case in considerable detail, an exercise which would have to be repeated by three fresh minds if the matter were to be remitted.

15. Thirdly, it has not been suggested to me that any of the parties would wish to adduce any oral or additional documentary evidence, were the matter to be remitted. I also note here that in a Direction which I made on 10 July 2013, giving an indication of my provisional views as to the issues which would...

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