Last week the Court of Session gave its opinion in the latest round of litigation between the Scottish Ministers and the Scottish Information Commissioner. The appeal, made under section 56 of the Freedom of Information (Scotland) Act 2002, by the Scottish Ministers was heard in January by the First Division of the Inner House (the Lord President (Lord Pentland) and Lords Malcolm and Clark).

The appeal related to a request for information, made by a journalist, concerning an earlier appeal by the Scottish Ministers to the Court of Session against a decision of the Scottish Information Commissioner. That earlier appeal had concerned whether information that fell within the scope of a request for information, about the investigation by Irish lawyer James Hamilton into whether the then First Minister, Nicola Sturgeon, had breached the ministerial code, was held by the Scottish Ministers for the purposes of the Freedom of Information (Scotland) Act 2002 (“FOISA”). In the earlier appeal, the First Division (the then Lord President (Lord Carloway) and Lords Pentland and Boyd of Duncansby) refused the appeal.

In respect of the request for information that this latest appeal concerns, the Scottish Ministers had withheld information under section 36(1) of FOISA, on the basis that the information concerned was subject to legal professional privilege and that the public interest in disclosures was outweighed by the public interest in maintaining the exemption, and also section 30(c). The journalist complained to the Scottish Information Commissioner who issued a decision notice ordering the release of the withheld information. The Scottish Ministers appealed to the Court of Session.

The submissions made on behalf of the Scottish Ministers and the Commissioner are summarised in the court’s opinion (at [15]-[18] in respect of the Ministers and [19]-[21] in respect of the Commissioner) and so I am not going to set them out in any detail in this post. Furthermore, the hearing before the First Division was livestreamed and a recording of it, for anyone who may wish to hear the full oral submissions, can be found here.

Legal professional privilege (LPP) is a cornerstone of the justice system; it is near impenetrable at common law, or as Lord Malcolm puts it in the opinion of the court, it has been “bestowed a special and largely inviolable common law status…” [23] It exists to protect the judicial process by ensuring that individuals can have frank discussions with their lawyers and can therefore, in return, receive frank advice based upon full disclosure by the client. It is designed to ensure that individuals can be totally honest with their legal advisers without being overly worried about onward disclosure. However, it is not totally absolute and can, for example, be overridden by statute. FOI law (whether that be FOISA or the Freedom of Information Act 2000 (“FOIA”)) creates a mechanism whereby a public authority can be legally required to disclose its privileged legal advice in the public interest.

While FOISA does not contain a specific exemption for LPP in the way that FOIA does (FOISA essentially includes it alongside all types of confidential information and communications), it does appear to recognise the importance of LPP by providing a specific exemption to the Commissioner’s power to compel the disclosure of information to him through the use of an information notice. Section 50(5) of FOISA means that the Commissioner cannot, for example, compel disclosure to him of legal advice concerning the authority’s compliance with FOISA, or legal advice in connection with litigation involving the Commissioner. This is the very type of information that the underlying application to the Commissioner and this appeal to the Court of Session was concerned with. The Court analyses this provision from paragraph [38]-[46]; however, as is clear from the court’s opinion, it is really obiter dicta as it was not essential to deal with it in order to resolve the appeal before the court (see the first couple of sentences in [38]).

It is worth recognising that the Commissioner was in an unusually difficult position in this case. The Commissioner was required to make a decision on the application to him without having before him the withheld information in the way that he ordinarily would. However, in enacting FOISA, the Scottish Parliament specifically legislated in a way, perhaps understandably and unsurprisingly so, that resulted in him being in that position. There may be ways of a decision being made with full sight of this sort of information which results in neither the Commissioner nor his staff ever seeing the information; however, that is a matter for the Commissioner and beyond the scope of this post.

One of the attacks made by the Ministers on the Commissioner’s decision was the emphasis that the Commissioner had placed upon the phrase “standard official level correspondence of a type expected when preparing for litigation.” It was argued that the Commissioner’s assumptions and conclusions did not properly flow from the use of that phrase, and that he had, in essence, indulged in speculation that had been unwarranted. The court saw force in those submissions by the Ministers. [30] The court wondered how, once it had been accepted (as it had been by the Commissioner) that the withheld information was subject to LPP, the fact that it had been set out in what had been described as “official level correspondence” mattered and why that would dilute the importance of maintaining privilege.[30] The court noted that where advice had been received from in-house lawyers it did not fall into a “secondary or inferior category of LPP”, nor too did internal documents prepared for the purpose of litigation. [30]

In relation to the balancing of the public interest, the court noted that “it is important that the harm to the common good risked by disclosure of LPP information is properly understood and weighed.” [32] The court noted that there were clear indications in the Commissioner’s decision, and in his earlier decision concerning a different application, that the Commissioner took the view that the conclusion of the previous appeal proceedings diminished the importance of maintaining the exemption. The court did not agree with this view. [32] The court went on, at [32], as follows:

“LPP is justified not only by protecting legal advice from the immediate adversary during the particular proceedings while they are live, but also by the general chilling effect if advice cannot be sought without any guarantee of confidentiality.  It is this which has led to the aphorism that “once privileged, always privileged”.  We appreciate that for public authorities the legislation has taken away that absolute assurance, but it has not removed the well-established and frequently explained damage to the proper administration of justice in the future when, without the consent of the client, legal advice or litigation material is disclosed to the public.  If a public authority is being ordered to do this, it must follow a decision-making process in which it is clear that this important factor is appreciated and fully taken into account.”

The court was not satisfied that the decision-making process, and the associated reasoning in the Commissioner’s decision under consideration in this appeal, met that description.

At the core of the Commissioner’s decision on the public interest appeared to be the contention that disclosure would contribute to the sustained public interest in relation to the inquiry by James Hamilton. Before the court, counsel for the Commissioner had been unable to provide a clear and compelling explanation as to how legal advice concerning an appeal on what essentially amounts to a technical matter of FOI law could contribute to that debate at all, or at least to such an extent as to justify overriding the strong public interest in maintaining legal privilege. [33] The court recognised that anything, however indirectly, related to the underlying inquiry will be of intense interest to many members of the public. However, the court recognised that when it comes to dealing with the public interest, what the public is interested in is not the test. [34]

The court was of the view that the Commissioner’s reasoning revealed “an unwarranted degradation of the administration of justice concerns which underpin the confidentiality of communications covered by LPP.” [35] The court noted that when public authorities are involved in litigation the issues will often be of intense public interest and therefore it is “even more important that effective and frank legal advice can be sought and received.” [35] The court noted that it found “nothing in [FOISA] which dilutes the fundamental importance of these considerations, which apply to LPP for both private individuals and public authorities.” [36]

The court was, however, clear that they are not saying that the exemption, insofar as it relates to LPP, is elevated to an absolute exemption. The court accepted that there will be occasions when the harm risked by disclosure will not outweigh the public interest in the release of such information. [37] The court went on to endorse, at [37], what  Coppel, Information Rights, 5th ed, states at paragraph 30-020, that “some clear, compelling and specific justification for disclosure must be shown so as to override the obvious interest in legal professional privilege.” The court noted that they had not identified anything which could be reasonably described in that way in the Commissioner’s reasoning in this case; and therefore concluded that this constituted an “error of law which justifies upholding the Minister’s challenge to the decision.” [37]

Comment

This is an important decision from the Court of Session and will be of interest not only to those working in FOI in Scotland but those working in FOI right across the UK. It will certainly be worthwhile taking time to read and digest the court’s opinion in full. The opinion underlines the important part that privilege plays in the administration of justice; and it arguably sets a high bar (but not one that is impossible) to cross before the public interest will be served by the disclosure of information to which LPP attaches. While FOI law has provided a statutory exception to the “largely inviolable” concept of LPP, it has not diluted or undermined the importance of the concept of LPP. Like every decision involving the public interest test in FOI, each case will turn on its own specific facts and circumstances; however, it appears that the public interest in maintaining LPP is substantial and will likely take something “clear, compelling and specific” to balance the scales or tip them away from maintaining the exemption.

It is, I think (and a quick check of Westlaw appears to confirm this thought), the highest level of judicial opinion on the interaction between LPP and FOI that presently exists from any part of the UK. The Court of Appeal in Northern Ireland issued a judgment last week refusing the Police Service of Northern Ireland (PSNI) permission to appeal against a decision of the Upper Tribunal in relation to an information notice served by the (UK) Information Commissioner concerning LPP. However, it is a judgment refusing permission to appeal and so it doesn’t analyse the issues to the same extent as the opinion of the Court of Session does. In any event, the PSNI decision is concerned with an information notice requiring disclosure to the (UK) Commissioner for the purpose of his investigation, rather than in relation to a decision by the (UK) Commissioner that information covered by LPP should be disclosed to the public. Therefore, it is not wholly in point with the Court of Session decision.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}