Thursday, February 21, 2008

Tribunal orders disclosure of legal advice on public interest grounds

The Information Tribunal has ordered the disclosure of legal advice on public interest grounds for the first time. In Mersey Tunnel Users Association v Information Commissioner and Merseytravel (EA/2007/0052), the Tribunal found that advice by counsel to Merseytravel on the authority's powers under a Debt Administration Order, was subject to legal professional privilege but the public interest in maintaining the exemption was outweighed by the public interest in disclosure.

The Tribunal concluded:
Finally, we come to strike the balance in the particular circumstances of this case. Weighed in the round, and considering all the aspects discussed above, we are not persuaded that the public interest in maintaining the exemption is as weighty as in the other cases considered by the Tribunal; and in the opposing scales, the factors that favour disclosure are not just equally weighty, they are heavier. We find, listing just the more important factors, that considering the amounts of money involved and numbers of people affected, the passage of time, the absence of litigation, and crucially the lack of transparency in the authority’s actions and reasons, that the public interest in disclosing the information clearly outweighs the strong public interest in maintaining the exemption, which is all the stronger in this case because the opinion is still live. To quote Bellamy : “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 public interest”. In our judgement, the countervailing considerations adduced here are not equally strong; they are stronger. The opinion should be disclosed.

Read the Tribunal's decision.

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