Client confidentiality and freedom of information

by Rosalind McInnes

Survey of the Information Commissioner's published decisions to date on freedom of information requests where the legal privilege exemption was claimed

The Journal, April 2006, page 21

“The idea of legal privilege is sacred to all lawyers who practise Scots law”, as Colin Anderson, former President of ECLA, has commented (The Journal, July 1999, page 30). He was speaking of ECLA’s principal mission, to battle the European Court’s AM&S ruling limiting legal privilege for in-house lawyers in EU competition matters. (As he pointed out in the same article, in-house lawyers employed by the European Commission do enjoy legal privilege.) The in-house lawyer is, therefore, especially sensitive on this front.

However, this idea is indeed of central practical importance to us all. The House of Lords last year endorsed its sanctity in the Three Rivers case [2005] 4 All ER 948; [2005] 1 AC 610. The principle also received recent Scottish reinforcement in Narden Services Ltd v Inverness Retail & Business Park Ltd [2005] CSOH 62 (R F Macdonald QC), when a belated claim to confidentiality succeeded in relation to legal documents. The judge said: “The claim which the… respondents seek to make in relation to these documents is one of confidentiality based on legal professional privilege, an absolute legal privilege and a fundamental human right which has been held to be part of the right of privacy guaranteed by article 8 of the Convention”.

“Absolute” perhaps needs clarification. The general rule is superseded where fraud or similar illegality is alleged against a party whose professional legal adviser had been directly concerned in it: Micosta SA v Shetland Islands Council 1983 SLT 483 at p 485; Kelly and Sarwar v Procurator Fiscal, Glasgow, 3 December 1998, unreported.

Nonetheless it is a principle relevant to all practitioners, cherished by private practitioners and energetically fought for by in-house lawyers, that no one but the client can overturn confidentiality. Moreover, such a waiver is not to be lightly presumed. Lord Drummond Young’s opinion in the Outer House in Whitbread Group plc v Goldapple Ltd, 31 July 2002, indicates that the Scottish courts are slow to find that there has been a waiver of confidentiality, even where documents are handed over for a particular, limited purpose.

The scope of the exemption

Section 36(1) of the Freedom of Information (Scotland) Act 2002 created an exemption to the disclosure of lawyer-client communications: “Information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information.”

This is a class exemption. It is not absolute. The information can be withheld only where the public interest in withholding it trumps the public interest in disclosing it. As Gordon Jackson QC said in committee, “if the balance remains level, disclosure wins”. Where an authority relies on section 36(1), it must make its public interest case.

Although the Act covers only Scottish public authorities, they may be holding legal opinions or correspondence generated by lawyers in private practice and possibly for the benefit of private third parties. Such material may be passed on to further the client’s arguments in a dispute with a local authority, or in pursuit of a common interest. It is the public authority which will be taking the decision on whether to hand over the information or not. Send a counsel’s opinion commissioned for your client to, say, the Scottish Executive and the material risks going irrevocably into the public domain. Under the section 60 code, interested third parties ought to be consulted, but they have an input, rather than a veto. Section 55 of the Act makes it clear that there is no civil right of action against an authority if the latter fails to comply with a duty “imposed by, under or by virtue of this Act”. Unless the third party can find a free-standing civil wrong – probably a breach of confidence or breach of copyright – the public authority can choose whether, and how vigorously, to fight the former’s corner for non-disclosure.

So it matters very much how Kevin Dunion, the Scottish Information Commissioner, interprets requests for such information. The first year’s worth of decisions on the application of section 36(1) are instructive and bracing.

Steven Jarvis

In Steven Jarvis and Perth & Kinross Council, Decision 014/2005, 18 July 2005, the council ultimately accepted that the exemption did not apply to one of the claimed letters because its writer was not acting in the capacity of legal adviser to the council.

Mr X

In Mr X and the Chief Constable of Grampian Police, Decision 018/2005, 10 August 2005, Mr X asked Grampian Police to provide documents. One contained advice from Grampian Police’s solicitors, which had been redacted. The Commissioner accepted this, simply saying, at paragraph 47: “I do not consider there to be sufficient public interest in the information to override this exemption.”

Geoffrey Jarvis

Geoffrey Jarvis, the Clyde Heritage Trust and Glasgow City Council, Decision 045/2005, 3 November 2005, developed the Commissioner’s slant. Mr Jarvis sought information about the trust’s objection to a bridge over the River Clyde. The council withheld legal advice received from Jonathan Mitchell QC. It argued that none of the conventional factors which would oust lawyer/client confidentiality, such as fraud or a dispute over the relationship itself, was in play. Making a general submission that the public interest favoured withholding such information, “The council submitted that a good memorial for counsel’s opinion will identify all the factors, including perceived weaknesses in a party’s position, in order to allow counsel to take these factors into account in providing the opinion. Likewise a good opinion will not simply give bald advice but will explore possible areas of weakness and avenues where a position could be attacked with some indication of the likelihood of such attacks succeeding… The council also commented that if a perception is allowed to develop that communications with legal advisers are likely to be released,… those seeking legal advice will present only a partial representation of facts… or, worse still, simply stop seeking legal advice altogether” (paragraphs 12-13).

More specifically, the council stated that the bridge proposals had already been the subject of open and transparent public consultation, and that a counsel’s opinion was not a definitive legal answer.

Predictably, the applicant took a different view of the public interest: “Mr Jarvis submitted that… there is a compelling public interest in understanding which legislation… controls development of bridges over the River Clyde... He also notes that under the charter to the city granted by King Charles I, the river was developed in the interests of the people of Glasgow and their representatives. He contends that any alteration to the navigation of the river and its potential to flood with possible loss of life and damage is of compelling public interest” (paragraph 16).

The Commissioner, in reaching his decision, said certain conditions must be fulfilled for section 36(1) to be engaged.

“For example:

The information being withheld must relate to communications with a legal adviser. This clearly includes communication with counsel.
The legal adviser must be acting in his/her professional capacity and the communications must occur in the context of his/her professional relationship with his/her client.
The privilege does not extend to matters known to the legal adviser through sources other than the client or to matters in respect of which there is no reason for secrecy.
The privilege does not extend to communications which relate to fraud or the commission of an offence.”

Satisfied that the opinion fulfilled these, he went on to the public interest:

“21. FOISA has brought about many changes to public life in Scotland, not least that for the first time communications between a legal adviser and a public authority client can be made public if it is in the public interest for those communications to be released.

“22. The courts have long recognised the strong public interest in maintaining the right to confidentiality of communications between legal adviser and client on administration of justice grounds. Many of the arguments… were discussed towards the end of last year in… Three Rivers District Council…

“23. There will always be a strong public interest in maintaining [that] right… As a result, I am likely only to order the release of such communications in highly compelling cases.”

He was satisfied that here there was no such compelling factor.

David Emslie

David Emslie and Communities Scotland, Decision 023/2005, issued 19 August 2005, concerned allegations of fraud made by Mr Emslie in relation to Grampian Housing Association and to his request that Communities Scotland investigate these. Correspondence between Communities Scotland and a legal adviser was withheld. Mr Emslie argued that he needed this to enable him and his fellow tenants to stop rent and service charge increases possibly based on flawed legal advice.

The Commissioner repeated the four conditions he set out in Geoffrey Jarvis, but added:

The fact that advice was sought is not necessarily privileged.
It is likely that communications are privileged whether or not they relate to pending or contemplated litigation.

He also made it plain that in-house solicitors may be covered by this exemption.

Mr Dunion repeated, almost verbatim, his statements about the need to consider the public interest test; the FOISA innovation making communications between a legal adviser and a public authority client at least potentially public; the strong public interest in maintaining the right to confidentiality of communications between legal adviser and client; the Three Rivers case; and his reluctance to order release of such communications except in extraordinary cases.

He did not, therefore, order release. However, he looked carefully at the records which were claimed to be subject to section 36(1). The Commissioner pointed out that, although one email from a Scotland Office solicitor contained a request for instructions, the solicitor did not act for Communities Scotland or the Scottish Executive. He added:

“Although communications between a client and a legal adviser may be subject to legal professional privilege, the client may choose to make that communication available to a third party. In this case, the [Department of Work and Pensions] has passed the email to Communities Scotland and, in doing so, any confidential status the email may have had has been lost.”

William Alexander

The William Alexander decision, Decision 057/2005, 24 November 2005, according to The Herald on 19 January 2006, is the first which the Scottish Executive is appealing to the Court of Session. It is certainly the first time in which the Commissioner held (at paragraph 39) that the public interest outweighed the section 36(1) exemption. This element of the Commissioner’s decision refers only to two documents. He had upheld the Executive’s use of this exemption in relation to eight others, in whole or part. (He also separately upheld the decision to withhold advice provided by the law officers, but not from the Lord President. The Executive accepted that the Lord President was not a law officer under section 29(1).)

This case is of double significance to solicitors. Mr Alexander, a longstanding campaigner for wider consumer access to legal services, required any information the Executive held about the commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which would allow rights of audience to be granted to members of a profession or other body.

The Commissioner set out his public interest reasoning:

“79. It is not uncommon for sections of an Act of Parliament to have commencement delayed… However, it seems to me to be reasonable for citizens to question why… after 15 years. A democratic society is entitled to expect that legislation passed by its elected representatives in Parliament will be brought into force unless there are good reasons for not doing so, and citizens are entitled to know those reasons unless there is a greater public interest in keeping them secret.

“80. Mr Alexander has pointed out that the equivalent legislation came into force in England and Wales 15 years ago… and that plans for increasing competition still further are currently still being considered there. He believes that he should be able to challenge the reasons for the delay in Scotland, but cannot do so until he is given access to the facts behind the decision…

“81. Documents already released show that, at several points during the last 15 years, ministers or officials agreed that sections 25-29 of the Miscellaneous Provisions Act should be brought into effect, and even proposed dates... This strengthens the public interest in gaining access to information which would fully explain why such agreements were overturned or set aside.”

Adding that both MSPs and the Scottish Consumer Council had asked essentially Mr Alexander’s questions, the Commissioner noted:

“The Executive has stated that it has already advised Mr Alexander of the Executive’s reasons for not yet commencing this legislation and that release of the documents… would add little... However, it is clear to me after studying the documents… that the reasons for non-commencement have changed over time, and are more complex and varied than the reasons presented to Mr Alexander.”

Mr W

Mr W, who was suing Borders General Hospital, made 15 FOISA requests for letters, emails and other information, including information exchanged with its legal advisers (Decision 078/2005, 15 December 2005). At paragraph 89 the Commissioner repeated the six conditions and at paragraph 90 he added: “The principle of legal professional privilege is based upon the need to protect a client’s confidence that any communication with his/her professional legal adviser will be treated in confidence and not revealed without consent.… The emphasis should be on communications, that is, the information rather than documents.” He had no difficulty in deciding that internal communications between NHS Borders and its lawyers in contemplation of these proceedings would fall within the exemption.

The Commissioner again repeated his protective stance on section 36(1) communications. He noted that NHS Borders had argued that the information requested was of interest to the individual, rather than the public at large; concerned unproven allegations against one individual; and the applicant had taken these issues through local resolution, an independent review panel, the Scottish Public Services Ombudsman, the Scottish Executive Health Department and his MSP. Once again, the Commissioner refused to order release of the information.

Equally, however, once again his scrutiny was close. The citation and notice of intention to defend, for instance, he said, would also be held by Mr W and/or his legal representatives and did not therefore fall under section 36(1). (If, he said, NHS Borders had applied section 25(1) – i.e. claimed that the information was exempt because the applicant could have obtained it elsewhere – that would succeed.) He reinforced the circumstantial application of the public interest test by ending (at paragraph 100): “The correspondence being withheld… is routine correspondence between NHS Borders and its lawyers of the type one would expect in preparation for a legal action of this nature. I find that there are no highly compelling reasons why this information should be released in this case.”

Searching scrutiny

Three things are clear.

First, the Commissioner will be slow to order disclosure of information which is authentically confidential lawyer/client communication.

Secondly, the scrutiny of whether it falls under the exemption in the first place will be thorough. The involvement of a solicitor or advocate in, or the patina of legality in the content of, a document, is not garlic to the FOISA vampire (for those who take that view of the Act). Many of our files – or at any rate, parts of them – will not meet the six (apparently non-exhaustive) conditions developed so far by the Commissioner.

Lawyers always knew that lawyer/client confidentiality of communications exists for the client’s benefit and can be waived. The global effect of such a powerful privilege, however, can be a certain bilateral cosiness. Even if confidentiality was hitherto waived by a client, this was likely to occur in the relatively confined context of an individual dispute, whereas information recovered under FOISA, as the Commissioner has stressed (especially in his decision on section 38, the exemption for personal data), goes into the public domain. The impact of FOISA, potentially, is to turn a tête-à-tête into a chat forum, and that may have consequences for the register in which solicitors express themselves or the consistency of the positions they adopt. It is not only counsel’s fees for high-profile public law cases (see Decision 052/2005, Balfour & Manson and the Scottish Executive) which may end up exposed to general view.

Thirdly, the public interest is crucial. In those cases where the correspondence is not “routine” – where a legitimate question remains unanswered, or the available information points to buried bodies – section 36(1) may not ultimately justify secrecy.

Rosalind McInnes is a solicitor with BBC Scotland