With the advent of the freedom of information act, solicitors are preparing to offer advice on disclosure and are considering how the act could help them in criminal and civil litigation. But it could also affect them more directly, reports Grania Langdon-down
The Freedom of Information Act 2000 (FOIA), which came into force on 1 January, opens up a whole world of opportunities and threats that has the potential to generate significant work for practitioners.
But, as the UK finally joins more than 50 countries in having freedom of information legislation, just how effective will it be in widening the right to information held by public bodies? And who will use it – individuals, lawyers, journalists and campaign pressure groups determined to get behind public decisions? Or will it follow the US experience, where most requests come from businesses that have discovered the legislation is a powerful intelligence tool in accessing information about their competitors?
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Marcus Turle, a solicitor in the privacy and information law unit at City firm Field Fisher Waterhouse and editor of the Freedom of Information Journal (www.FOIJ.com), says: ‘The Act requires a fundamental shift in the way the public sector has to operate. It is a case of moving from the historic need to know to the new right to know. But it will take time to see how it works in practice.’
The premise is simple. The Act, which is retrospective, entitles anyone of any nationality living anywhere in the world to make a request for information recorded in any form from more than 100,000 public bodies without having to state why they want the information.
The authority is expected to respond to straightforward requests within 20 working days. There is no fee for making a request, although authorities can refuse a request if the search would cost more than £600 for central government and £450 for local government – the equivalent, at £25 an hour, of three-and-a-half days’ work and two-and-a-half days’ work respectively.
Local government lawyers are already finding themselves swamped with requests in the early days of the new provisions (see [2005] Gazette, 13 January, 8).
However, there are 23 exemptions, including absolute exemptions on disclosing any information about the security services or information that could be an actionable breach of confidence – whether or not the authority holds the information.
Other information, such as information relating to the formulation or development of government policy and related matters, trade secrets and information protected by legal professional privilege are covered by qualified exemptions.
This leaves the public authority with the responsibility of deciding whether the public interest in disclosure overrides the public interest in non-disclosure. There is also a ministerial right to veto disclosure, even where the Information Commissioner has ruled the information should be disclosed, with no right of appeal, although the minister’s decision would be subject to judicial review.
If a request is refused, the authority must state which exemption has been applied and the factors it has taken into account. The applicant must first challenge the decision with the authority before taking a complaint to the Information Commissioner, who is solicitor Richard Thomas, former director of public policy at City giant Clifford Chance.
If the commissioner upholds the refusal, the person seeking the information can appeal to the Information Tribunal with a further right of appeal on a point of law to the High Court. If the commissioner finds for the applicant and the information still is not disclosed, he can send it to the High Court to be considered as a matter of contempt of court.
So what are the implications for solicitors? Specialists say the Act is a valuable new weapon for lawyers to use on behalf of their clients or themselves to discover information that could be useful in criminal or civil litigation – for instance, in a civil action against the police, a lawyer could request information about officers’ training in restraint techniques – or in commercial deals.
However, they also point out that solicitors will have to consider how to protect information as the Act has no reverse provisions – the legislation does not give third parties any statutory right to object to disclosure of information that either originated from them or which affects their own interests.
Mr Turle explains: ‘Whenever a solicitor either pitches for work to a client which is a public authority or gives advice to a public body, that information is potentially accessible to someone making a request under the FOIA. For instance, if we pitch for legal work on a government project and get it, one of our competitors might ask for information about why we were appointed and about our tender document.
‘If the information is commercially sensitive, there is a conditional exemption against disclosing it, subject to the public interest test. If it is confidential information, then technically speaking, there is an absolute exemption. But the law of confidence has a public interest defence so the authority can breach confidentiality if it feels there is a very strong public interest in disclosing the information.
‘Similarly, if you have given legal advice, there is a legal professional privilege exemption under section 42, but it is also subject to a public interest test. So it is sensible to take steps to manage that risk.’
He recommends that solicitors make it clear when they provide information to public authorities whether they consider it confidential or commercially sensitive and ask the authorities to notify them before they disclose anything. However, he points out that, while the guidance says public authorities should consult with third parties before making a decision to disclose, there is no statutory obligation to do so.
However, he adds: ‘If something is a threat, it is also an opportunity – so while your competitor can try to find out information about one of your pitches, you can do the same about them.’
Peter Carey, a consultant specialising in information law with City firm Charles Russell, says: ‘If you are a law firm tendering for work from a public authority and you want information on the tenders from other law firms, some firms would find that a little unpalatable and so would probably approach an FOI agent to make the request on their behalf.’
Andrew Sharpe, an assistant solicitor with Charles Russell’s data protection team, says the firm is beginning to think about using the Act itself, ‘maybe using individual names so as not to highlight the client or ourselves as being interested in a particular matter’.
He says there are certain classes of companies, particularly arms manufacturers, whose trade associations have put out ‘bullish’ statements that they will seek injunctions to stop information being disclosed about them. ‘But it is early days to know how the Act will work.’
Graham Smith, former assistant chief executive and solicitor to Oldham Metropolitan Borough Council, is the Deputy Information Commissioner responsible for promoting and enforcing the Act.
He says: ‘The Lord Chancellor has set out in the code of practice his expectation that confidentiality clauses in contracts will be kept to an absolute minimum. A confidentiality label given to a document is not conclusive, so we can go behind it and decide whether the information can be disclosed.
‘However, it is important to understand that the Act gives a right to information rather than a right to documents. Information in a contract giving the amount of public money being spent and what it is being spent on is likely to be disclosed. The precise fee structure for the contractor may not be.
‘The Act is all about accountability of the public sector to citizens, so it is bound to include information showing how their money is being spent.’
Before the Act came in, there were reports that thousands of documents being held by government and other bodies were being shredded. Mr Smith says disposal of information should be recorded and his office will pursue ‘very vigorously’ any evidence of inappropriate destruction of information. He points out it is a criminal offence under section 77 to destroy, deface or alter information once a request has been received.
Hazel Grant, a partner in the IT group of City firm Bird & Bird, says the private sector has only recently woken up to the Act – ‘which is not surprising given the public sector, which has had four years to prepare, has only recently woken up to it’.
She says her team is advising not only the public sector on how to respond to requests but also the private sector wanting to protect its information. She has also had queries from companies that see the Act as a commercial opportunity to offer services in making requests and as a new product line in information.
She says: ‘I think lawyers will be creative in how they use it. It will take a while to work out how best to do so, as happened with the Data Protection Acts in 1984 and 1998. It was 2000 before lawyers started using subject access requests, not necessarily to get information, but as leverage, especially in employment claims. It is potentially the same with the FOIA.’
But are solicitors on top of it? ‘I would say not generally. I suspect a lot of people have just thought it is to do with the public sector and haven’t made the connection that public bodies hold a lot of information about the private sector,’ she says.
Guy Vassall-Adams, a barrister at Doughty Street Chambers in London, agrees. ‘This isn’t something you can mug up on swiftly, so I think many solicitors will find themselves seeking advice from specialists before committing themselves.’
He predicts the Act will generate plenty of work for solicitors because it is extremely complex and very poorly drafted. ‘I think that many people who are planning to exercise their right under the Act, particularly where the stakes in the outcome are high, may well want to approach a lawyer for help in framing their request in order to make sure it doesn’t attract exemptions and also if they want to challenge a refusal.
‘Public authorities will also be turning to lawyers when they receive a request for information which is conditionally exempt and they have to weigh up the public interest factors. They will be worried that if they refuse and get it wrong, they may be criticised by the Information Commissioner; but if they disclose it, they may get a lot of negative publicity. The authority could be sued by a third party for breach of confidence and a claim for damages to commercial interests, and it will want to know if is protected under the Act.’
When it comes to the legal professional privilege exemption, Mr Vassall-Adams says there is such a public interest in maintaining privilege that few documents falling within that class will be disclosed. But timing will be an issue.
He explains: ‘If a local authority receives a claim from a tenant for damages for disrepair and seeks legal advice as to the likely level of damages, that would be covered by privilege. If the claimant applies for the information pending litigation, public interest would overwhelmingly favour non-disclosure. If, however, a settlement is agreed and, six months later, the claimant applies for disclosure of the advice and there are strong public interest factors in disclosing it, then the authority may come to a different decision.’
Gazette media columnist Amber Melville-Brown, consultant with David Price Solicitors & Advocates in London, says that, in relation to privilege, the Information Commissioner’s awareness guide explains that a public authority does not have to show prejudice to the client/solicitor relationship and assumes that the disclosure of even the most trivial information could undermine that relationship.
She adds: ‘Nevertheless, the information could be disclosed under the public interest test. The question is – will this impact on the type or extent of advice solicitors may feel able to give their public authority clients and might they become less willing to prepare written advice?
‘That will only be answered when the extent of the practical application of the Act becomes clear. And with the press keen to push the boundaries in favour of freedom of information, I imagine the necessary examples will start to flow thick and fast.’
One of the first examples is likely to be the Guardian’s request to see the Attorney-General’s advice on the legality of the Iraq war. Jan Johannes, in-house solicitor with Guardian Newspapers, says: ‘Our request under the old system was rejected on grounds of legal professional privilege. We haven’t had a response to our request under the FOIA but we anticipate it might well be rejected under one of the exemptions. The difference is that public interest must now be taken into account and that is the area where we are going to be involved in the most controversy and litigation.’
Keith Mathieson, a media partner with City firm Reynolds Porter Chamberlain, considers that the FOIA is too complicated. ‘It has far too many exemptions and it is very tortuously drafted. It will undoubtedly mean more openness but a lot will depend on how the Information Commissioner adjudicates on some of the early cases – and the indications are he will be pro-disclosure.’
So, could a solicitor find himself accused of negligence if privileged material – such as legal advice given to a public authority – is disclosed as a result of an FOIA request? Andrew Quick, a partner specialising in professional negligence claims with Surrey law firm Stevens & Bolton, says: ‘Probably not. First, I think it is unlikely that any public interest in the disclosure of privileged material will outweigh the public interest in its confidentiality being maintained while that material remains commercially sensitive, for instance while litigation involving the public authority is ongoing or during negotiations for the placing of a large contract.
‘Secondly, even if a public interest case for disclosure is made out once the material is no longer commercially sensitive, it is difficult to see how a solicitor could be criticised for causing the material to be produced in the first place, unless of course in doing so the solicitor had disregarded the public authority client’s instructions given with a view to avoiding disclosure at any time.
‘There will have to be a common-sense approach to privilege because, at the end of the day, solicitors have to be able to give advice.’
Grania Langdon-Down is a freelance journalist
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