3 March 2011

Dear Mr Todd,

Freedom of Information (FoI) Internal Review Request

I am the review officer appointed to undertake the internal review, being someone who works in an area of the Department for Communities and Local Government (DCLG) having neither past nor present dealings in relation to EPCs policy nor the legal advice that determined that EPCs are private personal information.

In your email of 3 February 2011, to Eve Martin, you requested an internal review of DCLG's handling of your FoI request for documents relating to the aforementioned legal advice. Further you stated that:

“I see no reason why the introductory section of the legal advice, stating what the effects are to be considered, could not be provided without disclosing to me the actual advice (if the person doing the review decides that it [the legal advice] must remain exempt).”

I have now considered the points you raise and the basis for the original decision. The specific qualified exemption the Department considered in refusing to disclose the information you requested is set out in paragraphs 42 of the Freedom of Information Act 2000 (“the FoI Act”). This qualified exemption is subject to the public interest test.

Section 42(1) provides an exemption for information for which a claim to legal professional privileged could be maintained in legal proceedings. Generally, for information to fall within this exemption, it must consist or relate to communications between lawyers and client for the predominant purpose of seeking advice or litigation. I am satisfied that the exemption was correctly applied to the relevant information in this case.

As noted above, Section 42(1) is a qualified exemption which means that, for information failing within the exemption, the Department is required to assess whether the public interest is best served by releasing the information or maintaining the exemption.

There is also a public interest served by ensuring that the public is able to be reassured that the decisions made by government are taken, where appropriate, in the light of relevant, appropriate and effective legal advice. There must therefore also be a strong counter argument that government must be able to seek and receive legal advice within the appropriate degree of private space. The principle of confidentiality in the lawyer and client relationship is well established and understood and there is generally very substantial public interest in maintaining the confidentiality of legally privilege material. As such there must be at least equally weighty factors in favour of the disclosure of such legally privileged information if the public interest is to favour disclosure.

I consider, on balance and taking account of all the circumstance of this particular case, that there were no significantly strong arguments that would have merited the disclosure of the legally privileged information in this case and that the public interest was best served at the time of the response to your request by maintaining the exemption as described above and in not releasing the information.

If you are not satisfied with my consideration of your request for a review and with this outcome you may apply to the Information Commissioner. The Information Commissioner can be contacted at:

Office of the Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Telephone 01625 545 700

Yours faithfully,

Selvin Brown MBE

Head of the Structural reform Plan Team

Strategy and Programme Team