Dear Wirral Metropolitan Borough Council,

This Freedom of Information Act request is for the fee notes attached to the following two invoices:

1) Weightmans LLP Paid 16/7/13 Ref: 1411340 Amount £48,384
2) Weightmans LLP Paid 2/9/13 Ref: 1420583 Amount £2,700

Yours faithfully,

John Brace

Dear Wirral Metropolitan Borough Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Wirral Metropolitan Borough Council's handling of my FOI request 'Attached fee notes to two Weightmans legal invoices'.

On the 23rd March 2015 I made the following request:

"Dear Wirral Metropolitan Borough Council,

This Freedom of Information Act request is for the fee notes attached to the following two invoices:

1) Weightmans LLP Paid 16/7/13 Ref: 1411340 Amount £48,384
2) Weightmans LLP Paid 2/9/13 Ref: 1420583 Amount £2,700

Yours faithfully,

John Brace"

On the 21st April 2015, you refused the request relying on s.42 of the Freedom of Information Act 2000 (legal professional privilege).

I do not dispute that the fee notes attached to the invoices in question are communications between Wirral Council and its legal advisers.

I have also had regard to I have had regard to the ICO guidance “The exemption for legal professional privilege Section 42 Version 1.2” which can be read on ICO's website here https://ico.org.uk/media/for-organisatio... .

As it states in that guidance "Section 42 is a qualified exemption, subject to the public interest test."

You refer to Calland v. Information Commissioner & The Financial Services Authority (EA/2007/01386) http://www.informationtribunal.gov.uk/DB... in your response. I quote from paragraph 29 of that decision:

"The withheld documents ( twenty – four pages ) for which LPP was claimed, wholly or in part, were file notes made by FSA lawyers and communications, generally by e mail, between FSA investigators and lawyers or lawyers and other lawyers. Having considered them and the closed submissions made by the IC, we concluded that they were privileged, subject to the broad question of principle raised by the Appellant, namely ; does the privilege extend to communications with in – house lawyers or is it restricted to advice sought or obtained from independent external solicitors or barristers ?"

The fee notes requested in this FOI request are not legal advice of the type referred to in the Calland v. Information Commissioner & The Financial Services Authority case.

The two fee notes requested are a breakdown of Counsel's fees (the £2,700 amount relates to work done from November 2010 to November 2012 and the the £48,384 amount for work done from the 27th February 2012 to the 5th March 2013).

The fee notes are for the work of Jenni Richards QC and Josephine Norris in this case [2012] EWCA Civ 84 http://www.bailii.org/ew/cases/EWCA/Civ/... .

However the "clear, compelling and specific justification for disclosure" is to show how £51,084 of public money was spent.

You state:

"I consider that disclosure of the requested information could materially prejudice the Council’s ability to protect and defend its legal interests. Without comprehensive advice, the Council’s decision –making process may be compromised because it would not be fully informed. Public interest factors weighing in favour of disclosing privileged information are that authorities should be accountable for the quality of their decision –making and this may require transparency in the decision-making process. I consider that the public interest in maintaining the exemption outweighs the public interest in disclosure having also had regard to their being a strong element of public interest built into the privilege itself."

Perhaps there has been a misunderstanding here, I am not requesting the advice received by Wirral Council in this matter, merely the fee notes which would break down what the fees relate to. The ICO guidance states in paragraph 47 in its guidance on the public interest test (page 15):

"Factor in favour of maintaining the exemption

The concept of legal professional privilege and the rationale behind the concept (ie ensuring frankness between lawyer and client which goes to serve the wider administration of justice etc).

Additional weight may be added to the above factor if the advice is:-

recent;
live;
protects the rights of individuals."

Please note it states "advice" above, which a fee note is not. The matter is not recent or live, therefore too much weight has been given to this factor when considering the public interest test.

"Factors in favour of disclosure

The assumption in favour of disclosure and the rationale behind the assumption (ie accountability, transparency, furthering public debate etc).

Additional weight may be added to the above factor if the following issues are relevant in the particular case:

large amount of money involved;
large number of people affected;
lack of transparency in the public authority's actions;
misrepresentation of advice that was given;
selective disclosure of only part of advice that was
given."

The case involved a claim by Salisbury Independent Living Limited that Wirral Council owed them £3 million and involved and ~60 odd tenants. The legal costs to Wirral Council amount to £51,534 (which is another large amount of money).

In Mersey Tunnel Users' Association (MTUA) v Information Commissioner and Merseytravel (EA/2007/0052) http://www.informationtribunal.gov.uk/DB... which decided the public interest lay in disclosing a barrister's opinion where Merseytravel & the Information Commissioner claimed a section 42 exemption applied:

"34. Finally, we accept and adopt the four principles set out in paragraph 53 of Pugh:

a. There is an assumption built into FOIA that disclosure of information by public authorities on request is in the public interest in order to promote transparency and accountability in relation to the activities of public authorities. The strength of that interest and the strength of competing interests must be assessed on a case-by-case basis.

b. The passage of time since the creation of the information may have an important bearing on the balancing exercise. As a general rule, the public interest in maintaining an exemption diminishes over time.

c. In considering the public interest factors in favour of maintaining the exemption, the focus should be upon the public interests expressed explicitly or implicitly in the particular exemption provision at issue.

d. The public interest factors in favour of disclosure are not so restricted and can take into account the general public interests in the promotion of transparency, accountability, public understanding and involvement in the democratic process. "

I therefore request that the person conducting the internal review considers these factors when considering the public interest test and due to the additional weight given to the factors in favour of disclosure in the public interest test referred to in ICO's guidance on the application of this exemption release the information requested.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

John Brace

Dear InfoMgr, FinDMT,

Thank you for your response to ICO decision notice FS50585536 .

For the purposes of clarity and to avoid misunderstandings I provide a link to the decision notice on ICO's website https://ico.org.uk/media/action-weve-tak... .

I presume your internal reference for this request is 882351 .

Paragraph 5 of the decision notice states:

“This Freedom of Information Act request is for the fee notes attached to
the following two invoices:
1) Weightmans LLP Paid 16/7/13 Ref: 1411340 Amount £48,384
2) Weightmans LLP Paid 2/9/13 Ref: 1420583 Amount £2,700”

and

paragraph 3 of the decision notice states:

"3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
Disclose the fees notices relating to the invoices as set out in the request. "

Please note that your response only discloses the fee note (in redacted form) referred to as 1) above. Some information is redacted from this fees notice. Whereas I can understand why you blacked out some information, to withhold the information in the fees notes would require you to appeal the decision notice as its wording doesn't allow you to withhold the information. Please re-read the decision notice using the link I have provided.

As the decision notice is dated 27th October 2015, by my reckoning the deadline for you to appeal it has already come and gone.

Therefore you have a week to:

a) provide the fees note that is referred to as (2) in the request which is specified as "2) Weightmans LLP Paid 2/9/13 Ref: 1420583 Amount £2,700”

b) provide the fee note you have already provided without the redactions as please read the decision notice it doesn't allow you do this

or

c) if you are going to insist on providing the information with bits blacked out please follow best practice and comply with s. 17 of the Freedom of Information Act 2000 that specifies you have to state the exemption you think applies and why.

If you do not comply with the decision notice FS50585536 within the 35 days I will complain to the regulator ICO.

I hope you understand why I've written this and look forward to a more comprehensive response to the decision notice within the immediate future.

Yours sincerely,

John Brace

Dear Wirral Metropolitan Borough Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Wirral Metropolitan Borough Council's handling of my FOI request 'Attached fee notes to two Weightmans legal invoices'.

I feel it is possible I am repeating myself but I wish to make the following points. If you don't have information that is requested you are supposed to state this in response to the request.

For clarity I link to the original invoice that this fee note relates to https://johnbrace.files.wordpress.com/20... .

This invoice quite clearly states "(See fee note attached for description of work)". The invoice was paid and it would've been impossible to tell what the money was actually for without reading the supposedly attached fee note!

On the 21st April 2015 you refused this request for the fees notes (note plural) on the basis of legal professional privilege.

On the 11th June 2015 you refused this request for the fees notes (note plural) on the basis of commercial interests.

The decision notice, see https://ico.org.uk/media/action-weve-tak... refers therefore to fees notes in the plural.

So to state on 30th November 2015 you state that you do not hold the fee note attached to the £2,700 invoice either means:

a) earlier statements made by Wirral Council relating to fees notes are incorrect or
b) your current statement relating to the fee note attached to the £2,700 invoice is incorrect as possibly it has been mislaid because of this FOI request.

It would be useful, considering your s.16 duty to provide advice and assistance that you could clear up the following issues with both myself and ICO:

1) Why if you did not have the fee note did earlier responses to this FOI request not state this? Do you wish to amend/revise these earlier statements?
2) Why did two statements previously refer to fees notes in the plural if you did not have two?
3) Was the fee note originally attached to the invoice (as stated on the invoice) and if so what has happened to it?

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

John Brace