FOIA No: 2244
Date of Receipt: 28 August 2012
Last Date for Response: 25 September 2012
File Ref: CP01/00000137
 
Thank you for your written communication of 28 August 2012.  The
information that you require is not included within the Council’s formal
publication scheme and a referral has been made to the responsible officer
to collate a response.
 
You may expect to receive a response to your request by 25 September 2012,
that is within twenty working days of its receipt by the Council.
 
In some circumstances a fee may be payable and if that is the case, we
will let you know. A fees notice will be issued to you, and you will be
required to pay before we will proceed to deal with your request.
 
Please ensure that any further communication in relation to this matter is
sent by you to the Freedom of Information Officer at the above address
quoting the reference in the subject line of this communication.
 
Kind regards
 
 
 
 
Freedom of Information Officer
 

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Dear Mr Thorne

 

I write pursuant to your request for information (reference FOIA2244). In
the first instance I apologise for the lengthy delay in providing you with
a response which I agree is unacceptable. The Council is looking afresh at
their systems for dealing with Freedom of Information Act 2000
(FOIA)/Environmental Information Regulations 2004 (EIR) requests and I am
hopeful that this will reduce the possibility of such a delay occurring
again.

 

As I understand matters you requested the following information:

 

"In the last few months Scarborough Borough Council engaged East Riding of
Yorkshire Council Planning Committee. The engagement was in relation to
the move of the Civic Functions for the current SBC Town Hall on St
Nicholas Street in Scarborough to a proposed new location on Dunslow Road,
Eastfield, near Scarborough. This wasn't a full planning request, it was a
pre-application request with a view to asking for planning permission.

Please can you provide all documentation and communication from East
Riding of Yorkshire Council relating to this pre-application planning
request so I can see the outcome of the pre-application request."

 

Response

 

Firstly, I have determined that this request falls to be dealt with under
the EIR, although I accept it is arguable that it may in fact fall under
the FOIA instead. Nonetheless, the request indirectly relates to
information regarding land.

 

I start by making it clear that any information disclosed by the Council
under the EIR is disclosed into the public domain, and not simply to the
applicant. The Council must therefore consider disclosure from this
perspective.

 

The Council does hold information relevant to your request, and I have
obtained copies of the correspondence and documentation received from the
East Riding of Yorkshire Council (ERYC) which enables the outcome of the
pre-application request for advice to be seen. I should also make it clear
that you are not entitled to copies of the correspondence and documents
concerned, the right is to the information contained therein (subject to
any applicable exception).

 

By way of narrative, ERYC's Planning Department required this Council to
obtain formal legal advice on a number of points prior to them giving
their pre-application advice. A planning barrister was instructed,
providing 2 pieces of written advice to this Council.  ERYC then gave
their advice based upon the legal advice received from the barrister. The
majority of the content of the ERYC advice is taken directly from the
barrister's advice, or at the very least betrays the trend of that legal
advice.

 

I also note that you made a very similar request to ERYC, and I have seen
a copy of their response to you. As far as I understand it, their response
was given post the provision of pre-application advice, and prior to any
planning application being made by this Council (or indeed any decision
not to make a planning application). As you are aware, it was determined
by the Full Council that there would be no need for an application to be
made because the Town Hall would not be moving to the site identified at
that time. In particular I note the following excerpt from ERYC's response
to your request:

 

'…the public interest in disclosure is outweighed by the need for the
Council to deal with pre-application inquiries confidentially as land or
property owners are seeking informal advice to assist in commercial
decisions and need to know that any information supplied is not made
public prior to any decision to proceed with a particular development
scheme.'

 

To my mind the nature of most pre-application advice changes once the
developer makes a public application for planning permission. At that
time, it may very well be that the information you have requested (which
in essence is the content of the pre-application advice given to this
Council) is disclosable, or is disclosed via the reports etc. relating to
the formal planning application. Where formal planning applications are
submitted, this provides proper opportunity for public scrutiny of that
application and allows the public to comment upon the same prior to a
determination being made.

 

As stated, this Council did not however make application for planning
permission. That said, there may very well be a future need to look again
at the location of the Town Hall. In that respect, the Council may return
to the advice received from both the barrister and ERYC (whose advice was
of course heavily based upon the barrister's advice), subject to any
relevant changes in the law. This does not mean that the Council are
looking or intend to look to relocate at this time.

 

In considering whether any exceptions apply to the requested information,
the Council has applied the presumption in favour of disclosure under
regulation 12(2) of the EIR.

 

It is the Council's position that the vast majority of the information
relevant to your request is excepted from disclosure under regulation
12(5)(b) of the EIR, which states (so far as is relevant):

 

(5)     For the purposes of paragraph (1)(a), a public authority may
refuse to disclose information to the extent that its disclosure would
adversely affect—

(b)     the course of justice…

 

This exception is particularly wide and covers the situation where legal
professional privilege applies (LPP). In the context of this request, LPP
attaches to any advice and communications between the Council and their
legal advisors. This extends to the content of the advice and
communications and not the actual medium (for example a hard copy letter).

 

The ICO guidance "The course of justice and inquiries exception
(regulation 12(5)(b))" (which is available at [1]www.ico.org.uk) states
(inter alia) the following:

 

Legal professional privilege (LPP) exists to ensure complete fairness in
legal proceedings. LPP protects advice given by a lawyer to a client and
confidential communications between them about that advice….

 

…Kirkaldie v Information Commissioner & Thanet District Council
(EA/2006/0001, 4 July 2006)

 

"The purpose of this exception is reasonably clear. It exists in part to
ensure that there should be no disruption to the administration of
justice, including the operation of the courts and no prejudice to the
right of individuals or organisations to a fair trial. In order to achieve
this it covers legal professional privilege…"

 

…The Upper Tribunal stated that an adverse effect upon the course of
justice can result from the undermining of the general principles of legal
professional privilege and of the administration of justice. The Upper
Tribunal also accepted that it was not a foregone conclusion that the
disclosure of privileged information would adversely affect the course of
justice; but suggested that there would need to be special or unusual
factors in play for this not to be the case…

 

…In DCLG v Information Commissioner & WR [2012] UKUT 103 (ACC) (28 March
2012), case number GIA.2545/2011, the Upper Tribunal considered the
significance of LPP under the EIR, allowing the appeal by DCLG and
re-making the decision of the First Tier Tribunal.

 

The Upper Tribunal (UT) said it was relevant to take into account any
adverse effect upon LPP (such as the confidence in the efficacy of LPP)
and the administration of justice generally, and not simply the effect on
the particular case.

 

The UT agreed with arguments that: "it would be possible to conclude that
the course of justice would not be adversely affected if disclosure were
to be directed only by reason of particular circumstances, (e.g. that the
legal advice is very stale), such there would be no undermining of public
confidence in the efficacy of LPP generally" and "whether [regulation]
12(5)(b) is engaged, in the case of information protected by LPP, must be
decided on a case by case basis."

 

To further set the policy context, I set out a number of extracts from the
ICO Policy Knowledge Base, which can be accessed at:

 

[2]www.ico.org.uk/foikb/index.htm

 

…information which is subject to legal professional privilege will be
covered by regulation 12(5)(b), though it should be recognised that the
exception is not limited to covering this type of information only…

 

…Further support for viewing regulation 12(5)(b) as the appropriate
exception to cover legal professional privilege was demonstrated by the
Tribunal in the case of Creekside Forum v ICO and DCMS (EA/2008/0065). In
this case, the appellants had argued that regulation 12(5)(b) was not
capable of including legal professional privilege (paragraph 25). The
Tribunal was clear that "…whilst regulation [12(5)(b)] does not explicitly
name legal professional privilege, its function and substance fall under
the umbrella of "course of justice" and therefore, regulation 12(5)(b) was
the appropriate exception to apply (paragraph 29)."

 

The Tribunal in Woodford v IC (EA/2009/0098) confirmed that the test of
"would adversely affect" for 12(5)(b) would be met by the general harm
which would be caused to the principle of LLP, without needing to
demonstrate that specific harm would be caused in relation to the matter
covered by the information: "There can be no doubt that disclosure of
information otherwise subject to legal professional privilege would have
an adverse effect on the course of justice" (paragraph 27). This confirmed
the decision in Rudd v IC & Verderers of the New Forest (EA/2008/0020)
that 'the course of justice' does not refer to specific action but "a more
generic concept somewhat akin to 'the smooth running of the wheels of
justice'" (paragraph 29). Consideration of the specific circumstances is
however required when addressing the public interest test…

 

…The wording of the exception has a broad remit encompassing any adverse
affect on the course of justice generally; this allows for documents that
are not subject to LPP to still be covered by the exception, as long as
disclosure would adversely affect on the course of justice…

 

In my opinion, regulation 12(5)(b) is clearly engaged and applicable to
the information concerned. LPP covers the content of the advice given by
the planning barrister which forms a large part of ERYC's pre-planning
advice to the Council. There are also a number of instances where the
content of the barrister's advice is clearly apparent, albeit paraphrased
and applied by ERYC. Even if it is not accepted that this part of the
information is not covered by LPP, to my mind disclosure of the
information clearly reveals the content of the barrister's advice, and
therefore betrays LPP and that legal advice. This would act to undermine
the principle of lawyer/client confidentiality, and thus the very broad
course of justice.

 

As referred to above, this exception is subject to a public interest test.
The ICO Guidance documents state (inter alia):

 

…The public interest inherent in this exception will always be strong due
to the fundamental importance of the general principle of upholding the
administration of justice…

 

…A public authority must also take into account the strong public interest
in transparency as to how justice is administered…

 

…In relation to LPP, the strength of the public interest favouring
maintenance of the exception lies in safeguarding openness in all
communications between client and lawyer to ensure access to full and
frank legal advice…

 

…[In] DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC) (28 March
2012), case number GIA/2545/2011…The UT [Upper Tribunal] accepted the
submission that the risk of the disclosure of legally privileged
information, leading to a weakening of confidence in the general principle
of LPP, was a public interest factor of "very considerable weight" in
favour of maintaining the exception. It added that there would have to be
"special or unusual factors" in a particular case to justify not giving it
this weight and in this case there were none.

 

The ICO Policy Knowledge Base states (inter alia):

 

…There will always be a strong element of public interest inbuilt into the
legal professional privilege exemption…

 

…Paragraphs 26-56 of the Tribunal's decision in the case of Pugh provide a
useful summary of the development of LPP starting with the often used
quote from the Tribunal in the case of Bellamy (2005):-

 

"…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 inbuilt interest. …it is important that
public authorities be allowed to conduct a free exchange of views as to
their legal rights and obligations with those advising them without fear
of intrusion, save in the most clear case…".

 

It is accepted that there is an assumption in favour of disclosure, which
is predicated on the need to ensure accountability, transparency,
furthering public debate, and best value in the provision of Council
services. I also accept that the proposal to relocate the town hall to an
alternative site is of interest to local residents within the borough,
particularly due to their concerns about the impact upon the provision of
services, and any perceived affect upon the economy of the town centre.

 

That said, the Council did publish various reports regarding the
proposals, and a great deal of information was made public. It cannot be
said that there was a complete lack of transparency in relation to the
Council's proposals.

 

I accept that planning and the development of the borough is something
which can have considerable impact upon both residents and businesses
alike. This is why, once an application is received, the process is
invariably held in the public domain including the publishing of all
documents relevant to an application for inspection by the public. Members
of the public also have a right to make representations for or against
applications. Post application the planning regime therefore provides a
good opportunity for scrutiny, transparency and furthering public debate.

 

Consequently, if the Council had chosen to make a planning application
this would have been heard in the public domain, with papers relevant to
the application being published beforehand to allow consultation and input
from those with an interest (including the public). No planning permission
would have been granted or refused until that process was completed, and
that process (being the usual planning process) meets the public interest.

 

In the circumstances, the Council did not make an application for planning
permission. If in future the Council decide to make an application for
permission, it will come before a public committee thus allowing the
public to scrutinise the details of any such application prior to the
committee, and to express their views.

 

By way of analogy (which may assist), if a person wanted to obtain a
driving licence they would have to undertake a number of lessons,
culminating in a test. If they decided not to take the test they could not
obtain a licence to drive. The only way for them to obtain a licence would
be to take the test and pass the same. The test is there to ensure that
the driver meets the legally required standard. In much the same way, if
the Council wish to obtain a planning permission they have to make
application, with such application having to meet legally required
standards etc. (such an application would also be subject to public
scrutiny).

 

I acknowledge that the advice is now a number of months old, and that one
might suggest that the issue of the location of the town hall is no longer
live and thus the public interest in maintaining the exception is reduced.
That said, to my mind the advice continues to be relevant and may be used
further. It is not out of the question that the Council may have to
consider their accommodation again, particularly in light of the
continuing budget cuts. Again, I am not however stating that the Council
is presently considering a move.

 

As has been made clear by the case law referred to above, there is a
strong public interest inherent in any information to which legal
professional privilege applies. Ensuring frankness between a lawyer and
their client furthers the administration of justice. To disclose
information to which LPP attaches would undoubtedly impact upon the
principles underlying the same, unless there are very clear and compelling
circumstances which warrant such a disclosure in breach of LPP. To my
mind, aside from the standard public interest arguments one would expect
in this type of situation, there are no comparably strong interests in
disclosure so as to override the duty of LPP. For example, there are no
substantiated allegations of malpractice or wrong-doing, and the Council
has sought to disseminate as much information about this matter as
possible. Furthermore, if the Council were to decide in future to make a
planning application relating to the town hall location, it would be dealt
with by a planning committee in the public arena, allowing public scrutiny
and the public interest to be met. The Council should be able to request
professional legal advice with an expectation that the principle of LPP is
upheld.

 

The public also have an interest in ensuring that the Council is able to
obtain proper legal advice so that their decisions are as fully informed
as possible, for the benefit of the borough. Disclosure in breach of LPP
goes against this interest.

 

Even if some of the information within the pre-application advice cannot
be said to be a direct quote (copy and paste) of the advice provided by
the barrister, it either constitutes paraphrasing, or it is very clear
what the barrister's advice is. This betrays the advice and the duty of
LPP. To disclose this information would undermine the course of justice
and would make a mockery of the principle of LPP.

 

Consequently, I am of the opinion that the public interest in maintaining
the exception outweighs the public interest in disclosure. That said, I
have attached a redacted copy of the ERYC pre-application advice, having
removed direct quotes from the barrister's advice, and any information
which betrays the content of that advice and therefore the principle of
LPP. No doubt the remaining content does not however meet your requirement
for information from which you "can see the outcome of the pre-application
request", and I was in fact in 2 minds as to whether the disclosure of the
redacted copy would serve any purpose. Nonetheless I have disclosed it in
an effort to disclose as much as I can within the framework of the law.

 

Review

 

If you are of the opinion that the Council has failed to comply with any
requirement under the EIR you are able to make representations in this
respect, which must be made in writing to the Council within 40 working
days after the date on which you believe the Council has failed to comply.
Any correspondence should be sent to the Freedom of Information Officer,
Democratic and Legal Services, Town Hall, St Nicholas Street, Scarborough,
North Yorkshire, YO11 2HG  or email [3][Scarborough Borough Council request email].

               

If you are not content with the outcome of the internal review, you may
apply directly to the Information Commissioner for a decision. The
Information Commissioner can be contacted at: The Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF | Tel: 01625 545745 | Fax: 01625 524510 | Web: | [4]www.ico.org.uk |

 

Yours sincerely

 

 

David Kitson
Solicitor

Deputy Monitoring Officer

Regulatory and Governance Manager

Democratic and Legal Services, Scarborough Borough Council

 

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Dear Mr Thorne

 

Re: Review of Initial Response

Freedom of Information Request FOIA2244

 

I write with regard to the above matter and to inform you of Scarborough
Borough Council’s position in relation to your request for a review of the
decision sent to you by Mr David Kitson dated 17 July 2013.

 

I have considered the detailed response sent to you by Mr Kitson alongside
your request for a review.  It appears that your request for a review is
not based on the substantive content of the response provided, but rather
in relation to the redacted document provided to you as an attachment. 
This is based on your review request which states: ‘I'm extremely
unsatisfied with the redacted document, which is virtually blank. I
request an Internal Review’.

 

You have not made reference to any part of the response that you disagree
with in terms of application of the exemptions, however, in the interests
of completeness, I can confirm that I have considered Mr Kitson’s response
in its entirety for the purposes of this review.

 

Given the fullness of the response provided and the explanations given by
Mr Kitson, I am of the view that the exemptions to which he refers have
been applied correctly.  I am also content that a comprehensive
explanation has been given as to how public scrutiny would come into play
in circumstances where a future planning application may be made.  Again,
I reiterate that this is not to say the Council are looking or intend to
look to relocate at the present time.

 

I am satisfied that the reference in the response relating to ICO
Guidance, case law and Policy Knowledge Base is both relevant and
correctly applied to your request.  With that in mind, it follows that my
view is that the redactions to the Pre-application Advice have been
correctly applied and are entirely in line with the principle of Legal
Professional Privilege.

 

I have therefore taken the decision, following my review of the initial
response to your Freedom of Information request, together with your
request for a review of the decision, to uphold the response provided to
you by Mr Kitson.  I appreciate that this is unlikely to be the outcome
that you were looking for and feel it only proper to now advise you that,
since an internal review of the response has now been completed, you are
able to exercise your right of review by the Information Commissioner,
should you so wish.

 

The Information Commissioner can be contacted at: The Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire
SK95AF.  Tel: 01625 545745 Fax: 01625 524510 Web: [1]www.ico.gov.uk

 

Yours sincerely

 

Freedom of Information Officer

 

 

 

Freedom of Information Officer

Legal and Democratic Services

Scarborough Borough Council

e: [2][Scarborough Borough Council request email]

t:01723 232323

f:0870 2384159

w: [3]www.scarborough.gov.uk

 

 

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