Dear Mr Brace,

 

I refer to the request for information contained in your email of 1
September 2013. Your request was as follows:-

 

Dear Wirral Metropolitan Borough Council,

Earlier this year Wirral Council paid Weightmans £6000 for
"professional charges in relation to the potential regeneration of
Birkenhead Town Centre to include all time up to and including 17
December 2012" and £1404 to Peter Oldham QC for "Birkenhead
Regeneration - Procurement advice".

This advice was not in connection with any legal proceedings,
therefore a section 42 exemption (legal professional privilege)
does not apply to it.

Please could you provide both the advice of Weightman's partner
Sean Crotty to Wirral Council and that of Peter Oldham QC to Wirral
Council, which was procurement advice about the regeneration of
Birkenhead Town Centre.

I consider your request for information should  be dealt with under the
Environmental Information Regulations 2004, in that the information you
are seeking is environmental information as defined in Regulation 2 (1)
(c) of the 2004 Regulations, which is “measures (including administrative
measures) such as policies, legislation, plans, programmes, environmental
agreements, and activities affecting or likely to affect the elements and
factors referred to in (a) or (b) as well as measures or activities
designed to protect those elements.” (Regulation 2 (1) (c) ). The elements
include land and buildings. I consider that advice sought concerning such
elements and potential activities affecting those elements amounts to
environmental information.

 

The Council has a duty to make environmental information available on
request unless one or more of the exceptions in the Regulations apply.

I consider that the exception contained in Regulation 12 (5 )(e) of the
2004 Regulations applies to your request for information. Regulation 12
(5) (e)  provides that a public authority may refuse to disclose
information to the extent that its disclosure would adversely affect the
confidentiality of commercial or industrial information where such
confidentiality is provided by law to protect a legitimate economic
interest.

I have had regard to the guidance issued by the Information Commissioner,
“Confidentiality of commercial or industrial information (regulation 12
(5) (e).”)

 

I consider that the information you are requesting is commercial in
nature, in that it relates to commercial activity in respect of third
parties and also to commercial activity in relation to the Council itself.
I consider that the Council is under a duty of confidentiality to those
third parties in respect of the information you are seeking
concerning advice relating to the potential regeneration of Birkenhead
Town Centre. I consider that the confidentiality is protecting a
legitimate economic interest both of the third parties and the Council,
and that disclosure of the information at this time would adversely affect
the legitimate economic interests of the third parties and the Council. I
have had regard to the sensitivity of the information at the date of the
request.

 

I am required by Regulation 12 (1) (b) to consider the public interest
test in applying this exception. Disclosure of the information requested
would be likely to prejudice the commercial interests of the Council and
adversely affect its bargaining position concerning potential regeneration
of Birkenhead Town Centre which would result in less effective use of
public money. Disclosure of the information would make it less likely that
companies or individuals would provide the Council with commercially
sensitive information in the future and consequently undermine the ability
of the Council to fulfil its role. I am therefore satisfied that the
public interest in maintaining the exception outweighs the public interest
in disclosing the information.

 

I also consider that the exception contained in Regulation 12 (5 )(b) of
the 2004 Regulations applies to your request for information. Regulation
12 (5) (e) provides that a public authority may refuse to disclose
information to the extent that its disclosure would adversely affect the
course of justice.  I have had regard to the guidance issued by the
Information Commissioner. “The course of justice and inquiries exception
(Regulation 12 (5)(b)) “Version 1. In the case of DCLG v. Information
Commissioner &WR [2012 UKUT 103 (AAC)] the Upper Tribunal considered the
significance of legal professional privilege under the Environmental
Information Regulations. The Upper Tribunal said it was relevant to take
into account any adverse effect upon legal professional privilege and the
administration of justice generally

 

You have referred to the exemption contained in Section 43 of the Freedom
of Information Act 2000, which does not apply in this case because your
request is being considered under the 2004 Regulations. The concept of
legal professional privilege is divided into two categories, legal advice
privilege and litigation privilege. In your request you make reference to
this latter category. However I consider that the Council is entitled to
rely on the exception contained in Regulation 12 (5) (b) in that the
information you are requesting is material covered by legal professional
privilege in the first category, namely legal advice privilege. A
communication is protected by legal advice privilege if it is made
confidentially and between a client and his lawyer for the dominant
purpose of giving legal advice.  I consider that disclosure of the
requested information would have an adverse effect on the course of
justice. The course of justice has a wide meaning and includes material
covered by legal professional privilege.

 

I am required by Regulation 12 (1) (b) to consider the public interest
test in applying this exception. In the DCLG case referred to above, the
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 legal professional privilege 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 that case there were none. I consider that the same factors apply in
this case and that the public interest in maintaining the exception
applies in respect of your request for information, which concerns advice
communicated directly to the Council by its lawyers, including Counsel. I
consider that the public interest is maintaining confidentiality between
lawyer and client, ie the Council outweighs the public interest in
disclosure. Disclosure of legal advice would materially prejudice the
Council’s ability to protect and defend its legal interests and may also
prejudice the Council in any future litigation.

 

I am therefore refusing your request for information under Regulation 14
of the Environmental Information Regulations 2004,relying on the
exceptions contained in Regulation 12 (5) (b) and (e) of the 2004
Regulations. You have the right to make representations under Regulation
11 of the 2004 Regulations, which should be sent to the Information
Manager, Town Hall, Brighton Street, Wallasey, CH44 8ED, email:
[1][email address]. If you are dissatisfied with this response to
your request for information, you have the right to complain to the
Information Commissioner, but would normally be expected to make
representations before complaining to the Commissioner. The address is the
Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]www.ico.gov.uk

 

Tel -0303 123 113

 

Yours sincerely

 

Rosemary Lyon

Solicitor,

Legal and Member Services,

Transformation and Resources,

Wirral Borough Council

 

 

 

 

 

 

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