In 2016 the full disclosure figure was 58% so there’s been a decline of 8%.
This puts Carmarthenshire towards the bottom of the public body barrel. The Welsh Government were worse with only 46% full disclosures. At the top of the tree was Gwynedd council with 95% full disclosures out of 1002, a comparable number of requests as were made to Carmarthenshire.
According to to the stats, Carmarthenshire has improved it’s response rate to reply within the 20 day limit from 84% in 2016 to 97% in 2017. My personal experience of delayed responses would put this figure at around 10%, but perhaps that’s just because it’s me…
One surprisingly quick Carmarthenshire response was to a request (not one of mine) for expenditure details for the month of June 2018. Over recent years I’ve suggested that Welsh councils should follow the legal requirement, now statutory in England, to publish monthly expenditure, but Carmarthenshire have consistently refused to do so.
This particular request, which was responded to in full in just three days, showed that publishing these details every month might not be such a problem after all…
The latest Caebrwyn FOI farce concerns my request for the officer’s report to the Constitutional Review Working Group meeting held on the 27th July. The report related to the agenda item on the unlawful and notorious libel clause, recent posts, here and here explain the details, and the possibility that reinstatement of the clause is being sought.
I originally asked Monitoring Officer Linda Rees Jones for a copy of the report. She eventually replied to say that she had passed on my request to FOI as I was asking her to “divulge information about what might or might not have been discussed at a private meeting of councillors”.
It is interesting that CRWG has now been classified as a ‘private meeting of councillors’… I understand that calls are being made for CRWG, which is overseen by Mark James and Ms Rees Jones to become a properly constituted committee.
The predictable FOI response arrived on Monday stating that my request had been refused under the legal privilege exemption. There are two parts to this exemption; litigation privilege and advice privilege, the request was refused under the latter as no actual litigation was (or is) being contemplated. Which is something I suppose.
The basic principle that correspondence between lawyer and client is protected from disclosure is, of course, well established in law. Where it becomes something of a grey area is when the exemption is applied to reports written by council legal officers for councillors, committees or, in this case, a ‘working group’.
The danger in a democratic society is that as a matter of convenience, the net can be arbitrarily widened to include anything written by a solicitor, including a council solicitor, about anything that elected members are discussing or deciding upon.
The exemption is also subject to a public interest test and in this case the council FOI officer, no doubt under the direct instruction of Mark James and Ms Rees Jones, decided that the public interest for transparency did not outweigh the need for secrecy.
Legal privilege is also a difficult one to appeal as there is such a long-standing presumption against disclosure. As the council well know.
|Carms Council FOI Exemptions Department.|
However, I have asked for an internal review of the refusal and will take this to the Information Commissioner if necessary. (Both the refusal and my request for an internal review are posted in full at the end of this post). So, we’ll see.
In this case I believe that the document is being wrongfully withheld as a means to avoid public discussion on what is essentially a matter of significant public interest. The status of the clauses, ie the reinstatement, removal or the status quo (remain ‘suspended’) of the provision to use public money to fund officers’ defamation claims has significant implications for the public and the press, financially and ethically, not just here in Carmarthenshire but across the UK.
The fact that this is sensitive and embarrassing subject matter for the chief executive and the monitoring officer, whose illegal actions sparked this long running scandal in the first place, should have nothing to do with a FOI response; but this is Carmarthenshire, with it’s toxic culture of secrecy.
As I mention in my request for a review below, advice relating to the same issue was published in 2014, but this was when their backs were against the wall, so to speak. It does raise the question though of whether they have already waived their claim to legal privilege, or whether, as I have also mentioned in my email, it is engaged at all…
All in all I fail to understand why the report hasn’t just simply been released. It is farcical.
The letter to the WAO, which I also requested, is ‘not held by the council’ which, in plain speaking, means it probably hasn’t been written yet. Maybe they’re getting legal advice…
On a wider point, it’s about time that FOI legislation was widened to include commercial entities who carry out public services, from council owned ‘arms-length companies, to housing associations and even City Deal partners, for example. If they’re spending public money then they should be open to a degree of scrutiny.
Anyway, I am digressing, here’s the refusal notice (3rd September), with my request for a review (5th September) below;
Dear Mrs Thompson,
I refer to your request for information, which was received on 3rd August, 2018 and has been dealt with under the Freedom of Information Act 2000.
The specific information you requested was as follows:
â€œ1. I understand that at the CRWG meeting held last Friday (27th July) it was resolved to write to the Wales Audit Office concerning the unlawful libel indemnity clauses. I would be grateful for a copy of this letter or confirmation of its intended purpose if has not yet been composed.â€�
â€œ2. â€¦ the officer’s report which accompanied the item on the unlawful libel indemnity clauses which might or might not have been discussed at the ‘private’ CRWG meeting.â€�
In response to the first part of your request, the Council does not hold this information.
With regard to the second part of your request, this information is held by the Council.
However, it is evident that the report in question is comprised of advice provided by a legal professional to the CRWG on this particular matter.
It is therefore a form of communication between a legal professional and a client.
As we have advised you previously, a decision by the Information Tribunal, in Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4th April, 2006), provided a clear definition of legal professional privilege:
â€œa set of rules or principles which are designed to protect the confidentiality of legal or legally related communications and exchanges between the client and his, her or its lawyers, as well as exchanges which contain or refer to legal advice which might be imparted to the client, and even exchanges between the clients and [third] parties if such communications or exchanges come into being for the purposes of preparing for litigation.â€�
The Bellamy decision also defined two types of privilege, namely litigation and advice privilege. I believe in this case that the report is subject to advice privilege, which applies where no litigation is in progress or being contemplated. This would include confidential communications between the legal professional and the client, for the main purpose of seeking or giving legal advice. A report which in which a lawyer provides advice is by definition, legal advice.
Under Section 42 of the Act, a public authority may refuse to provide information where a claim to legal professional privilege could be maintained. In view of the above, I believe this exemption is therefore engaged.
However, the Section 42 exemption is qualified and subject to a public interest test. In doing so, I must make a distinction between what is genuinely in the public interest and what may merely be of interest to a member of members of the public.
I accept that there are public interest factors which favour disclosure in this case, namely transparency and furthering public knowledge in relation to a matter which has been subject to some publicity in the past.
However, there is an inherent public interest in maintaining this exemption, which will always be strong due to the importance of the principle behind legal professional privilege, which is to protect the privacy of communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice.
I am not persuaded on this occasion that this is outweighed by the factors favouring disclosure set out above. Accordingly, I believe the exemption should be maintained and the information withheld from disclosure.
As I am refusing to provide the requested information, please therefore consider this email to be a formal notice of refusal under Section 17 of the Act.