Lawyers and FOI

New openness regime will keep many lawyers in work
The Times, Law section
By Heather Brooke
January 11, 2005

AS THOUSANDS of public authorities struggle to cope with the public’s new rights to information, one organisation stands aloof from the fray – the judicial system.

Courts are not considered public bodies under the Freedom of Information Act, which may come as a surprise to taxpayers. But lawyers will find plenty in the new laws for them, whether it be the exemption for legal professional privilege or the possibility of extra business through crafting confidentiality agreements or perhaps standing on the other side of the fence, challenging refusals to disclose information.

The Act grants the public a right to information from more than 100,000 public authorities. It was passed four years ago but not put into effect until this month to allow public authorities time to prepare for it.

The law is only part of the new openness regime. Environmental Information Regulations give the public even greater rights to access information about pollution, land use, genetically modified organisms, food safety and other environmental matters. They apply not only to public authorities but utilities and private contractors acting on their behalf. The Data Protection Act was also amended on January 1, giving the public a right to personal information held by public authorities in ” unstructured” files as well as those that are indexed or arranged.

The Freedom of Information Act is much weaker than its US equivalent, with more than double the number of exemptions (25), a ministerial veto and blanket exclusion of the security services. However, unlike in America, the public can appeal to the independent Information Commissioner rather than having to pursue their appeals through the courts.

There are several exemptions in the Act that directly affect the legal profession. Section 32 is the most sweeping as it provides an absolute exemption for all court records. According to the Information Commissioner’s Office, this can be used for information held only by virtue of being contained in any document that is:

  • Filed with or placed in the custody of a court (or tribunal), or served upon or by a public authority, for the purposes of court proceedings (including inquests and post-mortem examinations);
  • Placed in the custody of a person conducting an inquiry or arbitration for the purposes of that inquiry or arbitration;
  • Created by a court or member of the administrative staff for the purposes of court proceedings;
  • Created by a person conducting an inquiry or arbitration for the purposes of that inquiry or arbitration.

Section 32 means that even if all parties in the case are in favour, and disclosure would be in the public interest, a judge can seal the records for 30 years. If the records relate to law enforcement they can be withheld for 100 years. Section 32, like all the exemptions, is discretionary. If there is no order sealing the records, the documents can be made public. The problem is that such disclosure is generally offered only when it serves one of the parties’ interests. There are many cases where both parties have an interest in keeping the public in the dark. A local authority and its supplier will both want to keep hidden a contract that reveals how the business duped the council into accepting extortionate fees and conditions. In such cases there is, as yet, no law that represents the public’s interest in open justice.

The exemption provided by Section 32 does have limits. If the information in the court record is also available elsewhere, the exemption may not apply. And it can apply only to information in proceedings that have started, not those that are still a twinkle in a lawyer’s eye.

In cases where proceedings are not under way, other exemptions may apply such as Section 42, which relates to legal professional privilege. This is a qualified exemption, which means that information must be disclosed unless the authority can prove that the public interest is best served by secrecy.

Yet lawyers need not fret too much. The Information Commissioner’s guidance makes clear that the Act cannot force professional legal advisers to disclose privileged information without the consent of the clients to whom the privilege belongs, except in rare instances. And legal professional privilege already has its own public interest test that can force disclosure if the communications could prevent unlawful activity. What the Act does is broaden this test to include the public’ s interests in disclosure versus non-disclosure.

One of the most debatable outcomes of the new access laws is whether they will increase or reduce litigation. Previously, the public could only access internal investigative reports from, say, hospitals, if they initiated a lawsuit and demanded the information through the discovery process. Many needless lawsuits were filed but the cost was prohibitive. Now people can ask the hospital directly. This does not mean that lawyers will lose business. Evidence of wrongdoing could persuade more people to sue and lawyers would then discover that the best Christmas gifts are often found in the January sales.

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