[reposted from my LinkedIn account]
Where an external solicitor’s firm holds information in relation to advice given by the solicitor on instructions by a public authority client, is the information held by the solicitor “on behalf of” the public authority, for the purposes of section 3(2)(b) of the Freedom of Information Act 2000?
While the matter is live, the answer is probably “yes”, but what if the public authority client has long since destroyed its own records, but the solicitor’s firm has retained its records for its own regulatory or risk purposes? Here, the answer is probably “no”.
And that is the situation which came before the Information Tribunal recently. The requester was seeking information from Sheffield City Council about a development scheme from 2007/2008. The Council had said that it would have destroyed its own records, and said that to determine whether the information was held would necessitate the inspection of 28 box files held by law firm Herbert Smith Freehills, who had been instructed by the Council at the relevant time. To even determine whether the information was held or not would exceed the costs limits in section 12 of FOIA. The ICO, in the decision notice being appealed, had agreed.
As I was reading the first few paragraphs of the Tribunal judgment, I said to myself “hang on – is this info being held by HSF on behalf of the Council, or is it being held for HSF’s purposes?” I was limbering up my fingers to write a post criticising everyone for not spotting this, so I was then pleased to see that the Tribunal, of its own volition, identified it as an issue and sought submissions from the ICO and the Council on it.
After some back and fro (it is not entirely clear from the judgment who said what in their submissions, and there was a side issue as to whether in fact the Environmental Information Regulations applied) the evidence was pretty clear that the Council had had no intention to retain the information, nor to entrust it to HSF. Accordingly, the information was not “held” for the purposes of FOIA.
I’m not sure I understand why the Tribunal did not substitute a different decision notice to reflect this (it simply dismissed the requester’s appeal), but ultimately nothing really turns on that.
What one can take from this is that solicitors and their clients (especially public authority clients) should, jointly and separately, make clear in agreements and policies what the status is of information retained by solicitors after an instruction has ceased, and how requests for such information should be dealt with.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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