By Ibrahim Hasan, IBA Solicitors, Dewsbury


The privilege exception

References to sado-masochism and the Freedom of Information Act 2000 are not normally made in the same serious legal article. But a recent decision under the Act requires me to do just that.



Section 42 of the Act contains an exemption (legal professional privilege), which is often relied on by public authorities when refusing to disclose legal advice. But the exemption is wider.



Section 42(2) states that the duty to confirm or deny the existence of information does not arise if it would involve the disclosure of any information which in itself attracts privilege.



In a decision involving the Ministry of Justice (MoJ) (5 December 2007), the complainant requested a copy of any legal advice which confirms that the possession of images of consensual sado-masochistic violent sex can successfully be prosecuted, and that article 8 of the European Convention on Human Rights does not apply. The background to the request was a consultation exercise on proposed legislation, making possession of such images illegal.



The MoJ refused to confirm or deny that any such advice was held, applying the section 42 exception. The Information Commissioner agreed with the MoJ. He noted that legal professional privilege does not, in usual circumstances, attach to the fact that advice has been sought.



However, in this case the commissioner noted that the phrasing of the request was for 'any legal advice which confirms'. The commissioner found that either confirming or denying that advice is held, in the circumstances of this case, does in itself attract privilege, as to do so would reveal the basic contents of the advice if held. The commissioner considered the arguments put forward by the public authority and maintained that those reasons showed a strong public interest argument for maintaining the exemption. He noted that the proposed legislation had undergone a public consultation and the responses had been published.



Red Football

When it comes to information about policy formulation, in section 35 central government has a whole exemption for its exclusive use. This was invoked in a recent decision involving the Department for Culture, Media and Sport (DCMS) (3 December 2007), which will be of interest to football fans. The DCMS must release documents relating to the takeover of Manchester United by Malcolm Glazer's company, Red Football Ltd.



The ruling followed a complaint by a member of the public, who wrote to the DCMS requesting copies of all documents, minutes, and emails relating to the takeover. The department stated that to disclose the documents would compromise the ongoing formulation of government policy around the issue of competition in football club takeovers, and that the documents contained information relating to advice given to government officials. It argued that the release of such advice could result in future recommendations given by civil servants being less candid.



In his decision, the commissioner took the view that the timing of the request was important. It was made after the policy formulation and development process had effectively ended. In addition, the commissioner noted that the disclosure of advice given by government officials in this case would not inhibit government officials from giving frank advice. Weighing up the arguments, the commissioner found that the public interest favoured disclosure of the information.



Nosy, Parky

What is the difference between Sir Michael Parkinson, Gary Lineker and those who work in, say, a borough council? The answer is that only the first two have a right to privacy when it comes to disclosure of the contents of their pay packets. So says the Information Commissioner in two recent decisions under the Act.



The first (8 October 2007) involves the BBC's refusal to provide details of its financial agreement with Sir Michael, including his gross remuneration, for the past three years. The commissioner agreed with the BBC, which argued that the information was exempt under section 40, as it was personal data, disclosure of which would be unfair to Sir Michael.



The commissioner commenced his decision by stating that senior officials in public authorities should expect details of their salary bands to be disclosed because they are paid - commensurate with their level of responsibility - out of public funds. However, Sir Michael is considered to be different, say, to a senior BBC executive. The BBC calls him (and the commissioner accepts him as) 'talent'.



The commissioner accepted the BBC's arguments that payments made to talent are not analogous to the salaries paid to senior employees in public sector organisations. This is because the sums paid by the BBC to talent do not relate to the performance of a public function, but rather to individuals who are contracted to provide services to the BBC in an entirely private capacity.



The commissioner was satisfied that Sir Michael had a reasonable expectation of privacy, and consequently to disclose details of his financial agreement would be unfair. The commissioner reached the same conclusion with regard to a request for the same information from the BBC about Gary Lineker (8 October 2007).



Public purse

I find these decisions difficult to reconcile with the ethos of the Act - openness and transparency. Of course Messrs Parkinson and Lineker do not spend public money or make public decisions, unlike senior public sector employees. But they do get paid large sums out of the public purse.



Can the reasoning in these decisions be applied to requests for information about individuals who provide services to public authorities, but are not celebrities? Does it mean that if I provide training services to a local authority, I can ask them to keep the contents of my invoice secret? While I am not yet quite as famous, I, like Sir Michael, am often contracted to provide training services in a private capacity. Where does this leave public scrutiny?



Ibrahim Hasan is also a director of Act Now Training