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Legal advice in relation to public sector re-use regulations
FOI request reference: F0037515
The National Archives undertook and then published a case study in July 2010 [Case Study and FAQs: Applying the Re-use of Public Sector Information Regulations - Local authority property search information; 2010]
My request is for a full copy of the legal opinion/advice/guidance which was obtained on this matter and mentioned in the report.
Having considered the public interest test we have decided that this information should be withheld.
We explained that the information is exempt from disclosure by section 42 of the FOI Act. Section 42 of the Act exempts information in respect of which a claim to legal professional privilege (LPP) could be maintained in legal proceedings.
There is no requirement to demonstrate any prejudice or adverse effect when applying this exemption, nor is there a requirement to show that any harm would occur from disclosure of the information in question.
However, such arguments are, of course, relevant when considering the public interest test.
The public interest in disclosure of the requested information is required to be strong in order to override the importance of the principle of LPP: safeguarding openness in all communications between lawyer and client to ensure access to full and frank legal advice; which is in turn fundamental to the administration of justice.
A client's ability to speak freely and frankly with their legal adviser in order to obtain appropriate legal advice is a fundamental requirement of the English legal system. The concept of LPP protects the confidentiality of communications between a lawyer and client. This helps to ensure complete fairness in legal proceedings.
The information requested relates to specific legal advice in relation to rights and obligations, setting out arguments both for and against a particular view. Without such comprehensive advice, the quality of The National Archives' decision making would be much reduced because it would not be fully informed and this would be contrary to the public interest.
There must be equally as strong countervailing public interest arguments in releasing information in respect of which a claim to legal professional privilege could be maintained. In this case we do not believe sufficient public interest arguments exist to override the inherent public interest in protecting the LPP principle.