Julian Saunders v The Information Commissioner & Anor

1. This is an appeal under section 57 of the Freedom of Information Act 2000 (“FOIA”) against Decision Notice IC-204392-C3P1 dated 6 March 2023, by which the Information Commissioner (“the ICO”) upheld Sandwell Metropolitan Council’s (“SMBC”) refusal of parts of the Appellant’s request of 8 August 2022. Request

2. On 8 August 2022, the Appellant wrote to the Council and requested the following: ‘1. Please supply all instructions to Howard Kennedy and all communications passing between them and SMBC relating to the grossly incomplete SAR disclosure;

2. Please state whether Howard Kennedy has direct access to SMBC databases and, if so, supply details of my data extracted by them there from;

3. Please state whether Howard Kennedy was an approved supplier to SMBC prior to being instructed and all documentation relating to the procurement of their services;

4. Please state the fee paid to Howard Kennedy for their grossly inadequate SAR response. Please show the fee separate from VAT and disbursements”.

3. SMBC responded on 10 October 2022, disclosing the requested information in relation to questions 2-4 and withheld the information relating to question 1, relying on section 42 FOIA.

4. The Appellant requested a review by way of an email dated 17 October 2022.

5. SMBC responded on 18 October 2022 upholding its decision.

6. On 24 November 2022 the Appellant complained to the ICO. The Decision Notice (‘DN’) dated 6 March 2023

7. The ICO concluded that: (a) The withheld information constituted confidential legal advice provided by a qualified legal adviser to the Council. (b) Legal professional privilege applied, and there was no evidence that privilege had been waived. Section 42(1) FOIA was therefore engaged. (c) The strong inherent public interest in maintaining legal professional privilege (due to the importance of safeguarding openness in all communication between client and lawyer to ensure access to full and frank legal advice without the fear of premature disclosure) outweighed any competing public interest considerations favouring disclosure. (d) The circumstances did not meet the high threshold required to justify overriding privilege, consistent with established case law (including Cabinet Office v IC and Aitchison). Grounds of Appeal

8. In his grounds of appeal (dated 1st April 2022), the Appellant asserts that SMBC has, over a number of years, acted improperly in relation to his subject access requests (SARs) and FOIA requests. He contends that the Council has provided incomplete or misleading SAR disclosures and has used external solicitors in a manner designed to give an appearance of legitimacy to those disclosures.

9. In relation to the present FOIA request, SMBC disclosed that Howard Kennedy’s (‘HK”) role was limited to receiving four lever-arch files and forwarding them to the Appellant. The Appellant asserts that the solicitors did not access SMBC databases, play any role in preparing the SAR disclosure, or provide substantive legal advice. He argues that the only plausible explanation for instructing external solicitors was to create a false impression of legal oversight.

10. The Appellant submits that SMBC cannot rely on section 42 FOIA because:

1. No legal advice was requested or provided, and therefore the communications never attracted LPP.

2. Alternatively, even if LPP would ordinarily apply, the “iniquity principle”defeats the privilege, because the communications were allegedly part of improper or underhand conduct designed to conceal an incomplete SAR disclosure.

11. The Appellant relies on authorities including: • Derby & Co Ltd v Weldon (No 7) [1990] 1 WLR 1156, for the proposition that privilege does not apply to communications furthering iniquity; • JSC BTA Bank v Ablyazov, for the proposition that iniquity includes behaviour equivalent to fraud or conduct contrary to public policy or the interests of justice.

12. The Appellant contends that, on his account of events, the involvement of HK fell outside any ordinary solicitor-client advisory relationship. He maintains that the solicitors were used solely as a conduit for forwarding documents, and not for the purpose of obtaining legal advice. Accordingly, the Appellant argues that: • the communications fall outside the scope of LPP, and/or • the conduct alleged is sufficient to bring the iniquity exception into play, defeating any claim to privilege even if it would otherwise arise. Information Commissioner’s Response

13. In its response dated 27 June 2023, the ICO submits that the appeal should be dismissed because the Appellant has not demonstrated that the DN was unlawful or that discretion was improperly exercised. He further argues that the appeal has no reasonable prospect of success and invites the Tribunal to strike it out under Rule 8(3)(c). If not struck out, the ICO asks that it be dismissed on the merits. Engagement

14. The ICO notes that the Appellant does not challenge the public interest findings but instead disputes that s.42 applies at all. The ICO maintains that the withheld documents are privileged solicitor-client communications and should not be disclosed.

15. He relies on Three Rivers District Council and others v Governor and Company of the Bank of England [2004] UKHL 48 where the House of Lords found that advice by the Bank of England’s lawyers as to how best to present evidence to an inquiry was covered by legal professional privilege, even though the inquiry was not a legal process. Public Interest

16. The ICO emphasises that, at common law, legal professional privilege (LPP) is regarded as a principle of the highest importance and is, save for very limited exceptions, effectively absolute. Authorities such as R v Derby Magistrates Court ex p P and R (Morgan Grenfell) v Special Commissioners underscore that LPP is fundamental to the administration of justice and essential to ensuring that clients can seek legal advice in complete confidence.

17. Because of this, there is a strong and inherent public interest in maintaining the exemption under section 42 FOIA whenever LPP is engaged. Case law consistently affirms that public bodies must be able to obtain full, frank and candid legal advice without fear of later disclosure. Although section 42 is a qualified exemption, the Tribunal must give particularly significant weight to this inherent public interest.

18. Decisions such as Bellamy, DBERR v O’Brien, DCLG v IC & WR, Savic, and Gillingham all confirm that (i) the public interest in preserving LPP is substantial, (ii) it will require exceptionally strong countervailing factors to outweigh it, and (iii) any failure by the Tribunal to afford such weight would amount to an error of law.

19. The ICO therefore concludes that the public interest favours withholding the information, so as to protect the Council’s ability to obtain confidential legal advice without concern that such advice may be prematurely disclosed.

20. The ICO concludes that the Appellant has identified no legal error in the Decision Notice and no basis for overturning the findings. He therefore invites the Tribunal to strike out or dismiss the appeal. The Appellant’s Reply

21. In the Appellant’s Reply, dated 16 July 2023 he makes the following submissions: a. He repeats and relies on the submissions made in the original appeal, subject to a further matter described as “the ongoing issue.” b. He states that SMBC has not yet been joined to the appeal and argues that it should be, given the direct allegations made against it. c. He reiterates earlier assertions that SMBC staff, including solicitors, have over many years acted improperly in relation to FOIA and SAR processes. He refers to past correspondence sent to the former ICO alleging document destruction, concealment and misconduct by SMBC legal staff, and contends that the ICO failed to act on those concerns. The Appellant also refers to documents previously submitted in other tribunal cases raising concerns about possible ICO bias. d. He explains that additional correspondence from 2021 demonstrated further attempts by SMBC’s Monitoring Officer (Mr Tour) to limit FOIA rights, which prompted corrective intervention by the ICO. The Appellant explains that as a former solicitor, he understands legal professional privilege (LPP), and maintains that it does not apply in this case because (a) there was no genuine solicitor–client relationship regarding the SAR, and/or (b) any privilege would be lost due to alleged fraud or iniquitous conduct. e. The “ongoing issue” concerns other litigation in which SMBC also instructed HK. The Appellant states that Mr Tour deliberately delayed and manipulated the SAR disclosure in order to disadvantage the Appellant in that separate litigation. He alleges that the SAR disclosure was intentionally incomplete and that HK was used merely as a conduit to send out a doctored bundle. The Appellant provides further detail about the other litigation, including alleged inflated and improper costs claimed by SMBC, and maintains that these matters form part of a wider pattern of misconduct. f. The Appellant asserts that SMBC has now admitted inaccuracies in its account of the fees paid to HK. The Appellant argues that the ICO failed to consider the reasons behind the allegedly doctored SAR disclosure, or why external solicitors were involved at all. He submits that the ICO was unaware of material facts, including the alleged fraud and the ongoing related issues, and therefore made an incorrect decision on LPP. g. The Appellant maintains that no valid LPP arose, and/or that any privilege was lost due to fraud or iniquity. He further submits that even if privilege existed, the public interest would favour disclosure to prevent misuse of privilege as a cloak for wrongdoing. h. The Appellant argues that it would be inappropriate to strike out the appeal. He submits that SMBC must be joined as a party, that the matter should be reconsidered once SMBC has filed its response, and that given the allegations of fraud, the case is only suitable for an oral hearing.

22. In a separate undated document named ‘’Possible ICO bias,’ the Appellant raises concerns about possible bias within the ICO arising from communications between SMBC and the ICO in 2018–2019. The Appellant states that, during a period when SMBC was resisting his FOIA requests, SMBC staff sent the ICO emails containing serious allegations about him, including claims of abusive behaviour, risks to staff wellbeing, and unsubstantiated assertions about his conduct. The Appellant says these allegations were never put to him by the ICO.

23. The Appellant also notes the existence of multiple undocumented telephone calls between SMBC and ICO staff about his FOIA matters, with no disclosed file notes. He further explains that a former Council Leader, Steve Eling, made a police complaint against him and copied the ICO into correspondence containing similar allegations. The Appellant states that the ICO failed to disclose this email in response to his Subject Access Request, and only acknowledged its existence much later, claiming it had been stored separately from the files relating to his cases.

24. The Appellant submits that the Tribunal should consider whether the ICO’s handling of his FOIA applications may have been influenced by misleading or prejudicial information supplied by SMBC. He argues that the wider conduct of both SMBC and the ICO is relevant to assessing whether decisions were made impartially and objectively.

25. By way of Tribunal directions dated 24 November 2023, SMBC were joined as a party to the proceedings and directed to file a response. SMBC’s Reply

26. SMBC set out their case in a document dated 20 December 2023. Preliminary Observations

27. SMBC notes that the Appellant’s grounds contain wide-ranging allegations and disparaging assertions directed at elected members and officers. SMBC refuses to respond to those matters except insofar as they bear upon the substantive issues. It submits that failure to rebut those allegations should notbe taken as acceptance.

28. SMBC also clarifies that it holds no procurement documentation of the type requested in Question 3 of the FOI request. This is because HK were already instructed in relation to broader litigation involving the Appellant, and the SAR-related work fell within that existing retainer. Legal Professional Privilege and Section 42(1) FOIA

29. Section 42(1) exempts information in respect of which a claim to legal professional privilege (“LPP”) could be maintained. SMBC emphasises that LPP is a fundamental principle of English law, safeguarding full and candid communications between lawyer and client. The ICO’s analysis of the relevant case law—which SMBC adopts—is consistent with established authority.

30. The withheld material comprises confidential legal instructions and advice exchanged between SMBC and its external solicitors, plainly falling within the scope of advice privilege. The ICO has reviewed the material and confirms that it constitutes privileged legal advice. Rebuttal of Appellant’s Assertions

31. The Appellant’s suggestion that HK acted merely as a “post-box” is predicated on an incorrect fee figure initially disclosed. SMBC corrected the administrative error and confirmed that the true fee (£2,565 + VAT) demonstrates that substantive advisory work was carried out. The withheld documentation reinforces this position.

32. The Appellant further contends that LPP is defeated by the so-called fraud or iniquity exception. SMBC characterises these allegations as entirely unsubstantiated and incapable of meeting the very high threshold required. The circumstances reveal an ordinary, bona fide request for legal advice concerning compliance with Article 15 UK GDPR.

33. Accordingly, SMBC submits that section 42(1) was unambiguously engaged. Public Interest Test

34. As s.42 is a qualified exemption, the public interest test applies. Authorities including Bellamy, Calland, Cabinet Office v IC & Aitchinson, and Boyce emphasise that the public interest in preserving LPP is inherently weighty and will only be overridden in rare and compelling circumstances.

35. SMBC acknowledges the Appellant’s personal interest in disclosure but notes that such interest is not relevant to the public interest balancing exercise. General concerns about transparency are insufficient to outweigh the strong public interest in maintaining the confidentiality of legal advice.

36. The Appellant’s reliance on allegations of fraud or “smokescreens” adds nothing material, given the absence of evidence capable of engaging the iniquity exception. There is therefore no countervailing public interest capable of displacing the exemption. Conclusion

37. SMBC submits that:

1. Section 42(1) FOIA is properly engaged, as the withheld information comprises legally privileged communications.

2. The public interest in maintaining the exemption decisively outweighs any arguments for disclosure. Appellant’s Reply to the Second Respondent

38. In the Appellant’s Reply, dated 15 January 2024 he makes the following submissions: Contextual Background (2013–2019)

39. The Appellant has been engaged in sustained public criticism of SMBC since 2013. He states that from 2013 onwards he experienced harassment and attempts to undermine him, including police complaints, SLAPP-type proceedings, and reputational allegations. He contends SMBC repeatedly failed to comply with statutory duties under FOIA and the data protection regime. Events Leading to the SAR (2017–2019)

40. The Appellant alleges that the (then) Council Leader and senior officers, together with in-house solicitors including Mr Tour, sought to damage him financially and reputationally, including through complaints to the police and civil actions.During the same period, a trade union official commenced civil litigation against him. The Appellant asserts this was supported by SMBC personnel. The Subject Access Request

41. The Appellant submitted a SAR on 6 November 2018 (amended 13 November 2018) in the context of ongoing litigation and imminent legal deadlines.He anticipated potential non-compliance by SMBC due to past experiences. On 11 January 2019, Mr Tour confirmed the SAR was being processed and made no claim to rely on exemptions. The Appellant complained to the ICO on 25 January 2019 following concerns about delay. Engagement of Howard Kennedy

42. A pre-action protocol letter concerning civil litigation was sent on 31 January 2019. SMBC instructed the firm HK to act in relation to that threatened litigation. The Appellant submits that HK were not instructed in respect of the SAR and had no role in determining disclosure or applying exemptions. He contends HK merely relayed SMBC’s internal position without providing legal advice on SAR obligations. Partial Disclosure and Alleged Concealment

43. In early 2019, HK transmitted to the Appellant’s solicitors four lever-arch files comprising a limited subset of documents. The Appellant states that the subset was knowingly incomplete and that SMBC, acting principally through Mr Tour and other in-house solicitors, deliberately withheld material relevant to the SAR, including internal correspondence and documents in which Mr Tour was personally involved.He characterises this as “fraudulent concealment” and asserts no lawful exemptions were invoked. ICO’s Involvement in 2019

44. On 8 May 2019 the ICO instructed SMBC to complete the SAR disclosure within 14 days. SMBC did not comply. The Appellant continued to report non-compliance and itemised categories of missing documents. Subsequent Disclosures (2019)

45. Following a change in SMBC’s political leadership, further documents were disclosed on 23 August 2019 and 2 December 2019. The Appellant asserts these later disclosures evidenced prior deliberate withholding of material. Legal Professional Privilege (LPP)

46. The appeal concerns SMBC’s reliance on LPP in respect of communications between SMBC and HK. The Appellant’s submissions are: ◦ Fraud / iniquity exception: LPP cannot apply where the underlying conduct was to facilitate the alleged deliberate concealment of personal data. ◦ Absence of legal advice: HK provided no advice on SAR compliance and had no access to SMBC databases or documents. Any communications were administrative or incidental, and not for the dominant purpose of legal advice. ◦ Dominant purpose test: Even if communications occurred, they related to process rather than advice and do not meet the legal test for LPP.

47. He contends that public bodies must not be permitted to circumvent information-rights obligations by routing correspondence through external solicitors without genuine legal advisory purpose.

48. He invites the Tribunal to scrutinise the closed bundle to determine whether HK knowingly or unknowingly assisted in, or were misled into facilitating, the allegedly incomplete disclosure. Public Interest

49. Should the Tribunal find LPP prima facie applicable, the Appellant submits that the public interest nonetheless favours disclosure. He relies on: • Allegations of misconduct by public officials. • The use of public funds for external legal assistance which he says was unnecessary. • The wider importance of ensuring transparent and lawful handling of SARs by public authorities. Response to SMBC’s December 2023 Submissions

50. The Appellant disputes several statements in SMBC’s Response and asserts that the solicitor responding has a conflict of interest due to involvement in related historic matters. He notes that the Response was prepared in-house and not settled by Counsel. He further notes that SMBC is currently subject to Government special measures for governance issues. Legal Framework Withholding Information

51. Where information is subject to legal professional privilege (LPP), the exception in regulation 42 (1) FOIA is likely to be engaged. This states: ‘(1) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information’.

52. In Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006) the Tribunal described LPP as: ‘…a 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’.

53. Litigation Professional Privilege includes Legal Advice Privilege.

54. Having established that s.42 (1) (or (2)) is engaged, the Tribunal must consider the public interest test ie does the public interest in maintaining the exemption outweigh the public interest in disclosure

55. The burden of proof is on the public authority to satisfy the Tribunal that the public interest in maintaining the exemption outweighs the public interest in disclosure.

56. The High Court held in Bellamy v IC and DTI, IT, 4 April 2006 held at [24]: ‘In the light of the consistent line taken by the Tribunal as to the weight to be attached to the public interest against disclosure in-built into legal professional privilege (an approach which I have found to be the correct one) it was incumbent upon the Tribunal in the instant case to give significant weight to that interest. Further the Tribunal was obliged to consider whether the weight to be given to the public interest considerations militating against disclosure were countered by considerations of at least an equal weight which supported an order for disclosure’. The Tribunal's Role

57. By s.58 FOIA, the Tribunal’s role is to consider whether the DN is in accordance with the law or where the ICO’s decision involved exercising discretion, whether it should have exercised it differently. It is a full merits jurisdiction. The tribunal may receive evidence that was not before the ICO and may make different findings of fact from the ICO. If the Tribunal determines the DN was not in accordance with the law or that a discretion should have been exercised differently it can allow the appeal and/or substitute a different Notice that could have been served by the ICO.  Unless these apply the Tribunal shall dismiss the Appeal. Discussion and Conclusions

58. For the purposes of determining this appeal, we have considered those documents contained within the open bundle consisting of 127 (electronic) pages, the closed bundle of 135 (electronic) pages which contained the information requested, (noting that the only reason some of the documents are in the closed bundle is because they were attached to correspondence) and the oral submissions made by the Appellant and SMBC’s legal representatives during the course of the hearing – we do not set these out again here. We note that the ICO did not send a representative to the hearing, but instead relied on their written submissions. Issues

59. The Tribunal has to determine the following issues: i. Is s.42(1) FOIA properly engaged? ii. Does the Public Interest weigh in favour of disclosure?

60. We note for the completeness that the Appellant has provided a detailed history making various allegations against Councillors and officers at SMBC. This is not a matter for us and is beyond our jurisdiction (other than when considering ‘fraud’). The issues before this tribunal are narrow and that is all that we consider Is s.42(1) FOIA properly engaged?

61. The Appellant maintains in his most recent submissions that s.42 is not engaged.

62. We disagree.

63. The request is specifically for communications between the Council and HK. These are lawyer-client communications.

64. Everything in part 1 of the request and the closed bundle comprises communications between the SMBC (the client) and the lawyers they have instructed (HK and Counsel). They are acting in their professional legal capacity, providing legal advice to SMBC about how best to respond to the Appellant and his solicitors about the SAR. We conclude that this falls within the legal advice privilege.

65. We address each of the Appellant’s submissions below. (a) Absence of legal advice

66. The Appellant asserts that HK provided no advice on SAR compliance and had no access to SMBC databases or documents, therefore it could not have been ‘substantive work’. Any communications were administrative or incidental, and not for the dominant purpose of legal advice.

67. The Appellant also submits that the ICO erred in deciding that HK provided “legal advice” as set out at paragraph 28 of SMBC’s submissions. The Appellant submits that the ICO saw correspondence and mistakenly gave it the “quality” of legal advice. Unless HK was directly involved in facilitating the ‘unlawful disclosure’, then the dominant purpose of the correspondence was not legal advice but “process”.

68. SMBC dispute this.

69. Having seen the Closed Bundle and having asked questions during the Closed Hearing, we find that there was Legal Advice.

70. SMBC obtained external legal advice from HK (who then consulted Counsel) about SMBC’s handling of the Appellant’s SAR. Legal advice between in-house lawyers and external lawyers attracts LPP.

71. The Appellant submits that this is implausible on the basis that SMBC already employs experienced senior in-house lawyers and would, therefore, have no reason to seek external legal advice. We do not accept that submission. The Appellant himself acknowledged that he was engaged in separate legal proceedings with SMBC. In those circumstances, it is entirely plausible that SMBC would regard it as appropriate to obtain independent external advice when dealing with the Appellant, so as to ensure that their actions were properly safeguarded in the event that further proceedings were later initiated.

72. We conclude that SMBC sought external legal advice from HK in relation to their handling of the Appellant’s SAR and related to whether SMBC had properly discharged its function under Article 15 of UK GDPR. HK provided advice in their roles as professional lawyers retained by SMBC.

73. We have seen the document (at page 17 of the Closed Bundle) which we accept does show that they were instructed in relation to the SAR. Various other documents in the closed bundle also explicitly refer to considering how to respond to the SAR (eg page A100 of the Closed Bundle). We find that HK were initially instructed on the broader matter and then later in relation to the SAR.

74. We note the submission that the Appellant does not understand the nature of the instruction, however as Counsel for SMBC explained at the hearing (and was clear from paragraph 15, page A47-8 of the Open Bundle), SMBC had instructed HK in relation to wider litigation matters relating to the Appellant, instructions were given and advice was taken in relation to the SAR as part of this. There was no additional standalone procurement of legal advice services, they asked for advice in relation to responding to the SAR and the drafting of letters.

75. Although it is correct that there was no access to databases, we accept that this was advice in the continuum – the communications were concerned with the production of a small number of letters that were sent to the Appellant’s solicitors. Access to databases were not required for this, keeping in mind the context of the case, as set out at paragraph 50 below. This does not mean that it is not legal advice, nor does it mean that it is not protected by legal privilege. This is addressed further below. Dominant purpose test

76. The Appellant maintains that even if communications occurred, they related to process rather than advice and do not meet the legal test for LPP.

77. Again, we have examined the ‘communications’ and we asked questions about this during the closed hearing. We do not find that they related to ‘process’ alone. The advice involved interpretative and evaluative guidance (explained by Counsel in response to our questions during the closed hearing) which we find did constitute legal advice and therefore did invoke legal professional privilege. ‘Post-Box’

78. It suggested by the Appellant that HK did not provide legal advice, they were simply used as a ‘post-box service’.

79. Again we do not accept this for the reasons already provided.

80. It was suggested by the Appellant that HK did not provide legal advice, they were simply used as a ‘postbox service’. The Appellant initially came to this conclusion on the basis that the fee paid to HK by SMBC was £148 + VAT. SMBC have confirmed (on 15 March 2023) that the fee amount provided was incorrect due to an administrative error and the correct fee was £2565 + VAT. SMBC states that his demonstrates that substantive legal advice was sought and provided, HK were not simply used as a postal service. Again, we agree. Fraud The Appellant asserts that LPP cannot apply where the underlying conduct was to facilitate the alleged deliberate concealment of personal data. We accept that if there was deliberate concealment of personal data, LPP cannot apply.

81. SMBC state in response at paragraph 28 of their response that: “…these allegations of fraud/inquiry – which are very serious – are entirely basis. The fact is, is that a bona fide request for legal advice was made in this case, and that advice was provided. This is reinforced by the fact that the Commissioner has received a copy of the withheld information and considered in his Response to the appeal that it clearly constituted legal advice and that these are confidential communications between the lawyer and client for the dominant purpose of that legal advice’.

29. The fraud iniquity exception to LPP poses a high threshold that cannot possibly be met in his case. SMBC repeats that there is no basis whatsoever for the Appellant’s serious, baseless and wholly unsubstantiated allegations in that regard’.

82. We do not accept that there was fraud, nor do we accept that Legal Privilege was waived (due to fraud). We make no findings in relation to the complex history between this Appellant and SMBC (indeed we have very little evidence about this – in terms of previous tribunal and court findings etc), however in relation to the assertion that there has been fraud on this occasion, we do not accept this. The fact that further documents were disclosed at a later point, does not mean that the limited disclosure that was initially made was ‘fraudulent concealment’. Even if the Appellant maintains that any advice which led to the limited disclosure would have been incorrect (we do not agree with this), this does not invalidate LPP – privilege is not dependent on the quality of the advice. It is the purpose of the communication, which is relevant, LPP protects the advisory relationship itself.

83. The factual matrix on this occasion is simple. The Appellant requested information. Some limited information was provided. The sticking point in terms of further progress on the SAR was the volume of documents unearthed by searching the Appellant’s name. This produced more than 20,000 documents. SMBC provided the Appellant with some ‘easily identifiable material’ but maintained that the searching the rest would be too broad. Mr Hopkins explained ‘I am saying that to try and say as much as I can about what the nature of the closed material is without trespassing into any of that privilege to try and make it clear…whatever smoking gun Mr Saunders is looking for and whatever case theory he is advancing, don’t have any relationship with what appears in the closed bundle…in the closed hearing I won’t go any further, I will just show you what the correspondence is…there will be no further discreet submissions’. We agree entirely with this submission, having examined the closed bundle at length – there is no smoking gun in the closed bundle.

84. We have taken judicial notice that SMBC had been (and were at the time of the Appellant’s reply to the Second Respondent) in Government Special measures as a result of serious governance issues. This does not change our view that there was no fraud on this occasion.

85. The Appellant contends that public bodies must not be permitted to circumvent information-rights obligations by routing correspondence through external solicitors without genuine legal advisory purpose. We were invited to scrutinise the closed bundle which we did. Even if the Appellant’s criticisms about SMBC members were well founded, there is absolutely nothing in the closed bundle that would shed any light on that: HK were already retained, they were asked to assist SMBC in responding to correspondence expressing dissatisfaction with the SAR, as Counsel for SMBC described it, the material caught by this request would correctly be described as “boring and discreet”. There would be no reason to ‘circumvent information rights obligations’, there is no smoking gun in the closed material before us.

86. The Appellant invites the Tribunal to scrutinise the closed bundle to determine whether HK knowingly or unknowingly assisted in, or were misled into facilitating, the ‘fraudulent concealment’. As set out above, we find do not find that there was ‘fraudulent concealment’. We have concluded that the exemption applies, as such the contents of the advice are privileged and we are unable to disclose the contents of the advice.

87. The Appellant submits that the Tribunal should consider whether the ICO’s handling of his FOIA applications may have been influenced by misleading or prejudicial information supplied by SMBC. He argues that the wider conduct of both SMBC and the ICO is relevant to assessing whether decisions were made impartially and objectively. To be clear, it is not for this Tribunal to ‘review’ the ICO’s handling, we have a full merits jurisdiction. Nonetheless, to put the Appellant’s mind at ease, we make it clear that we do not conclude that the handling of his application was influenced by misleading or prejudicial information supplied by SMBC. Public Interest

88. The Appellant invites the Tribunal to order disclosure even if s.42 is engaged. The Appellant submits ‘It cannot be other than a matter of considerable public interest if the SAR regulations have been fraudulently by-passed by own one or more Council Solicitors and/or by a leading and very expensive firm of London Solicitors’. He also submits that it is of public interest why experienced solicitors spent £2565 plus vat of public money to conceal ‘fraudulent misconduct’.

89. To reiterate, we do not find that the SAR regulations havebeen fraudulently by-passed. There is repeated reference to ‘fraudulent concealment’. Again, we do not find there was fraudulent concealment. The fact that documents were disclosed at a later point, does not mean that the limited disclosure that was initially made was ‘fraudulent concealment’ – we do not find that it was. On examination of the closed bundle, we have concluded that there was a bona fide request for legal advice, we do not believe that the authority is misrepresenting the advice it received based on those documents. Nor do we conclude that the public authority is pursuing a policy which appears to be unlawful. The reasons put forward by the Appellant do not outweigh the inherent public interest in maintaining the exemption. We do not find that countervailing factors are of such weight to and substance as to displace the public interest in upholding the principle of professional privilege. There is no compelling and specific justification for disclosure, so as to override the obvious interest in legal professional privilege. We have considered both general and specific considerations in coming to this conclusion. SignedDate: Gilda Kiai 3 February 2026