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Tribunal rejects call by FOI requester for names of legal advisors at care regulator

The First-tier Tribunal (FTT) has upheld the Care Quality Commission’s refusal to supply the names of individuals who provided it with legal advice on the de-registration of a care agency.

The appellant, Timothy Couzens, had submitted a freedom of information request to the CQC. However, the regulator was only prepared to supply the job titles (‘legal advisor’ and ‘principal legal advisor’).

The Information Commissioner decided in May 2014 that the CQC was justified in limiting the information to the relevant job titles. Couzens then appealed to the FTT.

In Timothy Couzens v IC EA.2014.0146 the appellant was concerned that the Commission did not apply available regulatory controls over a particular organisation which had been treated as exempt from registration requirements because it operated solely as an ‘introductions’ agency without any involvement in the direction or control of the activities of the introduced care worker.

He argued in his grounds of appeal that the elements of legal advice on that issue, which had been disclosed to him, could not be fully assessed by considering its content and the job title of its author.

The advice, he said, was “inseparable and indivisible from the identity, legal credentials and expertise of the person giving it”. Later he said that it was not possible “...to assess the weight and validity of the CQC ‘legal advisor’s’ advice, without the ability to link the legal advice with the legal advisors’ identities”.

But the FTT found that Couzens had “provided no persuasive argument that disclosure of the names in question would contribute to transparency, given that the substance of the legal advice has been disclosed, as a result of the CQC waiving its right to rely upon the exemption provided by FOIA section 42 (legal professional privilege).”

The tribunal continued: “The Appellant in fact provided an analysis of the advice in support of his appeal – a demonstration that the disclosure already made provided the public with sufficient material for an informed public debate on the issues which concerned him. The identity of the authors of the legal advice is therefore, self-evidently, not necessary for an evaluation of the advice they provided.

“We conclude that there is no discernible public interest in disclosure of the names. By contrast we believe that there is some slight weight to be accorded to the counterbalancing factor of intrusion into the relevant individuals’ privacy.”

The FTT said the case for privacy was stronger in the case of the legal advisor than for the principal legal advisor. But it said the appellant had not persuaded it that the level of intrusion would be so small that it may be disregarded.

“The effect of disclosure in response to the appellant’s information request would be more intrusive than publicity, through social media, of the position an individual held in the organisation,” the tribunal ruled.

“It would disclose both the position held and the individual’s authorship of a particular legal opinion. The degree of intrusion, though slight, is still sufficient to outweigh the public interest in disclosure which, as we have said, is indiscernible.”

The tribunal unanimously dismissed the appeal.