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Closed session of hearing
Closed session of hearing
There was a closed session during the hearing of this appeal before the Upper Tribunal and the submissions made during that session are dealt with in a closed version of these reasons. Following the closed session, the following ‘gist’ of the session, which was agreed with Mr Mitchell for the Commissioner, was communicated to Mr Dally in open session:
“The Commissioner’s counsel made submissions which compared advice given by a council assistant solicitor, in response to a request for advice from an Environmental Health Officer, with the regulatory requirements under the 2018 Regulations.
Counsel argued that the regulatory triggers under both regulatory regimes were materially the same so that the Council’s description of the advice given was not capable of being considered a misrepresentation. At least, in referring to ‘previous advice’, it is contestable which regulatory regime was being referred to and, as a result, cannot properly be considered a misrepresentation of the advice received.”
In response to this ‘gist’, Mr Dally argued that the Council’s Chief Executive Officer was very clear which regulatory regime was being referred to in his letters to the local MP and RSPCA. Mr Dally draws attention to the Officer’s reference to MDH being ‘currently exempt’ so that, in referring to ‘this matter’, the Officer must have been referring to the issue of MDH ‘escaping’ from the current regulatory net (under the 2018 Regulations).
- Heading
- The decision of the Upper Tribunal is to ALLOW the appeal
- If either party wishes to rely on any further written evidence or submissions, these are to be received by the First-tier Tribunal within one month of the date on which this decision is issued
- Directions (3) and (4) above may be varied by direction given by the First-tier Tribunal
- Background
- 14 February 2019, the RSPCA wrote to the Council’s Chief Executive
- 19 February 2019 at 14:19, a Council official emailed DEFRA
- 19 February 2019 at 15:07, a DEFRA official responded by email to the Council’s email of the same date
- 20 February 2019, a Council official emailed Mr Dally
- The Information Commissioner’s decision
- First-tier Tribunal’s decision
- disclosure of old legal advice would not assist in resolving any problems at MDH
- Legislative background
- Environmental protection legislation (stray dogs)
- Grounds of appeal
- The Commissioner’s arguments
- General principles
- Specific arguments
- even if the Upper Tribunal were to find a public interest in disclosure, that would not invalidate the Tribunal’s conclusion that disclosure would “erode the principle of legal professional privilege”
- Appellant’s arguments
- the supposed third formulation of the alleged misrepresentation – the Council said that the previous legal advice related to the 2018 Regulations rather than the 1963 Act regime – is styled by the Com
- Ground 1
- MDH continued to operate without a license despite kennelling stray dogs for up to 24 hours
- another local authority has required Animal Wardens Ltd, which sub-contracts with MDH, to seek a licence the Charity Commission took enforcement action to address a conflict of interests between Animal Wardens Ltd and MDH
- Closed session of hearing
- Conclusions