Information held by solicitors is not always for the purposes of FOIA

A blog article by Jon Baines considers a recent Freedom of Information Act 2000 (FOIA) case that came before the Information Tribunal. 

The case examined whether information held by a solicitor related to advice provided to a public authority client is considered "held on behalf of" the authority under the FOIA. The case involved a request to Sheffield City Council for information about a 2007/2008 development scheme. The Council had destroyed its own records and argued that locating the information, held within 28 boxes at Herbert Smith Freehills (HSF), would exceed FOIA cost limits. The ICO initially agreed.

The Tribunal, however, raised the important question about why HSF retained the information. Was it on behalf of the Council or for HSF's own regulatory or risk management purposes? After considering submissions from the ICO and the Council, the Tribunal concluded that because the Council had no intention of retaining the information or entrusting it to HSF, the information was not "held" for FOIA purposes. 

Baines notes that while the Tribunal dismissed the requester's appeal rather than substituting a different decision notice, the core finding clarifies a key point: information held by a solicitor for their own purposes after an instruction has ceased and the client has destroyed their records, is unlikely to be subject to FOIA requests directed at the former client. In addition, Baines points out that the case highlights the importance of clear agreements and policies between solicitors and their clients, particularly public authorities, regarding the status and handling of information retained by solicitors after the conclusion of their work.