Metropolitan Borough of Wirral

The complainant made a request under the EIR for “all communications in any form” relating to his emails sent to three named individuals on specified dates at Wirral Metropolitan Borough Council (the ‘Council’). The information concerns issues arising from the proposed relocation of a market in Birkenhead. The Council initially responded under FOIA and said the complainant already had the majority of the emails in scope through his earlier exchanges with the named individuals. It refused to provide the remaining two emails, citing section 42(1) of FOIA – the exemption for legal professional privilege. It said no further information was held in scope of the request, a position the complainant disputes. During the course of the Commissioner’s investigation, the Council disclosed the two withheld emails, with redactions for the legal advice contained within them. It reconsidered its position and said the request was for environmental information, such that it was now relying on Regulation 12(5)(b) – the EIR exception for the course of justice etcetera. It maintained that no further information was held. The Commissioner’s decision is that the request should have been handled under the EIR from the outset. He finds, on the balance of probabilities, that the Council does not hold any further information than has been located. He also finds that the Council was entitled to rely on Regulation 12(5)(b) of the EIR for the redacted legal advice within the disclosed emails. No steps are required as a result of this notice.