Tribunal upholds council refusal to disclose information on ‘Twitter storm’ SEN law firm

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13 March 2018

Twitter: Storm caused difficult decision for council

The First-tier Tribunal has upheld a council’s refusal to hand over information on its handling of a review into its dealings with a law firm that caused an uproar by sending out a series of tweets appearing to gloat over defeating cases brought by parents of children with special educational needs.

The London Borough of Croydon (LBC) refused the freedom of information request, and the tribunal said it was right to do so on the basis of prejudice to the conduct of public affairs, information provided in confidence and legal professional privilege.

It said the council was wrong to use the risk of prejudice to commercial interests in relation to one document, but it was covered by other grounds.

Milton Keynes firm Baker Small hit the headlines in June 2016 after senior partner Mark Small sent what the tribunal described as “grossly insensitive tweets, apparently mocking parents who had lost appeals in which he represented local authorities”.

This led to a major backlash and pressure on the various local authorities that instructed the firm to stop doing so.

The tribunal recorded: “LBC was immediately faced with very difficult decisions, which had to be reached as rapidly as proper reflection and appropriate consultation permitted.

“Whilst all concerned at LBC no doubt deplored such offensive conduct directed at families burdened with most distressing problems, they needed to consider how to handle the problem of representation on imminent SEN appeals and the substantial financial issues involved in any decision to sever contractual relations with BS.

“These included not only the costs of instructing fresh solicitors but the prospect of losing appeals due to less effective representation, resulting in long-term funding commitments.

“They needed to sound out the views of officers and members of the council as well as consulting parental and other interest groups concerned with SEN issues.”

Two days later, the council leader announced that it would immediately suspend any work with BS pending a review.

“That evidently provoked vigorous responses from members of the public and calls to terminate the retainer,” the tribunal noted.

A month later, former civil servant Richard Gillingham request disclosure of all information held by the council on the review and its use of Baker Small.

The council rejected this and Mr Gillingham appealed.

However, the tribunal ruled that “the public interest in withholding the requested information outweighed the interest in disclosure”.

It said: “The electorate was alerted on 15 June 2016 to LBC’s suspension of BS pending a full review of the position. No further decision had been taken by 16 July [when the request was made].

“Of course, there is always a strong public interest in transparency as regards the transactions of a local authority to promote trust and democratic accountability. There was a significant public interest here in knowing how LBC intended to balance the practical problems arising from these unpleasant tweets with an appropriate reaction to the widespread revulsion at such disgraceful insensitivity by its solicitors.

“There is a strong public interest in prompt disclosure of decisions taken by a local authority and the reasons for those decisions, where sensitive issues of this kind are involved.

“However, the precise content of discussions, arguments and negotiations, which precede such decisions, as recorded in emails, and the formulation of the reasons for them, will generally be of less consequence.”

This would not be true if they revealed improper conduct but that was not the case here. “No ‘wrongdoing’ would be exposed,” the tribunal concluded.

Mr Small was rebuked by the Solicitors Regulation Authority for his conduct.

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