FoI 23-25: Information in regards to Carson McDowell’s legal fees

Information Standards Freedom of Information Response

Our Ref: FOI 23-25

12 Mar 2025

Freedom of Information Act 2000

The Northern Ireland Assembly Commission (Assembly Commission) considered your request of 25th February 2025 under the Freedom of Information Act 2000 ('FOIA'). You refer to pre-action correspondence in legal proceedings. I have numbered the information you requested for ease of reference.

'(1) The total legal fees up to this point that has been spent in engaging Carson McDowell's services specifically in relation to the aforementioned defamation pre-action protocol

(2) The services and the individual charges.

(3) The services requested and the budget that you have allocated for each service.'

 

Our response

 

Question 1

This information is not held.

 

Question 2

Carson McDowell are instructed on behalf of the Assembly Commission under the Crown Commercial Service Public Sector Legal Services Framework. This can be found here. Information on the hourly rates charged by all suppliers under the framework is commercially sensitive and is exempt from disclosure under section 43 of the FOIA. This section provides, so far as is relevant, as follows-

'Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it)'.

The Assembly Commission considers that disclosure of the information requested in question 2 would prejudice both its commercial interests and those of Carson McDowell for the following reasons-

  • The decision to make this information confidential was taken by Crown Commercial Services ('CCS') in creating the framework. The judgment of a specialised procurement body on such matters should be given weight.
  • Disclosure of this information could jeopardise the access of the Assembly Commission to CCS frameworks in the future, which would result in a detriment to the public purse.
  • The pool of providers of legal services in Northern Ireland capable of dealing with issues of the complexity routinely encountered by the Assembly Commission is limited. Disclosure of the information sought would prevent the Assembly Commission from procuring similar expertise at competitive market rates in future. This would result in a detriment to the public purse.
  • Disclosure of the information sought will prejudice the commercial interests of Carson McDowell, since their hourly rates would be revealed while those of other comparable service providers in the framework would remain confidential. This would inhibit Carson McDowell's ability to obtain work at a competitive rate and unfairly advantage their competitors.

Section 43(2) of the FOIA is a qualified exemption and the Assembly Commission has accordingly considered whether the public interest in maintaining the exemption outweighs that in providing the information.

The Assembly Commission notes the following factors relevant to maintaining the exemption in relation to the information-

  • The framework contract was concluded by the UK government following tender submission from a wide range of legal providers in Northern Ireland in the course of a robust procurement process. This provides a sound guarantee of value for money and disclosure of the information sought would not enhance future procurements in any material way.
  • The significant public interest in ensuring proper scrutiny of the Assembly Commission's use of public money can be achieved in a manner which is less likely to prejudice the commercial position of the Assembly Commission and third parties - via scrutiny of the Assembly Commission's budget by the Assembly's Audit Committee and annual audit of the Assembly Commission's financial statements by the Northern Ireland Audit Office.

The Assembly Commission notes the following factor relevant to disclosing the information-

  • There is a significant public interest in ensuring proper scrutiny of the Assembly Commission's use of public money.

In this case, the Assembly Commission has determined that the public interest in maintaining the exemption outweighs the public interest in disclosure.

 

Question 3

This is a request for information in respect of which a claim to legal professional privilege could be maintained in legal proceedings and as such is exempt from disclosure under section 42(1) of the FOIA.

Section 42(1) is a qualified exemption and the Assembly Commission has considered whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

In considering the public interest, the Assembly Commission has identified the following points in favour of maintaining the exemption:

  • Question 3 is in effect a request for the instructions provided by the Assembly Commission to its legal advisers in particular proceedings, and the likely costs of proceedings. Disclosure of this information would materially prejudice the legal position of the Assembly Commission in those proceedings.
  • A client's ability to speak freely, frankly and openly to legal advisers about the prudent approach of that client to litigation, informed as necessary by expert assessment of the merits and costs, is a fundamental element of the legal system and the administration of justice.
  • There is a strong element of public interest inbuilt into maintaining and safeguarding legal professional privilege itself.

The Assembly Commission has identified the following points in favour of disclosing the information:

  • Disclosure of information held by public authorities is generally in the public interest in order to promote transparency and accountability.
  • Disclosure of information held by public authorities can aid in understanding the reason why certain decisions were made.

The Assembly Commission has concluded in this case that the public interest in maintaining the section 42 exemption in respect of reports generated for legal proceedings outweighs the general public interest in transparency about the work of public bodies.

 

Further Information

You have the right to request an internal review of this decision by the Assembly Commission. If you wish to request such a review, please write to me at the above address. If, after that review, you are dissatisfied with the way in which the Assembly Commission has handled your request for information, you may complain to the Information Commissioner's Office (ICO) at Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

Your request for information and our response may be published in the disclosure log maintained by the Assembly Commission under a publication scheme agreed with the ICO. The request and our response will be anonymised.

Yours faithfully

Data Protection and Governance Officer

Information Standards