Legal professional privilege does not automatically engage an EIR exception

May 6th, 2014 by Robin Hopkins

FOIA provides an exemption (s. 42) expressly for legal professional privilege; as is well known, there is ‘strong inherent weight’ in maintaining that exemption. What about the EIRs? LPP is not expressly mentioned, but regulation 12(5)(b) EIR applies to information the disclosure of which would adversely affect “the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”. Does information attracting LPP automatically come within that exception? Many practitioners operate on the assumption that the answer is ‘yes’. The Upper Tribunal has on a previous occasion, however, left that question open: DCLG v IC and Robinson [2012] UKUT 103 (AAC); [2012] 2 Info LR 43.

That question has recently been revisited. In GW v IC, Local Government Ombudsman and Sandwell MBC [2014] UKUT 0130 (AAC), the Upper Tribunal answered ‘no’: just because LPP applies, it does not automatically follow that regulation 12(5)(b) EIR is engaged. Further analysis is needed – and the onus is on the public authority to make out its case on adverse effects on the course of justice etc.

The requester has complained to the Council about what was being emitted from the chimneys of two of his neighbours who were using wood-burning stoves. The Council obtained written legal advice from counsel. It told the requester it could not progress his complaint as he wished. He complained to the Ombudsman. The Council shared its legal advice with the Ombudsman, expressly on a confidential basis. The requester sought that advice from the Ombudsman. His request was refused. The IC’s decision went against him. So too did that of the First-Tier Tribunal.

The Upper Tribunal, however, found that the FTT went wrong in attributing too much weight to the prejudicial effects which it thought likely to arise “simply through the weakening of this important doctrine” [of LPP].

UT Judge Turnbull considered the wording of regulation 12(5)(b) EIR and said this: “In my judgment that requires attention to be focused on all the circumstances of the particular case, and there is no room for an absolute rule that disclosure of legally privileged information will necessarily adversely affect the course of justice”.

The crux, in his judgment was this: “What particularly matters for present purposes is in my judgment that the rationale for the doctrine and its absolute nature is established as being the need for the client to be able to obtain legal advice on a full and frank basis”.

In the present case, disclosure would be unlikely to prejudice that underlying principle – the Council’s ability to obtain free and frank advice would not be impeded. “What might be damaged would be not the course of justice but the ability of the LGO to conduct future investigations on a fully informed basis” – but that was a different point to the one at the heart of the FTT’s reasoning. The FTT had thus gone wrong in its public interest analysis.

Interestingly, one factor in the UT’s reasoning appears to have been that it was not taken to “any particular part or feature of the Advice which the Council would be unhappy about disclosing, or pointed to any specific concern which it has about Mr W or the public in general seeing it. Nor has it been suggested, for example, that the Advice needs to be qualified because of some inaccuracy or incompleteness in the instructions to counsel. The weight to be accorded to the adverse effect on the course of justice in this case is in my judgment very substantially less than it would have been if the LGO had been able to rely on the weakening of the doctrine of LPP which compulsory disclosure of legal advice will almost always involve”. This offers useful indications of what, in this UT’s view, might suffice to engage regulation 12(5)(b) EIR in respect of information which attracts LPP.

The public authorities also sought to rely on regulation 12(5)(d) EIR (confidentiality of proceedings). By regulation 12(9), however, that exception cannot be relied upon “to the extent that the environmental information to be disclosed relates to information on emissions”. Did that disapplication provision bite here? No, said the UT: “In substance the Advice did not “relate to” information as to the particular nature and extent of those emissions, but rather it related to the meaning and effect of the legislation”. In this case, regulation 12(5)(d) EIR was engaged.

Turning to the public interest balance, a preliminary point addressed by the UT concerned timing: matters post-dating the statutory time for compliance with a request can only properly be taken into account to the extent that they shed light on matters as they stood up to that time, or if they are relevant to the IC’s ‘steps discretion’ under s. 50(4) FOIA. They are not otherwise relevant to the public interest balance.

What might count in favour of the disclosure of privileged information? “In my judgment, therefore, when considering this issue it is relevant to consider not only whether the Council (and/or the LGO) made statements which were positively wrong, but whether they made statements which were liable to mislead or confuse the reader, and so have generated a confusing picture as to the effect of and reasoning behind the Advice”.

In this case, while there was no intention to mislead, “the combined effect of the information which the LGO and the Council had given up to this point was liable to create substantial confusion, in the mind of any reasonable reader, as to what the Advice did say”.

As to the public interest in maintaining the exception, the main factor was “the effect which disclosure would have on the ability of the LGO to obtain legally privileged information from local authorities on the footing that it should remain confidential” – especially given that the Ombudsman cannot compel local authorities to share such information with it. There would thus be a chilling effect on such information-sharing.

In contrast, the unfairness to the Council of having its legal advice shared with the requester was a relatively weak factor.

Overall, however, the balance very firmly favoured the maintenance of the exception. In this case therefore, the likely damage to the LGO’s work prevailed where LPP had not.

Robin Hopkins @hopkinsrobin

The Equitable Life collapse: strong public interests needed to trump s. 30

September 14th, 2012 by Robin Hopkins

Wynn v IC and Serious Fraud Office (EA/2011/0185) concerned the dramatic closure in late 2000 of the insurer Equitable Life. Both the Ombudsman and the Penrose Inquiry examined the collapse and published their reports. Attempts to compensate those who lost money have been pursued through the courts and considered by parliament.

The Serious Fraud Office became involved to consider whether any criminal charges should be brought against those involved in the collapse. Pursuant to its functions under the Criminal Justice Act 1987, it analysed the material and took legal advice in order to decide whether or not to commence a criminal investigation. In effect, it investigated whether or not to investigate. In December 2005, the SFO announced that it would not commence an investigation.

Mr Wynn was dissatisfied with that decision. Eventually, in 2009, he asked the SFO for all of the information it held on Equitable Life. It provided him with some information – importantly, this included (pursuant to a direction from the ICO) a ‘vetting note’, which summarised the SFO’s reasoning on why successful prosecutions were unlikely. The SFO withheld the remainder of the voluminous information it held, relying on s. 12 (cost of compliance) for some it and ss. 30(1) (investigations) and 42 (legal professional privilege) for the rest. The ICO agreed.

Mr Wynn’s appeal to the Tribunal was dismissed. The Tribunal was satisfied that the s. 12 estimate was reasonable and well evidenced. S. 30(1) was engaged: a preliminary investigation (or, as I have put it above, an investigation into whether to investigate) was an investigation for s. 30(1) purposes nonetheless.

The public interest favoured maintaining that exemption. Case-specific points included the substantial transparency delivered by the Ombudsman and Penrose Inquiry reports and the SFO’s vetting note. There was nothing to suggest that the SFO had got things wrong.

The decision also contains a number of points of more general application. The Tribunal endorsed the account given in Breeze v Information Commissioner (EA/2011/0057) of the concerns protected by s. 30(1): protecting witnesses and informants (including their confidentiality), maintaining the integrity of the prosecution and judicial process, and ensuring that the court remained the sole forum for determining guilt. The ‘safe space’ point was also important: prosecutors need a safe space in which to make their decisions without any fear their frank assessments being publicised too soon after the event.

Notwithstanding the passage of time between the conclusion of that investigation and the request under FOIA, those factors counted very heavily in favour of maintaining the exemption under s. 30(1). The Tribunal endorsed this general proposition from Public Prosecutor of Northern Ireland v IC (EA/2010/0109): “in order for disclosure to be ordered in such cases public interest factors of at least equal weight would have to be adduced. A general interest in transparency as to a prosecution authority’s decisions will not be sufficient. Something substantial and particular to the information would be required” (paragraph 35).

The general upshot is that, in recent years, s. 30(1) has grown into a ‘strong’ exemption, i.e. one that requires weighty and particular factors to ‘defeat’. ‘Safe space’ arguments have also fared somewhat better in the prosecution context than the policy-making
context (under s. 35 of FOIA) in Tribunal decisions over the last year or two.

Finally, it is long-established that s. 42(1) is a ‘strong’ exemption, requiring weighty factors if disclosure of privileged information is to ordered. None were forthcoming in Wynn.

Robin Hopkins

“IMPERMISSIBLE” DONATIONS TO THE LIBERAL DEMOCRATS: LIST OF CASES COMES WITHIN S. 42 OF FOIA

January 23rd, 2012 by Robin Hopkins

In Jackson v IC and the Electoral Commission (EA/2011/0136), the appellant had requested information in connection with an investigation made into donations made to the Liberal Democrat Party by the company 5th Avenue Partners. The company’s sole director was Michael Brown, who had been convicted of theft, money laundering and perverting the course of justice. It was alleged that the company was therefore an impermissible donor under the law governing donations to political parties. The Electoral Commission did not uphold that allegation: it issued a short press statement explaining that there was no legal justification for piercing the corporate veil in connection with the company’s donation.

The requester asked for the list of legal authorities upon which that opinion was based.

The request was refused on the grounds of s. 42 of FOIA (legal professional privilege). The Commissioner upheld the refusal, and so has the Tribunal: it has confirmed that a simple list of cases can attract LPP, and it found that – in view of the limited assistance this list would offer the requester – the public interest favoured maintaining the exemption.

Robin Hopkins

REASONABLE OPINION OF A QUALIFIED PERSON: GUIDANCE FOR USERS

December 6th, 2011 by Robin Hopkins

In William Thackeray v IC (EA/2011/0069), the requester asked the Home Office for information it holds about Scientology. The resultant appeal to the Tribunal is the latest consideration of the FOIA exemptions for prejudice to the effective conduct of public affairs (s. 36) and legal professional privilege (s. 42). The appeal failed, and reliance on both these exemptions was upheld.

The s. 42 point was short: can litigation privilege be relied upon where judicial proceedings which have been formally instituted are subsequently withdrawn? Answer: yes. The established test with regard to the application of this kind of privilege is whether there is a reasonable prospect of litigation existing at the time of the creation of the document.

Thackeray is an important decision for its review of the general principles underpinning reliance on s. 36. Public authorities often run into difficulty in seeking to obtain the opinion of the qualified person (the precondition for engaging that exemption). Particular issues arise as to the timing of and basis for the QP’s opinion, i.e. when is the latest an opinion can be obtained, and what material must the QP consider if his or her opinion is to be reasonable?

The Tribunal in Thackeray considered these two issues. As to timing, it addressed this particular question: can the opinion of the QP be obtained after the statutory 20-day period for responding to a request, but before the conducting of the public authority’s internal review? In part, this is about whether an internal review is capable of remedying flaws in an original refusal notice. Here there was a refusal in June 2009, and the QP’s opinion was obtained in November 2009. The Appellant argued that this delay undermined the reasonableness of that opinion.

In answering that question, the Tribunal made the following general observations about the use of s. 36:

  • There is a strong argument for saying that the qualified person should be at or towards the very top level of accountability.
  • This responsibility cannot be delegated.
  • The precise role of the opinion is to state whether, in that person’s view, the prejudices under s. 36 are likely to arise from disclosure. An opinion is not about the public interest.
  • The Commissioner’s role is to assess that opinion for reasonableness, akin to a Wednesbury analysis in judicial review claims. The Commissioner can only reject the substance of the opinion if it was one that no reasonably qualified person would have taken.
  • The manner and timing of the obtaining of that opinion can be considered as part of that scrutiny of reasonableness.
  • To obtain the opinion ‘late’ (i.e. after the initial refusal) is not akin to ‘late reliance’ upon an exemption.
  • The provision of the opinion by the internal review stage is sufficient. The Tribunal endorsed the approach in McIntyre v IC and MoD (EA/2007/0061), where it was held that an opinion can suffice to engage s. 36 where it is reasonable in substance, even if it was arrived at in a flawed or unreasonable manner.

As to content (i.e. the question of what must be before the QP when he or she forms her opinion), the Tribunal considered whether the QP must give consideration to the application of that FOI exemption, and whether he or she must consider the actual disputed information before reaching their opinion. This arises particularly in relation to government ministers, who in practice often make such decisions based on submissions from civil servants, rather than on the basis of actual consideration of the underlying material for themselves.

Does such an approach undermine reliance on s. 36? No, said the Tribunal. Failure to inspect the disputed information will not without more render the opinion redundant or unreasonable. It is sufficient if it is shown that the qualified person’s opinion was based on a proper understanding of the disputed information. The civil service approach, and other such approaches to obtaining the opinion of a QP, survives intact.

Robin Hopkins

FROM NAKED PHOTOS TO NUCLEAR ENRICHMENT: ROUNDUP OF NEW TRIBUNAL DECISIONS

September 26th, 2011 by Robin Hopkins

The past week saw a slew of new decisions from the First-Tier Tribunal. Here is Panopticon’s highlights package.

Sections 41 (information obtained in confidence) and 43 (commercial prejudice)

In DBIS v IC and Browning (EA/2011/0044), the requester (a Bloomberg journalist) had sought information from the Export Control Organisation in connection with licences issued for the exporting to Iran of “controlled goods” – explained by the Tribunal as “mainly military, dual use (potentially military), equipment designed for torture or repression or sources of radio-activity”. The relevant public authority, the Department for Business, Innovation & Skills, refused the request, relying on sections 41 and 43. The IC found for the requester on the narrow basis that, whilst disclosure would result in a breach of confidence, no commercial detriment would be suffered by the licence applicants as a result. Subsequent evidence from the Department persuaded the IC to change position and support the appeal, which was resisted by the applicant. In a decision which turned on the evidence, the Tribunal allowed the appeal, and found both sections 41(1) and 43(2) to be effective.

Section 42 (legal professional privilege)

Two recent decisions on this exemption. Both saw the Tribunal uphold the refusal, applying the established approach under which this exemption has a strong in-built public interest. Szucs v IC (EA/2011/0072) involved an FOIA request about an earlier FOIA request (the appellant requested the legal advice and associated documents provided to the Intellectual Property Office about how to deal with a previous FOIA request made by the appellant’s husband). Davis v IC and the Board of Trustees of the Tate Gallery (EA/2010/0185) is eye-catching primarily because it concerned the Tate’s legal advice concerning the inclusion in an exhibition of a photograph of the actress Brooke Shields, aged ten, naked, entitled “The Spirit of America” (the Tate had initially proposed to include this in an exhibition, but ultimately withdrew the photograph).

Section 40 (personal data)

Beckles v IC (EA/2011/0073 & 0074) concerned the identifiability of individuals from small sample sizes, in the context of information about dismissals, compromise agreements and out-of-court settlements. The appellant asked Cambridge University for information on (among other things) the number of employees who received post-dismissal settlements. The answer was a low number. He asked for further details concerning the settlement amounts, rounded to some appropriate non-exact figure. This, said the Tribunal (applying the Common Services Agency/Department of Health approach to identifiability from otherwise anonymous figures) was personal data, the disclosure of which would be unfair. Its reasoning is summed up in this extract:

“Information as to the settlement of a claim made by an identified individual relating to his or her employment is undoubtedly personal data. The question is whether the four individuals or any of them could be identified if the information requested were disclosed, even in approximated form…. Cambridge University is made up of a large number of much smaller academic or collegiate communities. It is likely that a number of colleagues or friends will be aware that a particular individual settled a claim with the University within the time-scale specified. They will be aware of the general nature of that person`s employment. This is a small group of claims in a relatively short period. In the form originally requested it is readily foreseeable that one or more of the four will be identified.”

Sections 24 (national security) and 27 (international relations)

Burt v IC and MOD (EA/2011/0004) concerned information gathered by staff of the UK Atomic Weapons Establishment on an inspection visit to a United States atomic energy facility, as a learning exercise regarding the proposed development of an enriched uranium facility at Aldermaston. The US had expressed its desire to maintain proper confidence in what it regarded as a sensitive area. The MOD refused the request, relying on sections 27 and 24. By the time of the appeal, only a small amount of information had not been disclosed. This was primarily of a technical nature, containing observations about the operation of plant, machinery, procedures and processes at the US facility.

The Tribunal upheld the MOD and Commissioner’s case as regards the outstanding material. As regards section 27, the Tribunal applied the principles from Campaign against the Arms Trade v IC and MOD (EA/2006/00040). It observed, however, that confidential information obtained from another country would not always be protected by section 27: it was “perhaps axiomatic that the foreign State will take the United Kingdom as it finds it including but not limited to the effect of its own domestic disclosure laws. It follows that there may well be cases where information otherwise imparted in confidence from a foreign State to a United Kingdom authority would need to be considered on its own merits as to whether some form of disclosure should be made or ordered whether under FOIA or under similar analogous legislation or principles such as the UK data protection principles.”

As regards section 24, the Tribunal applied Kalman v IC and Department of Transport (EA/2009/0111) (recourse to the exemption should be “reasonably necessary” for the purpose of safeguarding national security), and Secretary of State for the Home Department v Rehman [2003] 1 A 153 (the threat to national security need not be immediate or direct).

Burt is also an example of a “mosaic effect” case: taken in isolation, the disputed information may appear anodyne, but the concern is with how it might be pieced together with other publicly available information.

Section 14(1) FOIA (vexatious requests)

Dransfield v IC (EA/2011/0079) is an example of the Tribunal overturning the Commissioner’s decision that section 14(1) had been engaged (for another recent example, see my post here). As with many such cases, the history and context were pivotal. Given that it is the request, rather than the requester, which must be adjudged to be vexatious, how should the context be factored in? The Tribunal gave this useful guidance:

“There is, however, an important distinction to be drawn between taking into account the history and context of a request, as in the cases referred to above, and taking into account the history and context of other requests made by a requester or other dealings between the requester and the public authority. The former is an entirely proper and valid consideration. The latter risks crossing the line from treating the request as vexatious, to treating the requester is vexatious. That line, in our view, was crossed in the present case.”

Robin Hopkins

EXTRAORDINARY RENDITION UPPER TRIBUNAL APPEAL: LATE RELIANCE, PERSONAL DATA & OTHER ISSUES

April 26th, 2011 by Robin Hopkins

The All Party Parliamentary Group on Extraordinary Rendition (APG) requested information from the Ministry of Defence on (i) memoranda of understanding between the UK and the governments of Iraq, Afghanistan and the USA regarding the treatment of prisoners detained in the conflicts in Iraq and Afghanistan, (ii) a copy of the Detentions Practices Review, (iii) a copy of the UK’s policy on capture and joint transfer, and (iv) statistics on detainees held in Iraq and Afghanistan. The MOD refused the requests, relying on a number of exemptions under FOIA. For the most part, the Commissioner agreed. APG’s appeal was expedited to the Upper Tribunal and heard by Blake J, Andrew Bartlett QC and Rosalind Tatam.

Except as regards request (iii), its appeal has succeeded, to a limited but substantial extent. The Upper Tribunal has ordered disclosure or significantly more information than that ordered by the Commissioner.

Its judgment (available here) is complex. Some of the key points of interest are as follows.

Late reliance

The Upper Tribunal was mindful of the decision of a differently constituted Upper Tribunal in the DEFRA/Brikett appeals, where it was held that public authorities may rely on exemptions as of right at any stage in proceedings. In this case, the Upper Tribunal did not need to decide the issue of late reliance, but it did confess to having “some general concerns” about such an approach, which threatens to “turn the time limit provisions of ss. 10 and 17 almost into dead letters”, and “can also create a strong sense of injustice”. The internal review mechanism provides sufficient time for the public authority to make its mind up; if new points are taken thereafter, “then fairness requires that the requester should be allowed to add to the terms of his complaint under s. 50(1)”.

Cost of compliance under s. 12 FOIA

The Upper Tribunal approved principles from Urmenyi v IC and LB Sutton (EA/2006/0093) concerning the Commissioner’s enquiries into the assumptions behind the public authority’s estimate, and from Roberts v IC (EA/2008/0050) about the activities falling within s. 12 and the reasonableness of estimates.

Late reliance on s. 12 is a different matter to late reliance on exemptions under Part II of FOIA. Delay by a public authority robs the requester of the opportunity to split the request into parts separated by 60 days, thereby avoiding s. 12. The cost exemption “only has meaning if the point is taken early on in the process, before substantial costs are incurred” – it looks at whether costs would exceed, not whether they have been exceeded.

In the present case, the MOD’s estimate was not reasonable because it was based upon a search for a broader class of information than that which was actually requested.

Prejudice to international relations under s. 27 FOIA

The Upper Tribunal was not persuaded that this exemption was effective: “since the maintenance of the rule of law and protection of fundamental rights is known to be a core value of the government of the United Kingdom, it is difficult to see how any responsible government with whom we have friendly relations could take offence at open disclosure of the terms of an agreement or similar practical arrangements to ensure that the law is upheld”.

Legal professional privilege under s. 42 FOIA

This exemption was engaged, and the public interest in favour of disclosure of the UK’s Detention Practices Review did not outweigh the public interest in maintaining the exemption.

Bodies dealing with security matters under s. 23 FOIA

The MOD successfully relied on this exemption – including where it was relied on “late”.

Personal data under s. 40 FOIA and the conditions in Schedule 2 DPA

Information on the dates and locations of individual cases of detention and prisoner transfer would not enable identification of those individuals, and was thus not personal data. If it had been personal data, condition 6(1) from Schedule 2 DPA would have been met.

APG in fact submitted that conditions 4, 5(a), 5(d) and 6(1) would be met by disclosure of statistics on detainees. The MOD submitted that a number of these conditions could not be relied on in the context of a request under FOIA because the public at large (to whom disclosure under FOIA is deemed to be made) cannot fulfil these conditions. The Upper Tribunal disagreed: at least some of these conditions can be fulfilled by a member of the public, and that is sufficient.

APG further relied on s. 35(2) DPA, which provides an exemption from the non-disclosure provisions of the DPA where disclosure is “necessary for the purposes of establishing, exercising or defending legal rights”. The Upper Tribunal confirmed that “establishing” for these purposes had the sense of “vindicating” rather than merely determining what the relevant rights are.

Where data is anonymised, it continues to attract the protection of the data protection principles insofar as it is in the hands of the data controller (who holds the key to identification of the otherwise anonymous data subjects). “But outside the hands of the data controller, the information is no longer personal data, because no individual can be identified… the best analysis is that disclosure of fully anonymised information is not a breach of the [DPA] because at the moment of disclosure the information loses its character as personal data”. The publication of truly anonymised or other “plain vanilla” data therefore does not involve “processing of personal data” for DPA purposes.

Related judgments

On the late reliance issue, permission to appeal to the Court of Appeal is being sought in the DEFRA/Birkett case.

On the s. 40 FOIA issue, the Upper Tribunal’s decision needs to be read in conjunction with the High Court’s decision (also handed down very recently) in the Department of Health’s “abortion statistics” appeal.

LPP

October 29th, 2010 by jamesgoudie

Legal professional privilege (“LPP”) as an exemption from disclosure under Section 42 of the Freedom of Information Act 2000 (“FoIA”) and Regulation 12 of the Environmental Information Regulations 2004 arose again in West v Information Commissioner, EA/2010/0120.  Bexley Council had transferred a major part of its Council housing stock to a Housing Association.  Mr West is a member of a leaseholders’ group that objected to having to pay service charges for the cost of the maintenance of roads and footpaths within the housing estates.  They said that remained the responsibility of the Council.  They sought to challenge the lawfulness of the stock transfer agreement.  The Council took advice from Counsel.  Mr West sought a copy of Counsel’s Opinion.  The Council refused to provide it, relying on LPP.  The Information Commissioner upheld the Council’s refusal.  The Tribunal dismissed Mr West’s appeal.  Not only might “legal advice privilege” apply.  So too might “litigation privilege”.  Mr West had threatened to bring a case before the Leasehold Valuation Tribunal and/or judicial review proceedings.  The real issue was the Public Interest Test.  The Tribunal duly identified the public interest factors in maintaining the exception, referring to DBERR v O’Brien [2009] EWHC 164, and the public interest factors in disclosure.  Weighing up and balancing the competing public interests, and bearing in mind the presumption in favour of disclosure, the Tribunal (Judge Shanks presiding) agreed with the Commissioner that the public interest in maintaining the LLP exception outweighed the public interest in disclosure.

James Goudie QC

High Court Decision on Section 42 FOIA

February 10th, 2009 by Anya Proops

The High Court today handed down an important judgment on the application of the legal professional privilege exemption in section 42 FOIA ([2009] EWHC 164 (QB)). The case concerned an application for disclosure of information held by the DTI (subsequently the Department of Business and Regulatory Reform). The requested information related to the Government’s decision to include a provision in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 which expressly excluded daily fee paid judicial office holders from the ambit of the Regulations. The request was made by Mr O’Brien QC, who himself sat as a daily fee paid judicial office holder. DBERR refused disclosure of the requested information on the basis that certain of the information was exempt under section 35 FOIA (policy information) whereas other information was exempt under section 42 (FOIA) (legally privileged information). Reliance was also placed on section 36 FOIA (prejudice to effective conduct of public affairs). The Commissioner rejected Mr O’Brien’s complaint about DBERR’s refusal decision, save that he did order that the content of one of the disputed documents be disclosed. The Tribunal upheld Mr O’Brien’s appeal against the Commissioner’s decision. It held that whilst the exemptions afforded under sections 35 and 42 were engaged in respect of the disputed information, on an application of the public interest test, the public interest weighed in favour of the information being disclosed (EA/2008/0011).

DBERR, which was named as an additional party before the Tribunal, appealed the decision to the High Court. The Commissioner participated in the appeal, not on the basis that he was formally supporting or resisting the appeal, but rather because: (a) he had some ‘concerns’ about the way in which the Tribunal had reached its conclusions in this case; and (b) he considered it important to draw the court’s attention to these concerns, not least because of the precedent-setting effect of the Tribunal’s decision. At the heart of the appeal before the High Court was the question whether the Tribunal had lawfully applied the section 2(2)(b) public interest test to the dipsuted information.

Wyn Williams J upheld the appeal in part. He found that the Tribunal’s application of the public interest test to information falling within the ambit of section 35 could not be impugned. However, he concluded that the Tribunal’s application of the public interest test to the information falling within the ambit of section 42 was fatally flawed. He reached this conclusion in particular on the basis that: (a) in accordance with a long line of Tribunal decisions starting with Bellamy v ICO, it was clear that there was a strong public interest in maintaining the confidentiality of legally privileged information which was effectively built into the section 42 exemption; and (b) the Tribunal’s reasons did not clearly demonstrate that it had taken this strong public interest into account when weighing the public interest balance. The importance of the judgment lies in the fact that it constitutes an authoritative judgment on how legally privileged information should be dealt with under FOIA.

The judgment is also significant in that: (1) it criticises the Tribunal for having failed to state clearly which of the disputed information fell within section 35 and which fell within section 42 (the Tribunal had simply found that the information fell within section 35 ‘and/or’ section 42); and (2) it confirms that, when dealing with the application of the public interest test where a number of exemptions are engaged, the Tribunal should ensure that it does not simply bundle all the public interest test considerations together but instead conducts discrete analyses of the public interests relevant to particular exemptions.