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In Greenwich RLBC v Information Commissioner [2025] UKFTT 85 (GRC), the FTT upheld an appeal against the ICOs decision that the Royal Borough of Greenwich (“LBG”) should disclose an allegedly privileged document.
The Facts
The requester had sought a copy of an email attachment which contained: (a) a draft report relating to a proposed Low Traffic Neighbourhood, (b) the Borough’s request for legal advice from external lawyers in relation to that scheme.
The Borough refused to provide the requested information, citing regulation 12(5)(b) of the EIR (the course of justice and inquiries exception) on the grounds that legal professional privilege (“LPP”) applied.
Although the ICO held the exception was engaged by the communication with external lawyers, it did not agree the draft report was caught by the regulation.
FTT Judgment
Regulation 12(5)(b) (the course of justice & inquiries exception)
The FTT ruled that LBG was entitled to rely on regulation 12(5)(b) in respect of the draft report:
Where information is subject to LPP the exception is likely to be engaged, subject to the kinds of matters envisaged in DCLG v IC [2012] UKUT 103 (AAC) (e.g. the legal advice is very stale and there would be no undermining of public confidence in LPP if the information were released).
In the alternative, even if the draft report was not subject to LPP then disclosure would still ‘adversely affect … the course of justice’. Disclosure would undermine the confidentiality of RBG’s communications with its lawyers, which would be particularly significant given the serious risk of legal challenge in relation to the new LTN scheme.
The FTT therefore held that regulation 12(5)(b) was engaged such that the document did not need to be disclosed. LPP carries an inherent public interest.
Regulation 12(4)(d) (unfinished documents disclosure)
In the further alternative, regulation 12(4)(d) (unfinished documents disclosure) was engaged because the report was in draft form.
The public interest in respect of this exemption also lay in favour of non-disclosure. As held by UTT in Highways England v Information Commissioner [2018] UKUT (AAC), the purpose of Regulation 12(4)(d) is “allowing public authorities to think in private”. The FTT held that disclosure would undermine officials’ confidence that there is a safe space where they can communicate confidentially without fear of premature disclosure.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
