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On 8 August 2024, the First Tier Tribunal (FTT) determined that the exemption under s.42 of the Freedom of Information Act 2000 (FOIA) concerning Legal Professional Privilege (LPP) did not apply to Information Notices issued by the Information Commissioner (IC) under s.51.
In May 2020 the Police Service of Northern Ireland (PSNI) received a request for “any record of talks between goldmine companies discussing security costs”. PSNI confirmed that it held relevant information but withheld it on the basis of, inter alia, s.42(1) (LPP). The requestor complained to the IC, who requested a full and unredacted copy of the Withheld Information from PSNI. Following PSNI’s refusal to provide it, claiming LPP, the IC issued an Information Notice (IN) pursuant to s.51(1) requiring its provision. PSNI appealed the IN, contending that s.51 does not override or reduce the scope and operation of s.42.
s.42 provides:
(1) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.
(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings.
s.42 is not an absolute exemption but is a qualified exemption subject to a public interest test, i.e. whether or not the public interest weighs in favour of maintaining the exemption when balanced against countervailing public interests in disclosure.
s.51(5) provides:
(5) An authority shall not be required by virtue of this section to furnish the Commissioner with any information in respect of—
(a) any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or
(b) any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.
The two issues for the Tribunal were:
(1) Whether s.51 overrides, or reduces the scope and operation of s.42 – the ‘Exemption Issue’;
(2) Whether s.42 abrogates or overrides LPP, either by express words or necessary implication including consideration of the wider principle of whether any provision of FOIA abrogates or overrides LPP – the ‘Interpretation Issues’.
(1) The Exemption Issue
The FTT considered this question ‘a relatively straightforward one’: s.42 relates only to potential exemptions from the Duty to Inform and the Duty to Disclose (ss.1(1)(a) and (b)), not exemptions relating to any request for information made by the IC under s.51. It was not necessary to examine the nature and scope of s.42 or its potential interaction with s.51 and the Appellant could not rely on s.42 to refuse to provide the Withheld Information to the IC.
(2) The Interpretation Issues
The finding regarding the Exemption Issue meant the interpretation limb of appeal was bound to fail as s.42 does not operate as an exemption to a s.51 IN.
However, the Tribunal also considered the broader argument of whether LPP is a fundamental right which could not be overridden save in limited circumstances (e.g. where it had been waived which was not applicable in the present case), as there was no provision in the FOIA at all (not just in s.42) which overrode LPP such that the IC had no power under s.51 to require production of the Withheld Information.
The FTT focused on the IC’s statutory powers under s.51. It held that s.51(1) expressly covers the entitlement of the IC to seek LPP material from a public authority for the following reasons:
a. Section 51(1) uses express words to the effect that the IC may serve an IN requiring a public authority to furnish him with ‘such information as he specifies in the information notice’ relating to an application under s.50.
b. Those express words are not qualified in any way, such as by reference to reasonableness (as is the case, in contrast, for an IN which is issued under s.51(1)(b)).
c. There is specific recognition of certain LPP Material being excluded from the scope of an IN issued under s.51(1) – namely in s.51(5) regarding the specific criteria for LPP Material in connection with advice and proceedings relating to FOIA itself. Had Parliament intended that the scope of an IN would not extend to any other LPP Material then it would have specified so.
d. Accordingly, it is clear that the only potential applicable exclusion under FOIA to the duty of a public authority to furnish the IC with any information specified by him in an IN is that set out in s.51(5) covering only the LPP Material meeting the specific criteria in that section.
e. It follows that there is no other basis for a public authority to refuse to provide any other information, including any LPP Material falling outside of s.51(5), which is specified by the IC in an IN.
f. That interpretation is consistent with construing FOIA as a whole, in accordance with the views expressed in Barclays Mercantile Finance Ltd v Mawson [2004] UKHL 51 and having regard to the relevant practical implications of the operation of FOIA.
The FTT accordingly held that the IN was lawful and the Appellant was not entitled to refuse to provide the Withheld Information to the IC.
The Tribunal found that the Appellant had not provided any direct case law in support of its argument that a public authority can refuse to provide LPP Material when issued with an IN under s.51(1)(a). Neither had PSNI been able to refer to any provision of FOIA which expressly negates the duty of a public authority to provide LPP material requested by an IN.
In this decision, the FTT is firm: unless s.51(5) applies, LPP material can and must be provided to the IC and FTT when requested to allow each properly to fulfil their own duties pursuant to s.50 complaints and s.57 appeals, to assess compliance with s.42 and the public interest test, where reliance on the s.42 exemption is made.
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.
