Case No. UKUT-60-(AAC)

The exemption under Section 42 of FOIA for LPP material16. Section 42 FOIA states that information in respect of which a claim to legal professional privilege (LPP) could be maintained in legal proceedings is exempt information. Section 42(1)(a) FOIA reads, materially, as follows: - 42.— Legal professional privilege. (1) Information in respect of which a claim to legal professional privilege… could be maintained in legal proceedings is exempt information. 17. In this case it is not in dispute that s42 FOIA applies to the requested information. The Commissioner addressed the issue in the decision notice at [18]-[23] as follows: - 18. Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice in relation to proposed or contemplated litigation. For information to be covered by litigation privilege, it must have been created for the dominant purpose of giving or obtaining legal advice, or for lawyers to use in preparing a case for litigation. It covers communications between lawyers and third parties, as long as they are made for the purposes of the litigation. Litigation privilege applies to a wide variety of information, including advice, correspondence, notes, evidence or reports. … 21. The CPS explained that the withheld information was provided for the purposes of litigation, including communications with third parties, as the dominant purpose of the communication was to assist in the preparation of litigation. 22. The Commissioner has reviewed the withheld information which is a legal note about the competency and compellability of the Sovereign to be called as a witness in court proceedings. She is satisfied that the information is held for the dominant purpose of assisting in proposed litigation and therefore attracts legal professional privilege. 23. Taking everything into account, the Commissioner considers that section 42(1) is engaged. 18. However, s.42 is a qualified exemption which means that in addition to demonstrating that the requested information falls within the definition of the exemption, there must be consideration of the public interest arguments for and against disclosure to demonstrate in a given case that the public interest rests in maintaining the exemption or disclosing the information. When applying the public interest test the approach to be taken is whether in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information: s2(2)(b) FOIA. The public interest test19. Wyn Williams J gave the following guidance in relation to the application of the public interest test in s42 FOIA cases, in DBERR v O’Brien v IC [2009] EWHC 164 QB, [41 & 53]: ‘41. … it is for the public authority to demonstrate on the balance of probability that the scales weigh in favour of the information being withheld. That is as true of a case in which section 42 is being considered as it is in relation to a case which involves consideration of any other qualified exemption under FOIA. Section 42 cases are different simply because the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question. …53 In my judgment that paragraph is a clear indicator that the Tribunal failed to attach appropriate weight to the exemption. The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least.’20. Further, in O’Brien at [51], Wyn Williams J made clear that the “significant weight” inherent in section 42 is to be taken into account in addition to any case-specific factors, and that general factor arises without the need “to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question.”. 21. As the FTT noted in this case at [35], citing [53] of Wyn Williams J’s judgment in O’Brien, the inherit weight is to be taken into account “in any event”, it “will always have to be considered in the balancing exercise”. Indeed, as in O’Brien, a failure to put it on the side of the scales against disclosure, would be an error of law.22. In DCLG v IC & WR [2012] UKUT 103 (AAC) (‘DCLG’) at [36-41], a three judge panel of the Upper Tribunal (including Judge Turnbull and Carnworth LJ, SPT) set out the fundamental principles surrounding legal advice privilege, which is the species of LPP which applies in the present case (which also applies to legal advice given to public bodies, see [40], with which this case is concerned – the advice of Senior Treasury Counsel to the Director of Public Prosecutions). 23. The Panel, in DCLG, quoted from the well-known judgment of Lord Taylor CJ in R v Derby Mags Court ex parte B [1996] AC 487 at 507Dff in relation to LPP: “The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.” 24. The Panel continued: ‘Lord Taylor went on (at p. 508C) to reject a submission that, by analogy with the doctrine of public interest immunity, there might be occasions, if only by way of rare exception, in which the rule should yield to some other consideration of even greater importance: “But the drawback to that approach is that once any exception to the general rule is allowed, the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had “any recognisable interest” in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined.” As Lord Lloyd said in the Derby case (at p.509D): “….the courts have for very many years regarded legal professional privilege as the predominant public interest. A balancing exercise is not required in individual cases, because the balance must always come down in favour of upholding the privilege, unless, of course, the privilege has been waived.”’25. It is due to the fact that legal professional privilege is a fundamental condition on which the administration of justice as a whole rests, that it is afforded an “inherent weight” when it arises in Environmental Information Rights (‘EIR’) (the DCLG case was a EIR case) and FOIA cases. 26. The panel in DCLG went on to consider how privilege is dealt with in FOIA cases, citing Wyn Williams J in the O’Brien case (and thereby giving that judgment three-judge panel approval). In O’Brien, Wyn Williams J, made clear that whilst “the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise” this must not cause section 42 “to be elevated “by the back-door” to an absolute exemption”. The panel itself noted that “although a heavy weight is to be accorded to the exemption, it must not be so heavy that it is in effect elevated into an absolute exemption” [44]. 27. The panel went on to give further guidance [45/46]: ‘Mr Bates accepted that the weight which should properly be given to the exemption in any event, by reason of the risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of LPP, may vary from case to case. If, for example, the requested information is very old, or relates to matters no longer current, a disclosure may damage that confidence to a lesser extent than if the information was recent, or relates to matters still current. We consider that he was right so to accept. The jurisprudence of the FTT further indicates that the factors in favour of maintaining the exemption are not necessarily limited to the general one just indicated, but may include the effect which disclosure would have in the individual case. For example, if the dispute to which the advice relates is still live at the time of the request, it may be considered unfair that the requester should have the advantage of access to the authority’s advice, without affording the authority the same advantage: West EA/2010/0120 (15 October 2010), at [13(5)].’28. When considering “inherent weight”, in Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC) at [50] Judge Turnbull said that:“Usually, if not always, the contention that an exemption carries “inherent weight” involves the contention that, regardless of whether there is any prejudice to the public interest as regards the particular policy or matter to which the information relates, disclosure must necessarily result in some prejudice by reason of a general impact on the public interest factor which the exemption is designed to protect.” 29. Judge Turnbull noted in that case, that the section 42 exemption does carry such inherent weight (unlike section 35(1)(c), the exemption at issue in that case, which he decided did not necessarily carry such inherent weight). He found that section 42 of FOIA was different from section 35(1)(c) in two different ways [62/63]: The second reason is that it has been accepted in case law under s.42 that any compulsory disclosure of legally privileged information will to some extent weaken the important doctrine of legal professional privilege in relation to future cases, with detrimental consequences to the ability of persons to obtain legal advice on a full and frank basis: see DCLG v IC & WR [2012] UKUT 103 (AAC) at [42] to [46].” 30. These points are also echoed further, in Corderoy and Ahmed v Information Commissioner, Attorney-General and Cabinet Office [2017] UKUT 495 (AAC)), where the Upper Tribunal also noted as follows and emphasised that the s. 42 exemption is not a blanket exemption: - ‘68. The powerful public interest against disclosure … is one side of the equation and it has to be established by the public authority claiming the exemption that it outweighs the competing public interest in favour of disclosure if the exemption is to apply. 6 However strong the public interest against disclosure it does not convert a qualified exemption into one that is effectively absolute. …76. The importance of the issue and the public interest in the issue works both ways because it supports the need for frankness and confidentiality between client and lawyer on the one hand and the arguments in favour of transparency and fully informed debate on the other’. The jurisdiction of the FTT on an appeal from the Information Commissioner31. On appeal to the FTT it must decide if the Information Commissioner’s decision notice is in accordance with the law (s.58 FOIA). The FTT exercises a full merits jurisdiction over the Commissioner’s judgment as to where the public interest balancing test is to be struck. It is for the FTT, if necessary, to restrike that balance afresh - see the decision of a panel of three UT Judges in IC v Malnick and ACOBA [2018] UKUT 72 (AAC), [45]:“In considering whether the Commissioner’s notice is in accordance with the law, the Tribunal must consider whether (in the present context) the provisions of FOIA have been correctly applied. The Tribunal is not bound by the Commissioner’s views or findings but will arrive at its own view. In doing so it will give such weight to the Commissioner’s views and findings as it thinks fit in the particular circumstances….Adjudging the balance of public interest involves a question of mixed law and fact, not the exercise of discretion by the Commissioner. If based either on the Commissioner’s original findings of fact or on findings made by the Tribunal on fresh evidence, the Tribunal comes to a different conclusion from the Commissioner concerning the balance of public interest, that will involve a finding that the Commissioner’s notice was not in accordance with the law and should be corrected”. The Upper Tribunal’s jurisdiction on appeal from the FTT32. The FTT in this case exercised its jurisdiction by setting aside the Decision Notice and re-striking the public interest balancing test against disclosure of the requested information. 33. The Upper Tribunal may only set aside that decision if it concludes that the FTT erred in law (as provided by section 11 of the Tribunals Courts and Enforcement Act 2007). That means the Upper Tribunal is not engaged in re-performing the balancing of public interests itself but only determining if there was an error of law in the way in which the FTT struck the balance, for example by failing to take into account material matters, coming to an irrational conclusion or misinterpreting or misapplying the legislation and authorities on how to conduct the public interest balancing exercise.34. As it was stated by the Upper Tribunal in Cabinet Office v IC and Aitchison [2013] UKUT 0275 (AAC) at [4]: “my task in this appeal is not to re-evaluate the policy decisions of the Commissioner and the Tribunal. It is to ensure that the Tribunal did not err in law in its detailed consideration of the policy issues it considered relevant in assessing the public interests for and against requiring [disclosure]”.