Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 178 (AAC)

Fecha: 06-Ago-2023

General principles

General principles

23.

The Commissioner argues that Mr Dally’s case is ‘essentially factual’ and, accordingly, he cannot succeed unless he establishes that the First-tier Tribunal reached an irrational conclusion. As the Upper Tribunal said in Callender Smith v the Information Commissioner and the Crown Prosecution Service [2022] UKUT 60 (AAC):

“33…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.”

24.

As an expert tribunal, which is familiar with the application of the public interest balance under FOIA, the First-tier Tribunal’s decisions warrant a degree of respect (see Oxford Phoenix Innovation Limited v the Information Commissioner and the Medicines and Healthcare Products Regulatory Agency [2018] UKUT 192, at [53]).

25.

The Commissioner emphasises the inherent value in preserving and respecting legal professional privilege, which is reflected in a number of authorities: DBERR v O’Brien & the Information Commissioner [2009] EWHC 164 (QB), at [51]; Cabinet Office v the Information Commissioner [2014] UKUT 461 (AAC), at [50]; Callender Smith at [49]. The Commissioner submits that this is why maintenance of legal professional privilege carries ‘inherent weight’ in section 2 of FOIA’s balancing of public interests; he relies on Wyn Williams J’s judgment in DBERR v O’Brien and the Information Commissioner [2009] EWHC 164 (QB):

“41…A person seeking information from a government department does not have to demonstrate that “exceptional circumstances” exist which justify disclosure. Section 42 is not to be elevated “by the back-door” to an absolute exemption…it is for the public authority to demonstrate on the balance of probability that the scales weigh in favour of the information being upheld. 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…

48…In the light of the consistent line taken by the Tribunal as to the weight to be attached to the public interest against disclosure in-built into legal professional privilege (an approach which I have found to be the correct one) it was incumbent upon the Tribunal in the instant case to give significant weight to that interest. Further the Tribunal was obliged to consider whether the weight to be given to the public interest considerations militating against disclosure were countered by considerations of at least an equal weight which supported an order for disclosure.

…51. [that inherent weight] means that it was not necessary to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question.

…53…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.”

26.

The caselaw’s recognition of the significant inherent weight given to the public interest in non-disclosure (preserving legal professional privilege), in a section 42 case, is explained by the wider importance of respecting legal professional privilege. As Lord Taylor CJ explained in R v Derby Magistrates’ Court ex parte B [1996] AC 487, at 507Dff:

“The principle which runs through all these cases…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.”

27.

The ‘place’ of legal professional privilege as a fundamental condition of the administration of justice, submits the Commissioner, means that, even in the absence of case-specific public interest prejudice occasioned by disclosure, there remains an inherent prejudice against disclosure. This must be recognised in the application of section 2’s balancing of public interests (Cabinet Office v the Information Commissioner [2014] UKUT 461 (AAC)). The inherent weight in maintaining legal professional privilege may, of itself, be sufficient to outweigh the public interests in disclosure. As authority, the Commissioner relies on Callender Smith, at [49]:

“The FTT was entitled to reject many of the CPS’s additional factors…so as to, essentially, only leave the inherent weight in the “non-disclosure” side of the scales. There is no error of law in so doing – the authorities cited permit that the inherent weight afforded to non-disclosure of LPP material alone may outweigh the pro-disclosure factors.”