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The Information Commissioner’s decision
The Information Commissioner’s decision
The Commissioner rejected Mr Dally’s complaint against the Council’s refusal to provide the information sought in the second part of his request. The Commissioner decided that the Council correctly determined that the information fell within section 42(1) of FOIA, and agreed that the public interest in maintaining this exemption from disclosure outweighed the public interest in disclosure.
Paragraphs 39 and 40 of the Commissioner’s decision notice took on significance in these proceedings and so I shall set them out in full:
The Commissioner has reviewed the withheld correspondence carefully. While she is unable to specify the contents in detail, she would note that, while it relates to MDH, it dates from several years ago and does not relate specifically to the requirements for MDH (nor any other premises) to be licensed.
As such, she is satisfied that the email seeking advice does not misrepresent facts about MDH in the manner suggested by the complainant. Nor indeed does it relate to the Animal Welfare Regulations 2018, dating, as it does, considerably before that legislation came into force.”
The Commissioner concluded that there was no compelling reason favouring disclosure of the information. The balance of public interests favoured maintaining the section 42(1) FOIA exemption.
- Heading
- The decision of the Upper Tribunal is to ALLOW the appeal
- If either party wishes to rely on any further written evidence or submissions, these are to be received by the First-tier Tribunal within one month of the date on which this decision is issued
- Directions (3) and (4) above may be varied by direction given by the First-tier Tribunal
- Background
- 14 February 2019, the RSPCA wrote to the Council’s Chief Executive
- 19 February 2019 at 14:19, a Council official emailed DEFRA
- 19 February 2019 at 15:07, a DEFRA official responded by email to the Council’s email of the same date
- 20 February 2019, a Council official emailed Mr Dally
- The Information Commissioner’s decision
- First-tier Tribunal’s decision
- disclosure of old legal advice would not assist in resolving any problems at MDH
- Legislative background
- Environmental protection legislation (stray dogs)
- Grounds of appeal
- The Commissioner’s arguments
- General principles
- Specific arguments
- even if the Upper Tribunal were to find a public interest in disclosure, that would not invalidate the Tribunal’s conclusion that disclosure would “erode the principle of legal professional privilege”
- Appellant’s arguments
- the supposed third formulation of the alleged misrepresentation – the Council said that the previous legal advice related to the 2018 Regulations rather than the 1963 Act regime – is styled by the Com
- Ground 1
- MDH continued to operate without a license despite kennelling stray dogs for up to 24 hours
- another local authority has required Animal Wardens Ltd, which sub-contracts with MDH, to seek a licence the Charity Commission took enforcement action to address a conflict of interests between Animal Wardens Ltd and MDH
- Closed session of hearing
- Conclusions