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Heading
Appeal No. UA-2024-001765-GIA
BETWEEN
THE CHIEF CONSTABLE OF THE POLICE SERVICE
OF NORTHERN IRELAND
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
BEFORE UPPER TRIBUNAL JUDGE WEST
Hearing Date: 22 May 2025
Decision Date: 28 July 2025
Representation: Mr Craig Dunford KC, counsel, for the Appellant
(instructed by the Crown Solicitor’s Office, Belfast)
Mr Christopher Knight, counsel, for the Respondent
(instructed by the Information Commissioner)
ON APPEAL FROM
Tribunal First-tier Tribunal (General Regulatory
Chamber) (Information Rights)
Tribunal Case No: EA/2023/0341
Tribunal Hearing Date: 5/3/2024
Tribunal Decision Date: 8/8/2024
Summary of Decision Freedom of Information Act 2000 – legal professional privilege - information notice served under s.51(1)(a) where Information Commissioner has received an application under s.50 – whether information notice under s.51(1)(a) is subject to the requirement that the Commissioner reasonably requires the information as in s.51(1)(b) – whether ambit of the two powers is the same or different – relationship with s.51(5)(a) and (b) which provide that the public authority is not required to furnish the Commissioner with information in respect of legally privileged communications in certain circumstances
Keyword Name 93 Information rights
93.1 Freedom of information - right of access
93.2 Freedom of information - public authority response
93.3 Freedom of Information - exceptions
93.5 Freedom of information - qualified exemptions
Please note that the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and the Reasons of the Judge follow.
DECISION
- Heading
- Section 1
- The Background
- The Information Notice
- The Statutory Framework
- The Decision of the Tribunal
- The Application and Appeal to the Upper Tribunal
- The Grounds of Appeal
- The Appellant’s Submissions
- if, however, he is undertaking a Part I Enquiry commenced by Trigger A, then he has “…an overall entitlement to require the production of LPP Material” (see [59])
- the public interest test which PSNI comes under a duty to apply under s.42 when considering a request for disclosure of LPP, is more accurately characterised as a weighting exercise, rather than a bal
- suppose further that, as in the judgment at [72], the IC, in the course of his Trigger B Part I Enquiry, was not satisfied that s.42 was actually engaged. In such circumstances, it would be for the IC
- it was never argued on behalf of the PSNI that the Tribunal could not (if so required in a particular case) see LPP Material: the PSNI’s case was and is that the IC is not empowered under the Act to s
- in Wiseman v HMRC [2022] UKFTT 00075 (TC) the First-tier Tribunal (Tax Chamber) was considering a notice which HMRC had issued to Mr Wiseman under paragraph 1 of Schedule 36 to the Finance Act 2008
- LPP is a fundamental right ( R v Derby Magistrates Court, B v Auckland ) any question of LPP being overridden by implication is to be tested by absolute necessity ( R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax & anr [2002] UKHL 2
- it must be demonstrably necessary for at least an important aspect of the legislation ( R (Morgan Grenfell & Co Ltd ) ) the principle of legality is important in this connection ( R v Secretary of State for the Home Department, ex p Simms [2001] 2 AC
- the more fundamental the right, the less likely it will be left to implication ( SLCC v Murray at [33])
- The IC’s Submissions
- The Application of the FOIA Regime
- where the public authority had, on the facts, waived LPP by analysing public statements against the content of the legal advice: Kirkaldie v Information Commissioner & Thanet District Council (EA/2006
- where legal advice from some 14 years earlier was still being used as the basis for a highly contested and doubtful use of public money, the public interest favoured disclosure: Mersey Tunnel Users As
- where legal advice has been used to formulate a policy of general application affecting a category of persons’ access to legal redress, such that transparency justified disclosure of the underlying ad
- where further the detailed exercise of review of information said to engage s.42 was carried out in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Foreign and Co
- The Factual Context to the Notice
- The Appeal
- in fact, the particular terms of s.51(5) serve a readily understandable legislative purpose: they provide an exception from the general power in s.51 to require the provision of LPP material where tha
- Discussion
- That situation stands in contrast to that set out in s.51(1) (b). In contrast, the IC is there exercising regulatory functions outside of the scope of an individual case, in a more thematic or systemi
- Conclusions