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Section 1
The decision of the First-tier Tribunal (General Regulatory Chamber) dated 8 August 2024 under file reference EA2023/0341 does not contain an error on a point of law. Permission to appeal is granted but the appeal is dismissed.
This decision is made under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
Introduction
This is an appeal, with my permission, against the decision of the First-tier Tribunal (Judge Stephen Roper, Tribunal Members Suzanne Cosgrave and Paul Taylor) which sat on 5 March 2024 and which issued its decision on 8 August 2024.
In its decision the Tribunal dismissed the appeal of the Appellant, the Chief Constable of the Police Service of Northern Ireland, from the decision of the Information Commissioner (“the IC”) dated 22 June 2023 to the effect that, in the exercise of his powers under s.51 of the Freedom of Information Act 2000 (“FOIA”), he required the Appellant within 30 days of the date of the notice to furnish him with the remaining Withheld Information which fell within the scope of the request. To avoid confusion between calling the Appellant the CC and the Respondent the IC, I shall designate the Appellant either as “the Appellant” or as “the PSNI”, whilst acknowledging that the Appellant is in fact the Chief Constable of the PSNI.
The request sought information concerning records of talks between goldmine companies discussing security costs.
- 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