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The Background
The Background
The Request
On 22 May 2020 a multi-part request for certain information was made to the Appellant under FOIA. For the purpose of this appeal the relevant part of the request was:
“Is there a public record of talks between goldmine companies discussing security costs and can the public see them?”
There was a previous appeal in respect of the request, which resulted in a consent order, pursuant to which that part was clarified as meaning:
“any record of talks between goldmine companies discussing security costs”.
After that previous appeal, the Appellant issued a further response to the request on 3 September 2021 followed by an internal review on 22 October 2021. The Appellant confirmed that he held information within the scope of the request, but withheld it on the basis of (amongst other exemptions) s.42(1) (legal professional privilege) (“LPP”).
The Requestor complained to the IC about the Appellant’s response to the request, pursuant to s.50. In considering that complaint, the IC contacted the Appellant on 22 December 2022 asking for a full and unredacted copy of the Withheld Information.
The Appellant responded to the IC on 13 February 2023, agreeing to provide him with some of the Withheld Information, but stated that the remainder could not be provided because it comprised legal advice, stating:
“PSNI is not in a position to provide this legal advice to you as we consider it to be legally privileged to PSNI and outside the requirements of the FOIA to provide.”
In further correspondence between the IC and the Appellant, the latter confirmed that the legal advice (the Withheld Information) did fall within the scope of the request. The Appellant informed the IC again on 13 April 2023 that he was not willing to provide the IC with the Withheld Information.
- 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