[2025] UKUT 251 (AAC)

The Tribunal set out its findings in its discussion of the issues as follows:

“38.

We first address some preliminary points before turning to the other issues in the appeal.

39.

Both of the parties referred us to various authorities from case law relating to the nature and function of LPP. However, there was no relevant dispute between the parties on the question of LPP itself. The crux of the appeal was whether the Appellant can rely on LPP to refuse to provide LPP Material in respect of an information notice which is issued by the Commissioner pursuant to section 51.

40.

The Appellant made it clear that he had not waived LPP in respect of the Withheld Information. The Withheld Information may or may not be protected by LPP, but establishing that was not the purpose of the appeal. Rather, as we have noted, the purpose of the appeal was essentially to determine whether the Commissioner has the power to require, by way of the Information Notice, the production of material in respect of which the Appellant has asserted LPP.

The Exemption Issue

41.

The thrust of the Appellant’s contention regarding the Exemption Issue (as set out in his grounds of appeal) was, essentially, that section 42 was an exemption which the Appellant could rely on in order to exempt disclosure of the Withheld Information to the Commissioner.

42.

In that regard, the Appellant’s grounds of appeal sought to rely on the language of section 51(5), to the effect that such section was simply an adjunct to (and not a derogation from) the exemption in section 42 in respect of LPP. In support of this view, the Appellant stated that section 51(5) refers only to any LPP arising in respect of a client’s obligations, liabilities or rights under FOIA (including proceedings before the Tribunal).

43.

Various submissions were made by both parties in respect of whether section 42 is overridden, or reduced in scope and operation, by section 51. However, we believe that the issue in question is a relatively straightforward one. It appears to us that the Appellant’s arguments relating to the interaction of section 51 and the exemption for LPP under section 42 were based on a fundamental misconception regarding the operation of those sections. This is because section 42 only relates to potential exemptions from the Duty to Inform and the Duty to Disclose, not exemptions relating to any request for information made by the Commissioner under section 51. Section 2 of FOIA, to which we have referred, is entitled “Effect of the exemptions in Part II”. Section 42 falls within Part II of FOIA and, in accordance with the relevant provisions of section 2, relates to exemptions from the Duty to Inform and the Duty to Disclose.

44.

That interpretation is also supported by section 84, which sets out the rules of interpretation of FOIA. Pursuant to that section, “exempt information” means “information which is exempt information by virtue of any provision of Part II”. We recognise that applying that interpretation exactly can give rise to some regrettable results – specifically, that applying it to the use of the term ‘exempt information’ as set out in any section of Part II of FOIA where that term is used, including section 42(1), gives a circular meaning (effectively, ‘exempt information under this Part II means information which is exempt information under this Part II’). However, in our view, the clear intention is that references in FOIA to “exempt information” are to information which (pursuant to section 2) is exempt from the Duty to Inform and/or the Duty to Disclose pursuant to a provision within Part II of FOIA. Another relevant point worth noting is that section 51 does not use the term “exempt information”.

45.

Accordingly, in our view the Appellant’s arguments about the nature and scope of section 42(1) pertaining to an exemption for LPP Material fall at the first hurdle – because section 42 does not apply to information which is requested by the Commissioner under section 51.

46.

It follows from the above that the Appellant cannot rely on section 42 to refuse to provide the Withheld Information to the Commissioner.

47.

We should note that Mr Dunford accepted in his submissions that section 42 refers to the provision of information to the requesting party, as opposed to the Commissioner. However, that was not the premise set out in the Appellant’s grounds of appeal. We deal further with Mr Dunford’s submissions on this point further below (paragraph 53 onwards).

The Interpretation Issues

48.

The basis of the Appellant’s argument (as set out in his grounds of appeal) that FOIA does not, either by express words or by necessary implication, abrogate or override LPP was underpinned by reliance on the operation of section 42.

49.

As we have found in respect of the Exemption Issue, section 42 does not operate as an exemption in respect of information which is requested by the Commissioner pursuant to an information notice issued under section 51. On that basis, the Appellant’s grounds of appeal are exhausted.

50.

However, submissions were also made on behalf of the Appellant (including in respect of an associated strike out application which was made by the Commissioner in connection with the appeal) regarding the broader premise of whether the Information Notice can require the production of LPP Material (aside from the operation of section 42). These submissions were based on the general principle that LPP is a fundamental right which may only be overridden in specific circumstances.

51.

Whilst this was not a specific point raised in his grounds of appeal, the Appellant’s position was, in essence, that there was no provision in FOIA at all (not just in section 42) which overrode LPP and on that basis the Commissioner had no power under section 51 to require the production of the Withheld Information. Accordingly, for completeness (and given the potential importance of the issue) we also address the issues around this broader premise.

52.

The parties were in agreement that LPP can only be disregarded or overridden in certain limited circumstances (including where it has been waived, which was not applicable in respect of the Withheld Information). The parties also made submissions in respect of the question as to whether a regulator (in this case, the Commissioner) generally had the power to require the production of LPP Material, including by reference to the Sports Direct case in which it was argued that there was ‘no infringement’ of LPP where the applicable LPP Material was required by a regulator (Sports Direct International PLC v Financial Reporting Council [2020] EWCA Civ 177 (also reported sub nom. Financial Reporting Council v Sports Direct International plc [2021] Ch 457). However, in our view it is not necessary to address this question (nor, indeed, the ‘no infringement’ principle generally) but rather to focus on the Commissioner’s statutory powers, given that the Information Notice was issued pursuant to section 51. We would also note that in the Sports Direct case, the regulator (the Financial Reporting Council) had relied on the ‘no infringement’ proposition because the relevant statutory power regarding the provision of information to it specifically excluded LPP Material.

53.

As we have noted, Mr Dunford accepted that section 42 refers to the provision of information to the requesting party, as opposed to the Commissioner. However, he contended that section 42 is relevant and “important” in the context of the appeal, on the basis that it is a recognition and affirmation of the central principle and general application of LPP. He further submitted that this must inform the interpretation of section 51 - and hence FOIA generally, because it must be interpreted as a whole, having regard to its purpose (citing Barclays Mercantile Finance Ltd v Mawson [2004] UKHL 51 at [28]).

54.

We accept that section 42 has some relevance in recognising the general principle and application of LPP (given that it is a potential exemption to the Duty to Inform and the Duty to Disclose) but in our view there is a caveat to the premise that section 42 ‘affirms’ LPP. This is because that section is a qualified exemption, being subject to the applicable public interest test (as we noted in paragraphs 30 and 31). Accordingly, there have been instances where a public authority has been required to disclose LPP Material which is requested under FOIA notwithstanding the engagement of section 42, because the balance of the public interest test has favoured disclosure of such LPP Material. This was a point which was also made by Mr Knight in his submissions.

55.

Mr Dunford further submitted that section 51(5) also affirms the application of LPP in relation to material generated for specific advice on the operation of FOIA. He argued that the express words of section 51(5) are consistent with the “explicit centrality of the general exemption” in relation to LPP contained in section 42. As we have noted, the exemption in section 42 is a qualified exemption and the operation of section 42 in practice results in some LPP Material being disclosed by public authorities. Therefore (in the context of FOIA at least) LPP is not as inviolable as Mr Dunford was essentially seeking to argue.

56.

It was also submitted by Mr Dunford that FOIA was able to operate “without access” to LPP Material, which we took to mean operating without the requirement for any public authority to provide LPP Material to a person requesting information, or to the Commissioner. We do not accept that argument, for the same reasons we have given above regarding the operation of section 42 (and for the reasons we also refer to below). Linked to that point, Mr Dunford also submitted that there was accordingly no basis for the doctrine of ‘necessary implication’ to apply to FOIA so as to abrogate or override LPP. As the latter point is also predicated on the basis that FOIA does not provide for the disclosure of LPP Material, it suffers from the same flaw as the preceding argument. Mr Dunford also submitted that FOIA itself “explicitly reaffirms LPP” but that is evidently not the case, again for the reasons we have given regarding the operation of section 42.

57.

We acknowledge and accept, though, that where an information notice is issued under section 51(1), section 51(5) operates to preclude a public authority from being obliged to supply to the Commissioner any LPP Material which (in broad summary) relates to communications regarding legal advice given in respect of FOIA or in connection with proceedings, including before the Tribunal, under or arising out of FOIA.

58.

Therefore, section 51(5) does mean that a public authority may withhold from the Commissioner some LPP Material where it has been served with an information notice, provided that such LPP Material meets the criteria set out in that section. Whilst we have not seen the Withheld Information, the Appellant has confirmed (including in correspondence with the Commissioner in respect of the Request) that it is information falling within the scope of the Request and therefore we find that it does not meet such criteria. Consequently, we also find that section 51(5) is not engaged in respect of the Withheld Information.

59.

We now turn to the wording of section 51(1) itself. Mr Dunford submitted that section 51 only empowers the Commissioner to seek, by way of an information notice, information which the Commissioner ‘reasonably requires’ to enable him to discharge an investigation regarding the operation of section 42 and the application of the associated public interest test. In this regard, Mr Dunford disagreed with the witness’s view that an information notice gives the Commissioner an overall entitlement to require the production of LPP Material.

60.

We do not agree with Mr Dunford’s position on that issue. Section 51(1) clearly provides that the Commissioner may issue an information notice in two separate, alternative, scenarios – either (section 51(1)(a)) where he has received an application under section 50, or (section 51(1)(b)) where he reasonably requires information for the purposes set out in the sub-sections of section 51(1)(b)). It is only the latter scenario which has the qualification of reasonableness in respect of information which the Commissioner requires pursuant to an information notice.

61.

The Information Notice was issued pursuant to section 51(1)(a), in connection with the application from the Requestor which was received by the Commissioner under section 50 regarding the Request (therefore, the first scenario of those referred to in paragraph 60). Accordingly, as we have noted, there is no requirement that the information required by the Commissioner as set out in the Information Notice must be limited to information which is reasonably required. Rather, pursuant to section 51(1)(a), the Commissioner was entitled to require the Appellant to furnish the Commissioner with such information as may be specified in the Information Notice relating to the Requestor’s section 50 complaint regarding the Request. This was also explained by the witness and was the context within which the witness was referring to the Commissioner’s right to require the production of LPP Material.

62.

We interpret section 51(1)(a) as also entitling the Commissioner to request such information as he may specify relating to compliance with Part I of FOIA (or to the code of practice referred to in that section), even if the information notice in question is issued pursuant to section 51(1)(a), as opposed to section 51(1)(b) which specifically refers to such information. However, that interpretation is immaterial to this decision, because the appeal concerns the Information Notice (which only required information relating to the Requestor’s section 50 complaint).

63.

Sections 51(2) and 51(3) set out certain requirements as to what must be included in an information notice issued under section 51(1). Section 51(4) specifies requirements regarding the timeframe which is included in an information notice for the provision of information pursuant to it. We find (in accordance also with the witness’s statement on this point) that the Information Notice met all those requirements.

64.

Various submissions were made by Mr Dunford and Mr Knight, in respect of the Information Notice and its requirement to furnish the Commissioner with the Withheld Information, regarding whether FOIA, either expressly or by ‘necessary implication’, operates to abrogate or override LPP.

65.

Mr Dunford’s submissions on that issue were generally based on the premise, as we have already referred to, that LPP is a fundamental right of a basic constitutional character and that FOIA does not operate to reduce or override LPP. In contrast, Mr Knight’s submissions were to the effect that FOIA does provide for exceptions to the general principle of LPP – either in the context of section 42 as a qualified exemption or in the context of the information which the Commissioner can request under section 51.

66.

We favour the submissions of Mr Knight. This is partly because of the reasons we have already given regarding the operation of section 42 in respect of LPP Material. This is also because we find that the mechanism for information notices under section 51(1) must, of necessity, include the power for the Commissioner to require the production of LPP Material when it is relevant to the section 50 application in respect of which the applicable information notice is issued.

67.

Our finding in the preceding paragraph is based on the rationale that it would defeat the relevant purposes of FOIA if the Commissioner was unable to have sight of pertinent information in order to determine whether a public authority has validly applied any of the exemptions set out in Part II. By saying the ‘relevant purposes’, we mean the duty of the Commissioner to make applicable decisions pursuant to section 50 and the need for the Commissioner to be able to assess pertinent information in order to properly make any such decision.

68.

That finding is also based on the need, where applicable, for the First-tier Tribunal to make its own decisions pursuant to section 58 in respect of appeals made under section 57. The First-tier Tribunal has often been required to make determinations on the application of section 42 and in most (if not all) cases it could not properly do so without sight of the relevant material in respect of which LPP is asserted by the public authority.

69.

Indeed, in this case we initially considered whether we would need to have sight of the Withheld Information but we concluded that it was not necessary because it was not relevant to the appeal, for the reasons we referred to in paragraph 40. Had the appeal concerned the application of section 42 in respect of a decision notice issued by the Commissioner pursuant to section 50(3) regarding the Withheld Information, we consider that it would have been necessary for us to see the Withheld Information – this is because we would not be able to assess whether or not it was indeed LPP Material without having sight of it. This links back to our earlier comments to the effect that we do not know whether or not the Withheld Information is indeed subject to LPP.

70.

We should clarify that, when we use the term ‘necessity’ in paragraph 66, we do not mean the approach to statutory interpretation of “necessary implication” which was referred to by the parties in their submissions. This is because we find that section 51(1) – in the context of an information notice issued under section 51(1)(a) – expressly covers the entitlement of the Commissioner to seek LPP Material from a public authority. We form this view for the following reasons:

a.

Section 51(1) uses express words to the effect that the Commissioner may serve an information notice requiring a public authority to furnish him with ‘such information as he specifies in the information notice’ relating to an application under section 50.

b.

Those express words are not qualified in any way, such as by reference to reasonableness (as is the case, in contrast, for an information notice which is issued under section 51(1)(b)).

c.

There is specific recognition of certain LPP Material being excluded from the scope of an information notice issued under section 51(1) – namely in section 51(5) regarding the specific criteria for LPP Material we have referred to (paragraph 57) relating to LPP in connection with advice and proceedings relating to FOIA itself. Therefore had Parliament intended that the scope of an information notice would not extend to any other LPP Material then it would have specified so, rather than referring only to LPP Material meeting those specific criteria.

d.

Accordingly, it is clear that the only potential applicable exclusion under FOIA to the duty of a public authority to furnish the Commissioner with any information specified by him in an information notice is that set out in section 51(5) covering only the LPP Material meeting the specific criteria in that section.

e.

It follows that there is no other basis for a public authority to refuse to provide any other information, including any LPP Material falling outside of section 51(5), which is specified by the Commissioner in an information notice.

f.

That interpretation is consistent with construing FOIA as a whole, in accordance with the views expressed in the Barclays Mercantile Finance case we have referred to, and having regard to the relevant practical implications of the operation of FOIA which we address below.

71.

Even if our analysis about the express words of section 51(1) is flawed, then the only feasible alternative must be the “necessary implication” approach to statutory interpretation, for the same fundamental reasons we have given. Applying that alternative approach would result in the same outcome – namely that the Commissioner can, pursuant to section 51(1), compel a public authority to produce LPP Material (other than any LPP Material which falls within the scope of section 51(5)).

72.

Part of the rationale behind our conclusions above is that any other finding would make a public authority the sole arbiter of its own compliance with FOIA insofar as it considered that any requested information involves LPP Material. In that alternative scenario, it would follow that the Tribunal itself would also be prevented from making any adequate determination of any such compliance (as the public authority would seek to also preclude the Tribunal from having sight of the LPP Material). In our view, such a state of affairs cannot have been intended by Parliament, as this would mean that whenever section 42 was relied on by a public authority then the Commissioner and the Tribunal could not have sight of the applicable LPP Material in order to determine whether section 42 was engaged, or in turn to properly consider (where applicable) the application of the public interest test. Indeed, if the Appellant was correct that there is no scope under FOIA to require a public authority to produce LPP Material, that would effectively thwart the role and responsibilities of the Commissioner (in making relevant decision notices under section 50) and of the Tribunal (in determining appeals under section 58) in cases where the public authority relied on section 42 to withhold requested information.

73.

Linked to the above, in light of the principles in the Upper Tribunal’s decision in Corderoy v Information Commissioner, Attorney General’s Office & Cabinet Office [2017] UKUT 495 (AAC), it is incumbent on the Commissioner to be satisfied that information which is withheld by a public authority following a request under FOIA is properly exempt from disclosure and not to just accept the assurance of the public authority. This would necessarily require the Commissioner to have sight of the relevant withheld information – which, in the context of section 42, would mean having sight of the applicable LPP Material.

74.

Mr Dunford proposed an alternative method pursuant to which, he submitted, compliance with the Information Notice could be achieved; this set out various steps, which the Appellant was “ready, willing and able to take”, regarding disclosure of certain details related to the information which was sought by the Commissioner in the Information Notice. Crucially, that proposed method excluded the provision of the Withheld Information. In our view, therefore, that proposed method did not achieve compliance with the Information Notice as propounded by Mr Dunford. In addition to the other reasons we give in this decision (including, in particular, in paragraph 73 regarding the Corderoy case), we form this view because:

a.

that proposed method would not actually provide the Commissioner with the information which was specifically sought by way of the Information Notice;

b.

there is nothing in FOIA (other than section 51(5)) which fetters the discretion of the Commissioner regarding the information sought pursuant to the Information Notice; and

c.

accordingly, it is not open to the Appellant to propose alternative means of providing the information requested by the Commissioner and/or to provide lesser information than was requested by the Commissioner.

75.

Mr Dunford commented on Boyce v Information Commissioner & Parliamentary and Health Service Ombudsman (EA/2019/0032) (which had been referred to by the witness in the context of the public interest test for section 42) and argued, in essence, that that case supported the Appellant’s position that the production of LPP Material to the Commissioner was not necessary in order for the Commissioner to make a decision regarding the engagement of section 42. However, in our view, that argument was self-defeating because Mr Dunford also acknowledged that the Tribunal in the Boyce case reached its conclusion following its examination of the closed material furnished in that case. It is evident from the decision in that case (paragraph 81 onwards) that the closed bundle which the Tribunal had sight of included the LPP Material in question. That case also serves to demonstrate how the Tribunal can reach a decision on LPP Material which differs from the view of the public authority (see paragraphs 84 and 85 of that case). This, essentially, illustrates the point we are making above – namely that sight of the information is required to make the necessary determination by the Commissioner and, where applicable, the Tribunal.

76.

We would also note that the Appellant has not provided any case law in direct support of its argument that a public authority can refuse to provide LPP Material when issued with an information notice from the Commissioner under section 51(1)(a). Neither has the Appellant been able to refer to any provision of FOIA which expressly negates the duty of a public authority to provide LPP Material which is requested pursuant to any such information notice, other than section 51(5) which, as we have found, is not applicable to the Withheld Information.

77.

As we have mentioned (paragraph 40), the Withheld Information may or may not be protected by LPP. Following production of it to the Commissioner pursuant to this decision, it will then be for the Commissioner to determine whether or not the Appellant can rely on section 42(1) to withhold it in respect of the Request. The Commissioner’s resulting decision in that regard (which would be made pursuant to section 50(3)) would of course then be afforded the right of appeal pursuant to section 57(1).

Final conclusions

78.

For all of the reasons we have given, we find that the Information Notice was lawful and accordingly that the Commissioner was entitled to require the Appellant to furnish the Commissioner with the Withheld Information. Therefore the Appellant was not entitled to refuse to provide the Withheld Information to the Commissioner.

79.

We therefore dismiss the appeal.”