[2025] UKUT 251 (AAC)

S.1 of FOIA affords the right to request from a public authority whether or not information of a description specified in the request is held by the authority and, if it is held, to have that information communicated to him. That s.1 right is subject to the provisions, in particular, of s.2: s.1(2).

The Appellant is designated a public authority by paragraph 61 of Schedule 1 to FOIA.

S.2(2) provides the general exception to the right to have the requested information communicated:

“In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—

(a)

the information is exempt information by virtue of a provision conferring absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.

S.2(3) lists those provisions of Part II (“and no others”) which confer absolute exemption.

S.42 falls within Part II. It is headed “Legal professional privilege” and provides an exemption in the following terms:

“(1)

Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.

(2)

The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings”.

S.42 is not listed in s.2(3) as a provision conferring absolute exemption. It is, accordingly, a qualified exemption subject to the public interest balancing exercise mandated by s.2(2)(b).

Part IV of FOIA is headed “Enforcement”. S.50 provides for the right of a requestor to complain to the IC about the handling of his request by the public authority and for the duty on the IC to determine that complaint. S.50 provides:

“(1)

Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2)

On receiving an application under this section, the Commissioner shall make a decision unless it appears to him—

(a)

that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,

(b)

that there has been undue delay in making the application,

(c)

that the application is frivolous or vexatious, or

(d)

that the application has been withdrawn or abandoned.

(3)

Where the Commissioner has received an application under this section, he shall either—

(a)

notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b)

serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the public authority.

(4)

Where the Commissioner decides that a public authority—

(a)

has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b)

has failed to comply with any of the requirements of sections 11 and 17,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken”.

S.57(1) provides for the right of appeal to the Tribunal against a decision notice issued under s.50. It is well-established that the Tribunal’s jurisdiction on such an appeal is, by the terms of s.58, a full merits appeal which may consider any issue of fact or law, including ones which were not raised with the IC when determining the s.50 complaint.

Part IV also provides certain powers to the IC to further his enforcement functions. S.52 permits him to issue an enforcement notice to a public authority which has failed to comply with a requirement of Part I.

S.51 provides the IC with a power to issue an information notice in the following terms:

An information notice may itself be appealed to the Tribunal, just as a s.50 decision notice may be: s.57(2). The Tribunal’s jurisdiction under s.58 is the same full merits appeal.

By s.55 and Schedule 3, the IC is granted powers of entry and inspection, including upon application for a warrant. Such a warrant may be obtained where there are reasonable grounds for suspecting that the public authority has failed or is failing to comply with the requirements of Part I, a decision notice issued under s.50, or an information notice issued under s.51: paragraph 1(1). Paragraph 9 of Schedule 3 provides for an exemption in the same terms as that in s.51(5).

Any information which has been obtained by the IC must not be disclosed by any member of his staff without lawful authority, on pain of committing a criminal offence: s.132 of the Data Protection Act 2018 (“the DPA”).

The IC is also afforded various regulatory powers in Part 6 of the DPA. Analogously with the terms of s.51 of FOIA, those powers contain very specific exceptions for particular kinds of LPP material, but not for LPP material more generally. Accordingly:

the information notice power in s.142 is subject to the restrictions in s.143. These include, at (3)-(5), “a communication which is made … in connection with the giving of legal advice to the client with respect to obligations, liabilities or rights under the data protection legislation”.

the assessment notice power in s.146 is subject to a similar restriction in s.147(2)-(4).