Privilege: Not an absolute right under the Freedom of Information Act

In a recent decision, the First-Tier Tribunal held that a public authority could not refuse to provide information requested by the Information Commissioner as part of its investigation and enforcement activities on the basis that the information was subject to legal professional privilege: Chief Constable of Northern Ireland v Information Commissioner [2024] UKFTT 719 (GRC).

The decision acts as a reminder that privilege provides only a qualified exemption to the requirement for public authorities to provide information requested by the public under FOIA. Privilege can be overridden in the public interest and is not unchallengeable in this context – in contrast to most other contexts, such as in civil proceedings, where privilege is treated as an absolute right.

It also shows that this qualified exemption for privileged material under FOIA does not apply to a request for information issued by the Commissioner under its statutory powers to investigate and enforce compliance with FOIA. In the First-Tier Tribunal's view, that conclusion was consistent with construing FOIA as a whole, including with regard to the relevant practical implications. If the Commissioner could not require production of privileged material, that would hamper its ability to satisfy itself that the material was properly exempt from disclosure. There is a separate ability to refuse to provide privileged information in response to a request from the Commissioner where the privilege arises in connection with advice and proceedings relating to FOIA itself, but that is much narrower.

For more information, see this post on our Administrative and Public Law Notes blog.