The role of privilege in FOIA investigations

In Chief Constable of Northern Ireland v Information Commissioner [2024] UKFTT 719 (GRC), the First-Tier Tribunal considered the withholding of information under the Freedom of Information Act 2000 ("FOIA"). It held that the appellant was not entitled to refuse to provide information requested by the Information Commissioner ("the Commissioner") as part of its investigation and enforcement activities on the basis that it was subject to legal professional privilege.

Key points

• The exemption under section 42 FOIA relating to legal professional privilege ("LPP") is a qualified exemption, subject to the public interest test, meaning LPP can be overridden in the public interest and is not unchallengeable in the context of FOIA.
• Section 42 only relates to potential exemptions from the duties to inform and disclose within Part II of FOIA and does not apply to exemptions relating to any requests for information issued by the Commissioner under section 51 FOIA.
• Section 51(1) FOIA necessarily includes a power for the Commissioner to require the production of LPP material where relevant - it would defeat the purpose of FOIA if the Commissioner was unable to have sight of the relevant information in order to determine whether a public authority has properly applied exemptions.

Background

The Police Service of Northern Ireland ("PSNI"), a public authority, received a request for information under FOIA. PSNI confirmed that it was in possession of information within the scope of the request but withheld the information by relying on section 42(1) FOIA, which provides an exemption for information protected by LPP.

The Commissioner issued an information notice under section 51 FOIA as part of its investigation and enforcement functions, requiring PSNI to disclose an unredacted copy of the withheld information in order to assess the legality of PSNI's response. PSNI appealed the information notice.

Judgment

The issues for the Tribunal to consider were:

1. Exemption issue: Whether section 51 FOIA overrides or reduces the scope and operation of section 42, which exempts LPP material from disclosure.
2. Interpretation issues: Whether section 42 abrogates or overrides LPP, either by express words or by necessary implication, and the wider principle of whether any provision of FOIA abrogates or overrides LPP.

The exemption issue

PSNI contended that section 42 FOIA could be relied upon in order to withhold information from the Commissioner.

The Tribunal considered that the exemption issue was "relatively straightforward" and that PSNI's arguments were based on a "fundamental misconception" regarding the interaction of sections 42 and 51. The Tribunal held that section 42 FOIA only relates to exemptions from the duty to inform and the duty to disclose under FOIA; it does not apply to requests for information made by the Commissioner using the statutory powers granted in connection with enforcement under section 51.

Therefore, PSNI could not rely on section 42 to refuse to provide the withheld information to the Commissioner as part of the investigation and enforcement process.

The interpretation issues

The Tribunal also considered the broader question of whether the information notice can require the production of material protected by LPP (aside from the operation of section 42 FOIA), based on the general principle that LPP is a fundamental right which may only be overridden in specific circumstances.

The appellant argued that the protection of LPP in the context of FOIA was affirmed by section 51(5), which precludes a public authority from being obliged to supply the Commissioner with LPP material which relates to legal advice given in respect of FOIA or in connection with proceedings under or arising out of FOIA.

Despite broader submissions from the parties, the Tribunal did not address whether a regulator generally has the power to require the production of material protected by LPP, but rather focused on the Commissioner's specific statutory powers under section 51 FOIA. In doing so it noted that LPP is not "inviolable", at least in the context of FOIA, given that section 42 is a qualified exemption that does result in disclosure of LPP material where the public interest requires.

The Tribunal found that section 51(1) expressly covers the Commissioner's right to require LPP material from a public authority, setting out the following reasoning:

1. 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'.
2. Those express words are not qualified in any way, for example by reference to reasonableness (in contrast to an information notice issued under section 51(1)(b)).
3. There is specific recognition of certain LPP material being excluded from the scope of an information notice  - see section 51(5) relating to LPP in connection with advice and proceedings relating to FOIA itself. If the intention was that the scope of an information notice would not extend to any other LPP material, then this would have been specified.
4. Therefore, section 51(5) is the only potentially applicable exclusion under FOIA to the duty of a public authority to provide the Commissioner with any information specified in an information notice, covering only the LPP material meeting the specific criteria in that section. In this case, the LPP material did not meet those criteria, but rather fell within the scope of the FOIA request.
5. There is no other basis for a public authority to refuse to provide information, including any LPP material falling outside section 51(5).
6. The above interpretation is consistent with construing FOIA as a whole, including with regard to the relevant practical implications of the operation of FOIA.

The mechanism for information notices under section 51(1) FOIA must include the power for the Commissioner to require the production of LPP material when it is relevant. Otherwise, the Commissioner would be unable to have sight of the material in order to satisfy itself that this was properly exempt from disclosure. The same applies to the Tribunal which has often needed to see relevant material in respect of which LPP is asserted before making decisions on section 42 FOIA. The Tribunal commented that any other finding would effectively make a public authority the sole arbiter of its own compliance with FOIA insofar as it considered that any requested information involves LPP material, as neither the Commissioner nor the Tribunal would be able to determine proper compliance with FOIA.

The Tribunal concluded that the information notice was lawful, and the Commissioner was entitled to require PSNI to provide the withheld information.

Comment

This decision clarifies that while LPP is a fundamental right, unless the specific circumstances outlined in the exemption under section 51(5) apply where the LPP relates to legal advice in respect of FOIA or proceedings under FOIA, this is not an absolute right in the context of FOIA.

This position contrasts with other regulatory regimes, where statutory information notices will not usually require the provision of LPP material. The difference in approach may be justified by the fact that it is the question of privilege itself that needs to be considered by the regulator here to ensure public authorities comply with FOIA. However, it highlights the need to carefully consider the specific statutory regime governing any investigation or enforcement process to which an organisation becomes subject, to ensure there is clarity over rights and obligations.