High Court Decision on Section 42 FOIA

The High Court today handed down an important judgment on the application of the legal professional privilege exemption in section 42 FOIA ([2009] EWHC 164 (QB)). The case concerned an application for disclosure of information held by the DTI (subsequently the Department of Business and Regulatory Reform). The requested information related to the Government’s decision to include a provision in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 which expressly excluded daily fee paid judicial office holders from the ambit of the Regulations. The request was made by Mr O’Brien QC, who himself sat as a daily fee paid judicial office holder. DBERR refused disclosure of the requested information on the basis that certain of the information was exempt under section 35 FOIA (policy information) whereas other information was exempt under section 42 (FOIA) (legally privileged information). Reliance was also placed on section 36 FOIA (prejudice to effective conduct of public affairs). The Commissioner rejected Mr O’Brien’s complaint about DBERR’s refusal decision, save that he did order that the content of one of the disputed documents be disclosed. The Tribunal upheld Mr O’Brien’s appeal against the Commissioner’s decision. It held that whilst the exemptions afforded under sections 35 and 42 were engaged in respect of the disputed information, on an application of the public interest test, the public interest weighed in favour of the information being disclosed (EA/2008/0011).

DBERR, which was named as an additional party before the Tribunal, appealed the decision to the High Court. The Commissioner participated in the appeal, not on the basis that he was formally supporting or resisting the appeal, but rather because: (a) he had some ‘concerns’ about the way in which the Tribunal had reached its conclusions in this case; and (b) he considered it important to draw the court’s attention to these concerns, not least because of the precedent-setting effect of the Tribunal’s decision. At the heart of the appeal before the High Court was the question whether the Tribunal had lawfully applied the section 2(2)(b) public interest test to the dipsuted information.

Wyn Williams J upheld the appeal in part. He found that the Tribunal’s application of the public interest test to information falling within the ambit of section 35 could not be impugned. However, he concluded that the Tribunal’s application of the public interest test to the information falling within the ambit of section 42 was fatally flawed. He reached this conclusion in particular on the basis that: (a) in accordance with a long line of Tribunal decisions starting with Bellamy v ICO, it was clear that there was a strong public interest in maintaining the confidentiality of legally privileged information which was effectively built into the section 42 exemption; and (b) the Tribunal’s reasons did not clearly demonstrate that it had taken this strong public interest into account when weighing the public interest balance. The importance of the judgment lies in the fact that it constitutes an authoritative judgment on how legally privileged information should be dealt with under FOIA.

The judgment is also significant in that: (1) it criticises the Tribunal for having failed to state clearly which of the disputed information fell within section 35 and which fell within section 42 (the Tribunal had simply found that the information fell within section 35 ‘and/or’ section 42); and (2) it confirms that, when dealing with the application of the public interest test where a number of exemptions are engaged, the Tribunal should ensure that it does not simply bundle all the public interest test considerations together but instead conducts discrete analyses of the public interests relevant to particular exemptions.