DCLG v Information Commissioner and WR  UKUT 103 (AAC) is an important decision of the Upper Tribunal about the significance of legal professional privilege (LPP) under the Environmental Information Regulations 2004 (EIR). The decision is likely to mean that the approach taken to LPP under the EIR and under the Freedom of Information Act 2000 (FOIA) will in most cases be broadly similar, despite differences in drafting between the two provisions.
The three-member panel hearing the DCLG case was exceptionally strong. It included Lord Justice Carnwath (as he then was), sitting shortly before the end of his term of office as the Senior President of Tribunals; some three weeks after the decision was issued, he was sworn in as a Justice of the Supreme Court.
Under section 42 of FOIA, there is a specific qualified exemption for information in respect of which a claim for LPP could be maintained. There is no equivalent express provision under the EIR. However, regulation 12(5)(b) contains a qualified exception for information the disclosure of which would adversely affect the course of justice. The appeal in DCLG raised two questions: what was the significance of LPP in determining whether the exception in regulation 12(5)(b) was engaged; and what weight should be attached to LPP in carrying out the public interest balancing test.
The context was an unsuccessful application for planning permission for the erection of an anemometer mast (to measure wind speed and direction). The applicant appealed against the local authority’s refusal, indicating that if the planning inspectorate (PINS) determined that the appeal should be decided on written representations without a hearing then permission would be sought for judicial review. Nevertheless, PINS decided that the appeal should proceed on the basis of written representations. The applicant tried to persuade PINS to reverse that decision. In their response, PINS referred to and relied upon the advice of an in-house legal adviser.
The applicant then sought disclosure of that legal advice, under the EIR; PINS refused to disclose it, relying on regulation 12(5)(b). The Information Commissioner (ICO) upheld the refusal, but the First-tier Tribunal (FTT) allowed the applicant’s appeal.
The Upper Tribunal referred to the approach taken under FOIA section 42, as set out in DBERR v Information Commissioner and O’Brien  EWHC 164 (QB). The Upper Tribunal summarised that approach as follows: in applying the public interest test, a heavy weight was to be given to the exemption, by reason of the risk that disclosure would weaken the confidence of public bodies and their advisers in the efficacy of LPP; that weight might vary from case to case, so that it would be reduced if the requested information was very old or related to matters that were no longer current; further, the factors in favour of maintaining the exemption would not be limited to these general considerations, and might also include the effect which disclosure would have in the individual case.
In discussing whether regulation 12(5)(b) was engaged, the Upper Tribunal stated that it was material to consider the general effect which disclosure of legal advice would have in weakening confidence in LPP, as well as the effect on the particular case in which disclosure was sought. The exception would be engaged, only if an adverse effect on the administration of justice would be more probable than not. The Upper Tribunal doubted whether the requirement for the course of justice to be adversely affected meant that the relevant advice must have been given in a litigious context, while stating that it did not need to decide the point. Likewise, the Upper Tribunal did not need to decide whether the fact that information was protected by LPP would necessarily mean that regulation 12(5)(b) was engaged.
In relation to the public interest balance, the Upper Tribunal considered that the approach to be taken under regulation 12(5)(b) was broadly similar to that under FOIA section 42, subject to the fact that (by regulation 12(2)) the EIR is subject to a presumption in favour of disclosure.
In relation to the particular appeal, the Upper Tribunal considered that regulation 12(5)(b) was clearly engaged. The advice was given at a time when judicial review had been threatened; disclosure would have had an adverse effect on the course of jusice, by weakening general confidence in LPP. This was a strong factor in favour of maintaining the exemption. A further factor was that it was unfair to require PINS to reveal its legal advice in circumstances where those seeking to overturn its decision would not have to do so. The factors in favour of disclosure were relatively weak: the presumption in favour of disclosure was rebutted.
Is there now any scope for a difference of approach between FOIA section 42 and EIR regulation 12(5)(b)?
In any case where disclosure is sought under FOIA of material protected by LPP, FOIA section 42 will be engaged. By contrast, it is still theoretically possible that disclosure could be sought under the EIR of material protected by LPP, without engaging regulation 12(5)(b) The Upper Tribunal expressly refrained from finding that every LPP case would automatically engage regulation 12(5)(b); but they also doubted whether regulation 12(5)(b) could be confined to cases where there was a threat of litigation. My own view is that, in the light of the decision, arguments that regulation 12(5)(b) does not apply to the disclosure of LPP material will be difficult to maintain, and will succeed (if at all) only in rather unusual circumstances.
Where regulation 12(5)(b) is engaged, the approach to the public interest test will be broadly similar to that under section 42. The only difference (and its practical significance is doubtful) is that under the EIR there is an express presumption in favour of disclosure.