Rune Dybedal v The Information Commissioner & Anor
[2024] UKFTT 878 (GRC)
Chief Constable of the Police Service of Northern Ireland v The Information Commissioner
8 August 2024
[2024] UKFTT 719 (GRC)
First-tier Tribunal
The police refused to give the Information Commissioner some secret legal advice. The Commissioner said he could ask for it. A court agreed with the Commissioner, saying he needs to see the information to make sure the police followed the rules about giving out information. The police have to hand over the advice.
Key Facts
- •Appeal against an Information Notice requiring the Appellant (Chief Constable of the Police Service of Northern Ireland) to provide withheld information to the Information Commissioner.
- •The withheld information related to a FOIA request about records of talks between goldmine companies discussing security costs.
- •The Appellant argued that the Commissioner had no power under section 51 of the FOIA to require the provision of legally privileged information.
- •The Information Commissioner argued that section 51 allows him to request legally privileged material relevant to assessing compliance with FOIA.
Legal Principles
Legal professional privilege (LPP) is a fundamental right, but it can be overridden in specific circumstances.
Various case law authorities (not detailed, per Practice Direction)
Section 42 of FOIA provides an exemption for information subject to LPP, but this exemption applies only to the Duty to Inform and the Duty to Disclose, not to requests from the Commissioner under Section 51.
FOIA 2000, sections 2, 42, 51, 84
Section 51(1)(a) of FOIA empowers the Commissioner to issue an information notice requiring information related to a section 50 application, even if that information is subject to LPP (except as specified in section 51(5)).
FOIA 2000, section 51(1)(a), (5)
The Information Commissioner has a duty to assess the validity of a public authority's application of FOIA exemptions, and this necessarily includes the right to see relevant information, including LPP material (unless specifically excluded under section 51(5)).
Corderoy v Information Commissioner [2017] UKUT 495 (AAC)
Outcomes
The appeal was dismissed.
The Tribunal found that the Information Notice was lawful. Section 51(1)(a) allows the Commissioner to request information, including LPP material (except as specified in 51(5)), relevant to a section 50 complaint. Section 42 does not apply to requests made by the Commissioner under section 51. The withheld information did not fall under the exception in section 51(5).
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