Department for Work and Pensions v Information Commissioner & Anor
[2023] UKFTT 822 (GRC)
Department for Work and Pensions v The Information Commissioner & Anor
7 March 2023
[2023] UKFTT 260 (GRC)
First-tier Tribunal
Someone asked the government for meeting notes. The government said some parts were secret lawyer stuff (legal privilege). A judge agreed, saying keeping it secret was more important than letting the person see it.
Key Facts
- •The Department for Work and Pensions (DWP) appealed the Information Commissioner's decision to disclose information requested by John Slater under the Freedom of Information Act 2000 (FOIA).
- •Slater requested information from four Universal Credit Programme Board meetings in 2018.
- •DWP initially relied on section 22 FOIA (intended for future publication), but later claimed legal professional privilege under section 42 FOIA for specific parts of the documents.
- •Much of the information was subsequently published, leaving only four specific items in dispute.
- •The appeal was heard on the papers without an oral hearing.
Legal Principles
Freedom of Information Act 2000 (FOIA): Public authorities must disclose information unless a statutory exemption applies.
FOIA, Section 1
Section 42 FOIA: Information covered by legal professional privilege is exempt information. This is a qualified exemption, requiring a public interest test.
FOIA, Section 42
Legal professional privilege includes litigation privilege and legal advice privilege. For legal advice privilege, the dominant purpose of the communication must be for giving or receiving legal advice between lawyer and client.
Addlesee v Dentons Europe LLP [2020] 3 WLR 1255; R (on the application of Jet2.com v Civil Aviation Authority) [2020] QB 1027
Litigation privilege applies to documents created for the dominant purpose of litigation.
WH Holdings Ltd v E20 Stadium LLP [2018] EWCA Civ 2652
Acts of departmental officials are synonymous with those of the Minister.
Carltona v Commissioner of Public Works [1943] 2 All 560
There is a strong public interest in maintaining legal professional privilege.
Department for Business, Enterprise and Regulatory Reform v Information Commissioner [2009] EWHC 164 (QB)
Outcomes
Appeal allowed in relation to items 1-4.
The information was covered by legal professional privilege, and the public interest in maintaining the exemption outweighed the public interest in disclosure.