Thomas Foster v The Information Commissioner
[2024] UKFTT 41 (GRC)
Ian Abbott v The Information Commissioner
6 June 2024
[2024] UKFTT 478 (GRC)
First-tier Tribunal
Someone asked for legal advice given to the council about a planning application. The council refused, saying releasing it would hurt their ability to do their job. A judge agreed, saying keeping the advice secret is more important than releasing it to the public, even though the application was rejected.
Key Facts
- •Ian Abbott appealed a decision by the Information Commissioner (IC) upholding Kirklees Council's refusal to disclose legal advice relating to a planning application for an Amazon Distribution Warehouse.
- •The Council withheld the information under Regulation 12(5)(b) of the Environmental Information Regulations 2004 (EIR), claiming disclosure would adversely affect the course of justice.
- •The legal advice was provided by an external barrister and concerned a controversial planning application that had been refused but was potentially subject to appeal.
- •The appellant argued the IC failed to consider the planning law context and that disclosure would not adversely affect the course of justice, as the planning permission was refused.
- •The IC and the Council maintained that the legal advice remained relevant to potential future applications and that the public interest favored maintaining legal professional privilege (LPP).
Legal Principles
Regulation 12(5)(b) EIR allows refusal of information disclosure if it would adversely affect the course of justice.
Environmental Information Regulations 2004
The 'course of justice' test under EIR is wide-ranging and doesn't require the high bar of legal professional privilege.
Salford City Council v Information Commissioner & Redwater Developments Ltd (EA/2015/0276)
There's a strong public interest in maintaining legal professional privilege (LPP).
Bellamy v Information Commissioner & Secretary of State for Trade and Industry (EA/2005/0023); DBERR v O’Brien v IC, [2009] EWHC 164 QB; DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC); Savic v IC, AGO & CO [2017] UKUT AACR 26; National Highways Ltd v Information Commissioner & Tristram [2023] UKFTT 895
The public interest balance must be assessed based on the situation at the time of the public authority's decision.
Brendan Montague v. Information Commissioner & The Department for International Trade [2022] UKUT 104 AAC
Outcomes
The appeal was dismissed.
The Tribunal found that the IC correctly applied Regulation 12(5)(b) EIR. Disclosure of the legal advice would adversely affect the course of justice due to the ongoing relevance to potential future planning applications, and the strong public interest in maintaining LPP outweighed any countervailing public interest factors.