Anthony Carroll v The Information Commissioner
[2024] UKFTT 932 (GRC)
National Highways Ltd v The Information Commissioner & Anor
23 November 2023
[2023] UKFTT 895 (GRC)
First-tier Tribunal
Someone wanted to see secret legal advice about a controversial road project. The government said it was private and protected by law. The Information Commissioner said the public should see it. A court agreed with the government, saying the secret advice should stay secret because it's important for people to trust lawyers and for the legal system to work.
Key Facts
- •National Highways (formerly Highways Agency and Highways England) refused Dr Emma Tristram's request for legal advice relating to the A27 Arundel Bypass project.
- •The request was initially handled under the Freedom of Information Act 2000, then under the Environmental Information Regulations 2004 (EIR).
- •The legal advice was privileged under legal professional privilege (LPP).
- •The Information Commissioner ordered disclosure, finding the public interest favoured it.
- •National Highways appealed this decision.
Legal Principles
Legal Professional Privilege (LPP)
Various case laws cited, including DCLG v Information Commissioner & WR [2012] UKUT 103 (AAC)
Environmental Information Regulations 2004 (EIR), reg 5: Duty to disclose environmental information
EIR, reg 5
EIR, reg 12: Exceptions to disclosure, including the 'course of justice' exception (reg 12(5)(b)) and public interest balancing test (reg 12(1)(b))
EIR, reg 12
FOIA, s42: Qualified exemption for information subject to legal professional privilege
FOIA, s42
Public interest balancing test under EIR, reg 12(1)(b): Weighing public interest in maintaining the exception against public interest in disclosure; presumption in favour of disclosure (reg 12(2))
EIR, reg 12(1)(b), 12(2)
Outcomes
Appeal allowed.
The Tribunal found the Commissioner's decision was not in accordance with the law, failing to give sufficient weight to LPP and misapplying the public interest balancing test. The public interest in maintaining the exception outweighed the public interest in disclosure.