Key Facts
- •Steven Downes, a journalist, appealed a decision by the Information Commissioner (IC) upholding the London Borough of Croydon's (LB Croydon) refusal to disclose correspondence between LB Croydon and its solicitors, Harbottle and Lewis, under the Freedom of Information Act 2000 (FOIA).
- •LB Croydon relied on section 42 (legal professional privilege) to withhold the information.
- •The correspondence related to published articles and a potential libel action against LB Croydon officials.
- •Downes argued LB Croydon unlawfully used public funds for the legal advice and that the IC was misled by the council.
- •The IC found that the public interest in maintaining legal professional privilege outweighed the public interest in disclosure.
Legal Principles
Legal professional privilege (LPP) protects confidential communications between a client and legal advisor for the purpose of obtaining legal advice.
Section 42(1) FOIA, Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry EA/2005/0023
Section 42 FOIA is a qualified exemption, requiring a public interest test to determine whether disclosure should occur.
FOIA
The public interest test weighs the importance of maintaining LPP against the public interest in disclosure. It does not require exceptional circumstances for disclosure.
Boyce v IC and PHSO EA/2019/0032
The public interest in maintaining LPP is strong due to its importance for the administration of justice.
Commissioner's Decision Notice
Outcomes
Appeal dismissed.
The Tribunal found no error in the IC's reasoning and upheld the DN. The public interest in maintaining legal professional privilege outweighed the public interest in disclosure, particularly given the timing of the request in relation to anticipated litigation.