Key Facts
- •Thomas Foster requested legal advice given to Braintree District Council regarding a planning appeal.
- •The Council refused the request citing Regulation 12(5)(b) of the Environmental Information Regulations 2004 (EIRs).
- •The Information Commissioner upheld the Council's refusal.
- •Foster appealed to the First-Tier Tribunal (General Regulatory Chamber).
- •The legal advice was claimed to be protected by legal professional privilege.
- •The planning appeal had concluded undefended by the Council before the information request.
Legal Principles
Legal Professional Privilege (LPP)
Environmental Information Regulations 2004 (EIRs), Regulation 12(5)(b)
Presumption of disclosure under EIRs
Environmental Information Regulations 2004 (EIRs), Regulation 12(2)
Public interest balancing test under EIRs
Environmental Information Regulations 2004 (EIRs), Regulation 12(1)(a) and (1)(b)
Tribunal's powers under Regulation 18 EIRs and s.58 of the Freedom of Information Act 2000
Regulation 18 EIRs and s.58 of the Freedom of Information Act 2000
Waiver of Legal Professional Privilege
Case law (implied)
Outcomes
Appeal dismissed.
The Tribunal found that the Decision Notice correctly applied the law. While the 'litigation' aspect of privilege was weakened, 'advice' privilege applied. The public interest favoured maintaining confidentiality.