Thomas Foster v The Information Commissioner

17 January 2024

[2024] UKFTT 41 (GRC)

First-tier Tribunal

Someone asked for legal advice given to a council about a planning decision. The council refused, saying it was private. A judge agreed because keeping legal advice secret is usually important, even after the case is over. The request was denied.

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.

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