Tribunal Upholds Legal Professional Privilege in Landmark Environmental Information Request Case

Citation: [2023] UKFTT 895 (GRC)
Judgment on

Introduction

The case of National Highways Ltd v The Information Commissioner & Anor ([2023] UKFTT 00895 (GRC)) provides a definitive treatment of the interplay between Legal Professional Privilege (LPP) and the public interest test in environmental information requests. This appeal at the First-tier Tribunal (General Regulatory Chamber) scrutinises the exception under the Environmental Information Regulations 2004, reg 12(5)(b) concerning the disclosure of privileged legal advice in the context of a highly contentious infrastructure project.

Key Facts

National Highways Ltd appealed a decision by the Information Commissioner which mandated the disclosure of legal advice, despite it being protected by LPP, regarding the A27 Arundel Bypass project. Dr. Emma Tristram requested this information, which National Highways refused, invoking the LPP exemption under the Environmental Information Regulations 2004, reg 12(5)(b). The Information Commissioner’s decision sided with disclosure, favoring public interest over LPP, which prompted the appeal.

The case underscores several legal principles, each playing a pivotal role in the Tribunal’s reasoning:

LPP is underscored as a fundamental legal principle, safeguarding the confidentiality of communication between a client and their legal counsel. It is not merely an ordinary rule but is enshrined in the justice system’s very fabric, with historical significance, as highlighted in Reg v Derby Magistrates Court, Ex p. B ([1996] AC 487).

Exception Under EIR, Reg 12(5)(b)

The Tribunal acknowledged that while the EIR does not contain an explicit exception for LPP (unlike FOIA), it falls under the scope of reg 12(5)(b). This exception accommodates cases where disclosure would adversely affect the course of justice, as established in DCLG v Information Commissioner & WR ([2012] UKUT 103 (AAC)).

Public Interest Test

A meticulous public interest balancing exercise is mandated under EIR, reg 12(1)(b), which calls for the discernment of whether the public interest in withholding the information outweighs the public interest in disclosing it. A presumption in favor of disclosure is applied; however, the Tribunal emphasized that this presumption does not outweigh the integrity of LPP without a compelling reason.

Factors Weighed in Public Interest Test

The Tribunal considered the recentness and relevancy of the legal advice, the likelihood of legal challenges to the project, and fairness concerns about unilateral access to legal advice among the general public. Additionally, the Tribunal criticized the Commissioner’s failure to recognize the inherent weight of LPP and the absence of compelling reasons to negate such privilege in this case.

Outcomes

The Tribunal unanimously determined that the appeal should be allowed. The exception under EIR, reg 12(5)(b) applies, and the public interest under reg 12(1)(b) does not favor disclosure over maintaining the exception. The requested legal advice, thus, remains under the protection of Legal Professional Privilege, and National Highways is not obliged to disclose it.

Conclusion

The decision reaffirms that while the right to access environmental information is vital for public interest, it does not automatically override the privilege protecting legal advice. Instead, each case demands a rigorous exploration of the specific circumstances, with the protection of LPP receiving significant weight unless exceptional factors justify its surrender. The thorough application of these legal principles in this case reinforces the precedent that solidifies LPP’s stronghold within the UK’s legal framework.