Case Law: Nockolds Solicitors v Information Commissioner - LPP and Public Interest in Environmental Information Regulations

Citation: [2023] UKFTT 984 (GRC)
Judgment on

Introduction

The case of Nockolds Solicitors Limited v The Information Commissioner & Ors engages with pivotal tenets of Environmental Information Regulations 2004 (EIR), particularly regulation 12(5)(b), dealing with legal professional privilege (LPP) and its implications on the public interest test for disclosure of information. This article dissects the case adjudicated by the First-tier Tribunal (Information Rights), providing insights into the legal principles and reasoning that shaped the decision.

Key Facts

Nockolds Solicitors Limited (Appellant) requested environmental information from the Civil Aviation Authority (CAA) under the EIR. The information pertained to noise assessments related to Stansted Airport Limited (STAL), which was withheld on the basis of regulations 12(5)(e) and 12(5)(f) of the EIR. Upon review, the Information Commissioner determined that while these regulations were not applicable, the CAA could legitimately rely on regulation 12(5)(b) EIR, tied to LPP, to refrain from disclosure.

The central dispute involved whether the requested information was subject to LPP and whether the public interest in maintaining the exception outweighed that in disclosing the information under the EIR.

The legal principles central to this case encompass:

  1. LPP and Its Applicability: LPP includes advice privilege and litigation privilege, the latter being applicable in this case. This principle safeguards confidential communications created for predominantly litigation-related purposes.

  2. Regulation 12 EIR and its Exceptions: The Tribunal applied this regulation to establish whether disclosure would adversely affect the course of justice. The acknowledged prevalence of LPP within regulation 12(5)(b) EIR serves as a notable instance where the exception could be compellingly engaged.

  3. The Public Interest Test: In cases where an exemption like LPP is engaged, a public interest test is applied to weigh the benefits of maintaining the exception against the interests served by disclosure.

  4. Presumption in Favor of Disclosure: Regulation 12(2) EIR implies a default stance favoring information disclosure, albeit not absolute. The exemption’s strength must be reconciled with this presumption.

Outcomes

The Tribunal concluded that the information was indeed covered by STAL’s LPP. Despite typically favoring disclosure, regulation 12(5)(b) EIR was applicable here, given the adverse effect its breach would have on the course of justice. The Tribunal underscored that settling claims out-of-court doesn’t preclude the contemplation of litigation, thus actual litigation need not be underway for LPP to be valid.

Additionally, the Tribunal found that the public interest in maintaining LPP outweighed the interest in disclosure. Even with the presumption in favor of disclosure, LPP’s weight in the public interest test was deemed significant enough to maintain the exemption.

Conclusion

In Nockolds Solicitors Limited v The Information Commissioner & Ors, the Tribunal traversed through the dense terrain of EIR, carefully examining LPP’s reach and its consequential bearing on public interest. The decision underscores that the protection of LPP and the intricate balances it requires within the scope of environmental information disputes is both nuanced and heavily contingent on the facts at hand. It solidifies that LPP can indeed be invoked to exempt information from disclosure under the EIR, provided there’s a robust substantiation of its applicability and the supremacy of the involved public interest in maintaining the exemption.