Tribunal Upholds FOIA Exemptions in Perrys Motor Sales Case: Balancing Policy Development and Legal Privilege

Citation: [2024] UKFTT 62 (GRC)
Judgment on

Introduction

In the case of Perrys Motor Sales/Perrys Group Limited v Information Commissioner & Anor [2024] UKFTT 62 (GRC), the First-tier Tribunal was tasked with determining whether certain exemptions under the Freedom of Information Act 2000 (FOIA) applied to withhold information requested by the Appellant. The Tribunal thoroughly examined the engagement of the Section 35(1)(a) and Section 42 exemptions and conducted a public interest test to decide if the withheld information should be disclosed.

Key Facts

The Appellant requested information from Her Majesty’s Treasury (HMT) about the treatment of Coronavirus Job Retention Scheme payments in business interruption insurance claim settlements. HMT invoked several FOIA exemptions to withhold the information, and upon review, the Information Commissioner supported the application of Section 35(1)(a) (Formulation or Development of Government Policy) and Section 42 (Legal Professional Privilege) exemptions. This led to the Appellant challenging the decision through an appeal.

Section 35(1)(a) - Formulation or Development of Government Policy

The Tribunal referred to Section 35(1)(a) FOIA, a class-based exemption that does not demand proof of prejudice from disclosure for the exemption to be engaged. It centers on the requested information’s content and not on the timing concerning any decision-making process. The Tribunal aligned with the Upper Tribunal’s standpoint in Cabinet Office v IC and Morland [2018] UKUT 67 (AAC) that policy-making can still be considered ‘live’ and not contingent on whether the process remains active during the request.

Public Interest Test for Section 35(1)(a)

A qualified exemption under Section 35(1)(a) FOIA warrants a public interest test. This mandates a balancing act between the public interest in disclosing the information against maintaining the exemption. The Information Commissioner’s guidelines suggest that significant weight should be given to preserving a ‘safe space’ for discussing live policy issues, especially when the policy-making is active.

Section 42 - Legal Professional Privilege

The Tribunal also deliberated on Section 42(1) FOIA, which exempts information that would attract legal professional privilege. Similar to Section 35(1)(a), this exemption requires a public interest test to determine if withholding information is justified. The Tribunal recognized the ‘significant’ in-built weight in preserving the confidentiality afforded by legal privilege, particularly pertinent in ongoing litigation.

Outcomes

Upon analyzing the evidence, the Tribunal concluded that:

  • The exemption under Section 35(1)(a) FOIA was engaged as HMT was actively formulating and developing policy related to the deduction of government support payments in business interruption insurance claims throughout 2020.
  • The public interest in ensuring a safe space for policy formulation without external interference trumped the public interest in disclosure, especially given the ongoing nature of the policy issue and related litigations.
  • Given that the Section 35(1)(a) exemption was fully applicable, there was no need to issue a separate decision on the applicability of Section 42(1) FOIA in this case.

Consequently, the appeal was dismissed, and no substituted decision notice was issued regarding the Commissioner’s decision.

Conclusion

In Perrys Motor Sales/Perrys Group Limited v Information Commissioner & Anor, the Tribunal’s meticulous application of the legal principles and guidelines ensured a reasoned judgment consistent with the FOIA. By placing emphasis on the need for a ‘safe space’ in live policymaking and acknowledging the importance of legal professional privilege, especially in the context of ongoing litigation, the Tribunal upheld the Information Commissioner’s decision to withhold the information. This case reaffirms the nuanced balance between public interest in transparency and the government’s interest in protecting the integrity of its policy formulation processes.