First-tier Tribunal Strikes Out FOIA Appeal in Steven Thomas Case Due to Lack of Prospect of Success and Upheld Legal Professional Privilege Exemption

Citation: [2023] UKFTT 1075 (GRC)
Judgment on

Introduction

The decision in the case of Steven Thomas v Information Commissioner provides an insightful example of the application of legal principles regarding the Freedom of Information Act 2000 (FOIA) and the exemptions permitted under it, specifically the exemption for legal professional privilege. The First-tier Tribunal (General Regulatory Chamber) ruled to strike out the appellant’s case on the basis that there was no reasonable prospect of success, relying on established case law and foundational principles of legal privilege. This article will dissect the decision document and elucidate the legal rationale behind striking out the appeal.

Key Facts

Steven Thomas appealed against a decision notice from the Information Commissioner, which supported Cheltenham Borough Council’s decision to withhold information under section 42 of the FOIA. The Tribunal Judge, Hazel Oliver, used Rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 to strike out the proceedings on the grounds that the appellant’s case lacked a reasonable prospect of success. The withheld information pertained to legal advice given to the council during ongoing litigation, and the Information Commissioner had found that the public interest favored maintaining legal professional privilege over the disclosure of such information.

The pivotal legal principles cited in this decision were:

  1. Legal Professional Privilege: It is well-established that legal professional privilege carries inherent public interest that favors non-disclosure to maintain the confidentiality of legal communications, as acknowledged in DBERR v O’Brien and IC [2009] EWHC 164 (QB). This principle emphasizes the importance of public bodies receiving frank legal advice, confidentially.

  2. Public Authority’s Burden of Proof: Normally, the authority must demonstrate that the public interest in maintaining an exemption outweighs the public interest in disclosure. However, the built-in weight of legal professional privilege implies that additional evidence of prejudice or chilling effect caused by disclosure is unnecessary unless countered by significant opposing factors.

  3. Factors Affecting the Weight of Privilege: The weight of the public interest in maintaining legal professional privilege is not immutable and may vary depending on circumstances such as the currency and relevance of the matters to which the information relates.

  4. Realistic Prospect of Success: When considering a strike-out application, the Tribunal must identify whether there is a realistic, not merely fanciful, chance of success on the issues if taken to a full hearing - a principle reflected in HMRC v Fairford Group [2014] UKUT 0329 (TCC).

  5. The Role of the Tribunal: The Tribunal is not empowered to address concerns unrelated to the exemptions under FOIA or to conduct a mini-trial about the information’s content, as per the guidelines of the rules and prior case law.

Outcomes

The Tribunal’s decision to strike out the appellant’s case was based on the following:

  • The appellant did not directly challenge the application of the legal professional privilege exemption nor provide substantial public interest arguments that would outweigh this exemption.
  • The exemption has an in-built public interest, and the information in question related to ongoing legal proceedings, thereby attracting even greater weight against disclosure.
  • The appellant’s reliance on the Bill of Rights 1688 did not override the specific provisions of the FOIA concerning legal professional privilege, and the Tribunal lacked jurisdiction over concerns of public exclusion from Council meetings.
  • Based on the principles and lack of substantial argumentation from the appellant, there was no realistic prospect of the appeal succeeding.

Conclusion

The First-tier Tribunal’s decision in Steven Thomas v Information Commissioner is a firm reinforcement of the central tenets of legal professional privilege as it applies under the FOIA. It serves as a precedent for similar cases where the balance of public interest must be measured against a statutory exemption designed to preserve the integrity and confidentiality of legal communications. Legal professionals must note the stringent thresholds set for appellants to overcome established exemptions in FOIA cases, and properly frame their arguments around these deeply rooted principles. The decision also reiterates the limited scope of the Tribunal in addressing issues beyond its jurisdiction, keeping appeals tightly focused on the application and interpretation of FOIA.

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