Steven Downes v The Information Commissioner
[2023] UKFTT 666 (GRC)
S Dally v The Information Commissioner
12 June 2024
[2024] UKUT 178 (AAC)
Upper Tribunal
A man asked the council for information about a dog home and its license. The council refused, claiming privacy. A court said the council didn't explain its reasons well enough and sent the case back to be looked at again.
Key Facts
- •Mr Dally requested information from Knowsley Council regarding Merseyside Dogs Home (MDH) and its licensing under the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018.
- •The Council withheld information relating to previous legal advice, claiming legal professional privilege under section 42(1) of the Freedom of Information Act 2000 (FOIA).
- •The Information Commissioner upheld the Council's refusal to disclose the information.
- •Mr Dally appealed to the First-tier Tribunal (FTT), which dismissed his appeal.
- •Mr Dally appealed to the Upper Tribunal (UT), arguing that the FTT erred in law by making findings of fact without supporting evidence and failing to adequately reason its findings.
Legal Principles
Public interest test under FOIA: Section 2(2) of FOIA states that exempt information should not be disclosed if the public interest in maintaining the exemption outweighs the public interest in disclosure.
Freedom of Information Act 2000
Legal professional privilege under FOIA: Section 42(1) of FOIA exempts information protected by legal professional privilege.
Freedom of Information Act 2000
Standard of review for UT appeals: The UT reviews the FTT's decision for errors of law, not factual conclusions. The UT will not re-perform the public interest balancing exercise unless the FTT made an error of law.
Callender Smith v the Information Commissioner and the Crown Prosecution Service [2022] UKUT 60 (AAC)
Inherent weight of legal professional privilege: The public interest in maintaining legal professional privilege carries significant weight in the FOIA balancing exercise.
DBERR v O’Brien & the Information Commissioner [2009] EWHC 164 (QB); Cabinet Office v the Information Commissioner [2014] UKUT 461 (AAC); Callender Smith [2022] UKUT 60 (AAC)
Outcomes
The Upper Tribunal allowed Mr Dally's appeal.
The FTT made findings of fact that lacked evidentiary support and adequate reasoning, specifically regarding the timing of the legal advice and the extent to which DEFRA confirmed the Council's interpretation.
The FTT's decision was set aside and the case remitted to the FTT for reconsideration.
The UT found that the FTT's errors were material and could have affected the outcome. The UT determined that the FTT should re-hear the appeal taking into account the necessary clarification on the misrepresentation, and the weight given to the maintenance of legal professional privilege.