Minstry of Justice (formerly the Dept for Constitutional Affairs) v Information Commissioner [2007] UKIT EA_2007

Appeal Number: EA/2007/0016

Decision

The Tribunal upholds the appeal and finds that the Appellant does not have to
comply with the Information Notice dated 29 January 2007 served on it by the
Respondent.

Reasons for Decision

The request for information

1. By email dated 5 January 2005 Frances Gibb (Ms Gibb) of The Times asked the
Department for Constitutional Affairs (DCA) (now part of the Ministry for Justice) for
disclosure of several pieces of information under FOIA including:

The Attorney General’s advice over the “public interest” test and its
interpretation under the Freedom of Information Act.

2. The DCA is now part of the Ministry of Justice but for the purposes of this appeal we
will continue to refer to the department as the DCA.

3. The DCA responded to the request by letter dated 1 February 2005 by refusing to
confirm or deny whether it held such advice by the Attorney General (the refusal
notice). The letter set out the reasons for the refusal where the DCA applied the
s.35(1)(c) FOIA qualified exemption, namely information held by a government
department relating to “the provision of advice by any of the Law Officers or any
request for the provision of such advice”.

4. Ms Gibb asked for an internal review of the decision by email on 8 February 2005
further explaining the nature of her request.

His ‘advice’ in this case is central to the entire operation of the Act and informs
how it will work. It is not advice in the traditional sense of legal advice to a client;
but rather the very basis of the policy underpinning a piece of legislation whose
whole aim is to make information to the public. How this is to work is clearly a
matter of public interest.

5. By letter dated 8 April 2005 to Ms Gibb following an internal review the DCA upheld
its original decision to refuse the request.

Complaint to the Information Commissioner

6. Ms Gibb then complained to the Information Commissioner (the Commissioner) who
attempted to investigate the matter. The DCA continued to refuse to confirm or deny
that it held the information requested and ultimately the Commissioner issued an
Information Notice dated 29 January 2007 (the Information Notice) under s.51 FOIA
requiring the DCA to furnish:

Appeal Number: EA/2007/0016

6.1 Confirmation of whether it holds Attorney General’s advice pertaining to the
public interest test and its interpretation under the Freedom of Information Act;
and

6.2 If it is held by the Department for Constitutional Affairs, a copy of the
aforementioned advice.

7. The DCA appeals against this Notice, which is the first such appeal heard by this
Tribunal.

Relevant legal provisions

8. The exemption claimed by the DCA under s.35 FOIA so far as it is relevant to this
case is as follows:

s.35(1)(c) Information held by a government department …. is exempt
information if it relates to –

(a) …

(b) …

s.35(3) The duty to confirm or deny does not arise in relation to information
which is (or if it were held by the public authority would be) exempt information
by virtue of subsection (1)

9. This is a qualified class based exemption by virtue of s.2 FOIA and under ss 2(1)(b)
and 2(2)(b) is subject to a public interest test under Part I of the Act.

10. Under s.50(1) of the Act any person may apply to the Commissioner for a decision
whether, in any specified respect, a request for information made by the complainant
to a public authority has been dealt with in accordance with the requirements of Part I
of the Act.

11. Where the Commissioner has received an application under s.50, then s.51 of the
Act provides that the Commissioner may serve the public authority with a notice (“an
Information Notice”) requiring it to furnish the Commissioner with information relating
to the application, to compliance with Part I of the Act or to conformity with the Code
of Practice under the Act.

12. There is an limitation or exemption under s.51(5). This reads:

An authority shall not be required by virtue of this section to furnish the
Commissioner with any information in respect of –

Appeal Number: EA/2007/0016

(a) any communication between a professional legal adviser and
his client in connection with the giving of legal advice to the
client with respect to his obligations, liabilities or rights under
this Act; or

(b) any communication between a professional legal adviser and
his client, or between such an adviser or his client and any
other person, made in connection with or in contemplation of
proceedings under or arising out of this Act (including
proceedings before the Tribunal) and for the purposes of such
proceedings.

s.51(8) In this section “information” includes unrecorded information.

13. The public authority has a right of appeal to the Information Tribunal against an
Information Notice under s.57(2) of the Act.

Background

14. The Department’s reasons for refusing to confirm or deny whether it held the advice
from the Attorney General in relation to the request were set out in the refusal notice
and further explained to the Commissioner by letters of 19 May 2006 and 7
September 2006. These explained why the exemption under s.35(1)(c) and (3) was
engaged and what factors the DCA took into account in applying the public interest
test and why it decided that the public interest in maintaining the duty to confirm or
deny outweighed the public interest in disclosing whether or not the DCA held the
information.

15. By letter of 21 August 2006, a senior complaint officer of the Commissioner wrote to
the Department in the following terms:

“DCA submissions sent to Ms Gibb and the ICO defend the use of the above
provisions of section 35 because of the long-standing convention of not
disclosing the advice of Law Officers, or whether their advice has been
sought, outside government. Generic public interest arguments were used to
defend the continuation of this convention of not disclosing such information
in all circumstances. However, as I’m sure you’re aware, section 35 is a
qualified exemption, requiring an assessment of the public interest test to be
made on the merits of each individual case.

At this point, in order to allow this Office to undertake a review of whether we
consider the DCA to have dealt with this request in accordance with the
provisions of the Act, please provide confirmation of whether the Attorney
General’s advice on the public interest test and its interpretation under the
Freedom of Information Act is held by the DCA. Of course, I can assure you
that we have no intention of passing any of the information received from the
DCA to the complainant or any third party.”

Appeal Number: EA/2007/0016

16. By letter of 7 September 2006 the Department refused to accede to the request
made in the letter of 21 August 2006 relying, in particular, on s. 51(5)(a) of the Act (ie
the provision that public authorities shall not be required to provide the Commissioner
with any information in respect of any communication between a lawyer and a client
in connection with the giving of legal advice with respect to the client’s obligations
under the Act).

17. By letter of 20 September 2006, the Commissioner set out his view that:

“[…] the application of section 51(5) will depend on the nature of the advice
provided. Whilst obviously the advice in question would relate to the FOI Act
it is not clear whether the advice concerned the DCA in its capacity as the
government department in charge of implementing the Act or the DCA as a
public authority under the Act. Therefore, we do not at this stage consider
this provision to be applicable in the context of this case as such advice would
not relate to legal advice about a specific FOI case(s) involving the DCA.
Rather it would refer to more general advice on the interpretation of the Act,
presumably issued before the legislation was enacted.”

18. By letter of 5 October 2006, the Department responded by stating:

“On the section 51(5) point, our view remains that as a matter of
interpretation section 51(5)(a) is wide and covers both general and more
specific advice. The suggestion is that the section does not apply to advice
received as part of our general preparation for FOI – and simply to advice on
responding to individual requests – appears to us to undermine the very
intention behind s 51(5), namely to prohibit the Information Commissioner
from receiving a legal advisor’s advice on a public authority’s obligations,
rights and liabilities under the Act.”

19. In the Notice, the Commissioner explained (at para 13: p 29):

“13. The Commissioner does not accept DCA’s reliance in its letters of 7
September 2006 and 5 October 2006, on section 51(5)(a) in order to refuse to
supply him with the requested information. The Commissioner understands
that the intention of this provision is to prohibit the supply to the
Commissioner of legal advice about the DCA’s compliance with the Act in
relation to a specific FOI request which the Commissioner is investigating.
He does not consider the provision to relate to general advice provided to
government departments on the interpretation of the Act’s provision.
Furthermore, given that the complainant submitted her request on 5 January
2005, it is unlikely that if such information were held it would relate to the
DCA’s compliance with any specific request.”

The DCA’s case

20. The DCA’s position is that by reason of the exclusion in s 51(5)(a), the Commissioner
has no power under 51(1) of the Act to require it to confirm or deny whether it holds

Appeal Number: EA/2007/0016

advice from the Attorney General on the “public interest” test and its interpretation
under the Act because it argues (the emphasis of the words in italics or underlined
are those of the DCA):

(1) the object of s 51(5) is to provide public authorities with protection based on
legal professional privilege in respect of legal advice about matters in relation
to which disputes involving authorities may be ruled upon by the
Commissioner and/or the Commissioner may be a party (on appeal). It
ensures that the Commissioner does not obtain an unfair advantage – on the
very topics on which he has to rule and/or make submissions – vis-à-vis
parties who appear before him and parties against which he makes
submissions, by using his powers to allow him to be informed whether they
have sought legal advice on those topics and what that legal advice might
be. No court or opposing party in ordinary proceedings would have a right to
be provided with such information, and Parliament has decided that the
importance of the right of a party to protection of confidentiality in relation to
his legal advice relevant to matters which are the subject of dispute before
and/or with another interested person (be it court or opposing party) is such
as to warrant this limitation in such circumstances upon the Commissioner’s
powers;

(2) this rationale covers both general legal advice received as to the authority’s
rights and liabilities under the Act (the subject of s.51(5)(a)) and more
specific advice in relation to proceedings or contemplated proceedings under
the Act (s 51(5)(b)). In each case, a court or opposing party would not be
entitled to the information in ordinary litigation, and s. 51(5) provides that the
Commissioner (as “court” and, then, opposing party) should not be in any
better position. The scheme of s. 51(5) makes it clear that Parliament
intended both forms of advice to be covered by the exemption from the
Commissioner’s powers under s. 51(1);

(3) s.51(5)(a) covers both the advice itself and the information as to whether or
not such advice was obtained/is held by the authority;

(4) it is irrelevant whether or not any such advice given by the Attorney General
to the Department was given to the Department in its capacity as the
department responsible for the Act or in relation to the Department’s own
liabilities under the Act.

21. These points are developed in turn below.

(1) The object of s 51(5)

22. The DCA submits that the object of s.51(5) is to provide authorities with protection in
respect of legal advice about matters in relation to which disputes involving
authorities may be ruled upon by the Commissioner and/or the Commissioner may
be a party (on appeal):

Appeal Number: EA/2007/0016

(1) Having regard to the role of the Commissioner in adjudicating on disputes
under the Act, and then potentially being a party to proceedings on appeal, s.
51(5) is concerned to prevent an authority from being required to disclose to
the Commissioner legal advice (and information relating to it in the way
specified) which may compromise its position before the Commissioner (and
hence also potentially against the Commissioner – ie on appeal). Whilst
such protection is in many ways akin to legal professional privilege, s.51(5) is
of broader construction so as to recognise the importance of this principle.
For example, unlike s.42, s.51(5) is not limited to legal advice in respect of
which a claim for legal professional privilege could be maintained in legal
proceedings;

(2) this focus and object of s.51(5) is supported by: (i) the fact that the
exemption applies to protect material from disclosure to the Commissioner
regardless of whether the Commissioner undertakes not to make onward
disclosure of the information to the complainant or third party (as in this case)
and (ii) the fact that only legal advice relating to the client’s rights and
liabilities/proceedings “under this Act” is covered. Where the Commissioner
considers legal advice which does not relate to a the client’s rights and
liabilities/proceedings “under this Act”, it is not disputed that, as necessary,
the Commissioner does have power under s. 51(1) to order provision to him
of that advice in order to review the weighing exercise in relation to it under
s. 2 and s. 42 of the Act. The point of s. 51(5) is precisely to delimit that
power so as to exclude it in relation to legal advice on the very matters on
which the Commissioner may have to rule in relation to the public authority
as a party (“legal advice to the client with respect to his obligations, liabilities
or rights under this Act”);

(3) this interpretation (preventing the Commissioner from accessing information
regarding legal advice in the limited class of case where the legal advice
which has or may have been given is to a party before him and against which
he may become an opposing party, and is about the very matters on which
he may have to rule or present opposing submissions) is consistent – in that
limited sub-category of case - with the absolute nature of the legal
professional privilege (which ordinarily means that it cannot be overridden by
some other higher public interest) and the particularly compelling public
interest which that approach at common law reflects. Certainly, the absolute
nature of the privilege has been overridden in the Act, in that legal
professional privilege (s. 42) is not made an absolute exemption in relation to
the general category of legal advice. However, the great force of the public
interest in preserving confidentiality across that general category has been
acknowledged and repeated by courts at the highest level, so that the courts
will maintain non-disclosure of legal advice even where the exercise of the
privilege may impede the proper administration of justice in the individual
case: see eg Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610,
per Lord Scott at paras 25 and 34, per Lord Rodger of Earlsferry at para 54,
and per Baroness Hale at para 61. Further, the strength of the public interest
in maintaining legal professional privilege is such that it will not be treated as
abrogated by general words used in a statute – rather, clear, specific and
express language would be required: see R v IRC, ex p Morgan Grenfell

Appeal Number: EA/2007/0016

[2003] 1 AC 563. It is thus unsurprising that, even though Parliament has in
the context of the Act abrogated the common law rule to the limited extent of
not making the exemption in s. 42 absolute (so that the public interest will fall
to be applied – but, of course, reflecting when it is applied the strong public
interest in non-disclosure which has been authoritatively identified by the
courts), it has at the same time reflected and preserved in absolute terms in
s. 51(5) the common law protection against provision of information about
legal advice in that limited class of case which concerns those questions in
respect of which the Commissioner is “judge” and potential opposing party;

(4) this is simply to observe that the limited abrogation of the absolute common
law rule in the Act has itself been qualified by way of s.51(5) in the very class
of case where the rationale against disclosure of the information to the
Commissioner himself is at its most powerful and compelling. Once such
information has been disclosed to the Commissioner (who is, in relation to it,
a party with an interest), it cannot be undisclosed. The position in respect of
this special class of case may be contrasted with the position in relation to
legal advice falling outside the context where the Commissioner is himself to
be regarded as a party with an interest in the information itself. Where the
Commissioner has no interest himself in the topic of the legal advice which
has or may have been given, he can properly be regarded as an a impartial
adjudicator concerned to decide whether information which does not concern
himself or the exercise of his functions should be disclosed into the public
domain, and it is as such an impartial and disinterested adjudicator/regulator
that it may be appropriate for him to require the provision of the information
concerned in order to carry out that (impartial) refereeing function (s.
51(1)(b)). But where the Commissioner himself has an interest in the subject
of the legal advice, that model does not apply, and his powers under s.51(1)
are accordingly limited to the extent of his own interest (s.51(5)).

(2) s 51(5)(a) covers all advice in relation to an authority’s rights and obligations
under the Act, not just advice obtained in relation to the particular dispute in
question

23. The object of s. 51(5) set out above clearly covers both general legal advice received
by an authority as to its rights and liabilities under the Act and more specific advice it
has received in relation to proceedings or contemplated proceedings under the Act:

(1) The Commissioner is not a “one-off” litigant. He is the regulator, who is in a
permanent and continuing relationship with the public authority which has or
may have obtained legal advice. He may have to rule upon/become party to
many disputes concerning the disclosure of information by that authority;

(2) Legal arguments do not come in discrete, neatly packaged boxes (limited to
each case) – they may have implications across more than one case; and
the advice given about those arguments in one case may have direct
implications for the application of those same arguments in other cases.
Indeed, the more general the advice, the more likely it is that it will have

Appeal Number: EA/2007/0016

ramifications across a wide range of cases (and in the context of the Act, it is
difficult to think of a topic of legal advice which could have more general
ramifications than that chosen by Ms Gibb as the subject of her request –
indeed, it seems a fair inference that that is one of the reasons why she has
chosen that topic);

(3) As a result of (1) and (2), the Commissioner will himself be an interested
party in relation to all legal advice a public authority obtains or may have
obtained “with respect to [its] obligations, liabilities or rights under [the] Act”.
It makes no difference of substance whether the public authority has taken
advice about its obligations in an immediate case before the Commissioner
and is applying that advice; or had taken advice about another request and
was simply applying the earlier advice by implication to the new case; or had
taken general advice at the outset about how it should proceed in relation to
a range of cases to follow, and then was applying that general advice to
particular cases thereafter as they came forward. In each of these cases, the
rationale underlying the limitation in s. 51(5) would apply: the Commissioner
himself is so closely involved in the topic of the advice as to have an interest
in it, which accordingly disentitles him from being treated as an impartial and
disinterested referee. In each case, the legal advice which the authority has
or may have obtained, could unfairly compromise its position in proceedings
before the Commissioner (or, thereafter, against him);

(4) The scheme of s.51(5) and its express terms show that Parliament intended
all legal advice “with respect to [the authority’s] obligations, liabilities or rights
under [the] Act” (s.51(5)(a)) to be covered by the exclusion of the
Commissioner’s powers - ie both general or prior legal advice on those topics
as well as express legal advice obtained in relation to the particular
information request which comes to be the subject of dispute before the
Commissioner. Section 51(5)(a) is in general terms which are apt to cover
the whole range of these cases. By contrast, s.51(5)(b) is in terms limited to
communications (which may consist of legal advice, but may go wider)
“made in connection with or in contemplation of proceedings under or arising
out of this Act .. and for the purposes of such proceedings”. This language
confirms the width of s.51(5)(a). S.51(5)(a) applies to all legal advice in
relation to the topics specified (“obligations, liabilities or rights under [the]
Act”); s.51(5)(b) only applies in relation to communications for the purposes
of proceedings under the Act;

(5) The Commissioner’s contention that in order for legal advice to fall within the
scope of s.51(5)(a) it must be advice relating to a specific case before the
Commissioner is unsustainable, and would undermine this clear scheme, by
seeking to read s.51(5)(a) as containing by implication the same restrictions
as are set out expressly in s.51(5)(b). This is an impermissible approach:
Parliament’s intention appears clearly from the words it has used in relation
to legal advice in s.51(5)(a), and the fact that it has deliberately used
different words in relation to communications in s. 51(5)(b) shows that it did
not intend the same limited approach to apply to legal advice;

Appeal Number: EA/2007/0016

(6) Further, the fact that s.51(5)(b) is stated to cover communications with legal
advisers (ie including, but not limited to, legal advice) in connection with “or
in contemplation of proceedings” indicates that s.51(5)(a) covers also
general advice given on issues relating to the potential liabilities of the
authority arising otherwise than in relation to specific or contemplated
proceedings under the Act, since otherwise s. 51(5)(a) would be otiose.

(3) s 51(5)(a) covers not only the advice itself but information as to its existence

24. The terms of s.51(5)(a) are such as to cover not only the legal advice itself but also
the confirmation or denial of the existence of such advice:

(1) s.51(5)(a) covers “any information in respect of any communication between
a legal adviser and his client in connection with the giving of legal advice to
the client with respect to his obligations, liabilities or rights under the Act.”
“Information” is defined for the purposes of s.51 as including unrecorded
information: s.51(8) (is as a departure from the usual definition of
“information” set out in s.84, as “information recorded in any form”). Thus the
words “any information” in s.51(5)(a) extend more widely than the information
to which the request referred to in s.1(1) of the Act relates (which is limited to
“information recorded in any form”), and must include the additional
information whether the public authority does or does not hold the underlying
information in question;

(2) that is also the clear meaning of the words of s.51(5)(a) quoted above:
whether a body does or does not hold legal advice, or has or has not
obtained legal advice, is “information in respect of any communication … in
connection with the giving of legal advice …”;

(3) this construction is also confirmed by the deliberate width and wide ambit of
the words used in s.51(5)(a): “any information”, “in respect of”, “any
communication”, “in connection with the giving of legal advice”, “with respect
to his obligations”;

(4) this construction is also supported by the underlying rationale for s.51(5) –
clearly disclosing that legal advice or communications are or are not held
may be highly revealing and may compromise a party in litigation, as well as
disclosing the advice or the communications themselves;

(5) the breadth of s.51(5)(a) is further underlined by contrasting it with the more
qualified wording of s.42(1) and (2) of the Act, which contains the exemption
to the duties under the Act based on legal professional privilege. S.42
provides:

(1) Information in respect of which a claim to legal professional
privilege or, in Scotland, to confidentiality of communications
could be maintained in legal proceedings is exempt
information.

Appeal Number: EA/2007/0016

(2) The duty to confirm or to deny does not arise if, or to the extent
that, compliance with section 1(1)(a) would involve the
disclosure of any information (whether or not already recorded)
in respect of which such a claim could be maintained in legal
proceedings.

S.42(2) clearly limits the exclusion of a duty to confirm or deny, but only to
the extent that the requirement to confirm or deny would involve the
disclosure of information in respect of which a claim to legal professional
privilege would arise. By contrast, s.51(5)(a) contains no corresponding
limitation, and applies to all information - without qualification - falling within
s. 51(5)(a) (which, on the natural meaning of the words used, includes the
information about whether legal advice has been obtained or is held).

(4) the capacity in which the Department may have received legal advice is not
relevant

25. Finally, it is submitted that it is irrelevant for the purposes of s.51(5)(a) whether or not
such legal advice would be about the Department’s own general responsibilities
under the Act or would relate to the way in which public authorities in general should
apply/comply with the Act:

(1) this submission follows from submission in paragraph 24(2) above; but in
addition,

(2) the distinction here sought to be drawn by the Commissioner is
unsustainable in light of the purposes of the policy underlying s.51(5): as
advice from the Attorney General to the Department as to the way in which
public authorities in general should apply the Act would necessarily
constitute advice from the Attorney General to the Department as to how the
Department should apply/comply with the Act. As such, the suggestion that
s.51(5) does not apply to advice received as part of the Department’s
general preparation for the Act – and simply to legal advice responding to
individual requests - would undermine the object of s.51(5), namely to
prohibit the Commissioner from receiving a legal adviser’s advice on a public
authority’s obligations, rights and liabilities under the Act;

(3) the Attorney General is the Government’s chief legal adviser, and the
Department (as well as other Government Departments) is his client
(regardless of the capacity in which such advice is sought or obtained); legal
advice as to the “public interest” and its interpretation under the Act
(regardless of whether it was received before or after the coming into force of
the Act) would necessarily constitute advice as to the Department’s rights,
obligations and liabilities under the Act; and confirmation or denial as to its
existence would constitute “any information in respect of any communication
between a professional legal adviser and his client in connection with the
giving of legal advice to the client” in this respect;

(4) the Department, as an authority in respect of which a complaint has been
made under the Act, should not be in a worse position in terms of its ability to

Appeal Number: EA/2007/0016

rely on s. 51(5)(a) than any other authority by reason of the fact that it is also
the department responsible for the implementation of the Act.

The Commissioner’s case

26. The Commissioner points out to the Tribunal that the DCA contends in this case that
the Information Notice that was served on it is contrary to s.51(5)(a) of the Act, and
that the DCA does not rely on s.51(5)(b). The Commissioner then refers us to two
aspects to the Information Notice, which require to be considered separately.

27. The first aspect is the request for confirmation of whether the DCA held the
information requested. A request for such confirmation, he argues, cannot in itself be
contrary to s.51(5)(a) of the Act. The purpose of the section is to protect the content
of certain communications from professional legal advisers; its purpose is not to
conceal the mere fact that the communications exist.

28. The Commissioner refers to the DCA’s contention that s.51(5)(a) is intended to
preserve legal professional privilege (LPP). The purpose of LPP is to protect the
content of communications from legal advisers, but it does not enable the recipient of
the advice to conceal the very existence of those communications. In ordinary civil
litigation documents protected by LPP do not have to be disclosed. However, the
person relying on the privilege should still disclose the fact that he holds documents
that are covered by LPP, even though he is not required to disclose the content of
those documents: see White Book Volume 1 2007 at 31.10.3, page 796, citing
Gardner v Irvin (1878) LR 4 Ex D 49 at 53, CA. The problem with this argument is
that the DCA argues that the scope of s.51(5)(a) extends beyond LLP.

29. The DCA has contended in correspondence with the Commissioner that there is a
convention neither to confirm nor deny that legal advice has been sought from the
Law Officers on a particular matter. That is a consideration that is potentially relevant
to the Commissioner’s final determination as to whether the Department, by refusing
to confirm or deny to Ms Gibbs whether or not it held the information sought, had
failed to comply with its duty under s.1 of the Act. The Commissioner submits that
the convention referred to by the DCA has however no bearing on the question
whether s.51(5)(a) entitles the DCA to refuse to inform the Commissioner whether it
holds the advice.

30. The second aspect of the Information Notice is the request for a copy of the Attorney
General’s advice. The Commissioner’s understanding as to the scope of the advice
sought is set out in paragraph 26 above.

31. LPP is a single integrated privilege with two sub-heads, namely legal advice privilege
and litigation privilege: see generally Three Rivers Council and Others v Governor
and Company of the Bank of England [2004] UKHL 48. S.51(5)(a) is clearly intended
to provide protection for certain documents covered by legal advice privilege, and s.
51(5)(b) is intended to provide protection for certain documents covered by litigation
privilege. However, in neither case does the section protect all such documents; s.
51(5) only protects LPP documents that relate to a particular subject matter.

Appeal Number: EA/2007/0016

32. The Act has a general exemption for information in relation to which a claim for LPP
could be maintained (see s.42) but the exemption is qualified not absolute (see s.
2(3) of the Act). Even where documents are protected by LPP, the public authority
will need to consider whether the balance of public interest is in favour of disclosure;
and the Commissioner will often need to consider this balance when investigating a
complaint. There is nothing in principle surprising about the proposition that the
Commissioner may need to examine documents that would ordinarily be protected by
LPP: he may need to do so, both in order to satisfy himself that LPP genuinely does
apply (and hence that s.42 is engaged) and also to consider the application of the
public interest test in respect of s.42.

33. S.51(5) is an important limitation on the Commissioner’s ability to use his usual
information-gathering powers in support of his decision making and enforcement
functions under the Act. The effect of the limitation in s.51(5) is to make it more
difficult for the Commissioner to ensure that the s.42 exemption is properly applied by
public authorities. For that reason the exemption ought to be given a narrow
construction.

34. S.51(5)(a) applies to communications in connection with the giving of legal advice
with respect to the client’s obligations, liabilities or rights under the Act. The
information sought in this case relates to advice not simply about the position of the
DCA, but about the position of public authorities generally. It is not information that
specifically relates to the position of the client: that is so whether the client is
properly to be regarded as the particular Government department to which the advice
was given, or as the Crown. The information would relate equally to the position of
all bodies that were public authorities under the Act (whether or not they were part of
central Government). Nor would the information sought be information with respect to
the obligations, liabilities or rights of the DCA or of any public authority. The
language of s.51(5)(a) would cover information as to whether a particular public
authority was obliged to disclose specific information in response to a particular
request; whether it was entitled to treat a particular request as being vexatious; and
so forth. The information that the Commissioner is seeking in this case is information
that is one stage further back from this. It is not information about what are the
obligations, etc., of the DCA: rather it is information as to how the DCA or other
public authorities ought to go about determining what are their rights and obligations
in a particular case.

35. To put the point another way, the Information Notice in this case does not relate to
legal advice in the usual sense. It relates to information that is more closely
analogous to internal guidance used within government departments about the
application of legislation. Such information may be protected by LPP and may be
exempt from disclosure under s.42 (subject to the public interest test) but it does not
follow that it must be exempt under s.51(5)(a) in respect of the Commissioner’s
information-gathering powers.

Appeal Number: EA/2007/0016

The Tribunal’s findings

36. The Tribunal finds the DCA’s arguments as to why the Information Notice is subject
to s.51(5) FOIA to be very persuasive. The basis of this limitation or exemption from
compliance with an Information Notice is so as not to give the Commissioner an
unfair advantage in matters he may be called to rule upon or be a party to.

37. We accept the DCA’s detailed submissions in this case which are set out at
paragraphs 22 to 25 above.

38. Clearly the complication in this case is that the request relates to legal advice,
whether it exists or not, from a Law Officer about the application of the public interest
test under the Act to a government department who is also the sponsoring
department of the Act. The DCA is a public authority in its own right and could use
such advice in respect of its own obligations, liabilities or rights under FOIA. Also as
sponsoring department it may provide guidance to other government departments in
relation to their obligations under the Act or more broadly use it to advise government
on the Act. We agree that the capacity in which the DCA may have received the legal
advice is irrelevant for the purposes of s.51(5)(a).

39. The Tribunal appreciates the argument of the Commissioner where LPP is claimed
that he may need to inspect privileged materials in order to establish whether or not
the exemption is made out. An example might be where a local authority has taken
legal advice on a planning appeal which then becomes the subject of a FOIA
request. However where the legal advice relates specifically to the Act then s.51(5)
comes into play and he cannot inspect the information because of the unfair
advantage it may give him.

40. We therefore find that the s.51(5)(a) exemption applies and uphold the appeal and
find that the DCA is not obliged to comply with the Information Notice.

41. We agree with the Commissioner that he has the right under s.51 to require a public
authority to disclose whether or not it holds the information requested, and note that
s.51(8) extends the meaning of “information” to unrecorded information. However, in
this case, where the exemption claimed allows for the exclusion from the duty to
confirm or deny and s.51(5)(a) applies then in our view the DCA does not have to
comply with this part of the Information Notice for the reasons set out above.

42. Also we agree with the Commissioner that the convention, referred to in paragraph
15 above, to neither deny nor confirm that legal advice has been sought from Law
Officers on a particular matter has no bearing on the question whether s.51(5)(a)
entitles the DCA to refuse to inform the Commissioner whether it holds such advice,
despite the fact the qualified exemption claimed does allow exemption from the duty
to confirm or deny. However we consider, but make no finding on the matter, that the
convention is a factor that would need to be taken into account when considering the
application of the public interest test.

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Minstry of Justice (formerly the Dept for Constitutional Affairs) v Information Commissioner [2007] UKIT EA_2007_0016 (06 August 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2007_0016.html Cite as: [2007] UKIT EA_2007_0016, [2007] UKIT EA_2007_16



	Appeal Number: EA/2007/0016

	Freedom of Information Act 2000 (FOIA) Heard on papers at Procession House, London Decision Promulgated On 17 July 2007 6 August 2007 BEFORE INFORMATION TRIBUNAL CHAIRMAN John Angel And LAY MEMBERS Jaqueline Clarke and Roger Creedon Between THE MINISTRY OF JUSTICE (previously the DEPARTMENT FOR CONSTITUTIONAL AFFAIRS) Appellant And INFORMATION COMMISSIONER Respondent Representation: For the Appellant: Philip Sales QC and Deok Joo Rhee For the Respondent: Timothy Pitt-Payne

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	Appeal Number: EA/2007/0016

	Decision The Tribunal upholds the appeal and finds that the Appellant does not have to comply with the Information Notice dated 29 January 2007 served on it by the Respondent.

	Reasons for Decision The request for information 1. By email dated 5 January 2005 Frances Gibb (Ms Gibb) of The Times asked the Department for Constitutional Affairs (DCA) (now part of the Ministry for Justice) for disclosure of several pieces of information under FOIA including: The Attorney General’s advice over the “public interest” test and its interpretation under the Freedom of Information Act. 2. The DCA is now part of the Ministry of Justice but for the purposes of this appeal we will continue to refer to the department as the DCA. 3. The DCA responded to the request by letter dated 1 February 2005 by refusing to confirm or deny whether it held such advice by the Attorney General (the refusal notice). The letter set out the reasons for the refusal where the DCA applied the s.35(1)(c) FOIA qualified exemption, namely information held by a government department relating to “the provision of advice by any of the Law Officers or any request for the provision of such advice”. 4. Ms Gibb asked for an internal review of the decision by email on 8 February 2005 further explaining the nature of her request. His ‘advice’ in this case is central to the entire operation of the Act and informs how it will work. It is not advice in the traditional sense of legal advice to a client; but rather the very basis of the policy underpinning a piece of legislation whose whole aim is to make information to the public. How this is to work is clearly a matter of public interest. 5. By letter dated 8 April 2005 to Ms Gibb following an internal review the DCA upheld its original decision to refuse the request.

	Complaint to the Information Commissioner 6. Ms Gibb then complained to the Information Commissioner (the Commissioner) who attempted to investigate the matter. The DCA continued to refuse to confirm or deny that it held the information requested and ultimately the Commissioner issued an Information Notice dated 29 January 2007 (the Information Notice) under s.51 FOIA requiring the DCA to furnish:

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	Appeal Number: EA/2007/0016 6.1 Confirmation of whether it holds Attorney General’s advice pertaining to the public interest test and its interpretation under the Freedom of Information Act; and 6.2 If it is held by the Department for Constitutional Affairs, a copy of the aforementioned advice. 7. The DCA appeals against this Notice, which is the first such appeal heard by this Tribunal.

	Relevant legal provisions 8. The exemption claimed by the DCA under s.35 FOIA so far as it is relevant to this case is as follows: s.35(1)(c) Information held by a government department …. is exempt information if it relates to – (a) … (b) … (c) The provision of advice by any of the law officers or any request for the provision of such advice s.35(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1)

	9. This is a qualified class based exemption by virtue of s.2 FOIA and under ss 2(1)(b) and 2(2)(b) is subject to a public interest test under Part I of the Act. 10. Under s.50(1) of the Act any person may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I of the Act. 11. Where the Commissioner has received an application under s.50, then s.51 of the Act provides that the Commissioner may serve the public authority with a notice (“an Information Notice”) requiring it to furnish the Commissioner with information relating to the application, to compliance with Part I of the Act or to conformity with the Code of Practice under the Act. 12. There is an limitation or exemption under s.51(5). This reads: An authority shall not be required by virtue of this section to furnish the Commissioner with any information in respect of –

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	Appeal Number: EA/2007/0016

	(a) any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act; or (b) any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings. s.51(8) In this section “information” includes unrecorded information. 13. The public authority has a right of appeal to the Information Tribunal against an Information Notice under s.57(2) of the Act.

	Background 14. The Department’s reasons for refusing to confirm or deny whether it held the advice from the Attorney General in relation to the request were set out in the refusal notice and further explained to the Commissioner by letters of 19 May 2006 and 7 September 2006. These explained why the exemption under s.35(1)(c) and (3) was engaged and what factors the DCA took into account in applying the public interest test and why it decided that the public interest in maintaining the duty to confirm or deny outweighed the public interest in disclosing whether or not the DCA held the information. 15. By letter of 21 August 2006, a senior complaint officer of the Commissioner wrote to the Department in the following terms: “DCA submissions sent to Ms Gibb and the ICO defend the use of the above provisions of section 35 because of the long-standing convention of not disclosing the advice of Law Officers, or whether their advice has been sought, outside government. Generic public interest arguments were used to defend the continuation of this convention of not disclosing such information in all circumstances. However, as I’m sure you’re aware, section 35 is a qualified exemption, requiring an assessment of the public interest test to be made on the merits of each individual case. At this point, in order to allow this Office to undertake a review of whether we consider the DCA to have dealt with this request in accordance with the provisions of the Act, please provide confirmation of whether the Attorney General’s advice on the public interest test and its interpretation under the Freedom of Information Act is held by the DCA. Of course, I can assure you that we have no intention of passing any of the information received from the DCA to the complainant or any third party.”

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	Appeal Number: EA/2007/0016 rely on s. 51(5)(a) than any other authority by reason of the fact that it is also the department responsible for the implementation of the Act.

	The Commissioner’s case 26. The Commissioner points out to the Tribunal that the DCA contends in this case that the Information Notice that was served on it is contrary to s.51(5)(a) of the Act, and that the DCA does not rely on s.51(5)(b). The Commissioner then refers us to two aspects to the Information Notice, which require to be considered separately. 27. The first aspect is the request for confirmation of whether the DCA held the information requested. A request for such confirmation, he argues, cannot in itself be contrary to s.51(5)(a) of the Act. The purpose of the section is to protect the content of certain communications from professional legal advisers; its purpose is not to conceal the mere fact that the communications exist. 28. The Commissioner refers to the DCA’s contention that s.51(5)(a) is intended to preserve legal professional privilege (LPP). The purpose of LPP is to protect the content of communications from legal advisers, but it does not enable the recipient of the advice to conceal the very existence of those communications. In ordinary civil litigation documents protected by LPP do not have to be disclosed. However, the person relying on the privilege should still disclose the fact that he holds documents that are covered by LPP, even though he is not required to disclose the content of those documents: see White Book Volume 1 2007 at 31.10.3, page 796, citing Gardner v Irvin (1878) LR 4 Ex D 49 at 53, CA. The problem with this argument is that the DCA argues that the scope of s.51(5)(a) extends beyond LLP. 29. The DCA has contended in correspondence with the Commissioner that there is a convention neither to confirm nor deny that legal advice has been sought from the Law Officers on a particular matter. That is a consideration that is potentially relevant to the Commissioner’s final determination as to whether the Department, by refusing to confirm or deny to Ms Gibbs whether or not it held the information sought, had failed to comply with its duty under s.1 of the Act. The Commissioner submits that the convention referred to by the DCA has however no bearing on the question whether s.51(5)(a) entitles the DCA to refuse to inform the Commissioner whether it holds the advice. 30. The second aspect of the Information Notice is the request for a copy of the Attorney General’s advice. The Commissioner’s understanding as to the scope of the advice sought is set out in paragraph 26 above. 31. LPP is a single integrated privilege with two sub-heads, namely legal advice privilege and litigation privilege: see generally Three Rivers Council and Others v Governor and Company of the Bank of England [2004] UKHL 48. S.51(5)(a) is clearly intended to provide protection for certain documents covered by legal advice privilege, and s. 51(5)(b) is intended to provide protection for certain documents covered by litigation privilege. However, in neither case does the section protect all such documents; s. 51(5) only protects LPP documents that relate to a particular subject matter.

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	Appeal Number: EA/2007/0016

	The Tribunal’s findings 36. The Tribunal finds the DCA’s arguments as to why the Information Notice is subject to s.51(5) FOIA to be very persuasive. The basis of this limitation or exemption from compliance with an Information Notice is so as not to give the Commissioner an unfair advantage in matters he may be called to rule upon or be a party to. 37. We accept the DCA’s detailed submissions in this case which are set out at paragraphs 22 to 25 above. 38. Clearly the complication in this case is that the request relates to legal advice, whether it exists or not, from a Law Officer about the application of the public interest test under the Act to a government department who is also the sponsoring department of the Act. The DCA is a public authority in its own right and could use such advice in respect of its own obligations, liabilities or rights under FOIA. Also as sponsoring department it may provide guidance to other government departments in relation to their obligations under the Act or more broadly use it to advise government on the Act. We agree that the capacity in which the DCA may have received the legal advice is irrelevant for the purposes of s.51(5)(a). 39. The Tribunal appreciates the argument of the Commissioner where LPP is claimed that he may need to inspect privileged materials in order to establish whether or not the exemption is made out. An example might be where a local authority has taken legal advice on a planning appeal which then becomes the subject of a FOIA request. However where the legal advice relates specifically to the Act then s.51(5) comes into play and he cannot inspect the information because of the unfair advantage it may give him. 40. We therefore find that the s.51(5)(a) exemption applies and uphold the appeal and find that the DCA is not obliged to comply with the Information Notice. 41. We agree with the Commissioner that he has the right under s.51 to require a public authority to disclose whether or not it holds the information requested, and note that s.51(8) extends the meaning of “information” to unrecorded information. However, in this case, where the exemption claimed allows for the exclusion from the duty to confirm or deny and s.51(5)(a) applies then in our view the DCA does not have to comply with this part of the Information Notice for the reasons set out above. 42. Also we agree with the Commissioner that the convention, referred to in paragraph 15 above, to neither deny nor confirm that legal advice has been sought from Law Officers on a particular matter has no bearing on the question whether s.51(5)(a) entitles the DCA to refuse to inform the Commissioner whether it holds such advice, despite the fact the qualified exemption claimed does allow exemption from the duty to confirm or deny. However we consider, but make no finding on the matter, that the convention is a factor that would need to be taken into account when considering the application of the public interest test.

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	Appeal Number: EA/2007/0016

	The continuing process 43. We would comment that our decision does not prevent the Commissioner from continuing his investigation and making a decision in this case. Clearly the Commissioner can still consider whether the exemption is engaged and can also consider the application of the public interest test.

	John Angel Chairman Date 6 August 2007

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United Kingdom Information Tribunal including the National Security Appeals Panel