The powers of the Tribunal in determining appeals against the Commissioner’s decision notices are governed by section 58 FOIA. This requires the Tribunal to consider whether the decision notice is in accordance with the law or, to the extent the decision involved an exercise of discretion by the Commissioner, whether he ought to have exercised it differently. The Tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

Before the hearing, the parties had submitted written evidence. This comprised an Open Bundle of 395 pages (including an Index). The panel also had access to a Closed Bundle to which were added further papers at the start of the hearing. Together the Closed Bundle comprised the legal advice PHSO had received in September 2021(‘the 2021 advice’); and further advice received by PHSO during April – August 2023 (‘the 2023 advice’); and associated emails.

Mr Walford made oral submissions at the hearing of his appeal via HMCTS’s Cloud Video Platform.

The Commissioner did not attend nor was he represented.

PHSO was represented by Counsel who also made oral submissions at the hearing.

At the hearing, Mr Walford made the following additional points:

At the hearing, Counsel for PHSO made the following additional points:

The panel first considered the possible unfairness of the proceedings caused by the withholding of certain information from Mr Walford.

Mr Walford had not been provided with the information he had requested. The Tribunal permitted the information to be withheld from both Mr Walford and the public pursuant to GRC Rule 14.

For the purposes of the hearing, the panel was provided with a Closed Bundle containing the withheld information.

The panel took account of the Tribunal’s Practice Note on Closed Material. This explains that, where disclosure of the disputed information would defeat the object of the exercise, the law permits the Tribunal to deviate from the normal rule about all material seen by the Tribunal being available to all parties. However, such deviation is permissible only so far as is necessary to ensure that the purpose of the proceedings is not defeated.

The panel accepts that there was inevitably someprejudice in material being withheld from a party requesting it, but considered that this prejudice was mitigated by:

Having considered all these matters and having carefully read the withheld information, the panel was satisfied that withholding the requested information was and remained necessary to ensure the purpose of the proceedings was not defeated. Moreover, the prejudice to Mr Walford’s position – mitigated as described above – was justified in the interests of justice overall.

The panel went on to consider the relevant facts of this case. Based on all the evidence the panel had seen and heard, the panel made the following findings of fact on the balance of probabilities:

An appellant’s motive in requesting information from a public authority is not relevant to the Tribunal’s decision. But in this case, the panel wishes to record its view that Mr Walford’s information request, and this appeal, is motivated by genuine concern for the public interest rather than his personal or private interests. In particular, the panel notes Mr Walford’s belief not only that many other car-park users wrongly received (but did not necessarily challenge) penalty charges from the Trust’s contractors but also that the Trust’s appointment processes and performance-monitoring of those (and possibly other) contractors are seriously inadequate.

As the Commissioner issued a decision notice under FOIA, this Tribunal’s remit is limited by statute to consideration of that decision notice. This is clearly somewhat removed from Mr Walford’s principal concerns, and over those we have no jurisdiction.

The Tribunal’s sole task is to establish whether the Commissioner’s decision notice was wrong – either because the Commissioner made an error of law, or because he ought to have exercised his discretion differently when balancing the public interest.

Taking these issues in reverse order, the decision notice did not mention any balancing of the public interest because the only exemption which the Commissioner considered engaged was s.40(1) FOIA (personal data), an absolute exemption which did not involve any balancing of the public interest.

Consequently, the only question for the panel is whether the Commissioner made any error of law in his decision notice.

Having made the findings of fact set out in paragraph 36 above, the first issue for the panel was whether the exemption in s.40(1) (personal information) is indeed engaged as the Commissioner found in his decision notice.

Personal data of which the applicant is the data subject is absolutely exempt from disclosure under FOIA due to s.40(1) FOIA.

According to section 3(2) DPA, personal data is “any information relating to an identified or identifiable living individual” which is about them, linked to them, is used to inform decisions affecting them or has them as its main focus.

Having carefully considered both the 2021 advice and the 2023 advice, the panel is satisfied that both contain personal data. Our reasoning is:

The panel is therefore satisfied that the decision notice was not wrong in law in citing the absolute exemption in s.40(1) when concluding that PHSO was not required to disclose the withheld information.

However, in the light of the Commissioner’s concession that s.42 (legal professional privilege) also applies, and in view of additional closed material (the 2023 advice) provided on the morning of the hearing, the panel went on to consider whether the exemption in s.42 is also engaged.

The panel agrees with the Commissioner’s submission that, in this case, to the extent the withheld information is not personal data it is covered by LPP. That is because the information comprises confidential communications between a client and professional legal advisor acting in their professional capacity and made for the sole or dominant purpose of obtaining legal advice.

Having seen for itself the withheld information, the panel does not accept Mr Walford’s arguments that the legal advisors were not qualified; that the advice was not made for the dominant purpose of obtaining legal advice; that the advice was that the contractors did not fall within PHSO’s remit; and that the Trust was not responsible for its contractors. The latter two points were expressly addressed in PHSO’s letter to Mr Walford of 3 August 2023 which stated ‘…the Trust, as an organisation, are within our remit to investigate and so are any contractors it uses or has used…’ and ‘we agree with you that the Trust is responsible for its contractors.’

The panel is satisfied not only that the legal advice requested falls within the scope of LPP covered by s.42 FOIA but also that its disclosure would breach the fundamental principle of LPP not merely in this particular case but with implications going far beyond it.

Having found s. 42 FOIA engaged in this case, the panel went on to consider the competing public interests in disclosing the information and maintaining the exemption.

The panel considers that relevant public interest factors are in summary:

In weighing these competing public interests, the panel acknowledges evidence of misrepresentation and unlawful activity on the part of the car-parking contractors; the likely number of people affected; and an apparent lack of transparency on the part of the Trust (though the panel was not provided with evidence of the Trust’s handling of Mr Walford’s complaints). However, none of these factors has any bearing on PHSO and its good faith or transparency – and it is PHSO rather than any other public body which is the relevant organisation in this appeal.

We also took account of the parties’ arguments, the timing of the request and the nature of the withheld information. Further, we had the benefit of hearing oral submissions from Mr Walford and by Counsel on behalf of PHSO.

We do not accept Mr Walford’s submission that the Gavin Aitchison case is an example of an ‘exceptional case’ where LPP is outweighed by a very strong public interest in disclosure. Though LPP is mentioned in that judgment, by contrast with this case that case was about disclosure of historical Cabinet papers and the exemptions in s.35 FOIA (Formulation of government policy). It therefore has no bearing on the facts or law in this case.

We particularly bear in mind Mr Walford’s wider concerns about contractors for NHS Trusts being inadequately scrutinised before appointment, and insufficiently monitored thereafter.

Having carefully considered the legal advice sought to be disclosed, we do not consider that its disclosure would shed any light on Mr Walford’s outstanding concerns, nor are there any other strong countervailing factors of the kind referred to in para. 52(f) above. We note that Mr Walford accepts that disclosure of the withheld legal advice would be ‘merely one more step’ towards his stated objectives of holding the Trust to account and obtaining restitution for other car-park users. Having seen the advice in question, the panel does not consider that its disclosure would further Mr Walford’s objectives.

In summary, Mr Walford has not satisfied us that the very strong public interest in protecting the established convention of LPP and therefore in favour of withholding the information is outweighed by the public interest in disclosure.

For the above reasons, we conclude that:

This appeal is dismissed.