Case Reference: FT/EA/2024/0445
Information Rights
Decided without a hearing
Before
JUDGE FOSS
JUDGE SAWARD
MEMBER YATES
Between
MAXINE CARRICK
Appellant
and
(1) THE INFORMATION COMMISSIONER
(2) DEPARTMENT FOR EDUCATION
Respondents
Decision: The appeal is dismissed.
REASONS
Introduction
This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 15 October 2024 referenced IC-307195-G5Y1 (“the Decision Notice”). The appeal concerns a request for information made to the Department for Education (“DfE”) under the Freedom of Information Act 2000 (“FOIA”).
The parties opted for a determination of the appeal on the papers. The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.
Preliminary matters
By Case Management Directions dated 7 April 2025, Judge Moan refused the Appellant’s application to order disclosure of the non-privileged materials within the CLOSED bundle. Having reviewed the position, we find no reason to alter that decision ahead of our determination of the case.
In the Directions of 7 April 2025, the DfE was also ordered to provide a gist of the closed material to assist the Appellant to know how much of the closed bundle relates to the claimed privileged material. When the Tribunal panel first met, the gist had not been provided. Accordingly, the case was part-heard pending further Directions. By Directions dated 9 May 2025 the Tribunal set a deadline for production of the gist and gave opportunity for the Appellant to respond. The gist was provided by the DfE on 23 May 2025 (see below).
In addition, the Tribunal queried with the Respondents why certain information was within the CLOSED bundle and not OPEN. The Respondents were directed to review and explain in writing to the Tribunal why (a) paragraphs 30 to 34 (inc) of the Commissioner’s CLOSED response, and (b) the Second Respondent’s CLOSED response to those paragraphs, should not be within the open bundle. The explanation was required by 23 May 2025.
By letter sent by email on 23 May 2025, the DfE confirmed that it had reviewed the relevant paragraphs of its CLOSED Response. It remains of the view that the paragraphs queried by the Tribunal have been correctly placed in the CLOSED bundle since (i) they reveal the dates between which the DfE sought and received legal advice; and (ii) if that information were disclosed to the Appellant, it might enable her to draw inferences about the subject matter of that legal advice, and so give rise to a risk of the confidentiality of privileged correspondence being undermined. Privilege attaches to information which would “giv[e] a clue as to the legal advice given” (Edwardian Group Ltd v Clarke [2017] EWHC 2805 (Ch) at [32, 34, 39]).
The Commissioner similarly responded on 23 May 2025. He maintains that providing the contents of paragraphs 30-34 of his CLOSED Response would reveal something about the information in respect of which he found that section 42 was engaged, namely, the dates DfE sought and received legal advice. Thus, in the absence of agreement from the information owner to provide the same, the Commissioner considers that those paragraphs should be withheld from the Appellant as it would otherwise defeat the purposes of the appeal.
The Tribunal is satisfied with the Respondents’ explanations in terms of why the content was placed in the CLOSED bundle. Whether information should be released falls to be considered below.
Upon reconvening, the Tribunal identified that an application made by the Appellant on 26 March 2025 had not been dealt with before the hearing. The application concerned the admissibility of a legal ‘authorities bundle’ filed three days late by the DfE. The application also sought an extension of time to reply.
The ‘authorities bundle’ comprises copies of case law, relevant extracts of FOIA, and text from legal publications as mentioned in the OPEN bundle (that was filed on time). By Case Management Directions dated 1 July 2025, the Tribunal explained that it was not minded to exclude the bundle of authorities. It was also conscious that the Appellant had taken the opportunity to respond to the gist, doing so extensively and referring to case law. Nevertheless, the Tribunal gave the Appellant further opportunity to comment on any materials in the ‘authorities bundle’ that she had not already addressed. The case remained part-heard pending any response.
Instead of commenting on items within the ‘authorities bundle’ the Appellant provided a 12-page response raising new arguments over procedural fairness. She requests either the exclusion of the ‘authorities bundle’ or a revised timetable for an updated bundle including additional legal authorities that the Appellant herself cited in her response to the gist.
In essence, it is argued that the Respondents’ failure to exchange copies of their legal authorities on time resulted in significant procedural unfairness to her as an unrepresented litigant. In consequence, the Appellant maintains that the ‘authorities bundle’ should not be admitted.
The Case Management Directions of 3 February 2025 directed all parties to send to each other copies any documents on which they seek to rely by 10 March 2025 with any final representations by 7 April 2025. The Commissioner was responsible for filing the OPEN bundle by 24 March 2025. The Appellant argues that she was deprived of a full 4 weeks to review the legal materials, consider their implications, and make submissions due to the lateness of the ‘authorities bundle’.
The DfE filed the ‘authorities bundle’ by email at 0942 on 27 March 2025. At the same time, the DfE confirmed that “the Appellant was provided with all authorities relied on by both parties on 24 March, although not in bundle form.” The Appellant believes she should have had chance to comment on the bundle prior to its submission. However, if she had any comments, these could have been made in her final comments or in response to the Tribunal’s Directions offering further chance to comment.
Therefore, not only was the Appellant sent the relevant authorities on 24 March 2025, but the Tribunal has also during this process specifically invited the Appellant to comment on any matters within the ‘authorities bundle’ not already covered by her comprehensive submissions.
In further Case Management Directions of 26 March 2025, the Tribunal had directed the Appellant “to provide to the Respondents, not later than 14 days before the substantive hearing of this matter, a list of materials which she wishes to include in the authorities bundle.” The Appellant considers these directions misleading as the date of the hearing was not known (it being a paper determination).
On 9 April 2025, the Appellant says she sent an additional legal authority to both Respondents (albeit not previously shared), which she intended for inclusion within a revised bundle. The judgment in Karam Salah Al Din Awni Al Sadeq v Dechert LLP & Ors[2024] EWCA Civ had been cited in her final representations of 7 April 2025. The Appellant is aggrieved that it was not included within a revised ‘authorities bundle’.
The Tribunal was not alerted to this point previously. Nevertheless, in reaching its decision, the Tribunal has fully considered the Appellant’s final comments. It does not need a copy of the judgment to be supplied in a bundle to do so.
The Appellant complains that the DfE has referred to Edwardian Group Ltd v Clarke [2017] EWHC 2805 (Ch), without the authority being included in the ‘authorities bundle’. That is unsurprising given the timeline. The case was not cited by the DfE until it responded to the Tribunal’s Directions of 9 May 2025, long after submission of the ‘authorities bundle’. Reference to that judgment was made in the DfE’s explanation to the Tribunal as to why certain paragraphs in its CLOSED Response were not within the OPEN bundle. It was not a matter on which the Appellant could sensibly be invited to respond. In any event, the Appellant herself had cited the same judgment and so must have been familiar with it.
The Appellant has seen the same ‘authorities bundle’ as the Tribunal. She cannot rely upon her own subsequent references to other judgments that are not within the ‘authorities bundle’ as basis to pursue an argument of procedural unfairness. Clearly, those authorities could not be within a bundle when they are contained within the Appellant’s much later response to the gist. If there were any unfairness, it would be to the Respondents. As it is, the Tribunal finds no injustice to any party.
The Tribunal has gone to great lengths to ensure that the Appellant has had fair opportunity to respond to the Respondents’ case. It has granted extensions of time by explicitly inviting the Appellant to submit comments within a reasonable time period. We find no evidence of procedural unfairness. Furthermore, it would not assist the Tribunal to have an updated ‘authorities bundle’ and to invite further comments when sufficient opportunity has already been given.
In accordance with the overriding objective within the 2009 Rules, the Tribunal considers it fair and just to grant an extension of time under Rule 5(3)(a) to accept the ‘authorities bundle’. In accepting the bundle, the Tribunal has of course also considered all of the Appellant’s submissions and responses.
Background
It is undisputed that in September 2022, a petition was launched entitled "Create statutory legal duty of care for students in Higher Education". The purpose of the petition was described as follows:
" ... No general statutory duty of care exists in HE. Yet, a duty of care is owed to students, and the Government should legislate for this. HE providers should know what their duty is. Students must know what they can expect. ...
A duty of care already exists for staff, and for students under the age of 18 in HE. There should be parity in duty of care for all members of the HE community.
This is not a petition for 'in loco parentis' or for duplication of the NHS. We only seek parity and legislative clarity on duty of care for all students ….”
The DfE responded to the petition on 20 January 2023:
" ... Higher Education providers do have a general duty of care to deliver educational and pastoral services to the standard of an ordinarily competent institution and, in carrying out these services, they are expected to act reasonably to protect the health, safety and welfare of their students. This can be summed up as providers owing a duty of care to not cause harm to their students through the university's own actions.
... We, therefore, feel further legislation to create a statutory duty of care, where such a duty already exists, would be a disproportionate response ... "
Over 100,000 signatures were obtained when the petition closed on 19 March 2023. It was debated in Parliament on 5 June 2023.
The Request
On 3 October 2023, the Appellant sent this request (“the Request”) to the DfE:
“Please supply appropriately redacted and anonymised copies of every item that was withheld from [name redacted] under section 42 of the FOI Act on 31st August 2023."
This referred to an earlier request made to the DfE by another person on 11 July 2023:
"Please supply all information you hold on any Common Law duty of care owed by higher education providers to their students, that was used to generate your response to a recent parliamentary petition calling for a statutory duty of care in higher education. This may include electronic and paper records, drafts, emails, letters, notes, minutes of meetings, material downloaded from the internet, advice, correspondence, photographs and sound or video recordings ... "
Refusal of the Request
On 26 October 2023, the DfE refused the Request on the basis that the information requested was exempt from disclosure under section 42 FOIA on the grounds of legal professional privilege.
The Appellant requested an internal review, and the DfE maintained its position, adding that section 40(2) had also been applied to redact personal data.
The Decision Notice
The Appellant complained to the Commissioner on 13 May 2024, who decided:
“Having viewed the emails the Commissioner is satisfied that the withheld information comprises confidential communications between client and legal adviser for the dominant purpose of seeking and giving legal advice. It falls within the definition of advice privilege and is therefore subject to LPP. Accordingly, the Commissioner finds that the exemption is engaged in respect of the withheld emails. Any information in the body of the emails that is not subject to LPP is out of scope of the request.
In reaching that decision the Commissioner:
Confirmed that section 42 is a qualified exemption and accepted the undoubted public interest in the wider subject matter of the case.
Referred to his own guidance that states: "What is quite plain, from a series of decisions beginning with Bellamy v IC EA/2005/0023, is that some clear, compelling and specific justification for disclosure must be shown, so as to outweigh the obvious interest in protecting communications between lawyer and client, which the client supposes to be confidential".
Took into account that the relevant legal advice was still recent at the time of the Request.
Recorded that: “Thedisclosure of legal advice has a high potential to prejudice the government's ability to defend its legal interests. This applies directly, by unfairly exposing its legal position to challenge. It also applies indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour. The Commissioner accepts neither of these outcomes is in the public interest.
Considered the public interest in the information “knowing that the DfE has sought legal advice on this issue and its position is based on this advice”, rather than general guidance and publicly sourced information.
Knowing specific details of the advice would certainly provide greater transparency about the exact nature of the advice, but compelling arguments for disclosure had not been provided.
Concluded that the public interest in maintaining the exemption outweighed the public interest in disclosing the information to uphold, the DfE’s application of section 42.
The Appeal
The Appellant appealed on 10 November 2024. The grounds of appeal are formed under two headings (1) Evidence of Intent and Clarity in Request (2) Inappropriate Application of LPP. They can be summarised as:
Ground 1
The nature of the request has not been understood. The request sought access to all relevant information, not limited extracts, or selectively redacted content, related to the DfE’s consideration on any duty of care owed to higher education students. It included material in various forms that contributed to the response given to the parliamentary petition. The request was for documentation, not merely legal information contained within it. The clear intention was to receive redacted copies of full documents inclusive of non-privileged content.
There was a “gross failure” to meet the duty to assist under section 16(1) FOIA.
Ground 2
Serious doubts remain as to whether any or all the withheld material genuinely meets the strict criteria for LPP. The Government’s response closely mirrors widely accessible material, such as a 2015 ‘policy breakfast blog’ published by AMOSSHE. The striking similarities in language and substance raise serious questions about whether the Government’s position represents confidential legal advice or simply general legal principles that are widely accessible and available in the public domain. The ICO did not assess whether the withheld advice genuinely met the criteria for LPP.
LPP is unequivocally forfeited when privileged information is publicly disclosed to the 'world at large'. The Government's response to the petition was presumably drawn from, or is identical to, the withheld advice, thereby making such advice publicly available to anyone who wanted to read it. By publishing this information on the internet, the DfE has effectively waived any claim to LPP for the material in question.
The Commissioner’s Response
The Commissioner maintains his position as set out in the Decision Notice in terms of the scope of the request (ground 1). On ground 2, the Decision Notice confirmed that the withheld information consists of email exchanges between DfE officials and Government Legal Department lawyers. The Commissioner cannot comment further without risking revealing the very information he has found should be withheld.
In the Commissioner’s view the live issue is whether the substance of the material legal advice has lost its quality of confidence by any information pertaining thereto being in the public domain at the time of the request. The substance of legal advice will likely extend to any reasons for seeking advice as well as specific facts, law and arguments taken into account and given weight by the legal adviser.
In Mersey Tunnel Users Association v Information Commissioner and Merseytravel (EA/2007/0052, 15 February 2008), the First-tier Tribunal found that where " ... None of the references reveal the full advice, or anything approaching that, or quote directly from it .... ", then legal professional privilege could be maintained.
This point does not disturb the Commissioner’s findings on section 42 of FOIA.
The Commissioner cannot comment on any comparisons with publicly accessible material without risking revealing the very information he has found should be withheld.
DfE’s Response
The DfE’s response can be summarised as:
FOIA creates a right of access to information, not a right to be provided with copies of documents.
The premise of ground 1 is that there is some non-privileged information within the scope of the request. All information within the scope of the request is subject to LPP. The August request noted that the recorded information could be in many forms, but that observation did not enlarge the scope of information sought.
There has been no failure by DfE to comply with its duty under section 16 of FOIA. It is difficult to see what further evidence and assistance could be given to the Appellant given the entirety of information sought was covered by LPP.
The DfE no longer seeks to rely on section 40(2) of FOIA. This follows confirmation from the Appellant that the Request for redacted and anonymized information explicitly excludes personal data.
Ground 2 is without merit because:
even if advice in the email chains were based on ‘general legal principles’ (which is neither confirmed nor denied in the open bundle), that would not affect its privileged status.
the legal advice was given by a solicitor, which can be verified by checking the register of solicitors.
When responding to the petition, the Government did not disclose the content of the legal advice received, which remains confidential and privileged. The DfE neither confirms nor denies that any part of the Government’s response to the petition reflects advice given in the email chains.
Appellant’s reply to the responses
The Appellant replied to the Respondents’ responses on 1 April 2025 and provided a further 18 pages of final submissions on 7 April 2025. We do not summarise the documents in totality, it being impractical and unnecessary to do so, but we have considered them carefully. The main points are:
The DfE’s account of the facts, omits significant details, including the Appellant’s follow-up request on 18 October 2024 explicitly seeking redacted versions of the emails previously submitted by the DfE to the Commissioner. The request was specific in scope and emphasised (a) focus on non-privileged content not subject to LPP (b) preservation of email dates to ensure chronological accuracy (c) acknowledgement of the need to redact personal information under section 40(2). The application was dismissed as repetitive. The detailed request for an internal review provided extensive clarification of the issues at hand.
DfE may have misrepresented or disregarded the legal advice received invoking the iniquity exception to LPP.
The public interest test was not part of the grounds of appeal. It is introduced without allowing the Appellant opportunity to review all relevant materials that are essential for making and submitting an informed appraisal. To ensure procedural fairness and due process, the Tribunal should not consider the public interest test until the Appellant has reviewed the material that should have been disclosed.
The Appellant’s final comments focus on three factors (1) waiver (2) the public interest balance (3) generality of approach.
The Appellant claims that LPP has been waived because DfE has already disclosed key parts of the legal advice in question, explicitly in parliamentary and public statements. Once waived, disclosure is mandatory, and the public interest test is irrelevant. Any attempt to withhold the remaining advice is unlawful.
DfE’s public position on the duty of care owed by higher education providers to their students has evolved over time with contradictory statements and disclosures.
In applying the balancing test, the public interest in transparency is particularly compelling. The withheld legal advice pertains to the duty of care owed by universities to students being a crucial issue impacting public health, safety, and well-being of vulnerable students. Any potential harm to the DfE is minimal in comparison.
The core legal position is already public, undermining any argument for withholding the remainder. DfE has failed to provide concrete evidence of harm. If disclosure reveals contradictions, then any harm is entirely self-inflicted. It is claimed that students are dying because friends and family mistakenly believe there is a legal duty of care. Public interest in correcting dangerous misinformation far outweighs any minimal risk of embarrassment to the DfE.
The Appellant challenges whether the legal advice provides guidance on the general approach of an authority rather than addressing specific cases or issues.
DfE’s final comments
The DfE also submitted final submissions on 7 April 2025 reiterating earlier points.
In answer to the Directions of Judge Harris of 26 March 2025 asking whether any third-party personal data is contained in the withheld legally privileged material, the DfE replied on 31 March 2025 that:
“…. the Email Chains do contain personal data, such as the names and email addresses of the individuals who sought and provided legal advice. The Email Chains are in the CLOSED Bundle which the Commissioner has provided, and they are therefore available for the Tribunal to inspect.”
Following further directions of the Tribunal on 9 May 2025, the gist sets out that the CLOSED bundle contains the following materials:
Copies of the Email Chains, as defined and described at paragraph 27 of the DfE’s OPEN Response. As explained at paragraph 29 of the DfE’s OPEN Response, the DfE’s position is that the Email Chains are privileged in their entirety.
An unredacted version of the letter which appears at B189-B201 of the OPEN Bundle. The principal redaction is the one which appears at B196-B197 of the OPEN Bundle; that redaction is of a quotation from one of the Email Chains. The other redactions are of (i) individuals’ names; and (ii) the contact details of the sender of the letter.
An unredacted version of the Response of the Commissioner, the redacted portion of which appears at A67 of the OPEN Bundle. The reason for the redaction is explained at paragraph 29 of the Commissioner’s Response, and the redactions are to paragraphs 30 to 34. On the 2 reasons for the redaction, reference is made to the Government Legal Department’s letter of 23 May 2025.
The DfE’s CLOSED Response of 6 pages: (i) addresses the point raised at paragraphs 30 to 34 of the Commissioner’s Response; (ii) makes submissions as to why the Email Chains are privileged, by reference to their specific content; (iii) makes submissions on the application of the public interest test, by reference to the specific content of the Email Chains; and (iv) applies for an order under Rule 14(6) in respect of a document provided with the CLOSED Response.
Form GRC5 and the draft order which the DfE submitted in respect of the aforementioned application under Rule 14(6).
The document which the DfE provided with its CLOSED Response. That document is relevant to the point raised at paragraphs 30 to 34 of the Commissioner’s Response. The information in the document does not fall within the scope of the request (as defined at paragraph 8 of the DfE’s OPEN Response), and it contains privileged material.
Appellant’s final comments
The Tribunal’s directions of 9 May 2025 afforded the Appellant opportunity to respond to the gist. The Appellant’s submissions in response of 6 June 2025 run to 19 pages plus enclosures and provides a comprehensive reply to matters besides the gist to which we have given consideration. In the interests of succinctness, the main categories in response to the gist are summarised below:
“Narrowing of scope” – the Appellant maintains that the DfE is artificially narrowing the scope of the Request by asserting (at point f. of the gist) that certain information “does not fall within the scope of the request”. The Request was specifically linked to an earlier request [set out at paragraph 13 of this Decision] that was intentionally broad.
“Privilege creep and procedural abuse” – the Appellant considers that the DfE’s assertion (at point a. of the gist) that email chains are “privileged in their entirety” is an attempt to block disclosure of anything and everything, not just legal advice. It is a reversal of the DfE’s earlier position to claim that entire email chains, including metadata, subject lines, and contextual content, are privileged.
“Concealment of legal advice dates and misuse of privilege” – The original FOIA request sought material used to generate the response to a parliamentary petition dated 20 January 2023. Legal advice before that date clearly falls within scope; advice received after does not. If all relevant legal advice post-dated that date, the DfE could and should have said so. Knowing when advice was sought or received does not reveal what that advice said.
“Improper use of closed procedure for new arguments” – the Appellant has serious concerns from points d. and f. of the gist that the DfE has used the closed procedure to introduce entirely new legal arguments, evidence, and public interest reasoning.
“Lack of verified or contemporaneous evidence” – in relation to point b. of the gist, the Appellant’s central concern is the DfE’s heavy reliance on an unsigned, redacted, and unsworn letter as the primary basis for its refusal. It is not a verified witness statement, and it offers no primary evidence. – it is not even signed.
Legal Framework
The relevant provisions of FOIA are set out below:
Section 1
General right of access to information held by public authorities.
Any person making a request for information to a public authority is entitled—
to be informed in writing by the public authority whether it holds information of the description specified in the request, and
if that is the case, to have that information communicated to him.
….
Section 2
Effect of the exemptions in Part II.
….
In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—
the information is exempt information by virtue of a provision conferring absolute exemption, or
in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
….
Section 42
Legal professional privilege.
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.
The duty to confirm or 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.
There are two types of legal professional privilege - litigation privilege and legal advice privilege. Legal advice privilege covers confidential communications between lawyer and client for the purpose of giving or receiving legal advice or related legal assistance. Litigation privilege covers documents brought into being for the dominant purpose of litigation. The privilege extends to evidence of the content of those communications or documents. In this case the DfE claims that the withheld information is subject to legal advice privilege, being confidential communications between client and lawyer, made for the dominant purpose of seeking or giving of legal advice to policy colleagues and subsequently to ministers.
Role of the Tribunal
The role of the Tribunal is governed by section 58 of FOIA. This requires the Tribunal to consider whether the Commissioner’s Decision Notice is in accordance with the law, or, where the Commissioner’s decision involved an exercise of discretion, whether he should have exercised it differently. The Tribunal may review any finding of fact on which the Decision Notice was based (section 58(2)). This means that we may review all the evidence provided to us (even if that evidence was not before the Commissioner) and make our own decision on the merits.
If the Tribunal finds that section 42 of FOIA is engaged, then it must go on to apply the public interest test, which is embedded within section 2(2)(b). The test applies unless the exempt information falls within a category conferring absolute exemption. Section 42 is a qualified exemption to disclosure as it is not listed as an absolute exemption in section 2(3). It was emphasised by the Upper Tribunal in Corderoy and Ahmed v Information Commissioner, A-G and Cabinet Office [2017] UKUT 495 (AAC)) that section 42 FOIA is not a blanket exemption:-
“The powerful public interest against disclosure … is one side of the equation and it has to be established by the public authority claiming the exemption that it outweighs the competing public interest in favour of disclosure if the exemption is to apply. However strong the public interest against disclosure it does not convert a qualified exemption into one that is effectively absolute.” [68]
Rule 14 of the 2009 Rules allows for the system of a closed bundle. The process enables the Tribunal to review the withheld information without disclosing the material. The Tribunal can then ascertain whether the exemption applies, and if so, apply the public interest test to arrive at a decision. If the Appellant was able to review the material first, it would defeat the very purpose of the proceedings as made plain by Judge Harris in Directions of 26 March 2025. There is no procedural unfairness in the Respondents arguing the public interest test. It is not a new line of argument. The Decision Notice clearly confirmed that the test not only applied but went on in some detail to explain the factors considered in its application.
The Tribunal is not concerned with any underlying dispute over whether the Appellant agrees with the position taken by the government. Our role is confined to the application of FOIA to the Request.
The Issues
The issues for the Tribunal to determine in this appeal are:
Is the withheld information covered by legal professional privilege for the exemption within section 42 to apply?
If so, in all the circumstances of the case, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?
Evidence
The evidence comprises an OPEN and CLOSED bundle. The OPEN bundle consists of 293 pages. The CLOSED bundle consists of the withheld information. It is held by the Tribunal under Rule 14(6) of the 2009 Rules in accordance with the directions of Judge Harris made on 26 March 2025.
The DfE has produced an ‘Authorities bundle’ with copies of the caselaw relied upon. It confirms (and the Tribunal has noted) that the “DfE’s CLOSED submissions do not cite any legislation or cases which are not cited in the DfE’s OPEN submissions.” Whilst noting the decision in Mersey Tunnel, another FTT decision is not binding upon us, and we have determined the appeal on its own individual facts.
The Tribunal has produced this single OPEN Decision. There is no need for us to produce a CLOSED Decision.
Consideration
Whilst the Appellant has made submissions regarding her follow-up request in October 2024, that request is not before this Tribunal. The matter before us is the specific terms of the Request of 3 October 2023. The scope of the Request is clear. It is for “appropriately redacted and anonymised copies of every item that was withheld from [name redacted] under section 42”, i.e. every item that was withheld under the earlier request by reason of legal professional privilege. That is where our focus lies.We have not narrowed the scope of the Request.
Does the exemption in section 42 (legal professional privilege) apply?
In considering the application of this exemption, we have taken into account the judgment in Three Rivers District Council and others (Respondents) v Governor and Company of the Bank of England (Appellants) [2004] UKHL 48, where the House of Lords considered LPP in detail. This case explained that there are three requirements for material to be covered by legal professional advice privilege, as follows:
The material must be between a qualified lawyer acting in their professional capacity and a client;
It must be created with the sole or dominant purpose of obtaining or providing legal advice;
It must be confidential.
Having reviewed the CLOSED bundle, we find that the withheld information (that is not personal data, and which the Appellant accepts can be redacted) is covered by LPP. We reach that finding for the reasons below.
We are fully satisfied that the advice came from lawyers within the Government Legal Department (“GLD”). Just because a public authority announced a response that the Appellant does not agree with, does not call into question the standing of the legal advice. There is no requirement for legal advice to be in a verified witness statement or signed by the author to be covered by LPP.
‘Legal advice’ is not limited to telling the client the law. It includes advice as to what should “prudently and sensibly be done in the relevant legal context” (Balabel v Air India [1988] Ch. 317 CA, at [330]). Further, “there will be a continuum of communication and meetings between the solicitor and client ... Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.”
There are different types of confidentiality. The relevant email chains are not marked as ‘confidential’ but that is not determinative. Confidentiality may be implied. When government officials seek legal advice from GLD there will be a relationship with an embedded expectation of confidentiality. The nature and scope of the equitable duty of confidentiality was identified in the judgment of Coco v A N Clark (Engineers)Ltd [1969] RPC 41, as a three-fold test: (1) the information itself must have the necessary quality of confidence about it (2) that information must have been imparted in circumstances importing an obligation of confidence, and (3) there must be an unauthorised use of that information to the detriment of the party communicating it. The third limb of the test is relevant if trying to determine if there is an actionable breach of confidence. It is not directly relevant here. The first and second limbs obviously are relevant.
All the emails form part of a chain in which lawyers were instructed to advise and they are cloaked by confidentiality. To the extent that any information in the chain might not itself have been covered by confidentiality at the point of its initial generation, the fact that it is then included in a confidential chain is effective to render it confidential as part of the whole in that context. It includes metadata, subject lines, and contextual content. We are satisfied the withheld information has all the necessary qualities of confidentiality.
Communications can fall outside the general scope of privilege in certain circumstances, including if privilege is waived. The argument that LPP has been waived by responses, such as those given in parliamentary and public statements, is unmeritorious. The fact that general legal principles may be discussed and how they might be applied in no way disapplies the privilege.
We firmly reject the argument that the Commissioner has not properly evaluated the exemption. Paragraph 22 of the Decision is absolutely clear why the Commissioner found the exemption to be engaged. He proceeded to elaborate in some detail on how section 42 of FOIA operates with reference to the facts in this case. On appeal, the Tribunal stands in the shoes of the Commissioner and decides the matter afresh.We find no basis whatsoever to support the assertion that the DfE has used the closed procedure to introduce entirely new legal arguments, evidence, and public interest reasoning.
We conclude that the requested information comprises confidential communications between a client and professional legal advisers acting in their professional capacity and made for the sole or dominant purpose of obtaining legal advice. It falls squarely within section 42 of FOIA to be exempt from disclosure.
As already explained, section 42 FOIA is a qualified exemption from disclosure as it is not listed as an absolute exemption in section 2(3). It is therefore subject to the public interest test under section 2(2)(b) FOIA. This means that the mere fact that LPP applies does not suffice to justify non-disclosure. In addition to demonstrating that the requested information falls within the definition of the exemption, there must be consideration of the public interest arguments for and against disclosure to demonstrate that the public interest rests in maintaining the exemption or disclosing the information.
Balancing the public interest
In applying the public interest test in section 42 FOIA cases, the High Court in Department for Business Enterprises & Regulatory Reform v O’Brien and The Information Commissioner [2009] EWHC 164 (QB) gave the following important guidance:-
“[41].… it is for the public authority to demonstrate on the balance of probability that the scales weigh in favour of the information being withheld. That is as true of a case in which section 42 is being considered as it is in relation to a case which involves consideration of any other qualified exemption under FOIA . Section 42 cases are different simply because the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question.”
“[53]….The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least.”
In O’Brien the High Court found (at paragraph 58) much to commend the approach to the application of the public interest test by the Tribunal systematically; (a) identifying the public interest factors in favour of disclosing the particular information; (b) identifying the public interest factors which favour maintaining the particular exemption; and then (c) analysing whether the latter interests outweigh the former. We adopt this approach.
The Tribunal identified the following public interest factors:
Factors in favour of disclosure are:
Clear general public interest in the subject matter affecting a substantial number of people.
Promotion of good government through openness, transparency, and accountability.
Facilitating an improved standard of constructive public debate.
Enhancing public understanding of the position taken by the government and improving public trust and confidence.
Factors in favour of maintaining the exemption are:
LPP is a long-standing and fundamental principle of justice. LPP safeguards the right of clients to obtain legal advice in confidence so they can take informed decisions on the application of the law.
The importance of officials being able to consult lawyers in confidence and explore the legal parameters of issues for the sake of reaching the right answer and acting lawfully.
Disclosure of legal advice has high potential to prejudice the public authority’s ability to defend its legal interests, whether by exposing its legal position to challenge or by diminishing the reliance placed on securing legal advice.
From theCLOSED material, there is no indication of advice having been misrepresented or disregarded. Nor does it show evidence of unlawfulness by reason of malfeasance, fraud, corruption or otherwise. The harm to the DfE from disclosure is not likely to be slight, as the Appellant suggests. The ramifications are potentially wide not least if officials are unable to obtain full and frank advice for fear of intrusion or disclosure. The Appellant disagrees with the stance taken by DfE on the question of a duty of care in further education, but that does not illustrate a significant lack of appropriate transparency.
In undertaking the balancing exercise, the scales start empty and are level. There is a strong public interest in nondisclosure in-built into LPP. At least equally strong countervailing considerations are required to override the inherent public interest in clients being able to consult with their lawyers without fear of intrusion.
As set out inR v Derby Magistrates' Court, ex p. B [1995] UKHL 18 [at 58] the principle that runs through all these cases is that “a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
The Tribunal acknowledges and gives effect to the significant weight to be afforded to the exemption. The DfE is not required to provide “concrete evidence of harm”. The factors we have identified in favour of the maintaining the exemption are of a general character as is invariably the case. That does not diminish in any way the weight or significance to be attributed to those factors.
The age of the legal advice is relevant. Generally, the more time that has passed the more likely that disclosure would be favoured. The Tribunal must consider the public interest as matters stood at the time the DfE refused the Request on 26 October 2023. At that time, the legal advice was quite recent, which weighs in favour of maintaining the exemption.
There was specific advice given over how to articulate general legal principles in a public context. Even where general legal principles are mentioned, it was still answering a specific question. This is not a case of advice simply giving guidance as to the general approach of the public authority. The recipients of the advice can have confidence that the advice answered specific questions being raised.
There is no evidence that advice on the topic has already been disclosed by revealing the content of the advice to such an extent that it can be claimed to be a specific consideration in favour of disclosure despite LPP.
There is plainly public interest in the legal duty of care for students in higher education. That interest extends to the content of the legal advice that informed the answers provided in response to the petition. There are patently welfare issues associated with the subject matter of a duty of care. That does not mean those same issues arise when considering the Request. When focussing on FOIA, it has not been demonstrated that there is a threat to students’ lives and safety due to non-disclosure of the legal advice. Whilst the full transparency to be achieved from disclosure of the legal advice is clearly important, it does not suffice to provide an overriding interest. It is a factor to be weighed amongst others.
Conclusion
The Tribunal is not satisfied that clear, compelling, and specific justification has been shown for disclosure so as to be of at least equivalent weight to the obvious interest in protecting communications between lawyer and client, which the client properly supposes to be confidential. Having very carefully weighed up all the factors advanced for and against disclosure, the Tribunal is satisfied in all the circumstances of the case that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.
Accordingly, we find that the Decision Notice is in accordance with the law. The appeal is dismissed.
Signed: Judge Saward Date: 28 July 2025