Case Reference: FT/EA/2025/0469
Information Rights
Heard by Cloud Video Platform
Heard on: 18 June 2026
Decision given on: 24 July 2026
Before
JUDGE HARRIS
JUDGE WORTH
MEMBER PEPPERELL
Between
POST OFFICE LIMITED
Appellant
and
1. THE INFORMATION COMMISSIONER
2. ELEANOR SHAIKH
Respondents
Representation:
For the Appellant: Robin Hopkins KC
For the First Respondent: Will Perry
For the Second Respondent: Michael Deacon & Georgina Pein
Decision: The appeal is Allowed
Substituted Decision Notice:
Reference IC-421047-J6V0
Post Office Limited
1. The withheld information engages section 42(1) and public interest lies in maintaining the exemption. Accordingly, Post Office Limited was entitled to refuse to disclose the requested information in accordance with section 42 of FOIA.
2. Post Office Limited is not required to take any further steps.
REASONS
Background to the appeal
This appeal concerns a decision of the Information Commissioner (the “IC”) dated 25 November 2025, reference IC-421047-J6V0 (the “Decision”). The Decision was in connection with a redaction in a document released by UK Government Investments Limited (“UKGI”).
The complainant, Ms Eleanor Shaikh, who is the Second Respondent in these proceedings, made an information request to the Post Office (“the PO”) on 8 May 2025. This was against the background of the PO’s Horizon IT scandal, concerning the IT system used by the PO from 1999 to 2017 which contained “bugs, errors and defects” which caused it to produce false data resulting in a large number of criminal convictions and civil judgments against individual postmasters and sub-postmasters.
Ms Shaikh had made a previous request to UKGI on 6 March 2025 which asked for discussions between it and the PO regarding the Swift Review and the PO’s board meeting on 28 July 2020. UKGI redacted a short section of text from one of the emails it disclosed, on the grounds that the withheld information was information in respect of which the PO asserted legal professional privilege (“LPP”). The email with which this appeal is concerned was dated 21 June 2020 and sent by a director of UKGI to others within UKGI and officials at the Department for Business, Energy and Industrial Strategy (“BEIS”, now the Department for Business and Trade).
The request which is the subject of the current proceedings was in the following terms:
“I am requesting that the Post Office remove a redaction applied to document which has been released by UKGI under FOI 1220141 (link below). An email of Tom Cooper of 21 June 2020 (Annex B) reads:
‘Although not a definitive account - and it may well be we will never get one because many of the Board meetings consisted of verbal briefings - the report supports the idea [REDACTION] There is a list in the report. This behaviour seems to have pre-dated Tim Parker’s appointment as Chairman.’
According to UKGI’s response, received today, the Post Office is upholding this redaction on the grounds of its Legal Professional Privilege despite the fact that the body of the document is not protected by LPP and the underlying material which I am requesting to see makes reference to ‘an idea’ which cannot in itself be protected by LPP. I am not asking for disclosure of the report to which this email refers (which may well be protected by LPP), I am seeking disclosure of this particular sentence.
The “report” in this request was a memorandum produced by the PO’s lawyers, Herbert Smith Freehills LLP (“HSF”) to enable the PO to obtain legal advice in connection with preparing for the Post Office Horizon IT Inquiry (the “Inquiry”) and is referred to in this decision as the HSF Memo.
The PO responded on 5 June 2025. It confirmed holding the information but withheld it under section 42(1) of the Freedom of Information Act 2000 (“FOIA”).
Ms Shaikh requested an internal review on 30 June 2025. She expressed concern that:
“The redacted material is not a direct quote from what I accept is a privileged report, it is a third party’s reference to an idea contained within that report. An idea which is formulated independently of a legally privileged document cannot, in and of itself, be subject to legal privilege.”
The PO provided its internal review outcome on 25 September 2025, upholding its previous position. It stated:
“the sentence in question, while authored by a third party, reflects the substance of legal advice provided to the Post Office. It is not merely a general or independent observation. The courts have consistently held that LPP protects not only the direct content of legal advice, but also any summaries, paraphrasing, or references that would disclose or allow inferences to be drawn about the privileged advice. This protection extends to third party communications that reveal or rely upon privileged material, even if those communications are not themselves authored by legal counsel.”
Ms Shaikh contacted the IC on 25 September 2025 to complain about the way her request for information had been handled.
On 25 November 2025, the IC issued the Decision Notice (“DN”). In this, he decided that the withheld information engages section 42(1) of FOIA but that the public interest lies in disclosure. Ms Shaikh, who endorsed the DN, summarised the points highlighted by the IC in the DN as follows:
It was difficult for the IC to “replicate his entire analysis” in the DN given that a fuller discussion of the withheld information would deny the PO its right to appeal (DN at [39]).
LPP is a “fundamental aspect of the legal system to safeguard openness in all communications between lawyer and client” and is “fundamental to the administration of justice” (DN at [32]). The IC recognised the importance of the PO being able to participate in the Inquiry fairly and with access to privileged legal advice (DN at [34]).
While the email containing the withheld information was five years old, the age of the material needed to be viewed against the backdrop of the PO’s “current” need for confidential legal advice (DN at [36]).
The IC recognised the scale and gravity of the impact of the Horizon scandal on sub-postmasters. Given the number of sub-postmasters affected, and the numerous suicides, there is a need for transparency (DN at [37]).
As part of its assessment, the IC took into consideration previous allegations that the PO “has previously gone against the principles of transparency”, in that it has deliberately withheld information from public scrutiny (such as failing to disclose the Swift Review) (DN at [38]).
Abbreviations used in this decision
“BEIS” means the Department for Business, Energy and Industrial Strategy (now the Department for Business and Trade)
“the Decision” and the “Decision Notice” or “DN” mean the IC’s decision dated 25 November 2025 reference IC-421047-J6V0
“FOIA” means the Freedom of Information Act 2000. All references to sections are references to sections of this Act unless otherwise specified
“HSF” means Herbert Smith Freehills LLP, the Appellant’s lawyers, now Herbert Smith Freehills Kramer LLP
“HSF Memo” means the report commissioned by the PO for the purpose of obtaining legal advice in preparation for the Post Office Horizon IT Inquiry.
“IC” means the Information Commissioner, the First Respondent
“Inquiry” means the Post Office Horizon IT Inquiry.
“LAP” means Legal Advice Privilege
“LPP” means Legal Professional Privilege
“the PO” means the Post Office, the Appellant
“the Swift Review” means a 2016 report commissioned by PO on Horizon and was commissioned by former PO Chair, Tim Parker, following a BBC Panorama programme in 2015 which raised concerns about the strength of the evidence against the criminal convictions of sub-postmasters. It was prepared by Jonathan Swift QC (as he then was).
“UKGI” means UK Government Investments Limited
“UT” means the Upper Tribunal, Administrative Appeals Chamber
“Withheld Information” means the withheld information which is the subject of this appeal
Procedural matters concerning the hearing
There were two OPEN sessions attended by all the parties and a CLOSED session which was attended only by the PO, the IC and their representatives.
The Tribunal considered an OPEN bundle of documents (594 pages). The parties also submitted a joint authorities bundle (534 pages) together with an additional document (20 pages). In this decision we refer to page numbers of documents in these bundles with the prefixes OB and AB respectively.
The Tribunal also considered a CLOSED bundle of withheld documents (21 pages). Prior to the hearing an application under rule 14 of the Tribunal Rules had been made as regards the withheld and other CLOSED material and an order made that disclosure of the information contained in the CLOSED bundle should not be disclosed or published to any person other than the IC and PO in this case pending further order.
The following gist of the CLOSED session was approved by the Tribunal and provided to Ms Shaikh:
“Mr Hopkins showed the Tribunal the withheld information and the underlying HSF Memo. He explained how this material related to Project Brisbane more generally.
Mr Perry made submissions with reference to the withheld material and the HSF Memo.
He submitted that the withheld material was a matter of significant public interest. In response to questions from the Tribunal, Mr Perry clarified that the public interest arose primarily from the substance of matters set out in the withheld information. He also submitted that the withheld information was relevant to Ms Shaikh’s arguments that disclosure would shed light on what was known by BEIS and UKGI.
Mr Perry made submissions comparing the summary provided by Mr Cooper with the contents of the HSF Memo. He also relied on the start of the paragraph containing the withheld information, which contained the caveat “Although not a definitive account”.
Mr Perry made submissions about the nature and level of detail of the withheld information in relation to the Post Office’s suggestion that disclosure would prejudice defence rights in the context of criminal and regulatory investigations.
Finally, Mr Perry made submissions about the extent to which the matters addressed in the withheld information were already addressed in Mr Cooper’s evidence to the POHIT Inquiry.
Mr Hopkins responded for the Post Office. He first made submissions about the relationship between the withheld information and the HSF Memo. Mr Hopkins suggested the Commissioner’s primary case on the public interest in disclosure was that disclosure would reveal the content of the HSF Memo.
Mr Hopkins accepted that Mr Cooper’s evidence to the POHIT Inquiry was not as detailed as the contents of the HSF Memo. However, he submitted this was not relevant to the public interest balance as the underlying documentary materials were before the POHIT Inquiry. Mr Cooper did not appear before the POHIT Inquiry as a witness on behalf of Post Office.
Mr Hopkins made further submissions with reference to the nature and purpose of the HSF memo. He submitted that the HSF Memo was not limited to summaries of factual matters but also contained legal and evaluative assessments by HSF.
Mr Hopkins took the Tribunal to an example within the HSF Memo of the kind of material which might be liable to prejudice fair trial rights.
Ms Pepperell asked about the (already disclosed) part of the Mr Cooper email stating “There is a list in the report”. Mr Hopkins explained that Mr Cooper was not his client, and Post Office could thus not say exactly what he was referring to, but provided his best understanding of what it was that Mr Cooper was referring to – namely to a list of documents referred to within the HSF Memo. Those documents were provided to the POHIT Inquiry.
Mr Perry made two submissions in reply. First, he noted that Mr Hopkins’ arguments regarding prejudice to criminal and regulatory investigations were dependent on the Post Office’s arguments regarding the risk of loss of privilege over the HSF Memo. Second, he further clarified that the public interest in disclosure stemmed from the underlying issues referred to in the withheld information, rather than the specific advice given by HSF in the Memo.
Ms Pepperell asked Mr Perry whether the public interest in disclosure could be met by members of the public accessing the contemporaneous documents considered as part of Project Brisbane from the POHIT Inquiry and reaching their own views on what these said. Mr Perry responded by explaining that he was unaware of whether these documents were available and readily accessible to the public. Having taken instructions, Mr Hopkins has confirmed that Post Office’s understanding is that at least the majority of those documents will have been made public by the POHIT Inquiry, but decisions on what the POHIT Inquiry publishes are its decisions and not those of Post Office.”
Having considered all the evidence, the Tribunal’s view was that the reasons for its decision could be properly set out in an OPEN decision and therefore did not prepare a separate CLOSED decision.
The Appeal
The PO appealed the Decision to the Tribunal on 19 December 2025 and stated that the Decision was wrong because the IC both underestimated the weight of the public interest in maintaining LPP rights in respect of the withheld information and overestimated the public interest in the disclosure of the withheld information.
In summary, it made the following points in relation to the public interest in maintaining LPP:
The IC gave insufficient weight to LPP in light of the authorities which indicate the fundamental role it plays in the administration of justice.
In stating at paragraph 33 that “strong circumstances are needed to override [LPP]”, it substantially understated the position recognised by the authorities in the FOIA context. There is a powerful in-built interest in maintaining the section 42(1) exemption; this exemption has the greatest inherent weight of any FOIA qualified exemption. The IC applied too low a threshold for the disclosure of privileged information under FOIA.
The IC erred by assessing the impact of the disclosure of the redacted text in isolation. It should have also given substantial weight to the fact that disclosure of the withheld information would compromise the PO’s ability to maintain LPP in respect of the wider HSF Memo.
The HSF Memo was commissioned to assist the PO with its preparations for the Inquiry, which would entail exacting scrutiny in a public forum. It is extremely important for a client and its lawyers to be able to communicate freely and frankly on confidential terms in such circumstances. The IC failed to give any or adequate weight to this factor.
The PO is subject to an ongoing police investigation to which the issues addressed in the HSF Memo are or may be relevant. Disclosure could harm the PO’s ability to defend itself in that context, which could compromise its right to a fair trial.
Similarly, there are regulatory investigations underway by the Solicitors Regulatory Authority and Bar Standards Board. It is strongly in the public interest to protect the LPP rights of and fairness to the subject(s) of such investigations.
The IC should have given weight to the fact that the Inquiry itself respected the PO’s LPP rights over the HSF Memo. This reflects that, even for the purposes of an important public inquiry, LPP rights are too weighty to be overridden.
The IC erred in giving less weight to the public interest in maintaining the exemption because the report was 5 years old and the redacted text was not “recent information” (DN paragraph 33). The information was recent and directly relevant to matters live at the time of the request. LPP rights do not diminish over time.
In summary, it made the following points in relation to public interest in disclosure of the redacted text:
By the time of the request, the public interest in the issues giving rise to the HSF Memo was already being adequately served by the Inquiry and had also been served by the oral evidence given to and tested before the Inquiry. This included evidence from the sender of the email containing the redacted text. These materials, including witness statements and recordings of the Inquiry sessions were and remain publicly available.
At the time of the request, it was known the Inquiry would produce public reports of its findings and conclusions in the near future. Volume 1 of this was published shortly after the PO responded to this request.
In all the circumstances, the public interest in the underlying issue was already being adequately served by the Inquiry in ways that were rigorous, detailed and transparent without interfering with LPP rights.
The IC’s response to the Appeal
The IC filed a response to the Appeal dated 11 February 2026, opposing it and inviting the Tribunal to dismiss it.
In summary, he made the following points in relation to the public interest in maintaining LPP:
The test for disclosure is not one of exceptionality. As set out in Bellamy v Information Commissioner & the Secretary of State for Trade and Industry (EA/2005/0023), where the Tribunal stated at §35 that: “As can be seen from the citation of the legal authorities regarding legal professional privilege, there is a strong element of public interest inbuilt into the privilege itself. At least equally strong counter-vailing considerations would need to be adduced to override that inbuilt public interest. “. There is no inconsistency between this, the IC’s guidance and cases such as DBERR; there was therefore no failure at paragraph 33 of the DN to give due weight to the importance of protecting LPP.
The PO’s argument assumes that disclosure of the withheld information would result in loss of privilege over the HSF report.
The IC clearly at paragraph 34 of the DN accounted for the PO’s need to communicate freely and frankly with lawyers in preparation for the Inquiry.
The IC does not consider the points about the police and regulatory investigations merit any weight in the highly generalised way the PO puts them in the grounds of appeal.
The IC is unaware of any statutory or other power that would allow the Inquiry to compel disclosure of legally privileged material.
The age of the advice did not weigh heavily in the IC’s overall analysis of the public interest balance.
In summary, he made the following points in relation to public interest in disclosure of the withheld information:
The importance of the Inquiry was recognised at paragraph 34 of the DN, which stated that it “is the main source of scrutiny”.
There is no suggestion that the matters specifically raised in the withheld information were addressed by Volume 1 of the Inquiry Report.
The PO recognised that the public scrutiny arising from the Inquiry had increased the public interest in transparency. The IC agreed with this at paragraph 31 of the DN.
Ms Shaikh’s response to the Appeal
Ms Shaikh filed a response to the appeal on 12 February 2026. In this she stated that she fully supported the IC’s Decision Notice. In summary, she made the following points:
The decision to redact the withheld information was made by the PO.
The exemption in section 42(1) may be overridden in circumstances where there is an overwhelming public interest case for disclosure.
There is no reason to believe the HSF Memo itself was shared with the Inquiry. There is no reference to the existence or content of it either in the oral evidence of Tom Cooper dated 10 July 2024 or in his witness statement.
The LPP was compromised when details of the relevant HSF Memo were shared by Tom Cooper in his email. This email was not itself marked as privileged nor were its contents identified by the author as being subject to LPP in whole or in part. Mr Cooper, as a senior civil servant and UKGI director, ought to have been fully aware his correspondence was potentially disclosable under FOIA. Only one of the email’s recipients was legal counsel, who was not the PO’s legal adviser in this context. Whether this constitutes a breach of LPP depends on whether disclosure of PO information from UKGI to the recipients of the email constitutes a waiver of LPP.
There was no common interest privilege between Mr Cooper and the recipients of the email.
She states “The prospect of shareholder intervention laid out by Cooper in this email, more than anything, alerts us to the gravity of the contents of the HSF report and of the comment which underlies the redaction; this, in turn, give measure of the significant public interest in favour of disclosure.”
Legal Framework
Section 42(1) FOIA provides that “[i]information in respect of which a claim to legal professional privilege… could be maintained in legal proceedings is exempt information.”
As the Upper Tribunal explained in Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC), at §62, the exemption is “coterminous with the doctrine of legal professional privilege, which the exemption is designed to protect”.
There are two types of LPP - litigation privilege and legal advice privilege (“LAP”). Litigation privilege covers documents brought into being for the dominant purpose of litigation. LAP applies to confidential communications between a lawyer and client in a relevant legal context, where those communications are made for the dominant purpose of giving or receiving of legal advice. This includes communications that form part of a “continuum” which aims to keep client and lawyer informed so that legal advice may be given as required: Balabel v Air India [1988] Ch 317; Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35 (“Jet2”).
LAP extends not only to questions of whether a course of action is lawful, but also for example to “advice as to what should prudently and sensibly be done in the relevant legal context”: Balabel v Air India; Three Rivers Council v The Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610.
The concepts of LAP and the “continuum of communications” must be applied broadly provided the other conditions (lawyer client legal context, confidentiality) are met: see e.g. Jet2 at [69] and the authorities discussed there.
LPP is “a fundamental condition on which the administration of justice as a whole rests”: R v Derby Magistrates' Court ex parte B [1996] AC 487 at page 507C-D. LPP is so important that it “should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else…”: Three Rivers (No 6) at [34].
LAP is “a corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice”: R (Morgan Grenfell & Co Limited) v Special Commissioner of Income Tax [2002] UKHL 21; [2003] AC 563 per Lord Hoffmann at [7]. In the FOIA context, the weight of the public interest in maintaining LPP is well established by the authorities. See e.g. DBERR v O’Brien [2009] EWHC 164 (QB) at [35]-[38] and Savic v Information Commissioner & Attorney General’s Office & Cabinet Office [2016] UKUT 534 (AAC) at [26]-[34], [44] and [47]. There is a powerful in-built public interest in maintaining the section 42(1) FOIA exemption; indeed, of all the qualified exemptions under FOIA, section 42(1) has the greatest inherent weight. Disclosure requires “some clear, compelling and specific justification”: DBERR at [36]-[37]. However, although we heard arguments on this during the hearing, we did not accept that a test of exceptionality was required, as the case from which this was drawn (Aitchison) was not concerned with the exemption in section 42(1).
The public interest balancing test
This applies to section 42 as a qualified exemption.
There is no presumption in favour of disclosure under FOIA. Instead, the focus needs to be on the content of the particular information in dispute: Department of Health v IC and Lewis [2015] UKUT 159 (AAC) at paragraphs 33 and 38.
When determining whether or not the public interest test is met, the Tribunal’s task is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure would (or would be likely to or may) cause or promote: APPGER v IC [2013] UKUT 560 at [74]-[76] and [146]-[152].
Where more than one exemption applies, the public interest in maintaining the exemptions should be considered cumulatively: Department for Business and Trade v IC & Montague [2025] UKSC 27; [2025] 1 WLR 3456 at [34]-[52].
This has been described as a three-stage test: The first step is to identify the values, policies and so on that give the public interests their significance. The second step is to decide which public interest is the more significant. In some cases, it may involve a judgment between the competing interests.
In other cases, the circumstances of the case may (a) reduce or eliminate the value or policy in one of the interests or (b) enhance that value or policy in the other. The third step is for the tribunal to set out its analysis and explain why it struck the balance as it did: O’Hanlon v IC [2019] UKUT 34 (AAC) at [15]. Any factor that is capable of affecting the operation of those values and policies is relevant to the balancing exercise. That includes both the content of the information and the possible consequences of disclosure or non-disclosure. The arguments presented may be general in their nature or unique to the information in issue. But the test is not an abstract one; the issue is always whether the information covered by the request should be disclosed: NHS England v IC and Dean [2019] UKUT 145 (AAC) at [15].
The public interest balancing test should be carried out by reference to the circumstances pertaining on the date on which the request for information ought to have been dealt with pursuant to FOIA (section 10(1) FOIA: within 20 working days following receipt of the request): Montague v IC and DIT [2022] UKUT 104 (AAC) at [47]-[90] (see Cabinet Office v IC [2025] UKUT 114 (AAC) at [113]). When weighing the public interest, the tribunal should take into account “the actual effect that disclosure could have rather than the effect it should have”.
On the specific application of the public interest test to the section 42(1) exemption:
The exemption in section 42(1) attracts significant in-built weight in favour of non-disclosure, as explained by Wyn Williams J in DBERR v O’Brien v Information Commissioner [2009] EWHC 164 QB at §§41 and 53. Paragraph 41 states “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”.
Second, “[h]owever strong the public interest against disclosure, it does not convert a qualified exemption into one that is effectively absolute”: Corderoy and Ahmed v Information Commissioner [2017] UKUT 495 (AAC), at §68. As the Upper Tribunal recognised in Savic v Information Commissioner [2017] UKUT AACR 26, at §30: “FOIA has not followed the approach taken by the courts [generally] to LPP … in that it has introduced a public interest test…”:
A public authority seeking to rely on the exemption must establish that the “powerful” public interest in non-disclosure “outweighs the competing interest in favour of disclosure if the exemption is to apply”: Corderoy and Ahmed at §68. However, there is no test under which “exceptional circumstances” must be shown before the public interest in disclosure of legally privileged information will be held to outweigh the public interest in maintaining the exemption in section 42: DBERR at §41.
Whilst an “in-built” weight is invariably afforded to the public interest in non- disclosure, the overall weight to be given to the exemption may vary depending on other factors: DBERR at §53; Callender Smith v Information Commissioner [2022] UKUT 60 (AAC) at §50.
The Role of the Tribunal
The Tribunal’s remit is governed by section 58 FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the IC’s decision involved exercising discretion, he should have exercised it differently. If we are satisfied that the IC’s decision notice is in error of law or involves an inappropriate exercise of discretion, then we will allow the appeal and may substitute a decision notice for that of the IC. The Tribunal may receive evidence that was not before the IC and may make different findings of fact from the IC.
Issues
It was common ground between the parties that the exemption in section 42(1) is engaged. Having reviewed the withheld information and considered it in all the circumstances of the case, the Tribunal was also satisfied that this exemption was engaged.
Accordingly, the sole issue for the Tribunal is whether the IC erred in his assessment of the public interest balance.
Discussion and conclusions
Having decided that section 42(1) is engaged, as it is a qualified exemption we proceeded to consider the balance of public interest.
Following the judgment in APPGER, we need to apply a three-stage process to determining where the balance of public interests lies. This involves considering:
The harm or prejudice which would result from disclosure;
Factors in favour of disclosure; and
Factors in favour of maintaining the exemption.
The harm or prejudice which would result from disclosure
From the evidence and submissions provided by the parties, we identified the following harm which it was said would result from disclosure:
The PO said at paragraph 14(3) of its GOA (OB A31) that “disclosure of the redacted text would compromise [PO]’s ability to maintain LPP in respect of the wider HSF report”.
It suggested at paragraphs 14(5) and (6) (OB A32) that disclosure of the redacted text could harm the PO’s ability to defend itself and fairness in the context of police investigation and/or subsequent trial. Similarly, it noted that the Solicitors Regulatory Authority and Bar Standards Board are also investigating; disclosure may cause the subjects of those investigations to lose LPP rights and/or affect fairness. This was disputed by Mr Perry in his oral submissions, where he described these as speculative assertions unsupported by evidence.
Ms Shaikh, in her email requesting an internal review (OB B56) stated that “the underlying sentence which the [PO] is seeking to withhold has the potential to cause embarrassment and reputational damage to the PO; it is suggestive of negative behaviours.”
The PO in its letter to the IC dated 22 October 2025 (OB B85) says that “Disclosure of the withheld information would harm [the principle of LPP] and potentially lead to disclosure of other, connected material that shares the same legal privilege. To waive legal privilege in this case will undermine the approach taken to legal privilege and agreed with the [Inquiry] in two wide waiver of privilege agreements, which included very limited exemptions.”
Mr Hopkins, for the PO, stated at paragraph 52 and 53 of his skeleton that disclosure of the redacted text would expose PO to arguments that its privilege rights had been waived or lost by virtue of loss of confidentiality in relation to other, related, information and that this was not a speculative risk.
Factors in favour of disclosure
From the evidence and submissions provided by the parties, we identified the following factors in favour of disclosure:
The IC, at paragraph 30 of the DN (OB A10) noted that the PO in its initial response to the request dated 5 June 2025 (OB pB53) had recognised its commitment to transparency and in enabling the public to better understand how it worked. It also recognised that the public interest is increased given the Horizon IT scandal and the public scrutiny that followed, particularly through the Inquiry.
The IC states at paragraph 31 of the DN (OB A10) that there is “an undeniable public interest in the Inquiry and this, to a certain extent, extends to the legal advice contained within the report”.
Ms Shaikh, in her letter dated 30 June 2025 requesting an internal review (OB B56) says that the fact the negative behaviours referred to in the redacted text were suspected of having existed previously and were serious enough to be brought to the attention of the Permanent Secretary is potentially of great public interest given the ongoing Inquiry.
Ms Shaikh’s First witness statement at paragraph 17 states that issues covered in the HSF report fall unequivocally within scope of the Inquiry. At paragraph 19 (OB C391) she says that the unredacted email will reveal the substance of the HSF report “in such a way as to deepen our understanding of Horizon Issues in two important ways, namely: - It will give insight into what was historically (emphasis in original) known about Horizon Issues by POL and what information was shared with its Board and BEIS. – It will throw valuable light on what was known by BEIS and UKGI in mid-2020 (emphasis in original) regarding POL and its Horizon issues.” She clarifies at paragraphs 21ff that this was in the context of BEIS resisting calls for the Inquiry and describes the HSF report at paragraph 29 as “the one report which may reveal to us exactly what BEIS knew of POL’s failure to share information on Horizon Issues, the one document which might help determine whether POL had failed to fulfil its disclosure obligations as a prosecuting authority”.
Ms Shaikh states at paragraph 42 (OB C397) “Given the existence of POL’s waiver agreement, there is little credibility in POL’s case that releasing information relating to the HSF report may be prejudicial to the ongoing police investigations.”
Paragraphs 4 and 5 of Ms Shaikh’s second witness statement (OB C398) argue that LPP in the findings and implications of “Project Brisbane” and the HSF Memo “has been compromised given such a substantial disclosure of its findings are already in the public domain.” Conversely, at paragraph 43 of the PO’s skeleton argument, it states that there has been no waiver of the PO’s LAP rights in respect of Project Brisbane, including the HSF Memo and the Withheld information. It also states at paragraph 46 “the very limited references to Project Brisbane that Ms Shaikh has unearthed in public documents do not affect the analysis of this case and they have no bearing on the privileged status of the withheld information”.
Mr Deacon, in his skeleton argument for Ms Shaikh, identified the following factors in favour of disclosure:
There is a general public interest in the workings and governance of the PO to be understood. PO is a public entity, operating on taxpayer funds. Further, in this case there is a specific public interest in the need for transparency, accountability and fully informed and open debate. This is particularly so in circumstances in which the Inquiry has committed to thoroughly and transparently investigate for the benefit of victims, Core Participants and the general public. (paragraph 37)
The case for disclosure is stronger in circumstances in which PO’s handling of the Horizon scandal has been uniquely criticised for issues of corporate governance and lack of transparency, with the stated effect being that the flaws in the Horizon system could and should have been identified and stopped sooner. There is also heightened public concern insofar as there has been a historic failure to properly address victims’ injustices. In view of the scale of the scandal and widespread condemnation of PO’s actions, the present case is anything but routine. (paragraph 38)
Disclosure of the redacted email will provide insight into (i) what was known historically about Horizon issues by PO (including what information was shared with the Board and BEIS) and (ii) what was known by BEIS and UKGI in mid-2020. It is in the public interest and fundamentally important for the public to understand what underlies the redaction, as this will likely further understanding of what was known to BEIS in 2020, when it was resisting calls for the Inquiry to be placed on a statutory footing under section 1 of the Inquiries Act 2005. This is not the same as asking for the report itself. (paragraph 39)
The email containing the redacted text was sent around six years ago (and around five years prior to the request). The public interest in disclosure has only ever increased with time (and the justifications for protecting LPP have diminished over the same period, given the ventilation of the key issues in litigation and the Inquiry). It has been recognised that in circumstances where legal advice has served its purpose, there may be a stronger public interest argument in favour of disclosure (and particularly if no harm would be created) Kessler v IC (EA/2007/0043) at [73]. In circumstances in which the evidence gathering stage of the Inquiry has now concluded, PO’s contentions concerning inherent weight in maintaining the exemption carry less force. (paragraph 41)
Ms Shaikh rejects the contention that the public interest in the issues giving rise to the HSF Report are already being “adequately served” by the Inquiry. Her understanding is that (i) the HSF Report has not been shared with the Inquiry and (ii) the Inquiry is likely unfamiliar with the contents of the HSF Report. The existence of ‘Project Brisbane’ and the fact that terminology refers to the HSF Report has only surfaced as a result of the evidence gathering collection which was done as part of the various Inquiry hearings which took place between 2022 and 2024. For years the existence, nature and significance of Project Brisbane have been unknown. It is only recently that the true significance of Project Brisbane has come to light. Such lack of scrutiny by the Inquiry and more generally is a factor that weighs in favour of disclosure. It is clear from the snippets of information which have surfaced that Project Brisbane has great relevance to the Horizon Scandal and that its contents would, if made public, shed significant light on the states of mind of various important members of PO during the time that the scandal was taking place. Robust, detailed and properly informed debate on such issues cannot take place without disclosure of the redacted email. It is conceivable that privilege has already been waived through the repeated references to Project Brisbane in UKGI’s Preliminary Inquiry, and at the very least Project Brisbane is sufficiently in the public domain such that arguments in favour of withholding disclosure are diminished accordingly. (paragraph 43 and 44)
There is an additional public interest in the police being made aware of what is stated in the withheld email about the HSF Report. There is also a further public interest in disclosing a reference to what the Report contained so that third parties such as the police can make an informed decision about whether it is or is not of interest to them. If the Report is relevant to any of the police’s inquiries and ongoing criminal investigation, then there is a public interest in the information being disclosed so that the police can conduct a fully informed investigation. (paragraph 46)
The PO’s claim to LPP and concerns of waiver should rightly be weighed against and considered alongside the prejudice which various victims of the Horizon scandal may suffer in their own civil legal proceedings by the apparent secrecy that appears to surround Project Brisbane. The withholding of information about the nature and suspected conclusions of the HSF Report serves to deny those individuals the opportunity to properly refer to it in the course of submissions that they may seek to make about the PO’s corporate state of mind and its institutional knowledge of wrongdoing relating to Horizon prior to the commencement of the Inquiry. If there is significant information in the withheld email, then the justice which would be served to those victims could likely outweigh the PO’s claim to LPP in the circumstances. (paragraph 47)
In his oral submissions Mr Deacon, in summary, made the following additional points:
Ms Shaikh accepts that “bad guys get privilege too”. However, in this case we are not dealing with a bad guy but a bad institution and acts and omissions which occurred with wide ranging consequences. The public interest in this is sufficient to override privilege.
Since 2020 the public interest in preserving privilege over the withheld information has diminished and public awareness of the issue has grown.
The withheld material is relevant to the knowledge and understanding of senior individuals within BEIS/UKGI in mid-2020.
Factors in favour of maintaining the exemption
From the evidence and submissions provided by the parties, we identified the following factors in favour of maintaining the exemption:
The IC stated at paragraphs 32 and 33 of the DN (OB A10) that the general public interest inherent in this exemption will always be strong due to the importance of the principle behind LPP. It states that “it’s a fundamental part of the legal system to safeguard openness in all communications between client and lawyer. This ensures access to the fullest and frankest of legal advice, which in turn is fundamental to the administration of justice.” It continued “Essentially, protecting the fundamental concept of LPP is so important that strong circumstances are needed to override it.”
The PO stated at paragraph 14(3) of its GOA that the public interest to safeguard not only the redacted text but the HSF report more widely is “very weighty”
It goes on at paragraph 14(7) to note that the Inquiry did not intrude into the PO’s LPP rights and suggested that “even for the purposes of an important public inquiry, LPP rights are too weighty to be overridden.”
At paragraphs 15 (1) and (2) (OB A32-33) it argues that the public interest (in transparency and scrutiny) was served by the oral and written evidence given to the Inquiry and the incremental public interest benefit of the disclosure of the redacted text was much less than the IC found.
The PO’s skeleton argument, which Mr Hopkins amplified in his oral submissions during the hearing, makes the following points:
At paragraph 50, Mr Hopkins argued that the relevant authorities under FOIA show that LPP rights can only be outweighed where there is specific and sufficiently compelling justification.
At paragraph 53, Mr Hopkins argued that the general public interest in maintaining LPP rights in relation to privileged material is strengthened in this case “because the disclosure of this privileged information risks undermining LPP rights in respect of other, related information. The IC took too narrow an approach, by focusing solely on the withheld information in isolation.”
In paragraph 54(1), he said that “It is extremely important for Post Office to maintain its LPP, not merely for the general reasons (i.e. reasons applicable to LPP in all circumstances) outlined above, but additionally because of the context for Project Brisbane. Project Brisbane was commissioned to assist Post Office with its preparations for the POHIT Inquiry, which would entail inter alia Post Office being subjected to exacting scrutiny in a public forum. It is extremely important for a client and its lawyers to be able to communicate freely and frankly on confidential terms in such circumstances. The IC failed to give any or adequate weight to this additional factor arising from the circumstances of this case”.
At paragraph 54(2) he said “The IC should also have given weight to the fact that the POHIT Inquiry itself respected (i.e. did not seek to intrude into) Post Office’s LPP rights over documents post-dating 26 February 2020. As is common ground in this appeal, Post Office maintained LPP over Project Brisbane reports (but not the underlying documents themselves) and did not provide them to the POHIT Inquiry. This reflects that, even for the purposes of an important public inquiry, LPP rights are too weighty to be overridden.” He added “It is fundamentally wrong and contrary to the public interest to require Post Office to make public privileged information that exists to assist it with the – ongoing – POHIT Inquiry.”
Mr Hopkins argued at paragraph 54(3) that the information in the redacted text was recent (not least given the ongoing Inquiry), and directly relevant to matters live at the time of the request. He noted that LPP rights do not diminish over time.
At paragraphs 54(4), Mr Hopkins noted that the PO was under ongoing police investigation to which the issues addressed in the HSF memo are or may be relevant. He said “Disclosure of the redacted text could harm Post Office’s ability to defend itself in the course of that investigation and/or any ensuing prosecution that might arise, thereby compromising Post Office’s right to a fair trial. It is very strongly in the public interest to protect a potential defendant to criminal proceedings from suffering a loss of LPP rights and the loss of a fair trial. The Memo adds something meaningful and distinctive to the underlying documents on which it draws (which have been disclosed to the POHIT Inquiry), in that it includes the analysis by Post Office’s professional legal advisors of that material: this is exactly the kind of communication that LAP is designed to protect.”
He noted in paragraph 54(4) that there are ongoing SRA and BSB regulatory investigations to which issues in the Memo are or may be relevant. He says “It is strongly in the public interest to protect the subject(s) of such investigations from suffering a loss of LPP rights and unfairness in those investigations”.
At paragraph 56, Mr Hopkins also argued that “the IC significantly overestimated the public interest in the disclosure of those few words. The disclosure of those few words would be very strongly contrary to the public interest…but it would do very little good in terms of public understanding and scrutiny.” He goes on to explain at paragraph 57 that the withheld information is Mr Cooper’s paraphrase of a memorandum of legal advice, but that the parties to the email are being asked to consider the memo itself when it is subsequently circulated. He comments “the Withheld Information is not a definitive pronouncement and it is not the basis for any decision-making. The need for scrutiny and accountability in respect of this internal comment in a single email is very limited.”
He notes at paragraph 57(2) that the PO is not a party to the email containing the Withheld information and not involved in Mr Cooper’s paraphrasing and thus “Post Office’s LAP material is the wrong target for transparency and scrutiny about the actions and decisions of other public authorities.”. He further argues in paragraph 57(6) that “In all the circumstances, the public interest in the underlying issues was already being adequately served via the POHIT Inquiry in ways that were rigorous, detailed and transparent, without interfering with LPP rights. The incremental public interest benefit of the disclosure of this particular redacted text was much less than the IC found.”
In his oral submissions during the OPEN part of the hearing, Mr Hopkins, in summary, made the following additional points:
The PO’s real concern underlying this case is the eroding of its ability to assert LAP over the underlying substance of the HSF Memo to which Mr Cooper refers in his email.
It is important, following Lewis, to focus on the words which form the withheld material in this case. The words in Mr Cooper’s email were a commentary, paraphrase or distillation of his reading of the HSF Memo. These words in one email deliver very little in terms of public interest and in any event those substantive issues to which it refers were already the subject of the Inquiry’s evidence stage.
The Inquiry has decided not to have “side channels” where the public can probe privileged material; had it done so, that would not have been a good way of furthering public interest, and indeed would have been contrary to it.
Project Brisbane is not one document, but a project name used by HSF to cover multiple strands of legal advice to assist the PO in preparing for the Inquiry.
Publication of legal advice would make it very difficult for the PO to receive a fair trial in any criminal proceedings.
Disclosure would result in significant harm in terms of damage to LPP, but there would not be a significant incremental public good over and above those matters with which the Inquiry is already engaged.
Discussion and conclusions on public interest
In relation to the harm which would be caused by disclosure, and thus the significance of the public interest, we considered that the key harm was that if the withheld information was disclosed, this would represent a significant erosion of the operation of LAP and LPP generally.
We also considered that, in this specific context, where the PO is publicly owned, with UKGI acting on behalf of the Secretary of State, disclosure of the withheld information would restrict the ability of a publicly owned body such as the PO to communicate with its owner and would harm the relationship between the owner/shareholder and the body itself. In our view, this would not be in the public interest because it is in the interests of the taxpayer that this relationship functions properly.
We considered that the need for LPP to be preserved weighed very strongly in favour of maintaining the exemption. It is not overstating to say that, as was set out in the Derby Magistrates’ Court case referred to above, LPP is a fundamental condition for the administration of justice and there would need to be very significant countervailing public interests to outweigh the need for it.
In considering factors in favour of maintaining, we also gave some weight to the following:
At the time of responding to the request, it was already in the public domain, including through the oral evidence of Mr Cooper to the Inquiry, concerning documents which had and had not been shared with the PO’s board. We considered that disclosure of the withheld information in this instance would not advance public understanding of this or transparency in any meaningful way.
We gave significant weight to the potential knock-on effects of disclosing the withheld information to criminal and regulatory investigations and possible future proceedings, noting that disclosure would be likely to erode the ability of those involved to have a fair hearing. We noted that these were still live issues.
We also noted that the Inquiry is still live, and that it would cause significant prejudice to the PO if its legal advice obtained to help it prepare for that were disclosed.
Against this, in considering the factors in favour of disclosure, we took into account the following:
We gave strong weight to the public interest in knowing what the Board and management of the PO knew. This was increased in light of the evidence of Mr Cooper to the Inquiry as to documents that had and had not been shared with the PO’s board.
We also gave weight to the public interest in knowing Mr Cooper’s opinion as a senior person within BEIS/UKGI and thus a guardian of taxpayer money in light of these previous criticisms.
We gave some weight to the passage of time since the email was sent, but considered that this was reduced because the litigation and Inquiry are still ongoing and the contents of the withheld information are potentially relevant to those.
We gave less weight to the arguments that the PO had waived its LPP by providing some privileged material to the Inquiry because that was not its live legal advice obtained in preparing for the Inquiry.
The suffering experienced by the victims of the Horizon IT scandal should not be minimised, but it is one factor to be taken into account and is not, by itself, determinative.
Taking all these reasons and all the circumstances of the case into account, although our decision was finely balanced, we concluded that the public interest weighed in favour of maintaining the exemption under section 42(1) and that the withheld information should not be disclosed for that reason.
The appeal is therefore allowed and the Tribunal has substituted its own decision notice for that issued by the IC.
Signed: Judge Harris Date: 23 July 2026