Keith Kennaugh v The Information Commissioner

So far as relevant to the issues which we needed to determine in the appeal, the Appellant’s grounds of appeal were based on his views that (in summary):

The Appellant’s grounds of appeal also set out various points in support of his view that the Public Interest Test favoured disclosure of the Wider Information. In summary, the material aspects of those points were that:

The powers of the Tribunal in determining the appeal are set out in section 58, as follows:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”.

In summary, therefore, the Tribunal’s remit for the purposes of the appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

The proceedings were held by the cloud video platform. The Tribunal Panel and the Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

The Commissioner did not attend the hearing and was not represented, having previously indicated that he was content for matters to be dealt with on the papers.

There were no interruptions of note during the hearing.

The Tribunal read and took account of an open bundle of evidence and pleadings, as well as a closed bundle. The closed bundle contained the Wider Information.

All of the contents of the bundles, including all of the submissions of the parties (as well as the Appellant’s submissions during the hearing) were taken into account, even if not directly referred to in this decision.

Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides:

“Any person making a request for information to a public authority is entitled—

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.”.

In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides:

“Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”.

Accordingly, section 1(1) does not provide an unconditional right to be told whether or not a public authority holds any information, nor an unconditional right of access to any information which a public authority does hold. The rights contained in that section are subject to certain other provisions of FOIA, including section 2.

Section 2(2) addresses potential exemptions to the Duty to Disclose. That section provides:

“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—

(a)

the information is exempt information by virtue of a provision conferring absolute exemption, or

(b)

in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”.

The effect of the above is that some exemptions which are set out in Part II of FOIA are absolute and some are subject to the Public Interest Test. Section 2(3) explicitly lists which of those exemptions are absolute (and, pursuant to that section, no other exclusions are absolute). Section 42 (which is relevant for the purposes of the appeal) is not included in that list.

Accordingly, in summary, the exemption to the Duty to Disclose in section 42(1) is subject to the Public Interest Test.

So far as is relevant for the purposes of the appeal, section 42(1) provides:

“Information in respect of which a claim to legal professional privilege… could be maintained in legal proceedings is exempt information.”.

Section 16(1) provides:

“It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.”.

In his grounds of appeal and in his response, the Appellant made reference to issues relating to the Complaint. For example, paragraph 6 of the Appellant’s grounds of appeal stated that ““Are you aware…?” appears to be a simple question.”. The Appellant went on to state that such request also set out the reasons for asking it - namely, that it described the arbitrary curtailment of rights without recourse to a fair hearing (referring to the alleged removal of the right of appeal from the Authority’s ‘unreasonable behaviour’ policy). However, the question “Are you aware…?” (and the associated reasons for asking it) was a question raised by way of the Complaint and was not part of the Request.

As we explained to the Appellant during the hearing, the scope of the appeal (having regard to our jurisdiction as noted in paragraph 17 and summarised in paragraph 18) relates to the lawfulness of the Decision Notice. In making a determination as to whether the Decision Notice was in accordance with the law, the Tribunal can only consider the request for information as addressed in the Decision Notice.

The Appellant also referred, in his grounds of appeal and in his response, to matters such as only one officer at the Authority dealing with the Complaint and potential procedural irregularities relating to the handling of the Complaint. Any such issues are beyond the Tribunal’s powers to determine and fall outside of the scope of the appeal. Likewise, the Tribunal’s jurisdiction does not extend to matters such as any allegations relating to impropriety or other wrongdoing by the Authority and we have no power to consider or determine any such issues. Rather, as we noted, the scope of the Tribunal’s jurisdiction relates to the lawfulness of the Decision Notice.

Accordingly, the issues which we needed to determine in the appeal were whether the Commissioner was correct to conclude in the Decision Notice that:

We should note that, notwithstanding section 1(1), it is not the role of either the Commissioner or the Tribunal to determine conclusively (or, in other words, with certainty) whether or not information is actually held by a public authority for the purposes of that section. The Decision Notice referred to the Commissioner reaching his conclusion, in respect of the Initial Interpretation, that no further information within the scope of the Request was held by the Authority “on the balance of probabilities”. The ‘balance of probabilities’ is the correct legal test to be applied - in simple terms, this means that something is more likely than not to be the case. Accordingly, in determining whether or not information is held on the balance of probabilities, a decision is often reached based on an assessment of the adequacy of the public authority’s searches for the information (where relevant) and any other reasons explaining why the information is not held.

We also consider that it is important to address the nature and scope of the Request, given the Decision Notice’s reference to the Initial Interpretation and the Wider Interpretation (and given some of the Appellant’s submissions referring to matters regarding the Complaint).

We reiterate that the scope of the Tribunal’s remit relates to the lawfulness of the Decision Notice. As the Decision Notice only related to the Request, the appeal under section 57 and our jurisdiction under section 58 only extends to the Request itself (and not the Complaint).

Accordingly, our consideration of the Request was the Appellant’s question: “What is the reason that no complaint was recorded?”. We address the context to that question below.

As we have noted:

The Decision Notice recorded the Commissioner’s view that the Appellant’s “original complaint” to the Authority (referring to the Complaint) did not refer to an alleged violation of Article Six of the Human Rights Act. This was the basis of the Initial Interpretation and why the Commissioner considered that no relevant information was held within the scope of the Request (based on its wording).

The Wider Interpretation (which the Decision Notice referred to as the Commissioner taking a “more pragmatic view”) involved the Commissioner asking the Authority to consider whether it held any recorded information which evidenced the “due consideration” of the Complaint (or a later complaint dated 10 December 2021).

We do not agree with the Commissioner’s view regarding the Initial Interpretation, as we consider that this interpreted the Request too narrowly. In our view, the Wider Interpretation should have been adopted based on the wording of the Request (not considered separately as a potential alternative interpretation for ‘pragmatic’ purposes). This is for the following two reasons.

First, we consider that (in contrast to the Commissioner’s views noted in paragraph 41) whilst the Complaint may not have specifically referred to an alleged violation of Article Six of the Human Rights Act, it was clear from the wording of the Request that it related to the Complaint. This is because the Request specifically referred to the complaint which was sent to the Authority in November 2021. Linked to this, we also consider it relevant that the Authority’s response to the Request, as well as the outcome of its internal review, referred to the Complaint.

Incidentally, we note that the Authority, in providing the Appellant with the outcome to its internal review on 8 April 2024, stated that the additional information it provided (as noted in paragraph 10) was offered “by way of advice and assistance” under section 16. In our view, this was not so much a case of providing advice and assistance pursuant to section 16, but rather was the Authority explaining why it considered that it did not hold the Requested Information. However, we do not consider that more needed to be done by the Authority in respect of its duty to provide advice and assistance under section 16, given that it did provide such additional comments.

Secondly, we also consider that it was clear that the Request (in referring to the Complaint) was seeking information regarding why the Complaint was not recorded. The legal advice which the Commissioner referred to in the Decision Notice (regarding the Wider Interpretation) was plainly related to that issue, as we note further below (see paragraph 54). Consequently, in our view the Wider Information forms part of the Requested Information and should have been taken into account accordingly (as opposed to any separate ‘alternative’ or ‘wider’ interpretation of the Request).

As we noted in paragraph 39, our consideration of the Request related to the Appellant’s question: “What is the reason that no complaint was recorded?”. For the reasons we have referred to, the context to that question (as noted in the preceding wording of the Request) was the Appellant’s statement that a complaint had been sent to the Authority in November 2021 about alleged violation of Article Six of the Human Rights Act – namely, the Complaint.

Accordingly, we find that the Commissioner was wrong to take the view (by way of the Initial Interpretation), that no further information is held by the Authority within the scope of the Request, as we consider that the Wider Information was also within the scope of the Request.

However, our above findings in respect of the nature of the Request and the Commissioner’s conclusions regarding the Initial Interpretation are not material to our overall determination of the appeal in concluding that the Decision Notice was in accordance with the law. This is because the Decision Notice nevertheless considered whether the Wider Information could be withheld by the Authority in response to the Request and we agree with the Commissioner’s conclusions in that regard, for the reasons given below.

Given our finding that the Wider Information was within the scope of the Request, we refer to this below as “Relevant Information”, in order to distinguish this from the Commissioner’s views regarding the Wider Interpretation (and our above analysis of that).

Legalprofessional privilege encompasses ‘legal advice privilege’ and ‘litigation privilege’. Legal advice privilege applies to confidential communications between a lawyer and their client for the dominant purpose of giving or receiving legal advice or assistance (whether the matter is contentious or non–contentious). Litigation privilege extends to protect a wider range of communications, covering confidential communications between clients and lawyers, or either of them and third parties, which are brought into existence with the dominant purpose of being used in litigation (including contemplated litigation).

Based on our assessment of the Relevant Information, we find that it does not relate to existing or prospective litigation. Accordingly, the appeal (so far as it related to section 42(1)) was concerned with the potential application of legal advice privilege, rather than litigation privilege.

Case law has established (Footnote: ²) that the relevant principles which must apply if legal advice privilege attaches to any particular material are that:

Paragraph 32 of the Decision Notice recorded that the Authority had advised that the Relevant Information consists of: communications between a professional legal advisor and client; communications made for the sole purpose of obtaining legal advice and information communicated in the legal advisor’s professional capacity. Paragraph 31 of the Decision Notice also recorded the Authority’s view that the Relevant Information comprised communications providing or obtaining legal advice about proposed actions to be taken regarding how to deal with the Complaint (and another complaint made by the Appellant outside of FOIA).

Based on our assessment of the Relevant Information, we find that it does accord with the Authority’s views of it as outlined in the preceding paragraph. Also, as part of our questions to the Appellant during the course of the hearing, the Appellant accepted that a legal advisor employed by the Authority would still be a lawyer giving advice for the purposes of legal advice privilege.

For the above reasons, we therefore agree with the Commissioner’s findings in the Decision Notice that the Relevant Information falls within the definition of legal advice privilege and that the exemption in section 42(1) is engaged in respect of it.

We therefore turn to consider the associated Public Interest Test.

In respect of factors favouring disclosure of the Relevant Information, paragraph 35 of the Decision Notice recorded that the Authority had recognised: the need for public authorities to be transparent and accountable; the Appellant’s reasonable suspicion of wrongdoing; and that disclosure would encourage better advice and more robust, well-considered decision-making in future. The Decision Notice also reflected that the Commissioner had taken into account, in the Public Interest Test, the public interest in promoting accountability and transparency, particularly around the actions of public bodies.

We recognise and agree with the above as factors favouring disclosure of the Relevant Information.

As noted in paragraph 58, the Authority had considered that the Appellant’s reasonable suspicion of wrongdoing was a factor favouring disclosure of the Relevant Information. This is relevant to the Appellant’s grounds of appeal, in respect of his point there was no evidence to support the Authority’s views (in paragraph 36 of the Decision Notice) that the Appellant’s suspicion of wrongdoing is not reasonable. In that regard, there appears to be some inconsistency between the Authority’s stated view (in paragraph 36 of the Decision Notice) that the Appellant was suspicious of wrongdoing and that such suspicion was not considered to be reasonable, and the Authority’s recognition (in paragraph 35 of the Decision Notice) that the Appellant’s “reasonable suspicion” of wrongdoing is a factor favouring disclosure of the Relevant Information.

That apparent inconsistency may, however, reflect a difference in the Authority’s reasoning regarding the Appellant’s suspicion of wrongdoing in respect of the withholding of the Relevant Information, as opposed to his suspicion of wrongdoing by the Authority at the time of the Request. From the information available to us, it was not clear if that was the case or whether there was indeed such an inconsistency. However, we consider that this is immaterial – this is because we find that it was reasonable for the Appellant to have suspicions of wrongdoing at the time of the Request, based on his view that the right of appeal had been removed from the Authority’s ‘unreasonable behaviour’ policy. This was the concern reflected in the Complaint, which existed at the time of the Request, and we have therefore taken into account that concern (and the associated public interest in transparency and accountability) as a factor favouring disclosure of the Relevant Information. We should stress, however, that whilst we consider that it was reasonable for the Appellant to have suspicions of wrongdoing, we make no findings regarding the merits of his suspicions or regarding any alleged wrongdoing – those issues are outside of our jurisdiction, as we have noted.

The Appellant argued that it was in the public interest to understand the Authority’s rationale for dismissing the Complaint, particularly with regard to his concern that the right of appeal had been removed from the Authority’s ‘unreasonable behaviour’ policy. We have taken that into account as a factor favouring disclosure of the Relevant Information (linked to our comments above regarding the Appellant’s reasonable suspicions of wrongdoing, as well as regarding the public interest in promoting accountability and transparency).

In respect of factors favouring maintaining the exemption in section 42(1), the Decision Notice reflected that the Commissioner had taken into account the importance of maintaining openness in communications between client and lawyer, in order to ensure the provision of full and frank legal advice. The Decision Notice also stated that there is generally an “extremely strong” public interest inherent in maintaining the exemption in section 42(1), because of the importance of the principle behind legal advice privilege (namely, safeguarding confidential communications between a client and their lawyer to ensure access to full and frank legal advice).

We agree with the Commissioner that there is a very strong public interest in maintaining the exemption in section 42(1). Case law has established that:

Consequently, in considering the Public Interest Test, we were required to take into account the substantial inherent public interest in maintaining the exemption under section 42(1). There must be exceptional and extremely strong public interest factors favouring disclosure of relevant information if the inherent public interest in maintaining that exemption is to be outweighed.

Based on our assessmentof the Relevant Information, we find that both the request for, and the provision of, the relevant legal advice was valid and genuine. We do not consider that there was anything improperin respect of the advice which was sought or the advice which was given.

Paragraph 36 of the Decision Notice recorded the Authority’s concern, as a factor favouring maintaining the exemption in section 42(1) to withhold the Relevant Information, that its legal advisor may be deterred from giving full and proper legal advice, for fear it would later be disclosed.

As we have noted, the Appellant stated in his grounds of appeal that it was inappropriate to conclude that the Authority’s legal advisor would be deterred from giving full and proper legal advice in the future, if the Relevant Information was disclosed. He argued that “If a lawyer gives full and proper legal advice, then they should have no fear of it being disclosed, unless the advice was given in relation to the commissioning of a crime. If that is the case, then legal professional privilege does not apply.”.

It appears to us that that argument reflects a misunderstanding of the nature of legal professional privilege (specifically, in this case, legal advice privilege). This is because legal advice privilege is based on the premise (as noted above) that advice between a lawyer and their client should be given in confidence and accordingly the issue of whether the legal advice in question is ‘proper’ is not relevant. Accordingly, we do not accept the Appellant’s argument.

We do recognise, however, that there are some (limited) exceptions to the principle of maintaining the confidentiality of legal advice - one of which being section 42(1), provided that the Public Interest Test favours disclosure of it. We are therefore mindful that legal advisors to public authorities should be aware of the possibility that legal advice may be disclosed under FOIA (given that sometimes there may be sufficient public interest factors favouring disclosure of the legal advice, even if section 42(1) is engaged). We also consider that, notwithstanding any such awareness, legal advisors should not be deterred from giving full and proper legal advice. This is because lawyers are still under a professional duty to act in the best interests of their client, as well as being under a general duty of care (and accordingly need to avoid being negligent).

We therefore consider that the Authority’s concerns about its legal advisor being deterred from giving “proper” legal advice in the future may be overstated. That said, we also recognise the possibility that if a public authority’s legal advice has been disclosed under FOIA previously then their legal advisor could potentially temper their advice in the future because of a concern of that advice also being disclosed under FOIA (and this is a factor which we have also taken into account). However, our comments in this regard are immaterial, given that (as we have noted) we are obliged to take into account the inherent and strong public interest in maintaining the exemption in section 42(1).

We recognise that the Appellant clearly disagrees with the Authority’s position regarding the Complaint and why this was not recorded as a complaint, but we do not consider that this is sufficient to justify disclosure of the legal advice in this case. The Appellant is able to challenge the Authority’s actions and decisions without needing sight of the legal advice itself. Accordingly, whilst we accept that the Appellant has some concerns in respect of the Complaint and the Request, we consider that there are other means by which those concerns could be pursued which do not involve disclosure of the legal advice contained in the Relevant Information.

In summary, we find that the countervailing factors favouring disclosure of the Relevant Information are not of sufficient weight to displace the public interest in upholding the principle of legal professional privilege in this case.

Overall, in considering the Public Interest Test in this case, whilst we recognise the factors favouring disclosure of the Relevant Information, we conclude that the public interest in maintaining the exemption in section 42(1) outweighs the public interest in disclosure.

For all of the reasons we have given, we find that the Decision Notice was correct to conclude that the Public Interest Test favours maintaining the exemption in section 42(1) in respect of the Relevant Information.

We also find that (on the balance of probabilities) no further information within the scope of the Request is held by the Authority, beyond the Relevant Information (which can be withheld for the above reasons).

We therefore dismiss the appeal.