Department for Business Enterprise & Regulatory Reform v O'Brien & Anor

On a statutory appeal under the Freedom of Information Act 2000, the public interest test remains the governing test for qualified exemptions. Legal professional privilege carries a significant in-built public interest in confidentiality, but the exemption is not absolute and does not require exceptional circumstances or proof of specific harm. The public authority must show that the interests supporting non-disclosure outweigh those supporting disclosure. The balancing exercise must give proper weight to privilege and consider all the circumstances. A failure to do so is an error of law requiring the relevant decision to be quashed and reconsidered.

The Department appealed under section 59 of the Freedom of Information Act 2000 against an Information Tribunal decision ordering disclosure of documents concerning the inclusion of regulation 17 in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The Tribunal had treated the documents as exempt under sections 35 and/or 42 but ordered disclosure after applying the public interest test.

The central issues were whether the Tribunal had lawfully assessed the public interests underlying the section 35 exemptions and whether it had given sufficient weight to the public interest in maintaining legal professional privilege under section 42.

1. The appeal was allowed in part. The Tribunal’s order requiring disclosure of documents to which section 42 applied was quashed. The issue of disclosure of those documents was remitted to a differently constituted Tribunal for fresh consideration.

2. The Tribunal had not erred in its treatment of section 35. It had identified the public interests in maintaining confidentiality for governmental policy formulation and ministerial communications, and had adopted the correct approach to the statutory balance. The weight given to those interests varies with the circumstances of each case. A specialist tribunal’s assessment of weight should not readily be characterised as unlawful.

3. Section 42 contains an important in-built public interest in protecting legal professional privilege. That interest carries significant weight because of the importance of confidentiality between lawyer and client. It must be considered in every case once privilege is established.

4. Section 42 is nevertheless a qualified exemption. The requester need not demonstrate exceptional circumstances, and the provision must not be converted into an absolute exemption by implication. The public authority must establish, on the balance of probabilities, that the public interest in maintaining the exemption outweighs the public interest in disclosure. If the competing interests are equally balanced, disclosure follows.

5. The Tribunal failed to give the in-built public interest in privilege appropriate weight. Its reasoning focused on the absence of specific harm from disclosure and did not show that it had asked whether the public interests favouring disclosure were at least equally weighty. That was an error of law.

6. The court also endorsed, in general terms, a structured approach requiring the Tribunal to identify the public interest factors favouring disclosure, identify those favouring maintenance of the particular exemption, and then balance them.

• Information Tribunal: By decision dated 7 October 2008, allowed the respondent’s appeal and ordered disclosure of documents B1, B3–B9, B11 and B12, together with further retrieval efforts.
• High Court (Queen’s Bench Division): On an appeal under section 59 of the Freedom of Information Act 2000, quashed the section 42 disclosure orders concerning documents B3, B4, B6, B7, B8 and B12 and remitted those issues to a differently constituted Tribunal. The section 35 decision was upheld.