HM Treasury v The Information Commissioner & Anor

A qualified exemption under the Freedom of Information Act 2000 requires a genuine comparison between the public interests in disclosure and in maintaining the exemption. Where Parliament has specifically protected the confidentiality of Law Officers’ advice, the statutory scheme recognises a substantial public interest in maintaining that protection. The decision-maker may give weight to general constitutional and good-government considerations, even without proof of particular prejudice, and should consider relevant evidence from experienced government witnesses.

The Law Officers’ Convention was not displaced by the Act. It became subject to the statutory public-interest balance. The public interest in maintaining the exemption was not automatically determinative. The Tribunal’s decision was quashed and remitted for reconsideration.

HM Treasury appealed on a point of law against a decision of the Information Tribunal dated 15 May 2008. The Tribunal had upheld the Information Commissioner’s decision that Treasury should confirm or deny whether it held Law Officers’ advice concerning the compatibility of the Financial Services and Markets Bill with Convention rights.

The Treasury relied on Freedom of Information Act 2000, section 35(1)(c), the long-standing Law Officers’ Convention, and the public interest in preserving confidential and appropriately obtained government legal advice. The central issues were the weight to be given to the exemption, the relevance of the Convention and general good-government considerations, and whether the Tribunal had properly assessed the competing public interests.

The appeal was allowed to the extent that the Information Tribunal’s decision was quashed and the matter was remitted for reconsideration.

1. Public-interest balance. The Tribunal had to identify the public interests favouring disclosure and those favouring maintenance of the exemption, then decide whether the latter outweighed the former. The statutory balance was fact-specific, but the Tribunal had to conduct its own evaluation.
2. Weight of the exemption. Section 35(1)(c) specifically identified information relating to Law Officers’ advice, or requests for such advice, as exempt. That specificity reflected the Law Officers’ Convention and permitted substantial weight to be given to the public interest in maintaining confidentiality. Proof of particular damage was not a statutory precondition. General considerations concerning good government, the rule of law and the proper use of the Law Officers’ limited resources could be relevant.
3. Evidence and constitutional practice. The Tribunal was entitled to reach its own conclusion, but it had to take account of detailed evidence from senior civil servants with responsibility and experience in the field. It had wrongly treated the Convention as displaced or materially weakened by the Freedom of Information Act 2000, and had misunderstood the Convention as giving the receiving department a final power to decide disclosure.
4. Interaction with legal professional privilege. In a request identifying the subject of possible Law Officers’ advice, confirming or denying its existence might risk revealing the subject or substance of the advice. Section 42 therefore formed part of the relevant public-interest context, although the distinct statutory treatment of legal professional privilege could not simply be transferred to every section 35 case.
5. Remittal. The court could not determine that only one outcome was legally possible. The Tribunal had to reconsider, among other matters, the effect of the passage of time, the exceptional parliamentary scrutiny of the legislation, the public interest in human-rights advice, and whether disclosure would encourage or discourage governmental openness.

• High Court (Administrative Court): The court allowed the appeal on the identified errors of law, quashed the Information Tribunal’s decision and remitted the matter for reconsideration.
• Information Tribunal: On 15 May 2008, the Tribunal upheld the Information Commissioner’s decision and dismissed Treasury’s appeal.
• Information Commissioner: On 22 May 2007, the Commissioner held that the substance of the advice was exempt under section 42(1) of the Freedom of Information Act 2000, but directed disclosure of whether Treasury held Law Officers’ advice.