Savic v ICO & Ors

Legal professional privilege is a qualified, not absolute, exemption under the Freedom of Information Act 2000. The powerful public interests in preserving the confidentiality of legal advice remain relevant, but must be weighed against the public interest in disclosure on the facts of the particular request.

Advice from a Law Officer attracts further weight because it is sought on matters of complexity, sensitivity and constitutional importance. Where disclosure could undermine a public authority’s ability to withhold privileged material in actual or contemplated litigation, that is a further strong factor against disclosure. The passage of time may reduce the case for confidentiality, but need not do so where live or potential proceedings concern the matters advised upon.

The appellant, a solicitor, appealed two decisions of the Information Commissioner concerning requests under the Freedom of Information Act 2000 for records and legal advice relating to the United Kingdom’s decision to begin military action against Serbia and Kosovo in 1999.

The Attorney General’s Office had withheld the Attorney General’s advice under section 35(1)(c). The Cabinet Office had withheld one document containing such advice under section 42. Before the Upper Tribunal, the engagement of those exemptions was not disputed. The issue was whether the public interest nevertheless required disclosure.

The Tribunal confined this decision to the Attorney General’s Office request and the Cabinet Office document protected by legal professional privilege. It dismissed both appeals.

1. The appeals were dismissed. The information was protected by section 35(1)(c) and/or section 42 of the Freedom of Information Act 2000, and the public-interest balance fell decisively in favour of non-disclosure.

2. Legal professional privilege does not create a right to refuse disclosure under FOIA. Parliament made it a qualified exemption. The public interests recognised by the courts in preserving privileged communications are nevertheless powerful reasons against disclosure. The statutory balance must be conducted in a fact-sensitive way.

3. If privileged information is relevant, or may be useful, in existing, concluded or reasonably contemplated proceedings, disclosure under FOIA adds weight to non-disclosure. It may effectively deprive the public authority of the right it would otherwise have as a litigant to withhold privileged material, thereby affecting the administration of justice.

4. Advice given by Law Officers attracts additional public-interest weight. Such advice commonly concerns matters of exceptional complexity, sensitivity and constitutional importance. Confidentiality promotes full and candid instructions and properly reasoned advice, particularly where Government action must comply with the rule of law.

5. There was a strong public interest in understanding the reasons, facts, legal advice and legality surrounding the decision to commence military action. The passage of time also favoured disclosure to some extent. However, the same exceptional features that made disclosure important also heightened the confidentiality interests attached to Law Officers’ advice. The continuing Queen’s Bench proceedings and prospect of other proceedings meant that the countervailing interests were not merely historical.

6. It was unnecessary to determine the alternative exemption concerning international relations.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appellant’s appeals against the Information Commissioner’s decisions of 13 January 2015.
• Information Commissioner: upheld the Attorney General’s Office’s reliance on section 35(1)(c), and held that the Cabinet Office could rely on section 42(1) in respect of the relevant document.