S Dally v The Information Commissioner

In a Freedom of Information Act 2000 case involving legal professional privilege, the public interest in maintaining the exemption carries inherent weight, but the exemption is not absolute. A tribunal must consider whether alleged misrepresentations by a public authority, or the fact that advice concerns an obsolete regulatory regime, add sufficient weight to disclosure. The First-tier Tribunal must give adequate reasons for material findings and address significant arguments bearing on the public interest balance. An appellate tribunal should not re-perform that balance where the decision is lawful, but must intervene where inadequate reasoning may have affected the result.

Mr Dally sought disclosure from Knowsley Council of legal advice concerning the licensing of dog-boarding arrangements involving Merseyside Dogs Home. The Council relied on section 42(1) of the Freedom of Information Act 2000. The Information Commissioner upheld the refusal, and the First-tier Tribunal dismissed Mr Dally’s appeal.

Mr Dally appealed to the Upper Tribunal, arguing that the First-tier Tribunal inadequately reasoned its findings that the Council had described the advice as old and had confirmed its interpretation with DEFRA. The central issue was whether those errors were material to the public interest balance.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. The First-tier Tribunal inadequately reasoned its finding that the Council had explicitly stated that its legal advice was taken some time before the Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018 came into force. The phrase “previous legal advice” could refer to advice given days earlier or decades earlier. The Tribunal needed to explain why it conveyed the more specific meaning adopted, particularly because that finding substantially weakened Mr Dally’s case.
3. The Tribunal also failed to address the argument that the Council had misleadingly represented DEFRA’s general response as confirmation that the current licensing position at Merseyside Dogs Home was lawful. The fact that DEFRA’s email had been disclosed did not remove the need to address that argument.
4. The public interest in preserving legal professional privilege carries inherent weight in a section 42 case. That weight does not create an absolute exemption. If a public authority has made misleading statements, those matters may add weight to disclosure because privilege should not shield justified criticism or defeat transparency and accountability. The fact that the advice concerned legislation no longer in force may also be relevant.
5. The errors were material because, had the Tribunal addressed the matters properly, it might have concluded that the public interest in disclosure outweighed the public interest in maintaining the exemption. The Upper Tribunal did not decide whether the dog-boarding activities were licensable, whether the Council acted unlawfully, or whether any misrepresentation occurred.
6. The case was remitted under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 to a differently constituted First-tier Tribunal for a hearing and reconsideration.

• Upper Tribunal (Administrative Appeals Chamber): The appeal was allowed. The First-tier Tribunal’s decision of 15 February 2021 was set aside and the case was remitted for reconsideration.
• First-tier Tribunal (General Regulatory Chamber): The appeal against the Information Commissioner’s decision notice was dismissed.