The Chief Constable of the Police Service of Northern Ireland v The Information Commissioner

An information notice issued under section 51(1)(a) of the Freedom of Information Act 2000 does not have to satisfy the separate “reasonably requires” condition in section 51(1)(b). The two provisions address different functions: adjudication of an individual complaint under section 50 and wider regulatory activity.

Subject to the specific exceptions in section 51(5), the Commissioner may require production of legally privileged material relevant to a section 50 complaint. The Commissioner must be able independently to assess whether an exemption applies and, for a qualified exemption, where the public interest lies. The power remains subject to ordinary public-law constraints, including rationality.

The Information Commissioner issued an information notice under section 51(1)(a) of the Freedom of Information Act 2000 requiring the Chief Constable to provide withheld records concerning talks between goldmine companies about security costs. The records had been withheld from the requester under section 42(1), on the ground of legal professional privilege.

The First-tier Tribunal dismissed the Chief Constable’s appeal against the notice. It held that section 51(1)(a) was not subject to the “reasonably requires” qualification in section 51(1)(b), and that the Commissioner could require legally privileged material except where section 51(5) applied. The central issues were whether that construction was correct and whether the Commissioner could require the material in dispute.

1. Appeal dismissed. Permission to appeal was granted, but the First-tier Tribunal’s decision contained no error of law. The information notice was lawful and the Chief Constable was required to furnish the withheld information.
2. Section 51(1)(a) and section 51(1)(b) create distinct bases for issuing an information notice. The provisions are separated by “or”, use materially different language, and are supported by different requirements in section 51(2). Section 51(1)(a) applies where the Commissioner has received an application under section 50. Section 51(1)(b) applies where the Commissioner reasonably requires information for specified regulatory purposes. The “reasonably requires” condition is not to be read into section 51(1)(a) (paras 83–86, 98–103).
3. The distinction reflects the Commissioner’s different functions. Under section 51(1)(a), the Commissioner investigates and adjudicates an individual complaint. Parliament intended him to have access to information he considers necessary, including the information in dispute. Section 51(1)(b) concerns wider regulatory or thematic functions and is more narrowly framed. The exercise of either power remains subject to ordinary public-law constraints, including rationality (paras 98–104).
4. Legal professional privilege is a fundamental right, but it may be modified or abrogated by express words or necessary implication. Properly construed in its statutory context and purpose, section 51 extends to material said to attract privilege. Section 51(5) is a specific and limited exception for communications concerning legal advice or proceedings under the Act. If section 51 did not otherwise extend to privileged material, section 51(5) would be otiose (paras 115–124).
5. The Commissioner and the Tribunal must assess information on its contents, rather than merely by reference to a class or a public authority’s assurance. That function will ordinarily require sight of the withheld material when the application of a qualified exemption and the public-interest balance are in issue. The Chief Constable could not substitute a lesser or alternative disclosure process for compliance with the notice (paras 89–95, 106–114).
6. The suspension of the First-tier Tribunal’s decision was to be lifted one month after issue of the decision to allow any application concerning a further appeal.

• Upper Tribunal (Administrative Appeals Chamber) [2025] UKUT 251 (AAC): permission to appeal granted, but the substantive appeal dismissed.
• First-tier Tribunal (General Regulatory Chamber), Information Rights, decision dated 8 August 2024 under file EA/2023/0341: dismissed the Chief Constable’s appeal against the Information Commissioner’s notice.
• Information Commissioner, decision notice dated 22 June 2023: required production of the withheld information under section 51 of the Freedom of Information Act 2000.