The Cabinet Office v The Information Commissioner & Anor

For the purposes of Freedom of Information Act 2000, confirming or denying that a public authority holds information may itself disclose legally privileged information. The mere fact that legal advice was sought will not ordinarily suffice. The relevant question is whether the requested confirmation would reveal, even to a limited extent, the substance, instructions, subject matter or trend of confidential lawyer-client communications. Legal advice privilege covers the continuum of communications made for the dominant purpose of seeking or giving legal advice. The protection must be construed broadly. Where a request concerns advice on the lawfulness of specific measures, confirming that the advice was sought may reveal what the advice was about and therefore engage section 42(2).

The Cabinet Office appealed against the decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights), which had allowed the Information Commissioner’s approach to a request made by Daryl Peagram concerning legal advice allegedly sought by the then Prime Minister about the 23 March 2020 lockdown.

The First-tier Tribunal decided, as a preliminary issue, that confirming or denying whether the Prime Minister had sought such advice would not reveal information protected by legal advice privilege and that section 42(2) of the Freedom of Information Act 2000 was not engaged. The central issue before the Upper Tribunal was whether that conclusion involved an error of law.

1. Appeal allowed. The First-tier Tribunal’s decision of 21 August 2023 was erroneous in law and was set aside. The Upper Tribunal remade the decision.
2. Section 42(2) of the Freedom of Information Act 2000 removes the duty to confirm or deny where doing so would disclose any information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. No balancing of competing public interests arises at this stage. The issue is whether the answer would disclose legally privileged information.
3. Legal advice privilege covers confidential communications between lawyer and client in a relevant legal context, made for the dominant purpose of seeking or giving legal advice. It extends broadly to the continuum of communications, including instructions and requests for advice, communications keeping the lawyer and client informed, evidence of the content of communications, and material from which the substance or trend of advice can be inferred.
4. The mere fact that legal advice was sought is not, without more, privileged. The subject matter of the advice may nevertheless be privileged where confirmation would give a clue to, or reveal to a limited extent, the content of the instructions or advice. The question is fact-sensitive and depends on the terms of the request as a whole.
5. The First-tier Tribunal adopted too narrow an approach. It treated the distinction between the fact of seeking advice and the instructions as excluding consideration of whether the subject matter itself revealed the nature or substance of the advice. It also wrongly treated “lawfulness” as adding nothing to the request.
6. On the agreed hypothesis, confirming whether the Prime Minister had sought advice about the lawfulness of the particular lockdown measures would reveal, to an extent, privileged information about whether those measures fell within the Government’s legal powers. Section 42(2) was therefore engaged.

The Cabinet Office was entitled to rely on section 42(2) and could neither confirm nor deny whether it held the information within parts (2) and (3) of the request.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision was set aside and the decision remade in favour of the Cabinet Office.
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): by decision dated 21 August 2023, held that confirmation or denial would not reveal legally privileged information and that section 42(2) was not engaged.
• Information Commissioner: decision notice dated 19 May 2022 required the Cabinet Office to confirm or deny whether it held the requested information and, if information was held, to disclose it or issue a compliant refusal notice.