Department for Business Enterprise & Regulatory Reform v O'Brien & Anor [2009] EWHC 164 (QB) (10 February 2009)

Department for Business Enterprise & Regulatory Reform v O'Brien & Anor [2009] EWHC 164 (QB) (10 February 2009)

The Tribunal erred in law by failing to give appropriate weight to the in-built public interest in legal professional privilege under section 42 FOIA and by not properly applying the public interest balancing test to documents covered by legal professional privilege. The Tribunal's decision to order disclosure of such documents is quashed and remitted for reconsideration by a differently constituted Tribunal. The Tribunal's approach to section 35 exemptions was correct and its decision on those documents is upheld.

Citation
[2009] EWHC 164 (QB)
Parties
Appellant/claimant: Department for Business Enterprise and Regulatory Reform; First Respondent/defendant: Dermod O'Brien; Second Respondent/defendant: The Information Commissioner
Jurisdiction
England and Wales
Judgment Date
10 February 2009
Procedural Posture
Appeal Under Freedom of Information Act 2000, S.59 / High Court Appeal From Information Tribunal
Outcome
Appeal allowed in part; Tribunal's order for disclosure of documents covered by section 42 FOIA quashed and remitted; Tribunal's decision on section 35 documents upheld.
Legal Topics
Public Interest Test, Legal Professional Privilege, Government Policy Exemption, Disclosure of Information, Statutory Interpretation
Administrative Law Freedom of Information Public Interest Test Legal Professional Privilege Government Policy Exemption Disclosure of Information Statutory Interpretation

Case Brief

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Parties

Department for Business Enterprise and Regulatory Reform

Appellant/claimant

Dermod O'Brien

First Respondent/defendant

The Information Commissioner

Second Respondent/defendant

Procedural Posture

Appeal Under Freedom of Information Act 2000, S.59 / High Court Appeal From Information Tribunal

Legal Issues

  1. 1 Whether the Information Tribunal erred in law in its approach to the public interest test under sections 35 and 42 of the Freedom of Information Act 2000
  2. 2 Whether the Tribunal gave appropriate weight to the in-built public interest in legal professional privilege under section 42 FOIA
  3. 3 Whether the Tribunal properly categorised documents under the relevant exemptions

Ratio Decidendi

The Tribunal erred in law by failing to give appropriate weight to the in-built public interest in legal professional privilege under section 42 FOIA and by not properly applying the public interest balancing test to documents covered by legal professional privilege. The Tribunal's decision to order disclosure of such documents is quashed and remitted for reconsideration by a differently constituted Tribunal. The Tribunal's approach to section 35 exemptions was correct and its decision on those documents is upheld.

Court Disposition

Appeal allowed in part; Tribunal's order for disclosure of documents covered by section 42 FOIA quashed and remitted; Tribunal's decision on section 35 documents upheld.

Orders

  • Quash the Tribunal's order for disclosure of documents to which section 42 applies (B3, B4, B6, B7, B8, B12) and remit to a differently constituted Tribunal for reconsideration.
  • Uphold the Tribunal's decision in relation to documents where disclosure was opposed on the basis of section 35.