Department for Business Enterprise & Regulatory Reform v O'Brien & Anor

Department for Business Enterprise & Regulatory Reform v O'Brien & Anor

The Tribunal failed to give appropriate weight to the in-built public interest in withholding information to which legal professional privilege applies under section 42 FOIA. The Tribunal's decision ordering disclosure of documents subject to section 42 exemption is quashed and remitted to a differently constituted Tribunal for reconsideration. The Tribunal's decision regarding documents opposed on section 35 grounds is upheld.

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 / Judgment
Outcome
appeal allowed in part
Legal Topics
Freedom of Information, Public Interest Test, Legal Professional Privilege, Government Policy Exemptions
Administrative Law Information Law Freedom of Information Public Interest Test Legal Professional Privilege Government Policy Exemptions

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 / Judgment

Legal Issues

  1. 1 Whether the Information Tribunal erred in law in its approach to exemptions under sections 35 and 42 of the Freedom of Information Act 2000
  2. 2 Whether appropriate weight was given to the in-built public interest in legal professional privilege under section 42
  3. 3 Whether the Tribunal correctly applied the public interest balancing test under section 2(2)(b) FOIA

Ratio Decidendi

The Tribunal failed to give appropriate weight to the in-built public interest in withholding information to which legal professional privilege applies under section 42 FOIA. The Tribunal's decision ordering disclosure of documents subject to section 42 exemption is quashed and remitted to a differently constituted Tribunal for reconsideration. The Tribunal's decision regarding documents opposed on section 35 grounds is upheld.

Court Disposition

appeal allowed in part

Orders

  • Quashing of Tribunal's decision ordering disclosure of documents to which section 42 applies (B3, B4, B6, B7, B8, B12)
  • Remittal of disclosure issue for section 42 documents to a differently constituted Tribunal