Penny Bence v The Information Commissioner

Penny Bence v The Information Commissioner

The Council was entitled to rely on regulation 12(5)(b) EIR to withhold communications between its legal department and others, as these are covered by legal advice privilege and their disclosure would adversely affect the course of justice. However, pre-existing documents and emails attached to or forwarded by such...

Source-derived case information.

Parties
Appellant: Penny Bence; Respondent: The Information Commissioner
Jurisdiction
England and Wales
Judgment Date
06 March 2024
Procedural Posture
Information Rights Appeal / First Tier Tribunal Decision
Outcome
appeal allowed in part
Legal Topics
Environmental Information Regulations, Legal Professional Privilege, Public Interest Test, Freedom of Information, Course of Justice
Information Law Environmental Law Administrative Law Environmental Information Regulations Legal Professional Privilege Public Interest Test Freedom of Information Course of Justice

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Summary, issues, holding and outcome

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Parties

Penny Bence

Appellant

The Information Commissioner

Respondent

Procedural Posture

Information Rights Appeal / First Tier Tribunal Decision

Legal Issues

  1. 1 Whether Cornwall Council was entitled to rely on regulation 12(5)(b) EIR to withhold information
  2. 2 Whether pre-existing documents and emails attached to or forwarded by privileged communications are themselves privileged
  3. 3 Whether the Council breached its obligations under EIR by failing to respond to part of the appellant’s request

Ratio Decidendi

The Council was entitled to rely on regulation 12(5)(b) EIR to withhold communications between its legal department and others, as these are covered by legal advice privilege and their disclosure would adversely affect the course of justice. However, pre-existing documents and emails attached to or forwarded by such communications are not themselves privileged and cannot be withheld on this basis. The Council breached its obligations under EIR by failing to respond to part two of the appellant’s revised request.

Court Disposition

appeal allowed in part

Orders

  • A substitute decision notice will be issued once the tribunal has determined all outstanding issues.
  • The Council must respond to the second part of the appellant’s revised request, either by providing the information or refusing under regulation 14 EIR.