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 failed to give appropriate weight to the in-built public interest in withholding information protected by legal professional privilege under section 42 FOIA, and did not properly demonstrate the balancing exercise required by law; therefore, the order for disclosure of documents subject to section 42 is quashed and remitted for reconsideration by a differently constituted Tribunal.

Citation
[2009] EWHC 164
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
Public Interest Test, Legal Professional Privilege, Government Policy Exemptions, Ministerial Communications, Disclosure of Information
Administrative Law Freedom of Information Public Interest Test Legal Professional Privilege Government Policy Exemptions Ministerial Communications Disclosure of Information

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 application of the public interest test under sections 35 and 42 of the Freedom of Information Act 2000
  2. 2 Whether appropriate weight was given to legal professional privilege in the context of section 42 FOIA
  3. 3 Whether the Tribunal correctly categorised documents under relevant exemptions

Ratio Decidendi

The Tribunal failed to give appropriate weight to the in-built public interest in withholding information protected by legal professional privilege under section 42 FOIA, and did not properly demonstrate the balancing exercise required by law; therefore, the order for disclosure of documents subject to section 42 is quashed and remitted for reconsideration by a differently constituted Tribunal.

Court Disposition

appeal allowed in part

Orders

  • Quashing of Tribunal's order for disclosure of documents subject to section 42 FOIA (B3, B4, B6, B7, B8, B12)
  • Remittal of section 42 disclosure issue to a differently constituted Tribunal