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Neutral Citation Number:	2012 UKUT 103 AAC
Reported Number:
File Number:	GIA 2545 2011
Appellant:	DCLG
Respondent:	The Information Commissioner & WR
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	28/03/2012
Date Added:	16/05/2012
Main Category:	Information rights
Main Subcategory:	Other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 43 Environmental information – exceptions – proper approach to information protected by legal professional privilege In April 2009 Fring Wind Energy Ltd applied for planning permission to erect an anemometer mast to see whether or not a wind farm might be viable. The local planning authority (LPA) refused planning permission and Fring Wind Energy Ltd appealed to the Planning Inspectorate (PINS), an executive agency of the Department for Communities and Local Government (DCLG). Mr Robinson, the second respondent, represented a local residents’ association which opposed the application. He asked PINS to determine the appeal by way of a public inquiry. PINS decided to do so by written representations and explained to Mr Robinson why it thought a public enquiry was unnecessary. An exchange of correspondence took place between PINS and Mr Robinson during the course of which PINS obtained legal advice about the appeal procedure. On 10 December 2009 Mr Robinson asked PINs for a copy of its legal advice under the Freedom of Information Act 2000 (FOIA). As it involved a planning appeal PINS considered the request under the Environmental Information Regulations 2004 (EIR). It refused Mr Robinson’s request under Regulation 12(5)(b) on the grounds that the advice was protected by legal professional privilege (LPP). Mr Robinson complained to the Information Commissioner (IC) who decided the information need not be disclosed. The First-tier Tribunal (F-tT) upheld Mr Robinson’s appeal on the basis that the balance of public interest favoured disclosure. The DCLG appealed to the Upper Tribunal (UT). The UT held an oral hearing on 16 March 2012 and the issue before it concerned what significance should properly be attached to the branch of LPP known as legal advice privilege: (1) in determining whether the qualified exception from disclosure in regulation 12(5)(b) applied, and if so (2) in weighing the competing public interests for and against maintaining the exception. Held, allowing the appeal and re-making the F-tT’s decision, that: 1. section 42 of the 2000 Act contains a specific qualified exemption in respect of information which in court proceedings would be protected from disclosure by LPP. The 2004 Regulations do not contain an express exception for environmental information which would be subject to LPP but Regulation 12(5)(b) contains a qualified exception to the extent that disclosure of the requested info “would adversely affect the course of justice”. Having regard to the rationale for LPP this would include such loss of confidence in the general efficacy of LPP as would be likely to result from a direction to disclose particular privileged information (paragraphs 42 to 48); 2. the approach adopted by the F-tTs, under section 42 of FOIA, to the public interest balancing exercise is broadly appropriate under Regulation 12(5)(b) where the information sought is “environmental information” protected by LPP: in determining whether in a particular case a direction to disclose would adversely affect the course of justice the general loss of confidence in the efficacy of LPP will normally be a factor which will weigh heavily on the side of maintaining the exception (paragraphs 50 to 55); 3. the F-tT made several errors of law in its approach to the question of whether or not the exception in regulation 12(5)(b) applied: (1) it failed to make it sufficiently clear whether it found the exemption was or was not engaged; (2) it was wrong if it was saying the LPP did not apply to the document concerned; (3) it failed to make it clear whether it had taken into account the general effect on the course of justice which a direction to disclose would have in terms of undermining LPP and to recognise the strong public interest in maintaining their confidentiality (paragraphs 56 to 59); 4. although the making of findings of fact in an information rights case is an exercise to which the composition of an F-tT, with its lay members with its particular experiences of such issues, is particularly suited, it was appropriate in the present case for the UT to re-make the F-tT’s decision (paragraphs 64); 5. in the present case the public interest in maintaining the exception strongly outweighed the public interest in disclosing the information. The factors in favour of disclosure were, in the particular circumstances, relatively weak, and if disclosure were to be directed in this case the loss of confidence in the efficacy of LPP in respect of environmental information would necessarily be considerable. The presumption in favour of disclosure was therefore rebutted (paragraphs 64 to 74).
Decision(s) to Download:	GIA 2545 2011-00.doc [2012] AACR 43bv.doc