Freedom of Information Act 2000 – exempt information – Law Officer’s Advice – need to
weigh competing public interests – neither confirmed nor denied response
The appellant made two Freedom of Information Act 2000 (FOIA) requests regarding the decision to take military
action in Kosovo in 1999, one to the Attorney General’s Office (the AGO) for details of the legal advice given to the government and the other to the Cabinet Office (the CO) for the minutes of the relevant Cabinet meetings, interdepartmental memos and other records. The AGO’s initial response was neither to confirm nor deny (NCND) that it held such information. However, later it confirmed that it did, but that the information was being withheld on the basis that it was exempt information under section 35(1)(c), being Law Officer’s Advice. Following a complaint, the Information Commissioner upheld that response. Later the AGO also claimed that other exemptions applied in section 42(1), legal professional privilege (LPP), and in section 27(1), information prejudicial to the UK’s International Relations. The request to the CO was also refused on various grounds and the Information Commissioner rejected the applicant’s complaint. He held amongst other things that the CO was entitled to rely on the exemptions in sections 27(1)(a) to (d) concerning International Relations and in 42(1) regarding information it had confirmed it held and that it was entitled to rely on NCND in section 35(3) regarding Cabinet minutes. The appeals against the Information Commissioner’s decisions were transferred directly to the Upper Tribunal.
Held, dismissing the AGO appeal and upholding the CO appeal in part, that:
(AGO decision) there was an obvious link between the public interests underlying section 35(1)(c) and the
exemption for Law Officers’ advice and section 42, the exemption for LPP. The factors identified by the courts in
favour of the non-disclosure of LPP information provided powerful reasons for a refusal of a FOIA request, but
there was not a right of non-disclosure in the FOIA context, and a fact sensitive weighing of the competing public
interests must be carried out: Department for Business Enterprise and Regulatory Reform (BERR) v O’Brien  EWHC 164 (QB) and HM Treasury v the Information Commissioner  EWHC 1811 (Admin);  1 QB 563. If the information sought was relevant to legal proceedings, or would be of use in them, that added to the weight of the factors against disclosure, as it would effectively deny the relevant public authority its right to refuse disclosure (paragraphs 27 and 34 to 35);
(AGO decision) the public interest in maintaining the confidentiality of instructions for legal advice
concerning complex, sensitive and constitutionally important issues outweighed the public interest in openness,
understanding and evaluating the Government’s decision. The weight of the arguments for non-disclosure could
weaken over time, but the possibility of further legal proceedings meant that the factors favouring non-disclosure
were still actively engaged (paragraphs 51 to 54);
(CO decision) an NCND response in respect of the appellant’s request for Cabinet minutes could not be
based on section 35(3) because the public interest in maintaining the NCND exclusion did not outweigh the public interest in disclosing whether the CO held any such minutes (paragraphs 104 and 130);
(CO decision) the decision was in accordance with the law, to the extent that the Information Commissioner
had been right to conclude that (save as regards the section 42 document) the public interest in maintaining the
exemption in section 27 outweighed the public interest in disclosing the information (paragraphs 103 and 131).
The UT directed the CO to provide further information regarding the NCND response so that a further hearing could determine how to proceed with this aspect of the appellant’s appeal.