FOIA s.51 Information Notices: s.51(1)(a) Is Disjunctive from s.51(1)(b) and the Commissioner May Require Sight of Legally Privileged Material to Decide a s.50 Complaint

1. Introduction

Police Service of Northern Ireland v Information Commissioner’s Office (Rev1) [2026] NICA 13 is a Court of Appeal in Northern Ireland decision refusing the Police Service of Northern Ireland’s (“PSNI”) application for permission to appeal from the Upper Tribunal (“UTT”). The litigation arose from a Freedom of Information Act 2000 (“FOIA”) request (made in May 2020) concerning “gold mining in Northern Ireland” and, in particular, records of discussions between gold mining companies about security costs.

During the Information Commissioner’s (“the Commissioner”) investigation under FOIA, the Commissioner issued an information notice dated 22 June 2023 under section 51(1)(a) FOIA requiring PSNI to provide material within the scope of the request, including material PSNI had withheld as legally professionally privileged. PSNI challenged the notice through the specialist tribunal system (FTT, then UTT) and ultimately sought permission to appeal to the Court of Appeal.

The two key issues advanced by PSNI on the rolled-up permission hearing were:

  1. Whether a notice under section 51(1)(a) must satisfy the “reasonable requirements” condition said to arise from section 51(1)(b).
  2. Whether the Commissioner’s power (in the context of a section 50 complaint investigation) to require production of material extends to legally privileged information, or whether such compulsion is excluded by necessary implication.

2. Summary of the Judgment

The Court (Keegan LCJ, Treacy LJ and Humphreys J) refused permission to appeal. Applying the statutory permission test, it held that the proposed appeal raised no important point of principle or practice and disclosed no other compelling reason for the Court to hear it.

On the substance, the Court endorsed the UTT’s approach:

  • Section 51(1)(a) is unambiguous and disjunctive from section 51(1)(b): the presence of “or” after section 51(1)(a) means the “reasonable requirement” language in section 51(1)(b) does not qualify notices issued under section 51(1)(a).
  • The Commissioner may, where necessary, require sight of material even if legally privileged in order to discharge the section 50 function of assessing a refusal and any reliance on the (qualified) legal professional privilege exemption under FOIA (the Court referenced the section 42 exemption).
  • “Necessary implication” did not assist PSNI; the Court agreed the UTT was right that Scottish Legal Complaints Commission v Murray [2022] CSIH 46 was not applicable, and that FOIA’s structure (including an express provision dealing with legal professional privilege within section 51, referred to by the Court as section 51(5)) undermined any implied limitation argument.

The Court also noted an argument that the appeal might be academic (given unchallenged factual findings and the impact of paragraph [12] of the information notice), but it refused permission on the merits without deciding the case on that basis. Costs were awarded against PSNI.

3. Analysis

3.1 Precedents Cited

Belvoir Logistics Ltd and Shane Tinnelly v The Driver and Vehicle Agency [2026] NICA 11

The Court treated this recent authority as stating the relevant appellate approach to permission applications from the UTT. Its practical influence was twofold:

  • It reinforced that permission is exceptional and filtered through the statutory threshold in Article 2 of the 2008 Order.
  • It supported a restrained stance where the decision comes from an expert tribunal, particularly on evaluative and fact-sensitive matters.

In this case, that framing mattered because PSNI sought to re-open an interpretive conclusion already rejected by two specialist tribunals. The Court’s reliance on Belvoir Logistics anchored its decision to refuse permission absent a clearly important or compelling point.

Scottish Legal Complaints Commission v Murray [2022] CSIH 46

PSNI relied on Scottish Legal Complaints Commission v Murray to argue that a power to compel production should not be construed as extending to legally privileged material unless that result is clearly authorised (or, conversely, that privilege survives absent explicit abrogation). The Court held the UTT was correct that the decision was not applicable in the FOIA section 51 context.

The key reason given was structural: FOIA expressly contemplates legal professional privilege within its own scheme—both as a qualified exemption (the Court referenced section 42) and via an express provision within section 51 (identified by the Court as section 51(5)). That legislative design reduced the force of analogies drawn from other statutory regimes and undercut any “necessary implication” argument.

3.2 Legal Reasoning

(a) Statutory permission test and tribunal deference

The Court applied Article 2 of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008: permission may be granted only if the appeal raises an important point of principle or practice or there is some other compelling reason. It emphasised the “speciality” of tribunals in FOIA disputes and adopted a cautious approach to interfering with expert tribunal decisions.

(b) Interpreting section 51: disjunctive powers

PSNI’s first ground sought to import the “reasonable requirements” condition associated with section 51(1)(b) into section 51(1)(a). The Court rejected this as inconsistent with the statutory text and structure:

  • The wording of section 51(1)(a) was described as “unambiguous”.
  • The word “or” separating section 51(1)(a) from section 51(1)(b) was decisive: it signalled distinct, alternative bases for issuing a notice.
  • Section 51(2) (as referenced by the Court) reinforced that Parliament drew a deliberate distinction between the limbs.

The Court nonetheless accepted that the Commissioner must perform an evaluative exercise before issuing a notice (i.e., section 51 as a whole assumes judgment), but that did not justify rewriting the statutory conditions attached to the specific sub-paragraph used.

(c) Section 50 function and the necessity of sight of privileged material

The Court’s central practical insight was functional: section 50 requires the Commissioner to decide whether a public authority’s refusal under Part 1 of FOIA is justified. Where refusal is based on legal professional privilege, “common sense” may require the Commissioner to see the underlying material to assess whether the exemption is properly claimed and how it should be applied. The Court noted that Mr Dunford “effectively accepted” this logic.

This reasoning treats the Commissioner’s access to the material (for confidential regulatory scrutiny) as a necessary incident of deciding the complaint, particularly given the Court’s characterisation of legal professional privilege under FOIA as “a qualified exemption”.

(d) Rejection of “necessary implication” limitation

The second ground argued that, even if section 51 can compel information generally, it should not extend to legally privileged material by necessary implication. The Court rejected this, pointing to FOIA’s overall structure and the existence of an express statutory provision dealing with privilege in section 51 (referred to by the Court as section 51(5)). In that setting, the Court saw no basis to create an additional implied exception to the Commissioner’s ability to require sight of material needed for a section 50 determination.

3.3 Impact

Although procedurally a refusal of permission, the judgment provides clear appellate endorsement (in Northern Ireland) of two propositions likely to influence future FOIA practice and litigation:

  • Textual clarity on section 51: challenges premised on collapsing section 51(1)(a) and 51(1)(b) into a single “reasonable requirements” test are unlikely to succeed where the statutory drafting is disjunctive.
  • Effective oversight of privilege claims: public authorities should expect that, in an appropriate case, the Commissioner may require sight of legally privileged material to evaluate reliance on the legal professional privilege exemption and to perform the section 50 function. This supports robust and timely FOIA enforcement by preventing privilege from operating as a “black box” immune from verification.

More broadly, the judgment signals a policy-congruent approach: interpretations that would “defeat the purpose of the Commissioner and the enforcement of rights” under FOIA will face strong headwinds.

4. Complex Concepts Simplified

  • Information notice (FOIA section 51): a formal notice requiring a public authority to provide the Commissioner with information the Commissioner needs to carry out FOIA functions (for example, investigating a complaint).
  • Section 50 FOIA: the Commissioner’s complaint-handling power—deciding whether a public authority has complied with FOIA in responding to a request.
  • Legal professional privilege (LPP): a long-standing legal protection for confidential communications between lawyer and client for the purpose of giving or receiving legal advice (and certain litigation-related communications). It is often called “constitutional” because it underpins access to justice.
  • Qualified exemption (FOIA): an exemption that does not automatically justify withholding; it typically requires an evaluative balancing exercise (often framed as a public interest assessment). The Court described LPP as operating as a qualified exemption in the FOIA regime (referencing section 42).
  • Necessary implication: a technique of statutory interpretation where a power is said to include (or exclude) something not expressly stated, because it must be that way for the statute to work. The Court rejected its use here because FOIA’s structure already addresses privilege expressly.
  • Academic appeal: an appeal that would not change the outcome in practice. The Court noted the argument but decided the application on its merits.
  • Rolled-up hearing: a hearing where the court considers permission to appeal and, if granted, the appeal itself, in one sitting.

5. Conclusion

Police Service of Northern Ireland v Information Commissioner’s Office (Rev1) [2026] NICA 13 confirms (i) the disjunctive structure of section 51 FOIA—section 51(1)(a) is not constrained by the “reasonable requirements” language associated with section 51(1)(b)—and (ii) the practical necessity, within FOIA’s design, for the Commissioner to be able to require sight of even legally privileged material when investigating a section 50 complaint and assessing reliance on the legal professional privilege exemption. The Court’s refusal of permission, coupled with its purposive emphasis on FOIA’s enforcement architecture, strengthens the Commissioner’s supervisory effectiveness and narrows the scope for procedural challenges that would otherwise impede scrutiny of privilege claims.