Police Service of Northern Ireland v Information Commissioner's Office (Rev1)

Factual and Procedural Background

This is an application for leave to appeal a decision of the Upper Tier Tribunal ("UTT") of 28 July 2025, the UTT having earlier refused leave on 25 September 2025, following a First Tier Tribunal ("FTT") decision of 8 August 2024. The dispute arises from an information request made on 22 May 2020 by a Complainant to Company A concerning gold mining. The relevant part of the request sought "Any record of talks between gold mine companies discussing security costs." Company A provided the Commissioner (Company B) with copies of the requested information but withheld legal advice on the basis of legal professional privilege. Company B issued an information notice dated 22 June 2023 under section 51(1)(a) of the Freedom of Information Act 2000 ("FOIA"), directing production of the remaining withheld information within 30 days. Two specialist tribunals (FTT and UTT) rejected Company A's challenges to that decision. The appeal to this court was heard by Judge Keegan (leading), Judge Treacy and Judge Humphreys. Attorney Dunford appeared for Company A; Attorney Hopkins with Attorney Knight appeared for Company B.

Legal Issues Presented

1. Whether an information notice issued under section 51(1)(a) of FOIA must also satisfy the "reasonable requirements" condition found in section 51(1)(b).
2. Whether the power to require production of information extends, by necessary implication, to information covered by legal professional privilege (i.e. whether section 50/51 can be read to exclude privileged material from compulsory production).

Arguments of the Parties

Applicant's Arguments (Company A)

• The information notice under section 51(1)(a) must meet the reasonable requirements condition in section 51(1)(b).
• The statutory scheme does not permit the Commissioner to require production of material subject to legal professional privilege; any extension to require privileged material must arise by necessary implication and, per the decision in Scottish Legal Complaints Commission v Murray, such implication does not exist.

Respondent's Arguments (Company B)

• The Commissioner is entitled under section 51(1)(a) to require any information reasonably required to make a decision, including material withheld under FOIA, and there is no statutory bar to inspection of privileged material for the purpose of the Commissioner's assessment.
• The structure and wording of section 51, read as a whole, support the Commissioner's power; the decision in Scottish Legal Complaints Commission v Murray was not applicable to displace that statutory scheme.

Table of Precedents Cited

Court's Reasoning and Analysis

The court interpreted section 51 of FOIA as a whole, giving weight to the natural meaning of its words and the statutory context. It reasoned that the Commissioner's investigative and decision-making functions under section 50/51 require the ability, in appropriate cases, to inspect underlying material even where legal professional privilege is claimed, so that the Commissioner can independently assess the validity of any claimed exemption. The court noted that legal professional privilege is a qualified exemption under FOIA and that Parliament's chosen structure in section 51 (including the use of 'or' after section 51(1)(a)) indicates that a section 51(1)(a) information notice is not constrained by the separate "reasonable requirements" condition in section 51(1)(b). The court concluded that an evaluation by the Commissioner is required before issuing a notice and that there was no convincing reason to create an additional exception preventing inspection of privileged material. The court also held that section 51(5) specifically provides for a legal professional privilege exemption and that the necessary-implication argument based on the cited authority did not entitle Company A to the relief sought. Applying the appellate permission test from the cited authority, the court found no point of principle or compelling reason to grant leave to appeal.

Holding and Implications

REFUSED

Holding: The application for leave to appeal was refused. The court upheld the UTT's approach that the Commissioner may require production of the requested information under section 51(1)(a) and may, in an appropriate case, inspect material subject to a claim of legal professional privilege for the purpose of assessing a section 42 exemption.

Implications: The decision means the Commissioner's information notice stands and Company A is required to comply within 30 days from the date of the court's order. The court ordered costs against Company A. The court did not find a basis to establish a new restriction on the Commissioner's statutory inspection powers or to set a novel precedent altering the statutory scheme of FOIA.