Jurisdiction(s):
United Kingdom

Abbot v Information Commissioner [2024] UKFTT 478 (GRC): EIR 2004 reg 12(5)(b) justifies withholding privileged planning advice; ICO decision upheld

Published on: 26 June 2024

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Abbot v The Information Commissioner [2024] UKFTT 478 (GRC) What are the practical implications of this case?

This ruling mirrors the approach in other recent decisions on the operation of the exception to disclosure under EIR 2004, SI 2004/3391, reg 12(5)(b), again stressing the considerable weight that legal professional privilege carries within our justice system. It therefore highlights the obstacles applicants will encounter when attempting to access documents protected by legal professional privilege, and that only ‘special or unusual’ circumstances are likely to be sufficient for the public interest in disclosure to prevail over the interest in preserving legal professional privilege.

That said, legal professional privilege was not the Tribunal’s only concern when concluding that EIR 2004, SI 2004/3391, reg 12(5)(b) applied. The Tribunal indicated that the exception would have been engaged even without legal professional privilege, particularly because releasing the material would not have added anything of substance to what is already in the public domain. As such, the analysis turned on whether disclosure would materially add to information within the public domain.

Accordingly, public authorities and applicants must continue to assess the entirety of the applicable test when bringing or considering applications...

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