Nawal Kumrai v The Information Commissioner [2025] UKFTT 451 (GRC)

[2025] UKFTT 00451 (GRC)Case Reference: FT/EA/2024/0178
First-tier Tribunal
(General Regulatory Chamber)
Date 29 April 2025
Information Rights
Determined without a hearing on : 31 January 2025
Before
DISTRICT JUDGE WATKINMEMBER SCOTTMEMBER SAUNDERS
Between
nAWAL KUMRAIAppellantTHE INFORMATION COMMISSIONER (1)RespondentTHE JUDICIAL APPOINTMENTS COMMISSION (2)RespondentDecision: The Appeal is dismissedREASONS

DOCUMENTS

[1]Prior to the hearing, the Tribunal was provided with the following:a. a 254-page open bundle;b. a closed bundle;c. Appellant’s Skeleton Argument dated 22 November 2024.d. Judicial Appointments Commission (“JAC”) Skeleton Argument dated 22 November 2024;[2]Any references to page numbers within this decision are to page numbers within the open bundle. Any references to sections are, unless otherwise is stated, to sections within the Freedom of Information Act 2000 (“FOIA”).[3]On considering the Appeal on 31 January 2025, the Tribunal noted that the following documents were referred to within the Appellant’s Skeleton Argument but were not within the bundle provided to the Tribunal panel for consideration:a. The written closing submissions in the Mithani appeals (“Mithani WCS”).b. the Trial Bundle in the Mithani appeals (“Mithani bundle”) (the “Mithani documents”). The reference to Mithani is a reference to other proceedings before this Tribunal brought by the Appellant, Mr Abbas Mithani.[4]The Tribunal provided the Appellant with a further opportunity to provide the Mithani documents by Case Management Directions and the Appellant has now provided the Mithani Bundle. It is also noted that the Appellant contends that he had previously provided the Mithani Bundle.[5]Paragraph 16(f) of the skeleton argument states “there is no need for the Judge to consider the Mithani open bundles unless he/she wishes to check any references to the documents set out in the WCS to those bundles”. Therefore, the Tribunal has only had regard to the Mithani bundle in so far as it was referred to within the Mithani WCS. However, the Appeal has been considered on its own merits.

BACKGROUND

[6]This Appeal dated 10 May 2024 by Mr Nawal Kumrai (the “Appellant”) arises following a request for information (the “Request”) (page 49) made by the Appellant to the Judicial Appointments Commission (“JAC”) on 14 June 2023 for the following information:
“1. I understand that the Ministerial authorisation under section 36 of the Freedom of Information Act (FOIA) was only issued to Dr Richard Jarvis on 10 October 2022. Please provide all instructions to counsel, advice and communication leading to the issue of the said Ministerial authorisation granted to Dr Jarvis on 10 October 2022. If privilege is sought in respect of these documents, please state why, and provide details of how the public interest test in section 40(2) of the FOIA justifies the documents being withheld”. (Request 1) “2. Please provide details of all outreach events conducted by the JAC (whether or not jointly with the Judicial Office of others) in the years from 2016 to 2022”. (Request 2) “3. Please provide all the material (including situational questions, answers and marks allocated for the answers) used for each of the above outreach events”. (Request 3) “4. Please provide details of where the above material was taken from. If the material was prepared by an outside organisation(s), please provide details of that or those organisations, specifying in each case what material they prepared”. (Request 4)”
[2]On 10 July 2023 (page 50), the JAC responded to each of the individual requests as follows: Request 1 The JAC confirmed that it held two e-mail chains and submission to the relevant minister in relation to the grant of the authorisation. It provided a copy of the ministerial submissions (page 213 - 4) and one of the e-mail chains, redacted to remove personal data and legal advice (page 199-212). The other e-mail chain was withheld pursuant to section 42(1), on the basis that it was subject to legal professional privilege and as it was considered that the public interest favoured maintaining the exemption. Request 2 The JAC provided two spreadsheets outlining the outreach events that the JAC participated in between 2016-2022, the first of which set out general outreach events and the second showed targeted outreach events. Request 3 The JAC provided extensive material in separate ZIP files for outreach events in each year. The volume of this material is such that it has not been included within the hearing bundles provided to the Tribunal. Request 4 The JAC indicated that the material was “taken from JAC material, mostof which can be found on our website”.

Request for Review

[7]By letter email dated 26 July 2023 (page 53), the Appellant requested an internal review in relation Request 1, as he considered the analysis of the public interest test to be too simplistic. He challenges the reliance on the section 40(2) exemption stating that it has become academic in in light of the authorisation issued in October 2022. In relation to the other requests within the letter of 10 July 2023, the Appellant requested that the JAC confirms that the material supplied contained all situational and online situational judgment questions and answers.[8]The JAC responded to the request for an internal view by letter dated 22 September 2023 (page 54), confirming that personal information had been redacted under section 40(2) but querying whether the Appellant had intended to refer to section 42. In relation to the section 42 (legal privilege exemption), a broader response was provided in relation to the public interest test including reference to the need for the JAC to have a safe space in which to seek and obtain legal advice, that disclosure could undermine future advice (due to the potential for it to be disclosed), that privilege is of particularly importance where matters are live and, irrespective of the fact that the authorisation has now been granted, the entitlement to ensure free and frank legal advice remains. FOIA places no time limit on the use of legal professional privilege.[9]In relation to the other requests, the JAC responded:
“For completeness, I am satisfied that our response was satisfactory for your other questions and all of the material we have supplied you with”
.

Complaint to the ICO

[10]On 13 October 2023, the Appellant complained to the ICO pursuant to s.50 FOIA (page60-63). In relation to Request 1, he stated that he confirmed that he was not taking an issue about the ‘qualified person’ authorisation for requests after 10 October 2022 but contended that the public has a right to know what advice was obtained by the JAC after it realised that there was no authorisation in place, how it behaved and was advised to behave. He considered that the legal advice was now stale and that the public interest favoured disclosure. He relied on the case of Bellamy v Information Commissioner (EA/2005/0023) (4 April 2006) in which Deputy

Judge Marks said:

“As can be seen from the citation of the legal authorities regarding legal professional privilege, there is a strong element of public interest in built into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest. It may well be that in certain cases, of which this might have been one, were the matter not still live, for example, where the legal advice was stale, issues might arise as to whether or not the public interest favouring disclosure should be given particular weight.”
[11]The Appellant also contended that the JAC had ignored his request for confirmation that the material provided to him included all the situational and online questions and answers.

ICO’s Decision – 29 April 2024

[12]The ICO decision was contained in a decision notice dated 29 April 2024 (the “DN”). The ICO found that the JAC was entitled to withhold the email exchange with its legal advisors pursuant to section 42, as the exchange was subject to professional privilege and the balance of public interest favoured maintaining the exemption. The ICO also found that there was no further issue arising in relation to the Appellant’s request for confirmation that all relevant training materials had been provided: (A6-A13). THE RELEVANT LAW Jurisdiction

THE RELEVANT LAW

[13]The Tribunal’s jurisdiction is set out at section 58: “(1) If on an appeal under section 57 the Tribunal considers—(a) that the notice against which the appeal is brought is not in accordance with the law, or(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.” (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

Freedom of Information Act 2000

[14]Section 1 “(1) Any person making a request for information to a public authority is entitled—(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and(b) if that is the case, to have that information communicated to him.” (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him.”[15]Section 1(4) provides that “the information …is the information in question held at the time the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request.”

The Exemptions

[16]Section 2(2) provides that the public authority is not obliged to provide the information as required by section 1(1) where:a. an absolute exemption applies (as listed in section 2(3)); orb. one of the exemptions set out in Part II (and not listed in section 2(3)) applies and the public interest in maintaining the exemption outweighs the public interest in disclosing the information.[17]Section 21, 32 and 40(2) are listed at section 2(3) as having absolute exemption and, therefore, the public interest test does not need to be applied to them.

Legal Professional Privilege

[18]Section 42 is the exemption which applies where the information is subject to legal professional privilege. It is not listed in section 2(3); therefore, it is subject to the public interest test.[19]Section 42 states:(1) Information in respect of which a claim to legal professional privilege … could be maintained in legal proceedings is exempt information.(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings.[21]In the case of Regina v Derby Magistrates’ Court ex parte P [1996] 1 AC 487, the question of legal privilege was considered by the House of Lords. Lord Taylor of Gosforth stated:
“The principle which runs through all these cases and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
[22]Lord Nicholls of Birkenhead in Re L (a minor) (Police Investigation: Privilege) {1997] AC 16 stated (page 32E):
“public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases and period.”
[23]In Regina (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax & another [2003] 1 AC 563, Lord Hoffman stated (at 606H-607B):
“LPP [legal professional privilege] is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to its prejudice.”
[24]In the case of Department for Business, Enterprise and Regulatory Reform v O’Brien and Information Commissioner [2009]EWHC 164 (QB) (“DBERR”) Wyn Williams J states (paragraph 41):
“It also common ground, however, that the task of the tribunal, ultimately, is to apply the test formulated in section 22B. A person seeking information from a government department does not have to demonstrate that “exceptional circumstances” exist which justify disclosure. Section 42 is not to be elevated “by the back door” to an absolute exemption. Ms Proops submits in her skeleton argument, it is for the public authority to demonstrate on the balance of probability, that the scales weigh in favour of the information being withheld. That is as true of a case in which Section 42 is being considered as it is in relation to a case which involves consideration of any other qualified exemption. Under FOIA, section 42 cases are different simply because the inbuilt public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the documents in question.”

The Public Interest Test

[25]The public interest test is to be carried out on the date that the request for information is decided (Montague v IC andDIT [2022] UKUT 104 (AAC) at (47)-(90)).[26]In O’Hanlon v IC [2019] UKUT 34 (AAC) at (15), the Upper Tribunal considered: “The first step is to identify the values,policies and so on that give the public interests their significance. The second step is todecide which public interest is the more significant. In some cases, it may involve ajudgment between the competing interests. In other cases, the circumstances of the casemay(a) reduce or eliminate the value or policy in one of the interests or(b) enhancethat value or policy in the other. The third step is for the tribunal to set out its analysisand explain why it struck the balance as it did”.[27]The Tribunal will weigh up the actual harm that the proposed disclosure may cause with the potential benefits of its disclosure APPGER v IC [2013] UKUT 560 at (74)-(76) and (146)-(152). In doing so, the Tribunal will consider the content of the information and the possible consequences of disclosure or non-disclosure.

Advice and Assistance

[28]Pursuant to section 16, a public authority is required to provide advice and assistance:
“(1) It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it. (2) Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by the subsection (1) in relation to that case.”

THE ISSUES

[29]There are three grounds to the Appeal: Ground 1 – The ICO investigation was unfair The Appellant contends that the ICO failed to undertake a fair and impartial investigation into the complaint by allowing Ms Jarman to be involved and by failing to contact the Appellant to enquire as to whether there was any further material or information that he wished to rely on prior to the determination. Ground 2 – Failure to consider the Public Interest Test. The Appellant considers that the ICO has erred in law in its consideration of the public interest text as the information for which legal privilege is now claimed is now “stale” (Bellamy at 35) and that no proper analysis of the public interest test was carried out. The Appellant suggests that the need for public scrutiny is crucial and that there was no real consideration of this in the DN. Ground 3 – Request ignored The Appellantcontends that the JAC completely fails to confirm whether the material provided contains all situational (and online) questions and the answers to those questions. The Appellant considers that this is a breach of section 16.

SUBMISSIONS AND ANALYSIS

[30]The JAC submits that the DN was correct, and the appeal should be dismissed.[31]The Tribunal has considered the DN in accordance with its jurisdiction which allows it to consider whether the DN was correct or whether the ICO has exercised its discretion correctly (and not from the perspective of the identity of the investigating or other officer involved in the investigation or delivery of the DN). The Tribunal re-determines the complaint through the Appeal. Therefore, by doing so, the process is the equivalent of the DN being set aside and re-determined, even though the result may be the same. Therefore, ground 1 is, effectively, of no consequence as the same result is achieved through the Appeal irrespective of whether that ground was included.[32]There is no challenge to the contention that the emails that have been withheld contain legal advice. Therefore, consideration needs only to be given to the public interest test set out at section 2(2)(b). The Tribunal must determine the weight to be attributed to public interest in maintaining the exemption and the public interest in disclosure.[33]Whilst the Tribunal does not consider the legal advice provided to the JAC within the email chain to be stale or redundant, as it remains valid (and will continue to be valid indefinitely), it is correct that the advice has now been given and applied. It is unlikely that anything further will change as a result of it. This is particularly as the purpose for which the advice was obtained and the outcome of it is known. Therefore, the Tribunal does not consider that any significant harm would arise from the disclosure of the communication.[34]However, legal professional privilege is a fundamental human right. Whilst the rights to be protected by the exemption in the present matter are those of a public authority (and not an individual), it is well recognised that there is an inbuilt public interest (see the DBERR case above) in the protection of the principle of legal privilege and, therefore, the protection of communications between a client and its lawyers.[35]The Tribunal accepts that there has been criticism of the JAC and that it is in the public interest for matters of this type to be explained, where possible. It is in the public interest for there to be transparency and accountability to ensure that members of the judiciary, applicants and members of the public who need to have confidence in the judicial system can have confidence in the JAC. The Tribunal notes the words of Sir Geoffrey Vos MR in the case of R (on the Application of Kate Thomas) v JAC [2024] EWCA Civ 665 :
“I have borne in mind the importance of this case and the public interest in maintaining a scrupulously fair and transparent judicial appointment process.”
[36]The Tribunal must, however, take all the circumstances into consideration. It is noted that the situation that gave rise to the obtaining of legal advice is known from the detailed emails that have been provided, as is the outcome of the advice. The Tribunal has also had an opportunity to read the email chain. However, the Tribunal is not persuaded that the disclosure of the email chain or other communications relating to the authorisation of Dr Jarvis will be of any assistance in assuaging any of the public concerns.[37]The Tribunal notes the contention that the disclosure would reduce speculation as to any potential suspicion arising from the way the advice was sought or as to whether the JAC was properly discharging its public functions. However, having read the emails, the Tribunal is not persuaded that the disclosure of the email chain or other communications will assist with this. If there were cause for concern arising from the information within the closed bundle, the Tribunal would have also considered that as an important factor favouring disclosure. No cause for concern arises.[38]The Appellant suggests that it is for the Respondent to prove that the public interest in maintaining the exemption outweighs the public interest in disclosing the information. The Tribunal considers that the inbuilt significance which applies to information which is subject to legal professional privilege is sufficient, in this case, based on the content of the information, for the public interest in maintaining the exemption to prevail. Therefore, the Tribunal accepts that the exemption applies.[39]Finally, in relation to Ground 3, the Appellant asked the JAC to provide information. Information was provided and the Appellant then wrote to the JAC requesting confirmation that the information the JAC had supplied contained all the information and the JAC responds to say that: “I am satisfied that our response was satisfactory for your other questions and all of the material we have supplied you with”.[40]Whilst this response does not directly state that all in the information had been provided, the Tribunal finds that the intention of the JAC was clearly to indicate that all the information had been provided. The Appellant does not appear to contend that he has not been provided with all the information but only suggests that failing to answer was a breach of section 16. The Tribunal does not conclude that the JAC failed to answer.

DECISION

[41]For the reasons stated above, the Tribunal determines as follows: a) Ground 1 – the Tribunal has considered and redetermined the complaint. b) Ground 2 - the public interest in maintaining legal privilege outweighs the public interest in disclosure. c) Ground 3 – as the JAC had answered the question confirming that it was satisfied with its previous responses, the Tribunal does not consider that the JAC breached section 16.[42]Therefore, the Appeal is dismissed. APPEAL If either party is dissatisfied with this decision, an application may be made to this Tribunal for permission to appeal to the Upper Tribunal, Administrative Appeals Chamber, against decisions of the First-tier Tribunal in Information Rights Cases (General Regulatory Chamber). Any such application must be received within 28 days after these reasons have been sent to the parties under Rule 42 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. District Judge Watkin