Simon Dally v The Information Commissioner [2026] UKFTT 1104 (GRC)

[2026] UKFTT 01104 (GRC)Case Reference: EA/2020/0252
First-tier Tribunal
General Regulatory Chamber
Date 30 July 2026
Information Rights
Decided without a hearing
Before
JUDGE STEPHEN ROPERMEMBER MARION SAUNDERSMEMBER PAUL TAYLOR
Between
SIMON DALLYAppellantTHE INFORMATION COMMISSIONERRespondentDecision: The appeal is DismissedREASONS

Preliminary matters

[1]In this decision, we use the following terms to denote the meanings shown: 2018 Regulations: The Animal Welfare (Licensing of Activities Involving Animals) (England) Regulations 2018. Alleged Misrepresentation: The relevant alleged misrepresentation referred to in paragraph 62. Appellant: Simon Dally. AWL: Animal Wardens Ltd. Commissioner: The Information Commissioner (the Respondent). Council: Knowsley Council. Decision Notice: The Decision Notice of the Commissioner dated 22 July 2020, reference FS50883303, relating to the Request. DEFRA: The Department for Environment, Food and Rural Affairs. Duty to Disclose: The duty of a public authority to communicate requested information which it holds, pursuant to section 1(1)(b) (set out in paragraph 33). FOIA: The Freedom of Information Act 2000. Licence: As defined in paragraph 7. MDH: Merseyside Dogs Home. Public Interest Test: The test, pursuant to section 2(2)(b) (set out in paragraph 36), as to whether, in all the circumstances of the case, the public interest in maintaining the exemption to the Duty to Disclose outweighs the public interest in disclosing the information. Request: The request for information made to the Council by the Appellant dated 11 September 2019, as set out in paragraph 10. Requested Information: The information which was requested by way of the Request. Withheld Information: The information specified in item numbered 2 in the Request (as referred to in paragraph 17).[2]Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:a. to numbered paragraphs are references to paragraphs of this decision so numbered;b. to any section are references to the applicable section of FOIA;c. to the Commissioner’s “response” mean the Commissioner’s response to the appeal; andd. to the Appellant’s “reply” mean the Appellant’s reply to the Commissioner’s response.[3]We considered whether we needed to provide a closed decision or annex. We concluded that it would not be necessary, on the basis that the reasoning behind this decision can be sufficiently understood without us needing to disclose any sensitive aspects of the Withheld Information.[4]We refer to the Information Commissioner as ‘she’ and ‘her’ to reflect the fact that the Information Commissioner was Elizabeth Denham CBE at the time of the Request and the Appellant’s subsequent complaint to the Commissioner, as well as at the time of the Decision Notice and the date of the appeal (whilst acknowledging that the Information Commissioner was subsequently John Edwards at relevant times).

Introduction

[5]This was an appeal against the Decision Notice, which (in summary) decided that the Council was entitled to withhold the Withheld Information on the basis that the exemption under section 42(1) (legal professional privilege) was engaged and the Public Interest Test favoured maintaining the exemption.

Background to the appeal

[6]The background to the appeal is as follows.[7]It may be helpful to explain that the Appellant made the Request following previous correspondence he had with the Council regarding MDH. In summary, the Appellant was concerned that stray dogs were being kennelled at MDH overnight, and sometimes for longer, but that MDH did not have licence to board dogs pursuant to the 2018 Regulations (a “Licence”). In an email to the Appellant dated 20 February 2019, the Council stated that MDH operates as a charity rehoming centre/reception centre for stray dogs and that those dogs are then transported to licensed facilities for boarding. The Council accordingly considered, in essence, that MDH was not required to have a Licence. The Council also stated in that email:
“Despite our previous legal advice on this matter we have recently clarified the position with DEFRA so that we could be certain that our interpretation was correct.”
[8]In responding to that email, the Appellant asked: “Did you inform DEFRA that dogs were being kennelled for a short period during the day, or if they were being additionally kennelled there overnight? Either way, a license would be required in both cases… Part 3 of the Animal Welfare Regulations 2018 states that the provision of day care for other peoples' dogs is a licensable activity. Even if Merseyside Dogs Home are simply operating as a reception point and not kennelling dogs overnight, they are still providing day care commercially for other peoples’ dogs, and are being contracted to do so by Animal Wardens Ltd.”.[9]We understand that the Appellant did not receive a response to that, which led to him making the Request.

The Request

[10]On 11 September 2019, the Appellant contacted the Council and requested information in the following terms: “1) Please provide me with a copy of the advice received by DEFRA and a copy of all correspondence between Knowsley Council and DEFRA relating to the advice provided by DEFRA, to which [name of officer redacted] refers. If no correspondence exists, please provide me with a note or notes of any telephone or face to face discussions with DEFRA. Please confirm specifically whether or not DEFRA advised that the commercial boarding by Merseyside Dogs Home of stray dogs, which did not belong to them, was licensable activity. 2) Please provide me with details of the previous legal advice relating to the kennelling of stray dogs to which [name of officer redacted] refers, including the specific legal advice sought and the legal advice received. Again, if no actual correspondence exists, please provide me with a note or notes of any telephone or face to face discussions relating to the advice received. Please confirm specifically whether or not the previous advice stated that the commercial boarding by Merseyside Dogs Home of stray dogs, which did not belong to them, was licensable activity.”.[11]The Council responded on 22 October 2019. It provided some information in response to item numbered 1 in the Request but withheld the information requested in item numbered 2 in the Request, citing section 42(1).[12]On 8 November 2019, the Appellant requested an internal review in respect of the Council’s response to the Request.[13]On 14 November 2019, the Council provided the Appellant with the outcome of its internal review, upholding its previous position.[14]The Appellant originally contacted the Commissioner on 18 October 2019 to complain about the Council’s handling of the Request, but at that stage the Council had not yet responded to the Request. After the Council provided the outcome of its internal review, the Appellant complained again to the Commissioner (on 27 November 2019) regarding the Appellant’s response to the Request.[15]The Commissioner subsequently issued the Decision Notice.

The Decision Notice

[16]The Decision Notice recorded that the Appellant had only complained to the Commissioner about the application of section 42(1) to the information requested in item numbered 2 in the Request. The Commissioner therefore stated that the Decision Notice addressed whether the Council correctly withheld the Withheld Information under section 42(1).[17]The Decision Notice also recorded (in paragraphs 21 and 23, respectively) that the Withheld Information comprised:a. an email from an Assistant Solicitor of the Council to colleagues in the Environmental Health department and that the email provided legal advice on “the Council’s statutory duties under legislation and guidance”; andb. an email sent by the Council’s officer in the Environmental Health department to the Assistant Solicitor, asking for such advice.[18]In the Decision Notice, the Commissioner decided (in summary) that:a. the Withheld Information comprised communications between a professional legal adviser and officers of the Council;b. those communications had been created for the dominant purpose of seeking and obtaining legal advice;c. the Withheld Information was therefore covered by legal professional privilege;d. the Withheld Information had not been disclosed to the public nor to a third party without restriction and therefore it remained confidential and privileged;e. section 42(1) was therefore engaged in respect of the Withheld Information;f. in respect of the associated Public Interest Test:(i) the public interest in maintaining the exemption under section 42(1) was strong due to the importance of the principle behind legal professional privilege;(ii) there was some public interest in disclosure of the Withheld Information, in order to provide transparency and because the Request related to an issue of importance to the public, but that was insufficient to equal or outweigh the inherent interest in maintaining the exemption; andg. accordingly, the Public Interest Test favoured maintaining the exemption in that section.[19]The Commissioner therefore concluded that the Council had correctly withheld the Withheld Information under section 42(1).[20]The Decision Notice did not require the Council to take any steps. The appeal The grounds of appeal[21]The Appellant advanced thorough grounds of appeal, which included detailed comments on background matters prior to the Request and lengthy submissions regarding his understanding of the legal obligations on local authorities in relation to kennelling and stray dogs.[22]In summary, the material aspects of the Appellant’s grounds of appeal were based on his views that:a. there had been a lack of transparency concerning the legal basis upon which the Council concluded that MDH did not require a Licence;b. the Council had misled the public by stating that it had received legal advice that MDH did not require a Licence to kennel stray dogs for up to 24 hours;c. the Council (and other local authorities) had a contract with a private company, AWL, for the collection and kennelling of stray dogs which was subcontracted in part to MDH – and substantial public money was involved in the relevant contractual arrangements;d. significant numbers of people and animals were potentially affected; ande. the Public Interest Test therefore favoured disclosure. Progress of

The appeal

[23]The appeal was originally decided by the First-tier Tribunal pursuant to a decision dated 15 February 2021 (under the same case reference; EA 2020/0252). That decision was successfully appealed and, pursuant to a decision of the Upper Tribunal dated 12 June 2024, the First-tier Tribunal’s decision was set aside and the appeal was remitted back to the First-tier Tribunal to be decided by a differently constituted Panel.[24]For clarity, this decision comprises the determination of the appeal by the differently constituted First-tier Tribunal as a result of the Upper Tribunal’s decision.[25]The Upper Tribunal’s decision directed that if either party wished to rely on any further written evidence or submissions following the appeal’s remittance back to the First-tier Tribunal, these were to be received by the First-tier Tribunal within one month of the date of issue of the Upper Tribunal’s decision. No such further written evidence or submissions were received.

The Tribunal’s powers and role

[26]The powers of the Tribunal in determining the appeal are set out in section 58, as follows: “(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.”.[27]In summary, therefore, the Tribunal’s remit for the purposes of the appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

Mode of hearing

[28]The Upper Tribunal’s decision (referred to in paragraph 23) directed that, on its remittance back to the First-tier Tribunal, there should be an oral hearing of the appeal. However, by email dated 23 May 2025, the Commissioner informed the Tribunal that she did not intend to attend an oral hearing of the appeal and would seek to rely on the Decision Notice and her written submissions. By email of the same date, the Appellant also stated that he did not intend to attend the oral hearing and was content for it to be considered on the papers. Pursuant to Case Management Directions dated 17 July 2025, the appeal was subsequently listed for a paper hearing.[29]The Tribunal had the benefit of the bundles of evidence and pleadings referred to below. Having reviewed those bundles, we did not consider that further information was required from the parties in order to make an informed decision.[30]The Tribunal accordingly considered that the appeal was suitable for determination on the papers in accordance with rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the appeal in this way.

The evidence and submissions

[31]The Tribunal read and took account of an open bundle of evidence and pleadings, as well as a closed bundle. The closed bundle contained the Withheld Information.[32]All of the contents of the bundles (including the parties’ submissions) were taken into account, even if not directly referred to in this decision. The relevant statutory framework General principles

The relevant statutory framework

[33]Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides: “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.”.[34]In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority. Section 1(2) provides: “Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.”.[35]Accordingly, section 1(1) does not provide an unconditional right to be told whether or not a public authority holds any information, nor an unconditional right of access to any information which a public authority does hold. The rights contained in that section are subject to certain other provisions of FOIA, including section 2.[36]Section 2(2) addresses potential exemptions to the Duty to Disclose. That section provides: “In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—(a) the information is exempt information by virtue of a provision conferring absolute exemption, or(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”.[37]The effect of the above is that some exemptions which are set out in Part II of FOIA are absolute and some are subject to the Public Interest Test. Section 2(3) explicitly lists which of those exemptions are absolute (and, pursuant to that section, no other exclusions are absolute). Section 42 (which is relevant for the purposes of the appeal) is not included in that list.[38]Accordingly, in summary, the exemption to the Duty to Disclose in section 42(1) is subject to the Public Interest Test.

Section 42(1) – legal professional privilege

[39]So far as is relevant for the purposes of the appeal, section 42(1) provides:
“Information in respect of which a claim to legal professional privilege… could be maintained in legal proceedings is exempt information.”
. Discussion and findings The scope of the appeal/the Tribunal’s remit

Discussion and findings

[40]As we have noted, some of the Appellant’s grounds of appeal addressed matters relating to his understanding of the legal obligations on local authorities in relation to kennelling and stray dogs. Amongst other things, he also expressed concern regarding the operation of MDH and matters in respect of the Council’s contract with AWL, including regarding whether or not relevant legal obligations were being complied with.[41]The scope of the Tribunal’s jurisdiction is as set out in paragraph 26 (and summarised in paragraph 27) and, in essence, relates to the lawfulness of the Decision Notice. Accordingly, the main issue which we needed to determine in the appeal was whether the Commissioner was correct to conclude in the Decision Notice that section 42(1) was engaged in respect of the Withheld Information and that the Public Interest Test favoured maintaining the exemption in that section.[42]Therefore the Tribunal’s jurisdiction (and consequently the scope of the appeal) does not extend to matters such as those referred to in paragraph 40. It was therefore outside of our remit to consider, or make any finding in respect of, such matters. Accordingly, we have not addressed below any of the Appellant’s grounds of appeal insofar as they relate to those matters, save where they are relevant to the application of the Public Interest Test.[43]However, as we have noted, the Tribunal may review any relevant findings of fact in the Decision Notice and may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned). That is what we have done.[44]We also observe that, in his internal review request to the Council, the Appellant stated that the Council “appears to have made at least two misrepresentations, namely the fact that Merseyside Dogs Home does not receive a fee for the boarding of stray dogs and that only dogs belonging to Merseyside Dogs Home are kennelled at their premises”. Our understanding, particularly having regard to the nature of the Withheld Information and the wording of the Request, is that the Appellant’s arguments in the appeal were not concerned with those issuesbut instead based on the Alleged Misrepresentation.[45]We should also comment that, despite the passage of time during the appeal, we assessed the potential application of the exemption in section 42(1) and the associated Public Interest Test as at the date of the Council’s response to the Request (22 October 2019).

Whether section 42(1) was engaged in respect of the Withheld Information

[46]Legalprofessional privilege encompasses ‘legal advice privilege’ and ‘litigation privilege’. Legal advice privilege applies to confidential communications between a lawyer and their client for the dominant purpose of giving or receiving legal advice or assistance (whether the matter is contentious or non–contentious). Litigation privilege extends to protect a wider range of communications, covering confidential communications between clients and lawyers, or either of them and third parties, which are brought into existence with the dominant purpose of being used in litigation (including contemplated litigation).[47]The Appellant argued, in his reply, thatthere was little or no prospect of litigation.[48]As we noted in paragraph 17, the Withheld Information related to legal advice on the Council’s statutory duties under legislation and guidance. Based on our assessment of the Withheld Information, we find that it does not relate to existing or prospective litigation. There was also no evidence before us to suggest that the advice was relevant to any existing or prospective litigation. Accordingly, the appeal was concerned with the potential application of legal advice privilege, rather than litigation privilege.[49]Case law has established See Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants)[2004] UKHL 48 that the relevant principles which must apply if legal advice privilege attaches to any particular material are that:a. the material must be between a qualified lawyer acting in their professional capacity and a client;b. the material must be created with the sole or dominant purpose of obtaining or providing legal advice; andc. the material must be confidential.[50]As we have noted, paragraph 21 of the Decision Notice recorded that the Council had advised that the Withheld Information consists of an email from an Assistant Solicitor to colleagues in the Council’s Environmental Health department and that the email provided legal advice on “the Council’s statutory duties under legislation and guidance”. Paragraph 22 of the Decision Notice also recorded the Council’s view that such email was between a professional legal adviser and their client, made for the sole purpose of obtaining and providing legal advice, and that the information had been communicated in the legal adviser’s professional capacity.[51]Based on our assessment of the Withheld Information, we find that it does accord with the Council’s views of it as outlined in the preceding paragraph. We also agree with the Commissioner’s view in paragraph 23 of the Decision Notice that the Withheld Information also included an email sent by the Council’s officer in the Environmental Health department to the Assistant Solicitor, asking for the advice in question.[52]We note that the Appellant had submitted, in his reply, that the reference to the advice being provided by an ‘Assistant Solicitor’ could mean that it was provided by a ‘trainee solicitor’. The Appellant accordingly argued that the exemption in section 42(1) may therefore not be engaged.[53]In our view, an ‘assistant solicitor’ means a qualified solicitor, which is not the same thing as a ‘trainee solicitor’. We also consider, incidentally, that legal professional privilege could still apply to advice given by a trainee solicitor. In any event, however (in accordance with our finding in paragraph 51), we conclude that the Withheld Information comprised communications between a professional legal adviser and staff at the Council, that those communications had been created for the dominant purpose of seeking and obtaining legal advice and accordingly that it was covered by legal professional privilege.[54]There was no evidence before us that the Withheld Information had been disclosed to the public or beyond the recipients of the advice in question. We therefore find that the Withheld Information remained confidential and privileged.[55]For the above reasons, we therefore agree with the Commissioner’s findings in the Decision Notice that the Withheld Information falls within the definition of legal advice privilege and that the exemption in section 42(1) is engaged in respect of it.[56]As we have noted, the exemption in section 42(1) is a qualified exemption, so that the Public Interest Test has to be applied, even though that exemption is engaged. We therefore turn to consider the associated Public Interest Test.

The Public Interest Test – factors favouring disclosure

[57]In applying the Public Interest Test for the purposes of section 42(1), we start by considering the factors favouring disclosure of the Withheld Information.[58]Paragraphs 30, 44 and 45 of the Decision Notice reflected, respectively, that the Commissioner had taken into account, in the Public Interest Test, the following factors favouring disclosure of the Withheld Information:a. the public interest principles of accountability, transparency, and furthering public debate;b. public interest in disclosure of the advice within the Withheld Information, as it relates to the matter of the Council’s obligations with regard to stray dogs; andc. general public interest in transparency in relation to advice received by the Council, on which it may be likely to base subsequent actions or decisions, as this provides the public with a fuller picture.[59]We recognise and agree with the above as factors favouring disclosure of the Withheld Information. We accept that there is a public interest in:a. transparency and accountability, including understanding the basis upon which public authorities make decisions; andb. enabling scrutiny of the Council’s interpretation of, and decisions made regarding, relevant legal obligations relating to the kennelling of dogs.[60]We have also taken into account, as potential factors favouring disclosure of the Withheld Information, the Appellant’s concerns regarding:a. the Alleged Misrepresentation;b. alleged deficiencies in the Council’s approach to licensing issues;c. other alleged unlawfulness relating to kennelling and stray dogs;d. deficiencies in auditing of the contracts relating to AWL and MDH;e. the expenditure of substantial public funds; andf. the public interest in animal welfare.[61]The factor which was mainly relied on by the Appellant as favouring disclosure of the Withheld Information was based on his concerns that the Council may have publicly misrepresented the initial legal advice it received regarding the kennelling of stray dogs by MDH. The Appellant submitted that:a. the Council’s Chief Executive Officer, in an email to a local MP (subsequently reproduced in an email sent to the Appellant by the MP dated 29 March 2019), explicitly stated that the Council had sought legal advice regarding the kennelling of stray dogs at MDH on behalf of AWLfor up to 24 hours and that it had subsequently sought further advice from DEFRA to confirm that its interpretation of the law was correct;b. in particular, the Council’s Chief Executive Officer stated in that email that (in essence):(i) dogs are kept at MDH for a maximum of 24 hours to enable them to be reunited with their owners;(ii) dogs which are not claimed within that initial 24-hour period were to be transferred to licensed kennels, where they will be kept for up to seven days;(iii) MDH operates in the manner outlined above; it is a charitable rehoming centre/stray dog reception site which is “currently exempt” from requiring a Licence;(iv) whilst the Council had taken previous legal advice on this matter, it had recently sought further clarity from DEFRA, in order to be “absolutely certain” that the Council’s interpretation of the law was correct; and(v) DEFRA had confirmed that the licensing regime did not apply to stray dog rehoming or reception centres of the nature of MDH; andc. it was, however, clear from the email correspondence with DEFRA which had been disclosed by the Council, that the Council did not seek advice from DEFRA as to whether the commercial boarding of stray dogs by MDH on behalf of AWLwas a licensable activity under the 2018 Regulations.[62]In summary, the alleged misrepresentation which the Appellant argued was relevant for favouring disclosure of the Withheld Information (for the purposes of the Public Interest Test) was that the Council may not have sought legal advice as to whether the commercial kennelling by MDH for up to 24 hours was a licensable activity (in other words, the Council may not have sought legal advice as to whether the commercial boarding of stray dogs required a Licence).[63]The Appellant argued that there was a compelling public interest in disclosure of the Withheld Information, on the basis that this would confirm:a. whether or not the Council did in fact seek advice as to whether the commercial boarding of dogs at MDH on behalf of AWLrequired a Licence (in other words, it would demonstrate matters for the purposes of the Alleged Misrepresentation); andb. (if applicable for the purposes of the Alleged Misrepresentation) the extent to which the local MP, councillors and members of the public had been misled by the Council and by MDH.[64]In his grounds of appeal, the Appellant referred to paragraph 36 of the Decision Notice, which he accepted was an accurate reflection of his submission to the Commissioner regarding the Alleged Misrepresentation.[65]However, the Appellant stated that the Decision Notice incorrectly reflected his submission that there had been a misrepresentation by the Council in stating that it had received legal advice to the effect that MDH did not require a licence for the boarding of stray dogs for up to 24 hours. The Appellant contended that it was therefore apparent that the Council had misrepresented to the Commissioner the advice which it had sought from DEFRA, which had been referred to in the Council’s email to the Appellant dated 20 February 2019 (see paragraph 7).[66]That contention was based on the contents of paragraph 38 of the Decision Notice, which referred to the Appellant submitting that the Council had wrongly led the public to believe that stray dogs are, when staying at MDH, staying on licensed premises. The Decision Notice stated that the Appellant has considered that this amounted to a misrepresentation of the legal advice received by the Council. The Appellant stated in his grounds of appeal that the Council had not stated that, and that he had not alleged that it did state that.[67]In her response, the Commissioner conceded that paragraph 38 of the Decision Notice contained an error. The Commissioner accepted that the Council had not stated that MDH is a licenced premises and that the Appellant did not attribute this assertion to the Council. The Commissioner also accepted that the relevant statement which was attributed to the Council by the Appellant was the view that MDH does not require a Licence.[68]We do not accept the Appellant’s contention that the Council had misrepresented to the Commissioner the advice which it had sought from DEFRA. There was no evidence before us to support that contention. In our view, paragraph 38 of the Decision Notice simply reflects that the Commissioner made a mistake (which, as we have noted, the Commissioner accepted in her response). We also consider that this issue is not material for the purposes of the appeal. This is because, as noted above, that alleged misrepresentation was not relevant to the issues in the appeal and the Public Interest Test (but rather the Alleged Misrepresentation). It is also perhaps worth restating that the Decision Notice (and therefore the scope of the appeal) only related to the information specified in item numbered 2 in the Request.[69]The Commissioner also stated in her response that paragraph 39 of the Decision Notice did not “accurately summarise the contents” of the Withheld Information. The Commissioner further stated that she was not in a position to provide a summary in her response because the material was subject to legal professional privilege.[70]However, as we have noted (in paragraph 17), paragraphs 21 and 23 of the Decision Notice had recorded what the Withheld Information comprised (albeit without summarising its contents). For clarity, we stress that our relevant findings in this decision are based on the material comprised in the closed bundle, which accurately reflected the description set out in paragraph 17. We are also satisfied from our assessment of the Withheld Information that it was responsive to the wording set out in item numbered 2 in the Request.[71]The Commissioner submitted in her response that the errors in the Decision Notice referred to above were not material to her conclusions in the Decision Notice. We are mindful that the nature of the Withheld Information was accurately described in paragraphs 21 and 23 of the Decision Notice. We reiterate that the Decision Notice (and therefore the scope of the appeal) only related to the information specified in item numbered 2 in the Request. Accordingly, in determining the appeal we have (in accordance with our remit as set out in paragraph 26 and summarised in paragraph 27) considered whether the Commissioner’s conclusions in the Decision Notice regarding the engagement of section 42(1) and the outcome of the Public Interest Test were correct in respect of the Withheld Information.[72]We acknowledge the Appellant’s argument that disclosure of the Withheld Information would confirm whether or not the Council sought legal advice as to whether the commercial boarding of dogs at MDH required a Licence (and accordingly would demonstrate matters for the purposes of the Alleged Misrepresentation). However, we disagree with his view that this meant that there is a compelling public interest in disclosure of the Withheld Information for the purposes of the Public Interest Test, for the following reasons.[73]It may be helpful at this point to repeat that the Withheld Information relates to item numbered 2 in the Request. That part of the Request asked for details of “the previous legal advice” and specifically sought confirmation as to whether or not such previous legal advice stated that a Licence was required for the commercial boarding of stray dogs at MDH.[74]The Withheld Information comprised such ‘previous legal advice’ (as well as the request for that legal advice). As we have noted, the Commissioner stated in her response that paragraph 39 of the Decision Notice did not “accurately summarise the contents” of the Withheld Information. However, that paragraph correctly stated that the Withheld Information “dates from several years ago”. Paragraph 40 of the Decision Notice also stated that the email seeking advice did not relate to the 2018 Regulations, as it was dated “considerably before that legislation came into existence”. The original decision of the First-tier Tribunal in the appeal, dated 15 February 2021, also stated that the legal advice was obtained “some time before” the 2018 Regulations came into force. Given those references, we consider that it is important to specify that such legal advice was dated 10 March 2014. Regulation 1(1)(b) of the 2018 Regulations provides that they came into force on 1 October 2018. It is therefore evident that such legal advice was given prior to the 2018 Regulations coming into force.[75]The information that the legal advice related to the statutory regime prior to the 2018 Regulations coming into force was recorded, and therefore within the knowledge of the Council, as at the date of its response to the Request (even if the Council did not appreciate, or clearly communicate, this at the time). We therefore find that this can be taken into account as part of the Public Interest Test in respect of the engagement of section 42(1) at that date.[76]In our view, the fact that the legal advice contained in the Withheld Information pre-dated the 2018 Regulations being in force should be sufficient for the Appellant to form his own view regarding the Alleged Misrepresentation (namely, if the legal advice related to licensable activity pursuant to the 2018 Regulations). Accordingly, we do not consider that disclosure of the Withheld Information is necessary to satisfy the public interest argument based on the Alleged Misrepresentation.[77]For the above reasons, we consider that little or no weight should be given to the Alleged Misrepresentation as a factor favouring disclosure of the Withheld Information for the purposes of the Public Interest Test.[78]We have, however, taken into account the other factors we have referred to favouring disclosure of the Public Interest Test. We have also taken into account the age of the legal advice contained within the Withheld Information (which was given five and a half years prior to the date of the Request) as a factor in favour of disclosure of the Withheld Information.

The Public Interest Test – factors favouring maintaining the exemption

[79]In respect of factors favouring maintaining the exemption in section 42(1), the Decision Notice reflected that the Commissioner had taken into account that there is generally a strong public interest inherent in maintaining the exemption in section 42(1), because of the importance of the principle behind legal advice privilege (namely, safeguarding openness in communications between a client and their lawyer). The Commissioner also stated that such principle is fundamental to the administration of justice, and disclosing any legally privileged information threatens that principle.[80]We agree with the Commissioner that there is a strong public interest in maintaining the exemption in section 42(1). Case law has established that:a. legal professional privilege is fundamental to the administration of justice and essential to ensuring that clients can seek and obtain full, frank and candid legal advice without fear of later disclosure;b. legal professional privilege is therefore regarded as a principle of the highest importance;c. accordingly, there is an inherent and substantial public interest in preserving legal professional privilege - and very strong countervailing factors would be required to outweigh that public interest; andd. although section 42(1) is a qualified exemption, the Tribunal must give particularly significant weight to the strong inherent public interest in maintaining the exemption in that section.[81]Consequently, in considering the Public Interest Test, we have taken into account the substantial inherent public interest in maintaining the exemption under section 42(1).

The Public Interest Test – conclusions and outcome

[82]As we have noted, we find that little or no weight should be afforded to the Alleged Misrepresentation as a factor favouring disclosure. However, we accept, and have taken account of, the other public interest factors favouring disclosure. On balance, though, we find that the public interest factors favouring disclosure are insufficient to justify disclosure of the legal advice in this case.[83]Indeed, in our view many of the public interest factors favouring disclosure (such as, by way of example, concerns about animal welfare, alleged unlawfulness relating to kennelling and stray dogs, the amount of money involved, and whether a Licence is required) are matters which can be determined without needing to see, and therefore override the legal professional privilege in, the Withheld Information. Further, in respect of some of those factors the relevant public interest is also satisfied by the knowledge that the Withheld Information did not relate to the 2018 Regulations.[84]In summary, we find that the countervailing factors favouring disclosure of the Withheld Information are not of sufficient weight to equal or outweigh the strong public interest in upholding the principle of legal professional privilege in this case.[85]Overall, in considering the Public Interest Test in this case, whilst we recognise the factors favouring disclosure of the Withheld Information, we conclude that the public interest in maintaining the exemption in section 42(1) outweighs the public interest in disclosure.

Final conclusions

[86]For all of the reasons we have given, we find that the Decision Notice was correct to conclude that the exemption in section 42(1) was engaged in respect of the Withheld Information and that the Public Interest Test favoured maintaining that exemption.[87]We therefore dismiss the appeal. Signed: Stephen Roper Date: 29 July 2026 88. Judge of the First-tier Tribunal