Mark Boyce v Information Commissioner & Anor [2026] UKFTT 137 (GRC)

[2026] UKFTT 00137 (GRC)

Case Reference: FT/EA/2024/0265

First-tier Tribunal

(General Regulatory Chamber)

Date 29 January 2026

Information Rights

Decided without a hearing

Before

JUDGE SAWARD

MEMBER SAUNDERS

MEMBER SHAW

Between

MARK BOYCEAppellant

INFORMATION COMMISSIONERRespondent

THE PARLIAMENTARY AND HEALTH SERVICE OMBUDSMANRespondent

Decision: The appeal is dismissed.

REASONS

Introduction

[1]This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 3 June 2024 referenced IC-275084-T3N8 (“the Decision Notice”). The appeal concerns a request for information made to the Parliamentary and Health Service Ombudsman (“PHSO”) on 12 August 2021 under the Freedom of Information Act 2000 (“FOIA”).

Preliminary Matters

[2]The PHSO highlights that she was named as a third party to these proceedings and whilst described as a Second Respondent in the Tribunal’s Directions of 17 July 2025, no formal decision has been received on the PHSO’s request to become a party. The PHSO has nevertheless responded to directions as though a party. For the avoidance of doubt, an order is hereby made pursuant to Rule 9 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 to add the PHSO as Second Respondent to these proceedings.

[3]The parties opted for a determination of the appeal on the papers. The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

[4]When a Tribunal panel first convened, the paper hearing was adjourned as the Tribunal required further information from the Respondents to make an informed decision. Accordingly, Case Management Directions dated 17 July 2025 were issued.

[5]In those Directions, it was recorded that the Commissioner had argued that the Appellant previously made the same request and the PHSO’s refusal of the request had already been upheld by the Commissioner in 2019. In light of this, the PHSO had submitted that the matter should be struck out as res judicata. However, the Tribunal panel noted that the 2021 request, which is the subject of this appeal, is differently worded from the earlier request. They are not identical.

[6]In order to establish if the withheld information is within scope of the 2021 request, the Commissioner was directed to provide:(a) an updated final open bundle to include the decision notice and open submissions made in the previous appeal reference EA/2019/0032 (“the 2019 appeal”), and

(b) a closed bundle including information that was redacted in the open bundle, any further withheld information, and the closed submissions in the 2019 appeal. Both Respondents were given opportunity to make further submissions and for the Appellant to reply.

[7]To avoid further delay, the appeal has been considered by a differently constituted Tribunal panel. We have considered the matter entirely afresh.

[8]The documentary evidence comprises an updated open bundle and closed bundle, as directed on 17 July 2025. The closed bundle consists of the withheld information and closed submissions from the Commissioner in the 2019 appeal. The closed bundle is held under Rule 14(6) of the 2009 Rules in accordance with the Directions of Judge Dwyer of 17 July 2025.

[9]There is no need for us to produce a closed decision. It is sufficient for us to provide all our reasons for our decision in this single, open decision. The Request

[10]The Appellant’s request to the PHSO of 12 August 2021 (“the Request”) sought the following information:

“Please provide all relevant documents (discussions, legal briefing notes, unabridged board meeting minutes, guidance etc.) that the PHSO possess with regard to the legal status of non-CCT reviews and the re-opening of final decisions.”

[11]“CCT” is the abbreviation for “Customer Care Team”.

Refusal of the Request

[12]The PHSO initially refused the Request on 6 October 2021 on the grounds that it was vexatious. The Commissioner upheld the refusal on 27 September 2022. That decision was overturned on appeal to the Tribunal on 18 August 2023 (case reference EA/2022/0324) and the PHSO was required to issue a new response without reliance upon section 14 FOI.

[13]The PHSO responded anew to the Request on 9 October 2023 by disclosing some information. The PHSO refused to disclose legal advice on the basis that it was exempt from disclosure under section 42 FOIA. Upon internal review on 7 November 2023, the PHSO upheld their decision to rely on section 42(1) FOIA. It was added:

“Whether or not a review was carried out by the Customer Care Team or other team the legal status remains the same.”

The Decision Notice

[14]The Appellant complained to the Commissioner on 3 December 2023. Following an unsuccessful attempt at informal resolution, the Commissioner decided that the PHSO was correct to refuse to disclose the legal advice under section 42 FOIA.

[15]In reaching that decision, the Commissioner noted that he had previously upheld the PHSO’s application of section 42 FOIA to the same information requested and responded to in 2019. Readers are referred to the Commissioner’s published decision under reference IC-45092-T8X4 and the reasons at paragraphs 42-56 of that decision.

[16]The Commissioner acknowledged the public interest in transparency and ensuring that PHSO’s processes are lawful but afforded limited weight to the public interest in disclosure of the specific legal advice being withheld in this case. By contrast, the Commissioner afforded significant weight to the public interest against disclosure.

(s) ”

[17]In addition, the Commissioner gave significant weight to the important wider consideration of the likely restrictive effect of legal advice being requested and provided by/to public authorities if there is possibility of that advice being made public.

The Appeal

[18]The Appellant appealed on 28 June 2024. The grounds of appeal are summarised as: 18.1. The Appellant is unable to make a comprehensive and fully coherent submission when both the PHSO and Commissioner are making contradictory and confusing statements about what is or is not within scope in terms of the withheld legal advice. 18.2. The Appellant asks to make a full submission when the issue of scope is finally established. 18.3. The reasons why the Appellant believes the public interest in disclosure of the legal advice outweighs the public interest in disclosing the information are:(a) The legal advice is now obsolete as it may well refer to an old PHSO process. If so, it substantially weakens the case for non-disclosure.

(b) The Commissioner believes that section 42 FOIA should be treated as an absolute exemption. In an appeal to the First-tier Tribunal in Boyce v PHSO (case no. EA/2019/0032) the Commissioner argued vehemently that only in very exceptional circumstances should legal advice be disclosed.

(c) The Commissioner says that legal certainty around the issue of functus officio and the PHSO’s review can only be achieved by judicial review. Disclosure will show whether the PHSO actually followed the advice or not. It is more about transparency and integrity and doing the right thing with the information that is available than about legal certainty.

(d) The legal advice was paid for by the taxpayer, weakening the case for secrecy.

(e) Judicial review is only available to those who are well-connected. It is a very expensive waste of time, effort and money. 18.4. The Appellant submits that bias is shown by the Commissioner to the PHSO, which is clearly contrary to the notion of natural justice. They mutually investigate each other which can never be seen as fair. A “specific example of the ICO ‘having the PHSO’s back’” is provided. The Appellant maintains that there is a large amount of evidence to prove that the PHSO almost never upholds a complaint against the ICO. 18.5. The Appellant queries the Commissioner’s confidence that the legal advice sought falls within the scope of the Request based solely on descriptions seen during his investigation.

The Commissioner’s Response

[19]The Commissioner resists the appeal. He submits that the Appellant has failed to set out in the grounds of appeal why the Commissioner’s Decision Notice is not in accordance with the law or his discretion ought to have been exercised differently.

[20]The Commissioner had disagreed with the PHSO’s position and considers the withheld information to be within the scope of the Appellant’s request by virtue of it extending beyond reviews but also to the ‘re-opening of investigations’.

[21]The Commissioner strongly rejects the assertion of bias and notes that the Tribunal has no jurisdiction to consider such allegations in any event. In response to points raised by the Appellant, the Commissioner says (in summary):(a) As the legal advice concerns the matter of functus officio, he does not consider the advice to be obsolete. There is an inbuilt public interest in preserving privilege regardless of whether there would in fact be any prejudice in its disclosure (DBERR v O’Brien v IC

[2009] EWHC 164

QB at [51] and [53]).

(b) The Commissioner does not and did not consider the exemption to be absolute and correctly applied the public interest test. As recognised in DBERR and the Upper Tribunal in Callender-Smith v IC and the Crown Prosecution Service

[2022] UKUT 60 (AAC)

the inherent weight is to be taken into account “in any event” and it “will always have to be considered in the balancing exercise” and a failure to do so would be an error of law.

(d) The fact the advice would have been paid for from public funds does not increase the public interest in favour of disclosure.

(e) The fact other forms of redress are available, such as judicial review, is a relevant factor when weighing the competing scales and given the inbuilt public interest in preserving privilege.

The PHSO’s Response

[22]The PHSO observes that, in essence, the grounds of appeal are that there is sufficient public interest in the content of the legal advice to justify waiver of legal professional privilege. She endorses the Commissioner’s response to the allegation that the Commissioner is biased in favour of the PHSO.

[23]Its starting point is that the subject of the appeal is res judicata and is estopped accordingly. It is maintained that the Appellant seeks sight of the same legal advice which the Tribunal has found to be properly withheld by the PHSO pursuant to section 42 FOIA.

[24]On 23 September 2018, the PHSO had refused the Appellant’s request to:

“Please provide all relevant documents (discussions, legal briefing notes, unabridged board meeting minutes, guidance etc.) that the PHSO possess with regard to the legal status of reviews of decisions.”

On 14 January 2019 the Commissioner had upheld the PHSO’s reliance on section 42 FOI to refuse the request. The Tribunal then allowed the appeal, in part, in a decision promulgated on 13 May 2021 (“2021 Decision”). The PHSO says that the relevant document was legal advice. The Tribunal found the document to be exempt from disclosure under section 42 except for the first page, the headings at the top of pages 3 and 7 and paragraph 5 of page 2. There was no appeal of that decision. The Request then followed on 12 August 2021. The PHSO submits that the document under consideration in the 2021 Decision was the same as that withheld for this appeal.

[25]The PHSO quotes the different legal principles covered by the term res judicata as set out by the Supreme Court in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited

[2013] UKSC 46

[26]The judgment in Henderson v Henderson (1843) is relied upon to argue that even where new grounds of appeal are brought in this appeal, they are precluded from argument as an abuse of process as they should have been presented at first instance. The parties’ arguments on the section 42 exemption were specifically considered by the Tribunal in the 2019 appeal.

[27]Although incomplete, the grounds of appeal repeat those put by the Appellant in 2019. They do not offer any new grounds of challenge. The renewed decision of the Commissioner to uphold the PHSO’s refusal does not constitute a new cause of action since the 2019 appeal decision. There has been no material change in circumstances.

[28]In the alternative, the PHSO submits that she remains entitled to rely upon the section 42 exemption as it has previously. All parties accept that the material is covered by legal professional privilege. The bar is extremely high to overcome legal professional privilege in a FOIA context. Significant public interest in disclosure must be demonstrated.

[29]It would also be an error in law for the Tribunal not to give significant weight to the inherent interest in non-disclosure (DBERR at [48]).

[30]The Appellant, in “not seeking legal certainty from the PHSO, just their legal advice” (page 2 of the grounds of appeal) has failed to meet the high bar to justify disclosure of the legal advice. There is no suggestion within the grounds of appeal that the Commissioner has made an error of law.

The Appellant’s Reply

[31]The Appellant describes the chronology of events. It is unnecessary for us to summarise them.

[32]It is highlighted how the PHSO did not challenge the Commissioner’s interpretation of the scope of the Request but now maintains that the withheld legal advice is not within scope of the Request.

[33]The Appellant queries why the legal advice was not provided to the Commissioner during his investigation or indeed requested. The Appellant finds it farcical that the Commissioner made a determination on the scope of information without seeing it and relied upon the confused and unreliable submission of the PHSO.

[34]The PHSO’s response claims that the withheld legal advice is not in scope. They include an email from the PHSO’s Information Rights Manager, which is contradictory. The date of the legal advice is not disclosed, which is absolutely vital to enable an understanding of this whole appeal.

[35]There has been “deliberate omission and obfuscation” by the PHSO and Commissioner to deceive the Appellant and Tribunal. Both have changed their minds on whether the withheld legal advice is within scope after challenge by the Appellant.

[36]The Appellant queries the accuracy of the Commissioner’s statement that the Tribunal has no jurisdiction to consider allegations of bias.

[37]In terms of the public interest test, the Appellant believes that the balancing exercise within section 42 FOIA favours disclosure because:(a) There is very strong public interest in transparency with regard to public authorities and their actions.

(b) The legal advice is undoubtedly not definitive, but it is important and it did inform the PHSO’s thinking on whether they could continue to re-open decisions and review decisions. Before the legal advice the PHSO used to re-open decisions but did not afterwards, or at least used a different name e.g. review, feedback.

(c) Legal challenge to the PHSO’s post-final decision processes is very unlikely as judicial review is very difficult and perilously expensive.

(d) The PHSO has behaved with an astonishing lack of transparency in the appeal particularly the scope of withheld information. It is a weighty factor in promoting disclosure.

Legal Framework

[38]The relevant provisions of FOIA are set out below: 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. …. Section 2 Effect of the exemptions in Part II. …. (2). 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.49. Section 42

50. Legal professional privilege. (1) Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications 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.

[39]There are two types of legal professional privilege - litigation privilege and legal advice privilege. Legal advice privilege covers confidential communications between lawyer and client for the purpose of giving or receiving legal advice or related legal assistance. Litigation privilege covers documents brought into being for the dominant purpose of litigation. The privilege extends to evidence of the content of those communications or documents. In this case, the Respondents rely on legal advice privilege. Role of the Tribunal

[40]The role of the Tribunal is governed by section 58 FOIA. This requires the Tribunal to consider whether the Commissioner’s Decision Notice is in accordance with the law, or, where the Commissioner’s decision involved an exercise of discretion, whether he should have exercised it differently. The Tribunal may review any finding of fact on which the Decision Notice was based (section 58(2)). This means that we may review all the evidence provided to us (even if that evidence was not before the Commissioner) and make our own decision on the merits.

[41]As set out by the Upper Tribunal in NHS England -v- Information Commissioner and Dean

[2019] UKUT 145 (ACC)

"The First-tier Tribunal ‘exercises a full merits appellate jurisdiction and so stands in the shoes of the IC and decides which (if any) exemptions apply..."

[42]As may be seen from the above, the Tribunal’s role in this appeal is governed by section 58 FOIA. We have no role in deciding an allegation of bias. That falls outside the jurisdiction of the Tribunal, and we make no further comment on it.

The Issues

[43]The main issues for the Tribunal to determine in this appeal are:• Is the withheld information within the scope of the Request?

• Has the Request already been decided so that the Appellant is precluded from pursuing the appeal?

• If not, is the withheld information covered by legal professional privilege for the exemption within section 42 to apply?

• If so, in all the circumstances of the case, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information? Consideration Scope of the appeal

Consideration

[44]The first task for the Tribunal is to establish whether the withheld information is within the scope of the Request. We find that it is. Whilst issues were raised in the 2019 appeal over the scope of that request to withheld information, it is not a point in dispute in this appeal where the Request is framed more widely.

[45]The Request seeks information “that the PHSO possess with regard to the legal status of non-CCT reviews and the re-opening of final decisions.” The legal advice on functus officio is clearly captured by the “re-opening of final decisions” to be within scope of the Request.

[46]How the Commissioner arrived at the conclusion that the withheld material was within scope before seeing it, is not a matter requiring our attention.

Res judicata

[47]Res judicata principally means that a court or tribunal has already adjudicated on the matter and precludes a party from bringing another set of proceedings. If the requirements of res judicata are fulfilled, they constitute an absolute bar, and the Tribunal will have no discretion to hold that res judicata should not apply.

[48]The first point arising is that the Request before us is not the same as in the 2019 appeal. The relevant part of the previous request said:

“Please provide all relevant documents (discussions, legal briefing notes, unabridged Board Meeting Minutes, guidance etc.) that the PHSO possess with regard to the legal status of reviews of decisions.”

This request was made in the context of a preamble referring to the legal status of Customer Care Team reviews.

[49]In contrast, the Request sought information that “the PHSO possesswith regard to the legal status of non-CCT reviews and the re-opening of final decisions.” The 2019 appeal concerned the reviews of decisions in a CCT context whereas the Request now before us is for not only for non-CCT reviews but extends to the re-opening of final decisions. The Request has not been subject to prior determination. In any event, the requests were made at different times, and a later request may capture more information.

[50]We have not been supplied with the closed bundle before the Tribunal when it made its 2021 Decision on appeal number EA/2019/0032. However, there is good cause to conclude that the Tribunal’s previous 2021 Decision on section 42 FOIA was not made in relation to the same legal advice now in issue.

[51]From the text, it is apparent that there was more than one document within the closed bundle for the 2021 Decision.

[52]Under the heading of “External Legal Advice”, the Tribunal stated at paragraph 82 of the 2021 Decision that [with emphasis added]:

“We are satisfied that the external legal advice, which was not considered by the Commissioner during her investigation, does not relate to the review process carried out by the Customer Care Team and is therefore not in scope.”

The Tribunal continued at paragraph 83:

“We make no findings as to whether LPP may have been waived in respect of this material.”

[53]At paragraph 84, under the heading of “Relevant closed material”, the Tribunal proceeded to consider a document comprising pages 1-10 in the closed bundle which included “advice as to what should be prudently and sensibly done in a relevant legal context”. It was concluded “that the nature of this document is such that not all of it should be viewed as attracting LPP and therefore as coming within the Section 42 exemption.” The Tribunal then identified page 1, paragraph 5 and the headings at the top of pages 3 and 7 as containing no LPP material. This is reflected in the 2021 Decision that those parts of the closed material were not exempt from disclosure.

[54]Therefore, it is plain that the external legal advice was found to be out of scope of the request made on 31 July 2018. That being so, the Tribunal did not go on to apply section 42 FOA to that external legal advice. Section 42 was applied to a different 10-page document containing legal advice that was found to be partially exempt. We are reinforced in that view because the withheld legal advice does not comprise 10 pages and there are no headings on the tops of the pages.

[55]Therefore, not only do the requests differ, but there has also been no determination under section 42 to the external legal advice. The Tribunal is not barred from considering the matter by reason of res judicata.

[56]Even if the same legal advice had been considered by the Tribunal in 2021, the requests were made 2 years apart, and the application of the public interest could result in different considerations and weighting. There would be no abuse of process in determining this appeal.

Does section 42 FOIA apply?

[57]We note that the Appellant has not disputed that the advice would be covered by legal professional privilege. Of course, the Appellant has not seen the advice. Therefore, it is appropriate for the Tribunal to consider and arrive at a view on this point. If the information is not covered by legal professional privilege, then section 42 cannot apply.

[58]The House of Lords considered legal professional privilege in detail in Three Rivers District Council and others (Respondents) v Governor and Company of the Bank of England (Appellants)

[2004] UKHL 48

. It explains that there are three requirements for material to be covered by legal professional advice privilege, as follows:(i) The material must be between a qualified lawyer acting in their professional capacity and a client;

(ii) It must be created with the sole or dominant purpose of obtaining or providing legal advice;

(iii) It must be confidential.

[59]Having reviewed the closed bundle, we are fully satisfied that the withheld information is legal advice on a matter reasonably requiring the professional skills and knowledge of a lawyer. It was provided by a qualified lawyer acting in a professional capacity to a client. The advice was not confined to telling the client the law, but included advice on its application. It is plain that the sole or dominant purpose was to provide legal advice that had been sought. Requirements (i) and (ii) are met. In terms of requirement (iii), there are different types of confidentiality.

[60]The nature and scope of the equitable duty of confidentiality was identified in the judgment of Coco v A N Clark (Engineers)Ltd

[1969] RPC 41

, as a three-fold test:(1) the information itself must have the necessary quality of confidence about it

(2) that information must have been imparted in circumstances importing an obligation of confidence, and

(3) there must be an unauthorised use of that information to the detriment of the party communicating it. This third limb of the test is relevant if trying to determine if there is an actionable breach of confidence. It is not directly relevant here. The first and second limbs obviously are relevant.

[61]Advice does not need to be explicitly marked as ‘confidential’. Confidentiality may be implied. When public officials seek external legal advice there will be a relationship with an embedded expectation of confidentiality. We are satisfied that the third criterion of confidentiality was met and that the withheld information was subject to legal professional privilege within the exemption at section 42 FOIA.

Public interest test

[62]Section 42 FOIA is a qualified exemption from disclosure as it is not listed as an absolute exemption in section 2(3). It is therefore subject to the public interest test under section 2(2)(b) FOIA. This means that the mere fact that legal professional privilege applies does not suffice to justify non-disclosure. In addition to demonstrating that the requested information falls within the definition of the exemption, there must be consideration of the public interest arguments for and against disclosure to demonstrate that the public interest rests in maintaining the exemption or disclosing the information.

[63]In applying the public interest test in section 42 FOIA cases, the High Court in DBERR (cited above) gave the following important guidance:- “[41].… 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 in-built 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 document in question.” “[53]….The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight. Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption in any event; ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least.”

[64]In DBERRthe High Court found, at paragraph [58] much to commend the approach to the application of the public interest test by the Tribunal systematically;(a) identifying the public interest factors in favour of disclosing the particular information;

(b) identifying the public interest factors which favour maintaining the particular exemption; and then

[65]The Appellant makes the point that taxpayers funded the legal advice. This alone carries very limited weight as it is unlikely to increase the level of public interest. Other factors identified by the Tribunal in favour of disclosure are:(a) the general public interest in understanding the PHSO’s approach to ‘functus officio’ especially in matters affecting many people, and interest in whether a public authority is acting lawfully.

(b) promotion of openness, transparency, and accountability by a public authority (including the use of and costs to the public purse).

[66]Factors in favour of maintaining the exemption are:(a) legal professional privilege is a long-standing and fundamental principle of justice. It safeguards the right of clients to obtain legal advice in confidence so they can take informed decisions on the application of the law.

(b) the importance of public officials being able to consult lawyers in confidence and explore the legal parameters of issues for the sake of reaching the right answer and acting lawfully.

(c) disclosure of legal advice has high potential to prejudice the public authority’s ability to defend its legal interests, whether by exposing its legal position to challenge or by diminishing the reliance that officials place on securing legal advice.

[67]Having reviewed thewithheld information within the closed bundle, there was limited public benefit and thus weight in favour of disclosure of the legal advice. We concur with the Commissioner that legal certainty about the status of PHSO reviews and re-opening of decisions can only be achieved through the courts, and not by divulging this legal advice. FOIA is not an alternative to judicial review.

[68]The Appellant may feel wronged but our focus is, as it must be, on the public interest factors. The benefit to the Appellant personally from securing the advice does not weigh heavily in favour of disclosure in the context of the wider public interest.

[69]On the other hand, the harm to the PHSO from disclosure could be severe by prejudicing their position in relation to any related legal proceedings. The ramifications are potentially wide not least if officials are unable to obtain full and frank advice for fear of intrusion or disclosure. These factors attract significant weight.

[70]In undertaking the balancing exercise, the scales start empty and are level. There is a strong public interest in non-disclosure in-built into legal professional privilege. At least equally strong countervailing considerations are required to override the inherent public interest in clients being able to consult with their lawyers without fear of intrusion.

[71]As set out inR v Derby Magistrates' Court, ex p. B

[1995] UKHL 18

[at 58] the principle that runs through all these cases 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 a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”

[72]The Tribunal acknowledges and gives effect to the significant weight to be afforded to the exemption. The factors we have identified in favour of the maintaining the exemption are of a general character as is invariably the case. That does not diminish in any way the weight or significance to be attributed to those factors. Conclusion

[73]The Tribunal is not satisfied that clear, compelling, and specific justification has been shown for disclosure so as to be of at least equivalent weight to the obvious interest in protecting communications between lawyer and client, which the client properly supposes to be confidential. Having weighed up all the factors advanced for and against disclosure, the Tribunal is satisfied in all the circumstances of this case, that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

[74]Accordingly, we find that the Decision Notice is in accordance with the law. The appeal is dismissed.