Information Commissioner's Office

Home Office

30 August 2007, Central government

The complainant sought access to legal and other advice obtained by the public authority to assist it in responding to a grievance proceeding. The public authority relied on the exemption contained in Section 42 of the Freedom of Information Act to refuse disclosure of the legal advice, and said that it did not hold other advice. It submitted that the public interest in maintaining the exemption in relation to the information that it did hold outweighed the public interest in disclosure. The Commissioner has decided that the Home Office appropriately relied upon the exemption in section 42 in relation to some of the material for which it has been claimed and that the public interest in maintaining the exemption overrides the public interest in disclosure over that material. However, the Commissioner is not satisfied that the exemption has been correctly applied to all of the information and therefore he has ordered that some of the material be released to the complainant. In failing to supply the sections of the requested information which the Commissioner considers were not subject to legal professional privilege, he has concluded that the Home Office breached section 1(1)(b) of the Act. The Commissioner has also found that the public authority complied with the requirements of section 1(1)(a) in notifying the complainant that it did not hold the other advice. The Commissioner also identified a limited amount of information which he considered constituted the complainant’s personal data. This information is exempt under section 40 (1) of the Act. He has considered whether or not this information should have been supplied to the complainant under section 7 of the Data Protection Act 1998 separately.

FOI 40: Not upheld