Information Commissioner's Office

HM Customs and Excise

10 April 2007, Central government

The complainant requested DTI guidance held by HMRC supporting the withdrawal of the professional trustee measure. HMRC responded to confirm it held information but that it was exempt from disclosure as the documentation was legal advice and so section 42 of the Act, ‘legal professional privilege’, was engaged, and that section 35 ‘formulation of government policy’ also applied to some of the information. HMRC argued that the public interest favoured maintaining the exemption. The Commissioner investigated HMRC’s application of section 42 and found that the information requested is legal advice and is therefore covered by the exemption and that the public interest does favour maintaining the exemption. The Commissioner found section 42 applied to all the information requested and so did not investigate the application of section 35. The Commissioner’s decision is that HMRC dealt with the request in accordance with the Act and require no steps to be taken. An appeal was made to the Information Tribunal but the Tribunal has ruled on this appeal and dismissed the appeal.

FOI 42: Not upheld