Tribunal sides with Post Office over Horizon inquiry legal privilege redaction

The First-tier Tribunal has allowed an appeal by Post Office Limited against the Information Commissioner, finding that legal professional privilege should be maintained over a short redacted passage in an email connected to the Horizon IT scandal, and substituting its own decision notice for the Commissioner's.

In Post Office Limited v The Information Commissioner and Eleanor Shaikh [2026] UKFTT 1083 (GRC), Judge Harris, sitting with Judge Worth and Member Pepperell, considered a freedom of information request from campaigner Eleanor Shaikh concerning an email sent in June 2020 by a director of UK Government Investments to officials at what was then the Department for Business, Energy and Industrial Strategy. The email referred, in a redacted portion, to an idea drawn from a memorandum prepared by Herbert Smith Freehills for the Post Office, known during the proceedings by the project name Project Brisbane, which had been commissioned to help the organisation prepare for the Post Office Horizon IT Inquiry.

Ms Shaikh argued that the redacted sentence, while touching on the substance of privileged legal advice, was itself a third party's independent reference to an idea rather than a direct quotation, and so could not properly attract privilege. The Post Office maintained that the sentence reflected the substance of advice given by its lawyers and that disclosure risked exposing it to arguments that privilege had been lost over the wider memorandum. The Information Commissioner had found in his original decision notice that section 42 of the Freedom of Information Act 2000 was engaged, but that the balance of public interest nonetheless favoured disclosure, citing the scale of the Horizon scandal, the number of affected sub-postmasters, and previous criticism of the Post Office's approach to transparency.

Both the Commissioner and Ms Shaikh resisted the appeal, arguing that the withheld words carried significant public interest value because they might illuminate what the Post Office board and, separately, government officials knew about problems with the Horizon system in 2020, at a time when the department was resisting calls to place the inquiry on a statutory footing. The Post Office responded that this public interest was already being served, in a rigorous and transparent way, through the inquiry's own evidence sessions, and that isolating a single paraphrased sentence for disclosure risked eroding privilege across the broader body of legal advice it had received in preparing to give evidence.

Applying the well-established principle that section 42 carries greater inherent weight than any other qualified exemption under the Act, and that clear and compelling justification is required before privileged material should be disclosed, the tribunal accepted that disclosure would meaningfully erode the operation of legal advice privilege more broadly. It gave particular weight to the fact that the Post Office, as a publicly owned body, needed to be able to communicate candidly with its shareholder, UK Government Investments, and found that ongoing police and regulatory investigations added further weight against disclosure, since privileged material touching on the same subject matter could affect fair trial rights.

Weighing against this, the tribunal recognised a genuine public interest in understanding what the Post Office board and senior government officials knew about Horizon issues at the relevant time, and gave some, though reduced, weight to the passage of time since the email was sent. Describing its decision as finely balanced, the tribunal nonetheless concluded that the public interest favoured maintaining the exemption, allowing the appeal and confirming that the Post Office was entitled to withhold the information without taking any further steps.