Legal Proceedings And Legal Privilege Exemptions: Myth-busting - ICO

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Legal Proceedingsand Legal PrivilegeExemptions:Myth-busting

ExemptionsPart IV&Schedule7of the DPA

Section 27 (1) and (2)Subject Information ProvisionsSchedule 1, Part II, Paragraph 2 – Provisions of fairprocessing informationSection 7 - Subject Access

Section 27 (3) and (4)Non-disclosure provisionsFirst data protection principle (except conditions forprocessing)Second, third, fourth and fifth principlesSection 10 and 14(1) to (3)

Legal exemptionsSection 35:Disclosuresrequired bylaw or forlegalproceedingsSchedule 7,Paragraph 10:Informationsubject to legalprofessionalprivilege

Section 35(1)Disclosures required bylaw

Section 35(2)Disclosures necessary forlegal proceedings

What does section 35(2) ngsLegal AdviceEstablishing,exercising ordefendinglegal rights

What is“necessary”?

Consider Is the prospect of legal proceedings genuine?Is legal advice is genuinely being sought?Is the request in writing?What is your relationship with the data subject?

Section 35 is nota right of access

Schedule 7, Paragraph 10Legal ProfessionalPrivilege

What does the LPP exemption cover?Exemptionfrom thesubjectinformationprovisionsAdvice PrivilegeLitigationPrivilege

General points to consider Could the claim of privilege or confidentiality bemaintained in court?Not a “blanket” exemption

Advice PrivilegeApplies to confidential communications betweenclient and professional legal adviserAdvice must be given in a legal contextOnly applies to legal adviser and client

Litigation PrivilegeDocuments prepared in anticipation of litigationDocuments cannot “become” privilegedReal prospect or likelihood of litigationCan apply to communications with third parties ifdominant purpose is litigation

The fact thatlegal proceedingsare contemplatedor ongoing is notan automaticexemption fromsubject access

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AberdeenEdinburghGlasgowWoops, can I take that back? and can Ishare that?Legal Privilege and Legal ProceedingsExemptions – a closer lookHelena Brown, Director

Why is ‘privilege’ relevant? Sch 7 para 10 DPA providesexemption from subject informationwhere it is legally privileged General concept When and how does this come intoplay?

Differences between Scotland andEngland Generally, in Scotland theapplication of the rule is muchnarrower In both jurisdictions there areestablished exceptions to thegeneral rule

Legal professional privilege General principles Legal advice privilege Litigation privilege.privilege belongs to the client, itsnot just about communications withlawyers

Myth-Busting Not every communication from a lawyer isprivileged Its not just court proceedings Litigation privilege can apply to internalcommunications Privilege belongs to the client, not thelawyer Privilege can be lost.don’t make assumptions, and be careful

Discussion points1.Can privilege be claimed indocuments prepared by a client inits internal investigations followingan incident?

Discussion points (cont.)2. Is advice given to a subsidiarycompany by an in-house lawyer atthe parent company covered byprivilege?

Discussion points (cont.)3. Are internal emails at the clientcommenting on a draft settlementoffer covered by privilege?

Discussion points (cont.)4. Will communications to/from acompany or their lawyer and anexternal agent (expert, consultantetc) in relation to an incident becovered by privilege?

Discussion points (cont.)5. Is privilege lost if you shareinformation with a third party?

Discussion points (cont.)6.Are communications from an inhouse lawyer who does not hold acurrent practising certificate coveredby privilege?

Practical guidance: Label papers “privileged” with thought – if in doubt markas privilegedIf asking for legal advice, say so, and start new email chainIf giving legal advice, say soInvolve lawyers (before litigation contemplated)Maintain confidentiality of legal advice documentsLimit dissemination of legal advice (need to know; originalonly)Make internal communications re legal advice factual(avoid comments or speculation)Avoid written communication if possibleThink before sending privileged/confidential documentsexternallyConsider before sending legal advice cross-border

S35 DPA – Legal ProceedingsExemption Disclosures of data necessary for:– Purpose of legal proceedings;– Obtaining legal advice;– Establishing, exercising or defendinglegal rights are exempt from “Non-DisclosureProvisions” Unclear how likely legal proceedingsmust be

Beware of this.“.my client’s car was damaged atthe car park on your premises. Weknow that you retain CCTV footageof the car park. Under S35 of theData Protection Act 1998 you areobliged to provide us with thisfootage.”Do you release it?

What do the courts say? S35 DPA v privacy v human rightsv court procedure .where do weland?

General rules If you need to send information to yourlawyer to seek advice, that’s OK Online anonymity is not guaranteed - afew interesting cases. Lawyers need to consider DPA whenevaluating court procedural rules ondisclosure DPA cannot be ignored altogether justbecause legal proceedings have begunor are contemplated

Helena BrownDirector 44 (0)131 473


If asking for legal advice, say so, and start new email chain If giving legal advice, say so Involve lawyers (before litigation contemplated) Maintain confidentiality of legal advice documents Limit dissemination of legal advice (need to know; original only) Make internal communications re legal advice factual

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