Legal Proceedings And Legal Privilege Exemptions: Myth-busting - ICO
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 6188helena.brown@burnesspaull.com
Q A
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
the expiry date for his or her current Status for Privilege Executive and Privilege Elite Members (Privilege Club Member ID cards have no expiry date); the expiry date is the last calendar day of the month displa
legal advice privilege always requires a lawyer, while litigation privilege can exist . LEGAL PRIVILEGE 2016 05 without a lawyer's involvement so long as the document was created with the dominant purpose of preparation for litigation, either existing or anticipated.
Zero Trust Privilege For Dummies consists of five chapters that explore » The basics of Zero Trust and the emergence of Zero Trust Privilege: what it is, why it's needed, and its benefits (Chapter 1) » Real-world use cases for Zero Trust Privilege in organizations
is to become clear about the basics of white privilege, what it is and how it works. The second step is to explore ways in which we can work against the racism of which white privilege is a cornerstone. White privilege is an institutional (rather than personal) set of benefits granted to those of us who, by race, resemble the
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Under-privilege prevents users from performing their duties. Poli-cies must balance between these competing goals of minimizing under-privilege vs. over-privilege. The Attribute Based Access Con-trol (ABAC) model has been gaining popularity in recent years because of i
privilege. o Banks should contact the regulator that owns the privilege in the event that protected documents are requested in private litigation. o Courts have allowed regulators to intervene to assert the bank examination privilege in response to a discovery request. o See Local 295/Local 851 IBT Employer Grp. Pension Trust, 2012 WL 346658
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