Line to take - LTT5 - Legal professional privilege under EIR

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Line to take

Where a public authority claims that requested information is exempt because it is subject to Legal Professional Privilege, but it is subsequently decided that that information is environmental, the exception provided by regulation 12(5)(b) may be claimed instead. The exception is “similar” to the exemption provided by section 42 and covers LPP.

Further Information

In the case of Kirkaldie v the Information Commissioner and Thanet District Council, the Tribunal decided that the information requested by the applicant was environmental, and that both the ICO and TDC were therefore incorrect in dealing with the request under the provisions of the FOIA rather than the EIR.

In this case, TDC had claimed that the requested information was exempt by virtue of section 42. The Tribunal therefore considered whether a refusal notice issued under the wrong legislative provision enables the public authority to claim another exemption or exception under the correct law (para. 19).

Section 42 provides that information is exempt if it is information “in respect of which a claim to legal professional privilege, or, in Scotland, to confidentiality of communications could be maintained in legal proceedings.”

Regulation 12(5)(b) provides that the disclosure of information can be refused if its disclosure would adversely affect, “the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature.”

Both the exemption and exception are subject the public interest test.

The Tribunal expressed the view that the purpose of this exception was reasonably clear, stating that it “exists in part to ensure that there should be no disruption to the administration of justice, including the operation of the courts and no prejudice to the rights of individuals or organisations to a fair trial.” It continued that to do this, the exception, “covers legal professional privilege, particularly where a public authority is or is likely to be involved in litigation” (para. 21).

The Tribunal therefore decided that the exception is “similar” to the exemption. This view was also upheld in a further Tribunal decision Burgess v the Information Commissioner and Stafford Borough Council.

In conclusion it stated that it would be “reluctant to find that a public authority could not argue that a similar exemption or exception could not be applied under the correct legal instrument” (para. 44).

This finding should not, however, necessarily be extended to other exemptions or exceptions which have no relationship to the exemption or exception originally claimed (para. 44).