Line to take - LTT5 - Legal professional privilege under EIR

• FOI/EIR: FOI, EIR
• Section/Regulation: s42, reg12(5)(b)
• Issue: Legal professional privilege under EIR
• Source: Information Tribunal
• Details: Kirkaldie / Thanet District Council (4 July 2006); Burgess / Stafford Borough (7 June 2007); Creekside Forum / DCMS (28 May 2009)
• Related Lines to Take: LTT63
• Related Documents: FS50069727, EA/2006/001 (Kirkaldie), EA/2006/0091 (Burgess), EA/2008/0065 (Creekside Forum), Awareness Guidance 4
• Contact: EW / GF / KP
• Date: 18/01/2011
• Policy Reference: LTT5
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

Where a public authority claims that requested information is exempt under section 42 of the FOIA 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.

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.

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).

This view was also upheld in a further Tribunal decision Burgess v the Information Commissioner and Stafford Borough Council.

Further support for viewing regulation 12(5)(b) as the appropriate exception to cover legal professional privilege was demonstrated by the Tribunal in the case of Creekside Forum v ICO and DCMS (EA/2008/0065). In this case, the appellants had argued that regulation 12(5)(b) was not capable of including legal professional privilege (paragraph 25). The Tribunal was clear that "...whilst regulation 12[(5)(b)] does not explicitly name legal professional privilege, its function and substance fall under the umbrella of 'the course of justice' and therefore, regulation 12(5)(b) was the appropriate exception to apply" (paragraph 29).

The Tribunal in Woodford v ICO (EA/2009/0098) further confirmed that the test of "would adversely affect" for 12(5)(b) would be met by the general harm which would be caused to the principle of LPP, without needing to demonstrate that specific harm would be caused in relation to the matter covered by the information. "There can be no doubt that disclosure of information otherwise subject to legal professional privilege would have an adverse effect on the course of justice" (para 27). This confirmed the decision in Rudd v IC) & Verderers of the New Forest (EA/2008/0020) that "the course of justice" does not refer to a specific course of action but "a more generic concept somewhat akin to 'the smooth running of the wheels of justice'" (para 29). Consideration of the specific circumstances is however required when addressing the public interest test.

It is the Commissioner’s view that a presumption or assumption in favour of disclosure applies in both the FOIA and the EIR. However, the Tribunal has generally made reference to the explicit presumption in the EIR when outlining the differences between the application of s42 and reg 12(5)(b). Therefore it is recommended that case officers make some reference to this to demonstrate that it has been considered.