Legal Proceedings and Legal Privilege Exemptions: Myth-busting

Part IV &

Schedule7 of the DPA

Exemptions

Subject Information Provisions

Section 27 (1) and (2)

Schedule 1, Part II, Paragraph 2 – Provisions of fair processing information

Section 7 - Subject Access

Non-disclosure provisions

Section 27 (3) and (4)

First data protection principle (except conditions for processing)

Second, third, fourth and fifth principles

Section 10 and 14(1) to (3)

Legal exemptions

Section 35: Disclosures required by law or for legal proceedings

Schedule 7, Paragraph 10: Information subject to legal professional privilege

Section 35(1)

Disclosures required by law

Section 35(2)

Disclosures necessary for legal proceedings

What does section 35(2) cover?

Including prospective proceedings

Legal Proceedings Legal Advice

Establishing, exercising or

defending legal 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 not a right of access

Schedule 7, Paragraph 10

Legal Professional Privilege

What does the LPP exemption cover?

Exemption from the subject

information provisions

Advice Privilege Litigation Privilege

General points to consider…

Could the claim of privilege or confidentiality be maintained in court?

Not a “blanket” exemption

Advice Privilege

Applies to confidential communications between client and professional legal adviser

Advice must be given in a legal context

Only applies to legal adviser and client

Litigation Privilege

Documents prepared in anticipation of litigation

Documents cannot “become” privileged

Real prospect or likelihood of litigation

Can apply to communications with third parties if dominant purpose is litigation

The fact that legal proceedings are contemplated or ongoing is not an automatic exemption from subject access

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Woops, can I take that back? … and can I share that? Legal Privilege and Legal Proceedings Exemptions – a closer look

Aberdeen

Edinburgh

Glasgow

Helena Brown, Director

Why is ‘privilege’ relevant?

• Sch 7 para 10 DPA provides exemption from subject information where it is legally privileged

• General concept

• When and how does this come into play?

Differences between Scotland and England

• Generally, in Scotland the application of the rule is much narrower

• In both jurisdictions there are established exceptions to the general rule

Legal professional privilege

• General principles

• Legal advice privilege

• Litigation privilege

...privilege belongs to the client, its not just about communications with lawyers

Myth-Busting

• Not every communication from a lawyer is privileged

• Its not just court proceedings

• Litigation privilege can apply to internal communications

• Privilege belongs to the client, not the lawyer

• Privilege can be lost

...don’t make assumptions, and be careful

Discussion points

1. Can privilege be claimed in documents prepared by a client in its internal investigations following an incident?

Discussion points (cont.)

2. Is advice given to a subsidiary company by an in-house lawyer at the parent company covered by privilege?

Discussion points (cont.)

3. Are internal emails at the client commenting on a draft settlement offer covered by privilege?

Discussion points (cont.)

4. Will communications to/from a company or their lawyer and an external agent (expert, consultant etc) in relation to an incident be covered by privilege?

Discussion points (cont.)

5. Is privilege lost if you share information with a third party?

Discussion points (cont.)

6. Are communications from an in-house lawyer who does not hold a current practising certificate covered by privilege?

Practical guidance: • Label papers “privileged” with thought – if in doubt mark

as privileged • 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

(avoid comments or speculation) • Avoid written communication if possible • Think before sending privileged/confidential documents

externally • Consider before sending legal advice cross-border

S35 DPA – Legal Proceedings Exemption

• Disclosures of data necessary for: – Purpose of legal proceedings;

– Obtaining legal advice;

– Establishing, exercising or defending legal rights

…are exempt from “Non-Disclosure Provisions”

• Unclear how likely legal proceedings must be

Beware of this...

“.....my client’s car was damaged at the car park on your premises. We know that you retain CCTV footage of the car park. Under S35 of the Data Protection Act 1998 you are obliged to provide us with this footage.”

Do you release it?

What do the courts say?

• S35 DPA v privacy v human rights v court procedure .....where do we land?

General rules

• If you need to send information to your lawyer to seek advice, that’s OK

• Online anonymity is not guaranteed - a few interesting cases....

• Lawyers need to consider DPA when evaluating court procedural rules on disclosure

• DPA cannot be ignored altogether just because legal proceedings have begun or are contemplated

Helena Brown Director +44 (0)131 473 6188 helena.brown@burnesspaull.com

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