The exemption for legal professional privilege

Freedom of Information Act

Environmental Information Regulations

The exemption for legal professional privilege

The Freedom of Information Act 2000 (FOIA) and the Environmental Information
Regulations 2004 (EIR) give rights of public access to information held by public
authorities. This is part of a series of guidance notes to help public authorities
understand their obligations and to promote good practice.

This guidance will explain the concept of legal professional privilege (LPP) and
help public authorities understand how to apply the exemption in section 42 of
FOIA or the equivalent exception in regulation 12(5)(b) of the EIR.

This guidance replaces Awareness Guidance 4.

Overview

Section 42 sets out an exemption from the right to know for information
protected by LPP. The exemption is qualified, meaning that it is subject to a
public interest test.

LPP covers communications between lawyers and their clients for the purpose
of obtaining legal advice, or documents created by or for lawyers for the
dominant (main) purpose of litigation. LPP can be lost (waived) if the
information is shared with others.

If LPP applies, there will need to be strong public interest in disclosure to

offset the inevitable strong public interest in favour of the exemption.

Public interest factors to consider may include whether the advice is still
recent or live, how many people are affected, how much money is at stake,
or a reasonable suspicion of illegality or misrepresentation.

Regulation 12(5)(b) of the EIR sets out an exception if the disclosure of

information would adversely affect the course of justice. For environmental
information this can be used in a similar way to the section 42 exemption.

You should use section 42 where you are the client or legal adviser. If you
have obtained information from a third party it will often be easier to use the
section 41 exemption for information provided in confidence instead.

Remember that you do not have to use the exemption. A client can always
choose to waive their LPP and disclose the information in the interests of
transparency.

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General principles of exemption

Section 42 of FOIA sets out an exemption from the right to know if the
information requested is protected by LPP:

42.(1) Information in respect of which a claim to legal professional privilege

or, in Scotland, to confidentiality of communications could be
maintained in legal proceedings is exempt information.

The exemption is a qualified exemption. If information falls within this

exemption, public authorities must then apply the public interest test set out in
section 2(2)(b). The information can only be withheld if the public interest in
maintaining the exemption outweighs the public interest in disclosure.

You will therefore need to apply a two-stage test in order to withhold

information. Firstly, is the information covered by LPP and the exemption
therefore engaged? Secondly, if so, is the public interest in favour of
maintaining the exemption and therefore withholding the information? These
questions are considered in more detail below.

If the answer to both questions is yes, you can withhold the information if you
wish, although you should remember that there is no obligation to use the
exemption. As long as you are the client you can always choose to waive your
LPP and disclose the information anyway in the interests of transparency.

The duty to confirm or deny

You should also remember your duty to confirm or deny whether you hold the
information. Even if the information itself is exempt from disclosure, you may
still need to confirm that you hold it unless the confirmation itself would disclose
information covered by LPP. In the same way, if you do not hold the
information, you must say this unless the denial itself would disclose information
covered by LPP. Any refusal to confirm or deny is also subject to the public
interest test.

Example:
In Fuller v Information Commissioner and Ministry of Justice
(EA/2008/005; 5 August 2008), a person objecting to a
proposed law criminalising possession of certain
pornographic material asked the MoJ for any legal advice
which confirms that the possession can successfully be
prosecuted and that Article 8 does not apply. The Tribunal
decided that the MoJ did not have to confirm or deny whether
it held such advice. Confirmation or denial would reveal the
content of the advice they had received and the public
interest in LPP outweighed the public interest in disclosure.

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For further information on the duty to confirm or deny, see The duty to confirm
or deny: Awareness Guidance 21.

Is the information privileged?

LPP is not defined in FOIA, or in any other legislation. It is a common law
concept shaped by the courts over time. This guidance aims to give you a
general overview of LPP, but it is a developing area of law and you may need to
take legal advice on its application to specific information and on any recent
developments.

The principles of LPP set out below are also relevant to the Scottish law
concept of confidentiality of communications. However, you are strongly
advised to take additional legal advice on Scottish law where this may apply.

LPP is intended to provide confidentiality between professional legal advisers

and clients to ensure openness between them and safeguard access to fully
informed, realistic and frank legal advice, including potential weaknesses and
counter-arguments. This in turn ensures the administration of justice. LPP
belongs to the client, and material protected by LPP cannot ordinarily be
revealed without the consent of the client, even to a court.

LPP will not cover communications made to further a criminal purpose; ie to

enable a client to commit crime or fraud. This applies whether or not the lawyer
is aware of the wrongdoing. However, LPP will normally still apply to legal
advice given after the commission of a crime.

A professional legal adviser for the purposes of LPP could be a solicitor, barrister,
licensed conveyancer or a legal executive holding professional qualifications
recognised by the Institute of Legal Executives (ILEX). It makes no difference
whether the legal adviser is an external lawyer or a professional in-house lawyer
employed by the public authority itself. Even though the position may be different
in European competition law, LPP extends to communications with in-house
lawyers for the purposes of FOIA and the Tribunal has confirmed this in Calland v
Information Commissioner and FSA (EA/2007/0136; 8 August 2008).

There are two categories of LPP: litigation privilege and legal advice privilege.

Litigation privilege

Litigation privilege applies when litigation (legal action before a court) is

underway or anticipated. There must be a reasonable prospect of litigation a
real likelihood, not just a fear or possibility.

For information to be covered by litigation privilege, it must have been created

for the dominant purpose (the main purpose) of obtaining legal advice on the
litigation or for lawyers to use in preparing the case. This is a question of fact in
each case and may be obvious from inspecting the documents in question.

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Information created for another purpose before the litigation was anticipated
may sometimes still be covered if brought together for the purpose of the
litigation. This may be the case if pre-existing documents are relevant to the
case and the lawyer has exercised skill and judgement in selecting and
compiling them, particularly if the selection of documents reveals the trend of
the advice on the case. However, pre-existing documents will not become
privileged just by being passed over to a lawyer.

Litigation privilege can cover a wide variety of information, including advice,

correspondence, notes, evidence, reports or other documents. It will for
example include communications with third parties outside the lawyer-client
relationship, as long as those communications were made to assist the lawyer
with the preparation of the case.

Although it will be privileged, any information being relied on for the legal action
will still need to be disclosed to other parties to the case under the disclosure
rules of the court. This is separate from FOIA disclosure.

Legal advice privilege

Legal advice privilege may apply whether or not there is any litigation in
prospect. This form of LPP covers a narrower range of information. It will only
cover confidential communications between the client and the lawyer made for
the dominant purpose of seeking or giving legal advice.

Only communications are covered. This will include written correspondence

(letters, emails or faxes) and oral communications, or documents setting out the
content of those communications. Under FOIA, any recorded information
documenting communications for example, notes of conversations or minutes
of meetings, research notes, drafts or summaries of advice can therefore fall
within the exemption.

The dominant purpose of the communication must be to obtain legal advice, or

to give it. This is a question of fact and you will need to look at the information
itself to decide whether this is the case. For example, if a client sends a copy of
a contract with a covering letter requesting advice, the letter itself will be
privileged but the enclosed contract will not be, as it was created for another
purpose. It will not be covered by LPP just because it has now been sent to a
lawyer. In the same way, minutes of a meeting will not become privileged just
because a lawyer was present, except any parts of the minutes that actually
record legal advice being sought or given.

The advice itself must concern legal rights, liabilities, obligations or remedies or
otherwise have a relevant legal context. Advice from a lawyer on a purely
financial, operational, public relations or strategic business issue is unlikely to
be privileged, unless the advice was obtained within a legal context for
example, in the context of possible legal remedies on an unfavourable outcome.

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Example:
Three Rivers District Council v Governor and Company of the
Bank of England [2004] UKHL 48 concerned advice from the
Bank of Englands lawyers on how to best present evidence
to the Bingham Inquiry into the collapse of BCCI. The inquiry
itself was not a legal process, but the House of Lords found
that advice on presenting a favourable case to the inquiry
was covered by LPP. The relevant legal context here was
whether the Bank had properly discharged its functions under
banking laws, and the potential public law remedies for
challenging any unfavourable findings. It was clearly a legal
function to advise on the presentation of evidence to an
inquiry.

Communications with third parties will not be covered. This may mean that you
need to consider who the client is, as even some of the public authoritys
employees may be considered to be third parties and therefore not covered by
LPP. Depending on the circumstances, the client may include the whole public
authority, one department, or only a small team of officials or employees.

Example:
In Three Rivers District Council v Governor and Company of
the Bank of England (No 5) [2003] EWCA Civ 474, the Court
of Appeal held that the client was the small team of
employees set up to deal with the inquiry, rather than the
whole Bank. Correspondence between lawyers and other
Bank employees or ex-employees was therefore not covered
by legal advice privilege.

The lawyer must also be acting in a professional capacity. LPP would not apply
to informal advice given to an official by a lawyer friend acting in an unofficial
capacity.

Waiver: loss of LPP

Even if the information was privileged, LPP may have been lost (waived) if the
client has shared it with third parties and it has lost its confidential character. If
this is the case, the exemption will not apply.

LPP can be waived inadvertently, and even accidental disclosure will usually
result in a loss of LPP. No intention to waive LPP is required.

Disclosure of only part of the information may still lead to waiver of LPP. This
will only apply if the partial disclosure has been made in the context of litigation,
as you cannot mislead a court by cherry-picking the most favourable parts of
the advice or information and claiming LPP over the rest. However, in
circumstances other than litigation (eg in public debate on an issue) partial
disclosure will not result in waiver of legal advice privilege. The Tribunal
confirmed in FCO v Information Commissioner (EA/2007/0092; 29 April 2008)

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that a public authority is entitled, provided of course he does not falsify, to

advance his case in public debate to the best advantage; if so advised, by
selective quotation. LPP will still apply, but the partial disclosure may be
relevant when considering the public interest in disclosure.

A mere reference to, or a brief summary of, a document will not amount to
waiver. However, if the substantial contents of a document have been disclosed
and are being relied on, then there will have been waiver of the privilege within
the document. There are no hard and fast rules and the decision will inevitably
depend on the specific circumstances of the case.

It may be possible to share privileged information with a specific third party

without waiving LPP, if disclosure is made for a specific purpose on a
confidential basis with restrictions on the use of the information. However,
circulating information more widely or on a non-confidential basis or using it
externally would be likely to mean LPP had been waived.

The public interest test

If the information is covered by LPP and therefore engages the exemption,
public authorities will then need to apply the public interest test.

The information must still be disclosed unless the public interest in maintaining
the exemption outweighs the public interest in disclosure. If the balance of the
public interest is equal, the information should be disclosed. For a general
discussion of the public interest test, see The public interest test: Awareness
Guidance 3.

When considering the balance of the public interest under this exemption, public
authorities should look at the specific context of each case. Factors that may be
relevant depending on the circumstances include those set out below, although
there may also be other relevant case-specific considerations.

Factors for maintaining the exemption

The general public interest inherent in the exemption will always be strong due
to the importance of the principle behind LPP: safeguarding openness in all
communications between client and lawyer to ensure access to full and frank
legal advice, which in turn is fundamental to the administration of justice. The
Tribunal recognised this in Bellamy v Information Commissioner
(EA/2005/0023; 4 April 2006), where it said: there is a strong element of public
interest inbuilt into the privilege itself. At least equally strong countervailing
considerations would need to be adduced to override that inbuilt public interest.

The strong public interest in favour of maintaining the exemption may also be
enhanced further, depending on the severity of the harm likely to be suffered by
the holder of the LPP in the particular case.

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For example, the public interest will be particularly strong if the advice is recent
or still live ie still being relied upon or relevant to litigation in prospect. To
disclose legal advice where litigation on the relevant issues is in prospect or
may be likely would be unfair to a public authority. The legal advice would
reveal the basis (and potentially the weaknesses) of the public authoritys case,
while a private opponent not subject to FOIA would not have to reveal their
position.

The public interest may also be particularly strong if the advice is related to
significant personal interests of individuals (as opposed to administrative
issues). This was suggested by the Tribunal in Mersey Tunnel Users
Association v Information Commissioner and Merseytravel (EA/2007/0052; 15
February 2008). Advice relating to personal interests could include advice held
by the Crown Prosecution Service in criminal cases, or advice held by local
authorities in childcare cases.

Factors for disclosure

Given the strong public interest inbuilt into LPP, there will always be an initial
weighting in favour of maintaining the exemption and it has been unusual for the
public interest in disclosure to be strong enough to offset that.

However, the Tribunal stated in Bellamy that, although it may be more difficult to
show the balance lies in favour of disclosure, there is no need for the factors in
favour of disclosure to be exceptional. The exemption is not absolute and you
must always consider whether the public interest in disclosure in a particular
case is strong enough to equal or exceed the public interest in LPP.

Depending on the circumstances, relevant factors may include:

The general public interest inherent in FOI (ie the assumption of

disclosure). However, this on its own will not be enough to override the
inbuilt public interest in the exemption.

The passage of time. Generally speaking, the older the information, the
more likely it is to have served its purpose and the less likely it is to still
be relevant to decision-making or subject to challenges. The passage of
time may therefore favour disclosure, although how much time will vary
depending on the circumstances of the case.

Example:
In Kitchener v Information Commissioner and Derby City
Council (EA/2006/0044; 20 December 2006), advice which
was 6 years old was considered still relatively recent.
However, in the Merseytravel case, advice which was over
10 years old was not recent and this was one factor taken
into account in favour of disclosure.

No litigation is contemplated. If no litigation is likely, this may be a factor

to take into account in favour of disclosure as there may be no significant

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harm caused to the holder of the privilege. However, the ICO recognises
that the prospect of litigation can never be completely ruled out and care
will need to be taken to ensure no prejudice is caused to possible future
proceedings.

A very large amount of public money is at stake.

Example:
Previous cases have taken into account the amount of
money involved where the advice in question affected the
use of around 70 million in tunnel toll income (in the
Merseytravel case) or a 1 billion pension fund (in Pugh v
Information Commissioner and Ministry of Defence
(EA/2007/0055; 17 December 2007)).

A significant group of people are affected by the advice or resulting

decision.

Example:
In the Merseytravel case, the fact that the decision based on
the advice affected the toll charged to 80,000 drivers every
weekday and could also affect around 1.5 million residents of
local councils was a factor in favour of disclosure. In Pugh
19,500 people were affected by the relevant pension fund.
Conversely, in Gillingham v Information Commissioner
(EA/2007/0028; 26 September 2007) the number of people
using a public footpath was too small to be a significant
factor.

A suspicion of misrepresentation or unlawful behaviour. Where there is

sound evidence that the public authority is misleading the public about
advice it has received, ignoring advice or acting unlawfully, this may be
a significant factor in favour of disclosure. This factor was discussed by
the Tribunal in FCO v Information Commissioner and Boddy v
Information Commissioner and North Norfolk DC (EA/2007/0074; 23
June 2008). The ICO considers that the more evidence that can be
provided, the more weight will attach to this factor.

A lack of transparency in the rationale for the public authoritys actions.

There is some general public interest in the promotion of transparency,
accountability and public understanding and involvement in public
processes. A significant lack of transparency will therefore favour
disclosure, although this must amount to more than mere curiosity over
the content of advice and will carry less weight than arguments of
misrepresentation backed up by evidence.

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Example:
Transparency was considered crucial in the Merseytravel
case. On its website, the public authority had claimed a legal
duty to make certain payments, without being able to point to
any statute and instead referring to its legal advice leading
to doubt about the legal position. The Tribunal said that
legitimate and serious questions can readily be asked about
both the power to make the payments and the obligation to
do so. The authoritys published accounts also lacked
transparency which stopped proper scrutiny of its operation.

Partial disclosure of the information (if not sufficient to waive LPP

altogether). If part of advice has already been disclosed, there may be
public interest in disclosing the rest of the advice if on the facts of the
particular case the part disclosed could be misleading taken out of
context.

Taking all these factors into account, there have been relatively few occasions
where the Commissioner or Tribunal have considered that in all the
circumstances the public interest in disclosure was strong enough to order
disclosure:

Example:
The Merseytravel case concerned the disclosure of legal
advice held by the public authority operating the Mersey
Tunnel. When the tunnel started making a profit, the public
authority did not reduce toll charges and started using the
profits to repay local councils (who had met previous losses).
This decision was based on legal advice. The advice was
over 10 years old, although it was still live. The amount of
money at stake was around 70 million, and the decision
affected at least 80,000 people who used the tunnel and paid
the toll charges and 1.5 million residents of the local councils
being repaid. There was, crucially, also a lack of
transparency in the reasons for the decision, and legitimate
doubt over the legal position. In these striking
circumstances, the Tribunal ordered disclosure.

Example:
The Commissioner issued an Enforcement Notice (22 May
2006) requiring disclosure of the Attorney Generals advice
on the legality of the Iraq war. The notice recognised that it
was a highly exceptional case from almost every
perspective. A decision to commit the country to military
action was of particular gravity and magnitude. The invasion
and its legality was also a matter of intense controversy, and
transparency and public understanding of the decision-
making process was important. There were serious questions

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from lawyers and from the UN Secretary-General about

whether the government was acting lawfully. The government
had also already published a short unequivocal statement
which was widely assumed to be a summary of the advice,
and there was very strong public interest in clarifying the
relationship between the two documents. Finally, the
passage of time meant that public interest arguments against
disclosure were weaker than they might have been in 2003.
However, the public interest only required disclosure of the
final advice itself, not of preliminary documents or drafts.

Environmental information

If the information being considered is environmental information, disclosure

must be considered under the provisions of the EIR rather than FOIA. For more
information on what constitutes environmental information, see our guidance:
What is environmental information?

Regulation 12(5)(b) of the EIR sets out an exception to the right to know if the
disclosure of information would adversely affect the course of justice:

12.(5) For the purposes of paragraph 1(a), a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect
(b) 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.

As with all EIR exceptions, this is subject to the public interest test set out in
regulation 12(1)(b). A public authority can only refuse to disclose the information
if the public interest in maintaining the exception outweighs the public interest in
disclosing the information.

This exception is wider than section 42 but can be used for information covered
by LPP in a similar way to the section 42 FOIA exemption. In the case of
Kirkaldie v the Information Commissioner and Thanet DC (EA/2006/001; 4 July
2006), the Information Tribunal expressed the view that the purpose of the
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. In order to achieve this it covers legal professional privilege, particularly
where a public authority is or is likely to be involved in litigation. The Tribunal
therefore decided that the exception is similar to the exemption. This view was
also upheld in Burgess v the Information Commissioner and Stafford BC
(EA/2006/0091; 7 June 2007).

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Other considerations
If you hold information for which a third party may be able to claim LPP, it may
be easier and more appropriate to consider using the section 41 exemption for
confidential information instead. This is because information obtained from a
third party must have been provided to you in confidence in order to still be
privileged. For more information on how to use the section 41 exemption, see
Information provided in confidence: Awareness Guidance 2.

Section 42 also refers to the Scottish law concept of confidentiality of

communications. This incorporates the principles of LPP, but may differ in its
precise application and will also cover some other confidential relationships,
although many of these are unlikely to be relevant to public authorities. English
and Welsh public authorities are advised to take additional legal advice on
Scottish law where this may apply. (Please note that if you are a Scottish public
authority you are subject to a separate FOI regime. For further information
contact the Scottish Information Commissioner: www.itspublicknowledge.info.)

The section 42 exemption cannot be used for historical records (that is, records
over 30 years old).

More information
This guidance will be reviewed and considered from time to time in line with
new decisions of the Information Commissioner, Tribunal and courts on
freedom of information cases. It is a guide to our general recommended
approach, although individual cases will always be decided on the basis of their
particular circumstances.

If you need any more information about this or any other aspect of freedom of
information, please contact us.

Phone: 08456 30 60 60
01625 54 57 45

Email: please use the online enquiry form on our website

Website: www.ico.gov.uk

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