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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 [email protected]
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