Legal Proceedings and Legal Privilege Exemptions: Myth-busting

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1 Legal Proceedings and Legal Privilege Exemptions: Myth-busting

2 Exemptions Part IV & Schedule7 of the DPA

3 Section 27 (1) and (2) Subject Information Provisions Schedule 1, Part II, Paragraph 2 Provisions of fair processing information Section 7 - Subject Access

4 Section 27 (3) and (4) Non-disclosure provisions First data protection principle (except conditions for processing) Second, third, fourth and fifth principles Section 10 and 14(1) to (3)

5 Legal exemptions Section 35: Disclosures required by law or for legal proceedings Schedule 7, Paragraph 10: Information subject to legal professional privilege

6 Section 35(1) Disclosures required by law

7 Section 35(2) Disclosures necessary for legal proceedings

8 What does section 35(2) cover? Legal Proceedings Including prospective proceedings Legal Advice Establishing, exercising or defending legal rights

9 What is necessary?

10 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?

11 Section 35 is not a right of access

12 Schedule 7, Paragraph 10 Legal Professional Privilege

13 What does the LPP exemption cover? Exemption from the subject information provisions Advice Privilege Litigation Privilege

14 General points to consider Could the claim of privilege or confidentiality be maintained in court? Not a blanket exemption

15 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

16 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

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

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20 Aberdeen Edinburgh Glasgow Woops, can I take that back? and can I share that? Legal Privilege and Legal Proceedings Exemptions a closer look Helena Brown, Director

21 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?

22 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

23 Legal professional privilege General principles Legal advice privilege Litigation privilege...privilege belongs to the client, its not just about communications with lawyers

24 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

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

26 Discussion points (cont.) 2. Is advice given to a subsidiary company by an in-house lawyer at the parent company covered by privilege?

27 Discussion points (cont.) 3. Are internal s at the client commenting on a draft settlement offer covered by privilege?

28 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?

29 Discussion points (cont.) 5. Is privilege lost if you share information with a third party?

30 Discussion points (cont.) 6. Are communications from an inhouse lawyer who does not hold a current practising certificate covered by privilege?

31 Practical guidance: Label papers privileged with thought if in doubt mark as privileged If asking for legal advice, say so, and start new 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

32 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

33 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?

34 What do the courts say? S35 DPA v privacy v human rights v court procedure...where do we land?

35 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

36 Helena Brown Director +44 (0)

37 Q A