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Subject Access Request - Legal Professional Privilege

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Subject Access Request - Legal Professional Privilege

Postby Goldensyrup » Thu Apr 28, 2016 12:48 pm

A subject access request to a council covering a period of 12 months was requested and refused by the council citing LPP (Paragraph 10 of Schedule 7 to the DPA) as the exemption to everything bar the communications directly between the requester and the council which the requester said they did not need.

The requester made a further request for the proceeding six months and the same refusal was sent. The ICO are currently investigating the first refusal. The second refusal is going through an internal review.

Schedule 10 of Schedule 7 to the DPA states:-

Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings

There are no legal proceedings, there are not any prospects of legal proceedings, so can the Council still rely on the exemption and if they can it would suggest that the requester will be denied their data for an indeterminate time.
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Re: Subject Access Request - Legal Professional Privilege

Postby atticus » Thu Apr 28, 2016 3:44 pm

No. The question is whether privilege could be claimed if there were legal proceedings. The existence or non-existence of legal proceedings is not a determining factor.
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Re: Subject Access Request - Legal Professional Privilege

Postby dls » Fri Apr 29, 2016 2:48 pm

There are different kinds of privilege with different rules, but the default is that advice given by a lawyer is private to the client.
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Re: Subject Access Request - Legal Professional Privilege

Postby Goldensyrup » Fri Apr 29, 2016 8:09 pm

There are of course two strands of LPP. Legally privileged communications between lawyers and their clients must be protected as a vital principle of the administration of justice.

However, for an unscrupulous public body who does not wish personal data to go to a requestor lawfully, they can use the ruse of LPP as a blanket exemption incorrectly. In this particular case the data requested concerns communications between officers of the council and a government department.
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Re: Subject Access Request - Legal Professional Privilege

Postby atticus » Fri Apr 29, 2016 9:36 pm

There are means to challenge incorrect application of such rules. Indeed, you appear to be availing yourself of such means.
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Re: Subject Access Request - Legal Professional Privilege

Postby dls » Sat Apr 30, 2016 4:08 am

Anybody can lie about anything
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Re: Subject Access Request - Legal Professional Privilege

Postby atticus » Sat Apr 30, 2016 7:40 am

Have you thought to make a SAR to the other parties to the communications, i.e. the government department concerned?
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Re: Subject Access Request - Legal Professional Privilege

Postby Goldensyrup » Sat Apr 30, 2016 10:35 am

An SAR has been requested from the government department and they are on day 70 (30 over the 40 calendar days allowance) to supply but it is assumed that they will be more forthcoming. It is also believed that the GD has asked the council for permission to release certain documents and the council has refused leaving it up to the GD to decide. When both sides are asked it will be interesting to see on the integrity scale which one scores more highly.
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