Legal professional privilege (section 42)

Click to toggle details

Latest updates

13 July 2023 - We have included the following new examples from Tribunal’s decisions and ICO’s decision notices:

• IC-95382-F2Z3
• FS50794284
• Boyce v IC and PHSO EA/2019/0032
• Robin Callender Smith v IC and CPS [2022] UKUT 60 (AAC)

About this detailed guidance

This guidance explains to public authorities the main provisions of section 42, the exemption for legal professional privilege (LPP), and how to apply it. Read it if you have questions not answered in the Guide, or if you need as deeper understanding to help you apply this exemption in practice.

In detail

• What exemptions are contained in section 42 of FOIA?
• What does ‘legal professional privilege’ mean?
• What types of legal professional privilege are there?
  • Litigation privilege
  • Advice privilege
• Who is the legal adviser and who is the client?
• What are ‘communications’ under section 42?
• Does legal professional privilege apply to communications relating to crime?
• Can legal professional privilege be lost and is ‘waiver’ relevant to disclosures under FOIA?
• What about documents marked ‘without prejudice’?
• Do we need to demonstrate prejudice or adverse effect?
• Is there an exemption to the duty to confirm or deny?
• How do we carry out the public interest test in relation to section 42 FOIA?
• Further reading

What exemptions are contained in section 42 of FOIA?

Section 42 states that:

(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.

(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings.

Both exemptions are subject to the public interest test.

What does ‘legal professional privilege’ mean?

The client’s ability to speak freely and frankly with their legal adviser to obtain appropriate legal advice is a fundamental requirement of the English legal system. The concept of legal professional privilege (LPP) protects the confidentiality of communications between a lawyer and client. This helps to ensure complete fairness in legal proceedings.

For the purpose of this guidance, the generic term ‘lawyer’ means a legal adviser acting in a professional capacity and includes legal executives.

What types of legal professional privilege are there?

In the Bellamy decision, the Tribunal acknowledged that there are two types of privilege within the concept of LPP:

• litigation privilege; and,
• advice privilege.

Litigation privilege

Litigation privilege applies to confidential communications made for the purpose of providing or obtaining legal advice about proposed or contemplated litigation. There must be ongoing litigation or a real prospect or likelihood of litigation, rather than just a fear or possibility. For information to be covered by litigation privilege, it must have been created for the dominant (main) purpose of giving or obtaining legal advice, or for lawyers to use in preparing a case for litigation. It can cover communications between lawyers and third parties so long as they are made for the purposes of the litigation.

Litigation privilege can apply to a wide variety of information, including advice, correspondence, notes, evidence or reports.

Advice privilege

Advice privilege applies where no litigation is in progress or contemplated. It covers confidential communications between the client and lawyer, made for the dominant (main) purpose of seeking or giving legal advice.

The legal adviser must have given advice in a legal context; for instance, it could be about legal rights, liabilities, obligations or remedies. Advice from a lawyer about financial matters or on an operational or strategic issue is unlikely to be privileged, unless it also covers legal concerns such as advice on legal remedies to a problem.

Who is the legal adviser and who is the client?

For public authorities to determine whether LPP applies, they first need to be clear who the parties to the confidential communication are.

Who is the client?

Communications with third parties are not covered by advice privilege and are only covered by litigation privilege if they have been made for the purposes of the litigation, so it is important to determine who the lawyer’s client is.

This will depend on the facts of the case. For instance, all the authority’s employees in a particular department might be considered the client of a lawyer, whereas the authority’s remaining staff might be considered third parties.

Who is the legal adviser?

For public authorities, establishing who is the legal adviser will be key to them identifying when a communication is legally privileged.

In Calland v Information Commissioner & the Financial Services Authority (EA/2007/0136, 8 August 2008) the Tribunal confirmed that legal advice and communications between in-house lawyers and external solicitors or barristers also attract LPP.

What are ‘communications’ under section 42?

A communication under section 42 means a document that conveys information. It could take any form, including a letter, report, email, memo, photograph, note of a conversation, or an audio or visual recording. A document does not actually need to be sent for it to count as a communication for this purpose; a document that has been prepared to convey information, but is still on its creator’s file, is still a communication. Communications might include draft documents prepared with the intention of putting them before a legal adviser, even if they are never sent to the adviser. An example might be a witness statement that was prepared, but not actually sent to a lawyer.

Enclosures and attachments to a communication, and pre-existing documents

Any enclosures or attachments to a communication are usually only covered by LPP if they were created with the intention of seeking advice or for use in litigation. The authority must consider each document individually.

If an enclosure existed before litigation was contemplated or before it was considered possible that legal advice might be needed, LPP will not usually apply to it. There is, however, one important exception to this rule. When a lawyer uses their skill and judgement to select pre-existing documents that weren’t already held by the client, for the purposes of advising their client or preparing for litigation, then LPP can apply.

Examples

This example concerns instructions sent to a lawyer to ask for advice about liability and quantum (amount of damages) following a road traffic accident. The table below indicates which documents will be subject to LPP.

Example enclosure	Privileged	Not privileged
(a) Car service records		(a) (b) and (c) are not covered by LPP. They existed before the accident so were not created for use in litigation. They are documents that were already held by the client, which the lawyer selected using their skill and judgement for the purposes of litigation.
(b) MOT		see (a) above
(c) GP’s medical records		see (a) above
(d) Medical expert’s report on injuries sustained	(d) and (e) are covered by LPP (created by third parties when litigation was contemplated, for use in the litigation)
(e) Witness statements sent from independent witnesses	see (d) above
(f) Photo of scene of accident taken by client	(f) is covered by LPP (created for use in prospective litigation)
(g) Police accident report		(g) not covered by LPP (created by police to investigate the accident)
(h) Correspondence between parties to the litigation	(h) could be covered by LPP for the purposes of FOIA (documents created for the purpose of prospective litigation) – unless in the public domain (see ‘loss of LPP’ below)

The lawyer responds to the instructions, advising how to proceed and enclosing decided legal cases that they propose to rely on to support a particular line of legal reasoning. These enclosures weren’t already held by the client, and the lawyer  has selected them using their skill and judgement. They are therefore covered by LPP.

Does legal professional privilege apply to communications relating to crime?

LPP does not cover communications that would enable a client to commit crime. This applies whether or not the lawyer is aware of the wrongdoing.

However, LPP does normally still apply to legal advice given after a crime has been committed.

Can legal professional privilege be lost and is ‘waiver’ relevant to disclosures under FOIA?

Once you have established that the requested information falls within the definition of LPP, the next question that often arises is whether privilege has been lost or waived because of earlier disclosures.

Waiver is a term that describes disclosures made to a legal opponent within the context of specific court proceedings. Privilege over information can be waived in a particular court case but still retained for the same information in other contexts and indeed in other court proceedings. In this context, ‘cherry picking’ (ie, revealing only part of the advice given) isn’t permitted. However, arguments about waiver and cherry picking have no relevance in the context of considering disclosure of information under FOIA. This is because under FOIA we are concerned with disclosures to the world at large rather than disclosures to a limited audience. 

In an FOI context, LPP will only have been lost if there has been a previous disclosure to the world at large and the information can therefore no longer be considered confidential.

We recommend that you avoid referring to or thinking about whether privilege has previously been waived, and instead focus on the key question of whether privilege has been lost because previous disclosures to the world at large mean the information can no longer be considered confidential.

To assess this question, you must investigate whether or not the disclosure has been made in a restricted or an unrestricted way. This guidance considers these concepts, both within and outside the context of litigation.

Unrestricted disclosure

Unrestricted disclosure refers to a disclosure of information made to the world at large or without any restriction on its future use. This would mean it could enter the public domain. As a result, the original holder or owner of the legal advice can no longer expect it to remain confidential. An unrestricted disclosure can be made within or outside the context of litigation. Where confidentiality is lost, you cannot claim that section 42 applies.

A disclosure of information in open court is an unrestricted disclosure. That information has lost its quality of confidence and is no longer protected by privilege. If there is any doubt as to whether information was or was not disclosed in open court, the Information Commissioner will usually consider documents to have lost confidentiality when a judge has allowed disclosure on an unrestricted basis. However, it is only the information actually disclosed in open court that will lose its LPP protection for FOI purposes; so any residual information (that has only been disclosed to the court and the opponent) will still be protected.

Information disclosed in open court does not automatically remain in the public domain indefinitely. However, as a result, the client has effectively lost control over the information, so it is unlikely to have the necessary quality of confidence.

If legal advice is disclosed outside litigation without any restrictions, it is no longer confidential so is no longer protected by LPP. If only part of the advice is disclosed outside litigation without restrictions, it is possible for the remaining information to keep its LPP protection, depending on how much the disclosed information revealed about it. If the disclosure did not reveal the content or substance of the remaining information, then the remaining part will keep its quality of confidentiality. Therefore, a brief reference to or summary of the legal advice that does not reveal its substance is unlikely to lead to a loss of privilege.

Restricted disclosure

Restricted disclosure means a disclosure of information to a limited audience, with restrictions on its further use; for example, a disclosure made on a confidential basis. The information would therefore remain confidential from the world at large, thus retaining its legally privileged status. As above, a restricted disclosure may be made inside or outside the litigation context.

Making a disclosure only to a party’s opponent and to the court is an example of a restricted disclosure in the litigation context. In litigation, the parties have to disclose the information they intend to rely on in court to their opponent and to the court. Disclosures made only to the court and to an opponent are ‘restricted disclosures’, which remain confidential from the rest of the world, unless the information is later disclosed in open court. Since these disclosures do not enter the public domain, they may continue to be protected by LPP for the purposes of FOIA.

Outside litigation, making a disclosure to a business partner might be a restricted disclosure.

Is intention relevant?

The fact that an authority or one of its staff did not intend to relinquish its right to claim LPP is irrelevant. For example, an employee of the public authority relies on legal advice the authority has received, and reveals its substance when speaking in public. As a result, the information can no longer be regarded as confidential, and the public authority would not be able to claim LPP. This would be the case even if the officer did not understand the effect of their actions.

If an authority inadvertently discloses information to a limited audience (for example by enclosing the wrong documents with a covering letter), it may be possible to get it returned and to reassert the original confidentiality and LPP. However, this is unlikely to be possible if a disclosure is made into the public domain, which is the key issue under FOIA.

Can a lawyer’s selection of documents be covered by LPP, even if the documents selected are publicly available from elsewhere?

There is one exception to the general rule that publicly available information cannot attract privilege because it is not confidential. This applies when LPP is claimed for documents which the lawyer has used their skill and judgement to select and which would indicate the trend of the legal advice given or the trend of litigation arguments. In this case, privilege can be claimed for the selected documents even if they were publicly available, because disclosing them would reveal the substance of the advice given.

The same protection is not available for the selection of documents sent by a client to a legal adviser, however, and LPP cannot apply if the selection of documents is made from documents already held by the client.

What about documents marked ‘without prejudice’?

The term ‘without prejudice’ is often marked on correspondence as part of negotiations on a settlement. Public authorities should not take this as meaning that LPP applies. This marking means that the information is privileged under the Civil Procedure Rules, but does not necessarily mean that it is privileged under section 42 of FOIA.

Do we need to demonstrate prejudice or adverse effect?

There is no requirement to demonstrate any prejudice or adverse effect when applying section 42, since it is not a prejudice-based exemption: ie, there is no need to show that any harm would occur from disclosure of the information. However, arguments about prejudice and harm are relevant when considering the public interest test.

Is there an exemption to the duty to confirm or deny?

Section 1(1)(a) FOIA requires you to confirm or deny whether or not you hold information. Section 42(2) removes the duty to confirm or deny, if to do so would involve disclosing any legally privileged information.

LPP protects the confidentiality of communications between a client and their legal adviser, but what it specifically protects is the substance of those communications. This interpretation is supported by the comment of Mr Justice Mann in USP Strategies v London General Holdings Ltd [2004] EWHC 373 (Ch), that: “The proper analysis, consistent with Three Rivers, is to continue to afford privilege to material which evidences or reveals the substance of legal advice” (paragraph 20). The fact of whether you have sought or received legal advice is not itself legally privileged, unless disclosing that fact would reveal the substance of those communications.

This means you can only refuse to confirm or deny whether you hold information about legal advice that you have sought or received if to do so would itself reveal something about the substance of that advice. ‘Substance’ means the content, rather than simply the general subject of the advice.  This is shown in the following hypothetical examples:

Example: section 42(2) may apply

Example: section 42(2) does not apply

Mrs Brown asks Borsetshire County Council for “a copy of any legal advice you have obtained that would allow you to sell the kitchens of Borset High School to a private catering company”. The council has obtained legal advice on the subject of selling off school kitchens to a private supplier, who would then provide school dinners to the pupils. The advice confirms that it is legally permissible to sell some kitchens, including those of Borset High School. The council holds a copy of the requested information. The advice is covered by LPP and is exempt under s42(1). For the council to confirm or deny whether it holds the information requested would reveal the content of the legal advice. The council might therefore be able to cite section 42(2), but it must first apply the public interest test.

Mrs Brown asks Borsetshire County Council for “a copy of any legal advice you have obtained about selling the kitchens of Borset High School to a private catering company”. The council has obtained legal advice on the subject of selling off school kitchens to a private supplier. For the council to simply confirm that it holds advice about selling the High School kitchens to a private company would not reveal the content of that advice. Since confirming or denying would not disclose any legally privileged information, the council cannot use section 42(2).

Even if you cannot claim section 42(2), you may still consider that to disclose whether or not you have received legal advice would cause some harm or prejudice, for example to the exercise of your statutory functions, to commercial interests or more generally to the conduct of public affairs. In that case you should decide exactly what harm or prejudice you envisage, and then consider whether the neither confirm nor deny provisions in a different exemption may apply.

You can only use section 42(2) if there is some information that is legally privileged. The exemption refers to information “whether or not already recorded”, but it still only applies if there is some legally privileged information to disclose. If you have not sought or obtained legal advice on the issue that is the subject of the request, then you cannot use section 42(2), because to confirm or deny would not involve the disclosure of legally privileged information.

However, there may be a situation in which you have not obtained the specific advice requested, but you have obtained some advice on the issue in question. In that case, depending on the circumstances, it may be possible to apply section 42(2), even though you do not hold the requested information.

Therefore, the key question is whether confirming or denying that information is held would disclose any legally privileged information. If it would, then you must still carry out the public interest test to decide whether to refuse to confirm or deny.

Further advice on neither confirm nor deny provisions in FOIA is available in our guidance document on When to refuse to confirm or deny information is held.

How do we carry out the public interest test in relation to section 42 FOIA?

Once you have established that s42(1) or s42(2) is engaged, you then need to apply the public interest test (PIT). Please also refer to our separate guidance on the public interest test.

You must consider whether the public interest in maintaining the exemption outweighs the public interest in disclosure. The general public interest inherent in this 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 following Tribunal decisions help to illustrate how to apply the PIT.

Note that the Tribunal stated above that the “countervailing considerations” must be “strong”, rather than indicating that they should be exceptional.

Factors to consider when applying the PIT in section 42

Factor in favour of maintaining the exemption	Factor in favour of disclosure
The concept of LPP and the rationale behind the concept (ie, ensuring frankness between lawyer and client, which serves the wider administration of justice etc).	The assumption in favour of disclosure and the rationale behind the assumption (ie, accountability, transparency, furthering public debate etc).
Additional weight may be added to the above factor if the advice is: recent; live; protects the rights of individuals.	Additional weight may be added to the above factor if the following issues are relevant in the particular case: Large amount of money involved. Large number of people affected. Lack of transparency in the public authority’s actions. Misrepresentation of the advice that was given. Selective disclosure of only part of the advice that was given.

It is also important to take into account the significance of the actual information and what it reveals.

The following Decision Notice helps to illustrate how the balancing exercise was conducted in which the Commissioner determined that the public interest in favour of maintaining the section 42 exemption was outweighed by the public interest in disclosure: