Subject access request self serve

You might be able to withhold some information under the legal professional privilege exemption.

Personal data is exempt from the right of access if it consists of information:

• to which a claim to legal professional privilege (or confidentiality of communications in Scotland) could be maintained in legal proceedings; or
• in respect of which a professional legal adviser owes a duty of confidentiality to his client.

This exemption covers the two branches of legal professional privilege: litigation privilege and legal advice privilege. The English law concept of legal professional privilege encompasses both ‘litigation’ privilege and ‘legal advice’ privilege. In broad terms, the former applies to confidential communications between a client, professional legal adviser or a third party, but only where litigation is contemplated or in progress. The latter applies only to confidential communications between a client and professional legal adviser for the purpose of seeking or obtaining legal advice.

The Scottish law concept of confidentiality of communications provides protection for both communications about the obtaining or providing of legal advice and communications made in connection with legal proceedings. You may withhold information that comprises confidential communications between client and professional legal adviser under the legal privilege exemption, in the same way that you may withhold information attracting English law ‘legal advice’ privilege. Similarly, the Scottish law doctrine that a litigant is not required to disclose material they have brought into existence for the purpose of preparing their case protects information that, under English law, enjoys ‘litigation’ privilege.

Legal professional privilege is only available for communications that are:

• confidential in nature;
• except where litigation is in contemplation, made solely between client and professional legal adviser acting in a professional capacity; and
• made for the dominant purpose of obtaining or providing legal advice or being used by lawyers in possible or probable litigation.

A communication is a document that conveys information and it can take any form, including a letter, report, email, memo, photograph, note of a conversation or an audio or visual recording. It can also include draft documents prepared, eg with the intention of putting them before a legal adviser.