Chapters: 01 | 02 | 03 | 04 | 05 | annex A | annex B
2.1 This exemption qualifies the rights of access under the Act by reference to a particular rule of litigation. According to that rule, legal professional privilege ("LPP") protects confidential communications between lawyer and client and certain other material created for the purpose of the litigation, by way of an exception to the general rules of disclosure applicable to civil and criminal litigation. If material is subject to LPP a party does not have to disclose it during the course of legal proceedings. The identification of LPP material is a question of law.
2.2 The principle of LPP has been established by the Courts in recognition of the fact that there is an important public interest in a person being able to consult his lawyer in confidence. As Lord Taylor of Gosforth CJ said in R v Derby Magistrates' Court ex parte B [footnote 1]:
"The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests".
2.3 Once LPP has been established in legal proceedings, the litigation right to withhold the privileged material during the proceedings is absolute, unless and until it is waived by the party entitled to it. There is no balancing act to be performed by the court and the privilege cannot be overruled because of the relevance of the material to the proceedings in question. The courts have recognised that any exception to the general rule that LPP is absolute would undermine the client's confidence in the confidentiality of his communications with his lawyer and hence the purpose of the privilege as a whole.
2.4 Section 42 of the Act applies to information in respect of which a claim to LPP could be maintained in legal proceedings. It does not require that any legal proceedings are in fact afoot, although it will certainly be of potential relevance where that is the case. The exemption focuses instead on the kind of information which would be protected if legal proceedings were afoot. It applies the LPP test in the separate context of the FOI Act. This exemption therefore needs to be considered both in terms of the legal definition of the LPP test and also within the particular context of the FOI Act itself.
2.5 Where compliance with the duty to confirm or deny would in itself involve the disclosure of information which is subject to LPP, the duty to confirm or deny does not arise if the public interest in maintaining the exclusion of the duty outweighs the public interest in disclosing whether the public authority holds the information.
2.6 Where compliance with the duty to confirm or deny would not in itself disclose information which is subject to LPP the information (whether or not there is legal advice of the description specified) may nonetheless come within another exemption such as section 35 because it would disclose information relating to the formulation or development of government policy.
2.7 The operation of this exemption is complex and in some respects potentially uncertain. LPP is a principle of common law. The precise details of the principle are still evolving in developing case law. It is important that legal advice is taken where it appears that information which is the subject of a request might fall within section 42.