Legal Professional Privilege

August 5th, 2021

In assessing a FoIA request the in-built “significant weight” to be afforded to LPP is something to be considered in any event. It is not necessary for the party claiming LPP to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question, or to establish either that Council officials would be inhibited from seeking advice if disclosure were made in the case or that advisers would be less likely to provide frank advice. Significant weight needs to be given to the public interest in maintaining LPP.  This does not mean that the LPP exemption is  absolute. All will depend on the public interest factors weighed in the balance. Disclosure is always a possibility which depends on public interest factors which are not in the control of decision-makers and their advisers, but an authority will most often be entitled to obtain legal advice on an issue and to rely on LPP to withhold it even when a request is made under FoIA. That is because of the built-in public interest in maintaining LPP. See FTT at paragraphs 31-35 inclusive in Murray-Smith v Information Commissioner, EA/2021/0039V, 4 August 2021.

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