The devil’s in the detail: the LPP exemption to the Right of Access

The legal professional privilege exemption to the right of access feels like it should be a quick and easy one to apply.

Compared to others with which it shares a schedule (under the UK Data Protection Act 2018), it has a lot of things going for it. At only four lines long, it is concise and easy to understand (unlike, say, the wordy “corporate finance” exemption). Any organisation can use it, so they don’t need to check if they are one of the listed entities (as with the “regulatory functions” exemption), or have a specified function (as with the “functions designed to protect the public” exemption).

It does not require conditions to be met (like the public functions exemption), nor a tricky balancing assessment (as for the “protection of the rights of others” exemption). Nor does it have tests to apply which may change over time (such as considering whether disclosure would be “likely to prejudice” the organisation’s activities under several other exemptions), or “seriously impair” the purposes (like the “research and statistics” exemption).

And legal professional privilege is a well-established legal concept, unlike, for example, the “manifestly unfounded or excessive” exemption.

But this latter point leads to a problem. Yes, it is a well-established legal concept, but it is also a very complex concept, completely separate from data protection law. It is based on common law, which is neither concise nor easy to understand, and there are conditions to be met. Privilege may also be lost or waived, so protection may change over time. Applying the exemption does not just require interpretation of the Data Protection Act, but also interpretation of over 400 years of common law.

Read the full article: “The devil’s in the detail: the LPP exemption to the Right of Access” – abridged version also published in Volume 25 Issue 3 of the PDP Privacy and Data Protection Journal (http://www.pdpjournals.com).

Olivia Whitcroft, principal of OBEP, 20 January 2025

This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details