Practical Law

PLC Public Sector reports:

The concept of legal professional privilege and the dangers of the partial disclosure of information waiving it are well known in the context of civil litigation. 

However, a recent decision of the Scottish Information Commissioner (SIC) highlights another reason why public authorities need to consider the risks of using excerpts from what would be privileged advice in press releases to support action they are taking. If they do, the exemption from disclosure for the whole of the advice under FOIA may be lost.

 
The SIC found that the City of Edinburgh Council (Edinburgh) was required to disclose a copy of a legal opinion it had obtained in respect of the use of certain park land. 

Edinburgh had sought to refuse to disclose the information on the basis that it was exempt under section 36 of the Freedom of Information (Scotland) Act 2002.  This exemption relates to the “confidentiality of communications” and has a counterpart in FOIA, the exemption found in section 42 for information that is the subject of legal professional privilege.

The SIC rejected Edinburgh’s application of section 36 on the basis that it had already published a press release that contained an excerpt from the advice.  The SIC found that:

• the exemption could only be claimed if legal professional privilege could be claimed in respect of the information at the time the request was made;
• as the excerpt was not severable from the advice as a whole, and because parties cannot cherry-pick which parts of privileged information they disclose, privilege in the document as a whole had been waived; and
• therefore, the advice had to be disclosed.

Although the Information Commissioner is not bound by any decision of the SIC, his guidance on the exception contained in section 42 of FOIA makes it clear he would come to the same conclusion.  Public authorities should therefore consider all of the possible implications of using privileged advice in press releases supporting their actions.   Privilege could be lost by using the advice as a basis for a press release or by including an extract in it. Therefore, authorities need to ask if they would be happy for the advice as whole to appear in the public domain before they use it in such a way.