The concept of legal professional privilege can stand at odds with the Freedom of Information Act (FOIA). Under the Act, a public authority is exempt from the duty to provide information which is protected by legal professional privilege, but only where the public interest in protecting the concept of privilege outweighs the public interest in disclosing the information.
The public authority must demonstrate that the public interest weighs in favour of the information being withheld. In the case of Department for Business Enterprise & Regulatory Reform v O'Brien (2009) the information requested was protected by legal advice privilege (a letter of advice from the lawyers). The question was whether the public interest erred in favour of disclosure upon request. The Information Tribunal decided that the public interest weighed in favour of the information being disclosed.
The case was then transferred to the High Court and the lawyers were able to breathe a sigh of relief as the High Court confirmed the public interest in preserving the concept and tenets of privilege carries significant weight and that the tribunal had not attached enough weight to the concept. The tribunal's decision was quashed.
The decision therefore upholds the protection afforded by privilege.