FT/EA/2025/0222/GDPR - [2025] UKFTT 01236 (GRC)

These proceedings concern an application (the “Application”) under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s complaints against the Royal Institution of Chartered Surveyors (“RICS”) regarding the use by RICS of the Legal Professional Privilege (“LPP”) exemption in refusing the Appellant’s Subject Access Request (“SAR”) dated 29 August 2024. The complaint, was submitted to the Information Commissioner (“IC”) on 2 January 2025 and was dealt with under reference IC-2559130-J0K7.

On 22 May 2025, the IC’s case officer wrote to the Applicant and advised him that the IC’s view, having considered the information available, was that RICS had complied with its data protection obligations and provided a full and timely justification for their use of the LPP exemption.

On 8 June 2025, the Applicant emailed the IC asking it to deal with his representative, which the IC acknowledged the following day. The IC and the Applicant’s representative engaged in correspondence in June 2025 about the exemption used by RICS as the Applicant’s representative maintained that litigation privilege is not available, and the IC that RICS relied on LPP, not litigation privilege.

On 23 June 2025, the IC advised the Appellant’s representative that he could apply for a case review, which he did the same day.

On 22 July 2025, the IC wrote again following the case review. The reviewing officer stated that they were satisfied that the case officer had dealt with the complaint appropriately. The reviewing officer explained that LPP encompasses both litigation privilege and legal advice privilege. They confirmed that in this case legal advice privilege applies, protecting confidential communications between client and qualified legal adviser for the purposes of obtaining legal advice, which does not require the existence or contemplation of legal proceedings. The reviewing officer reminded the Applicant’s representative of the right to take legal action under data protection legislation and complain to the Parliamentary and Health Service Ombudsman (“PHSO”).

The Applicant’s representative applied to the Tribunal by way of form GRC1 dated 10 June 2025 appealing the IC’s letter dated 22 May 2025. He stated that the outcome he was seeking was as follows: “that RICS provide the documents it used to remove Mr Nash from post. They are not privileged and they are expressly to be released under their own rules.”

In his grounds for the Application, the Applicant’s representative stated:

“The Regulator said:

Also, as with your previous request, there are exemptions to the right of access and following a careful review of the documentation for your latest request, the following exemptions under the Data Protection Act 2018 have been applied:

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Schedule 2, Paragraph 7, which states that personal information is exempt from the right of subject access when the disclosure of the information would prejudice a regulatory function performed in the public interest

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Schedule 2, Paragraph 16, which states that personal information is exempt from the right of access where there is a duty of confidentiality, or if sharing such information would compromise the right of privacy of a third party.

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Schedule 2, Paragraph 19 of the Data Protection Act 2018 exempts disclosure of the personal information of legal profession privilege

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Schedule 2, Paragraph 7 There is no such provision in Schedule 2 Paragraph 7

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Schedule 2, Paragraph 16 There is no third party that has not openly been identified by the RICS/DRS

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Schedule 2, Paragraph 19 there is no legal professional privilege. These are disciplinary proceedings and not litigation or in contemplation of litigation. See the attached paper from Pinsent Masons.”