ICO orders disclosure of advice from lawyer in trading standards team

The Information Commissioner has ordered a council to disclose advice given by a chartered legal executive employed in its trading standards department to a company involved in a dispute.

The complainant, the other party in the dispute, requested details of the advice given by the employee of Cambridgeshire County Council.

The local authority argued that the requested information was exempt from disclosure on the basis of s. 42 of the Freedom of Information Act, the legal professional privilege exemption.

However, in a decision notice issued last week the Information Commissioner concluded that the requested information did not attract legal professional privilege and was therefore not exempt from disclosure.

The request submitted on 18 April 2012 read as follows: “I understand from a letter from [company name] that you will be supporting that firm in the forthcoming proceedings which I intend to bring against them in the small claims court…

“… In the meantime, under the Freedom of Information Act 2000, I am making a formal request for a copy of the written advice you have given to [company name] as to their legal position and/or the notes (taken contemporaneously) of your telephone conversations with that company.”

Both in its initial response and on review the council refused and relied on s. 42 FOIA.

The complainant appealed to the Information Commissioner. He accepted that the trading standards officer was legally qualified, but said he did not believe that s. 42 should apply in the situation and even if it did, then the public interest favoured disclosing the requested information.

In the decision notice, the Information Commissioner said the council was relying on advice (rather than litigation) privilege, which attaches to confidential communications between a client and its legal advisers and any part of a document which evidences the substance of such a communication, where there is no pending or contemplated litigation.

It added: “The information must be communicated in a professional capacity, i.e. by a legal professional retained to provide legal services to their client. Consequently not all communications from a professional legal adviser will attract advice privilege.

“For example, informal legal advice given to an official by a lawyer friend acting in a non-legal capacity or advice to a colleague on a line management issue will not attract privilege. Furthermore, the communication in question also needs to have been made for the principal or dominant purpose of seeking or giving advice. The determination of the dominant purpose is a question of fact and the answer which can usually be found by inspecting the documents themselves.”

Following submissions from the complainant and Cambridgeshire, the Information Commissioner set out its position as follows:

• The Commissioner understood that the council’s Trading Standards department provided advice and assistance to consumers and businesses on a variety of issues, including legal aspects of trading standards legislation.
• The Commissioner also understood that the council employed some individuals in its Trading Standards department with legal qualifications so that they could provide advice on more complex cases and the employee who provided the advice in this case was such an individual.
• However, in the Commissioner’s view this simply meant that the individual in question was employed by the council as an adviser with expert legal knowledge to assist in providing advice and assistance to third parties on the council’s interpretation of trading standards legislation.
• In the Commissioner’s view this did not mean that the individual in question was employed as a professional legal adviser, funded by the council, to provide legal advice to third party clients such as the company in question.
• In the Commissioner’s opinion a client/lawyer relationship in the context of legal professional privilege meant that the client had to have actually retained the lawyer in question – in a professional capacity – with the intention of seeking legal advice.
• In the circumstances of this case, the Commissioner accepted that the council’s employee was clearly providing advice in his professional capacity as a member of the Trading Standards advice team. However, the Commissioner did not believe that it could be said that the company in question had retained the services of the employee at the council in a professional capacity so that he could provide them with legal advice.
• Rather, the company in question appeared to simply have made use of the council’s Trading Standards advice service and were provided with advice, albeit by someone with a legal qualification.
• In the Commissioner’s opinion this did not make the company the ‘client’ of the council employee in the context of legal professional privilege; “it simply means that the company was provided with advice by an individual with legal knowledge. In other words, to use wording of the dictionary definition cited by council, the company was not in fact ‘using the services of a lawyer’; rather they were simply using the services of the council’s advice service which happened to be provided by someone with a legal qualification”.

The decision notice concluded: “Consequently, the Commissioner does not believe that the communications between the company and council employee at the Trading Standards department can attract legal professional privilege. Therefore the requested information cannot be exempt from disclosure on the basis of section 42(1) of FOIA and thus needs to be disclosed to the complainant.”