In-house lawyers are indeed strange people!
There has been consternation about how the ECJ views them. Akzo Nobel Chemicals and Akcros Chemicals v Commission (T-125/03 and T-253/03) effectively determined that a client could not rely on LPP as it applied to advice received in-house, because in-house counsel are not properly "independent". I understand those in the English jurisdiction are very much seeing this case as only applying to pan-European competition matters, and not extending any further than that.
The Tribunal in Calland v FSA certainly held that LPP applied in-house("these authorities [Akzo and Akcros] do not limit the general scope of LPP to communications with external, or independent lawyers").
I would also disagree with Chris regarding the extent of LPP. The ICO says "The dominant purpose of the communication must be to obtain legal advice, or to give it" and I think this would extend to when an FOI office is asked by a lawyer for advice in order to advise the client. (The ICO, of course, correctly qualifies this "dominant purpose" point with "This is a question of fact and you will need to look at the information itself to decide whether this is the case."
Jonathan Baines
Legal and Democratic Services
Buckinghamshire County Council
01296 383681
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Bradshaw, Phillip
Sent: Tuesday 12 July 2011 09:41
To: [log in to unmask]
Subject: Re: [data-protection] Advice regarding FOIA & LPP
Whilst it follows from my post that I disagree with Chris Brogan's take, I am confident that if he is correct s36 would be applied with equal stringency to LPP in such cases. Internal lawyers are curious hybrids.
If he is correct then it means all internal communications between legal staff, legal execs and para-legals on an issue is open to FOI and not covered by LPP up to the stage where the lawyer issues his advice. I am confident that would be given very strong protection.
Phillip Bradshaw
Room CY5C, County Hall
Phone: 029 2087 3346
Mobile : 07890 265987
Fax: 029 2087 3349
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Chris Brogan
Sent: 12 July 2011 09:29
To: [log in to unmask]
Subject: Re: [data-protection] Advice regarding FOIA & LPP
My take for your consumption is as follows.
Legal professional privilege protects the disclosure of all communications between a client and his/her/its professional legal adviser (Solicitor or barrister but not a legal executive or solicitor's
clerk.) This privilege has been developed by Common Law but should the issue the subject of this advice ever get to court then under the Rules of Disclosure the information could be inspected by the other side. (The Civil Procedures Rules 1998; Rule 31.15)
Now if in the course of advising his client the solicitor/barrister sought advice from say a freedom of information officer and subsequently advised his client then I suggest that advice to the solicitors client from the solicitor is protected by LPP. However I cannot see that the advice from the Freedom of Information officer to the solicitor can be protected. The advice given to the solicitor will not be legal advice because the freedom of information officer is not qualified to give legal advice.
Chris Brogan MA LLM FSyI
Managing Director
Security International Ltd
130 St Johns Road, Isleworth, Middlesex TW7 6PL, UK
Tel: +44 20 8847 2111 Fax: +44 20 8847 1852 Registered in England & Wales No. 1322074 Registered Office: 11 Loveday Road, London W13 9JT www.securitysi.com Please visit my blog https://chrisbroganassociates.wordpress.com/
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Lynn Wyeth
Sent: 12 July 2011 09:18
To: [log in to unmask]
Subject: Re: Advice regarding FOIA & LPP
Makes sense. If I just give advice to joe bloggs an officer in parking, it's not covered, but if I give advice to a solicitor it is.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask] All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
Any queries about sending or receiving messages please send to the list owner
[log in to unmask]
Full help Desk - please email [log in to unmask] describing your needs
To receive these emails in HTML format send the command:
SET data-protection HTML to [log in to unmask]
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask] All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
Any queries about sending or receiving messages please send to the list owner
[log in to unmask]
Full help Desk - please email [log in to unmask] describing your needs
To receive these emails in HTML format send the command:
SET data-protection HTML to [log in to unmask]
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
**********************************************************************
Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer does not consent to Internet email for messages of this kind. Opinions, conclusions and other information in this message that do not relate to the official business of the Council of the City and County of Cardiff shall be understood as neither given nor endorsed by it. All e-mail sent to or from this address will be processed by Cardiff County Councils Corporate E-mail system and may be subject to scrutiny by someone other than the addressee.
**********************************************************************
Mae'n bosibl bod gwybodaeth gyfrinachol yn y neges hon. Os na chyfeirir y neges atoch chi'n benodol (neu os nad ydych chi'n gyfrifol am drosglwyddo'r neges i'r person a enwir), yna ni chewch gopio na throsglwyddo'r neges. Mewn achos o'r fath, dylech ddinistrio'r neges a hysbysu'r anfonwr drwy e-bost ar unwaith. Rhowch wybod i'r anfonydd ar unwaith os nad ydych chi neu eich cyflogydd yn caniatau e-bost y Rhyngrwyd am negeseuon fel hon. Rhaid deall nad yw'r safbwyntiau, y casgliadau a'r wybodaeth arall yn y neges hon nad ydynt yn cyfeirio at fusnes swyddogol Cyngor Dinas a Sir Caerdydd yn cynrychioli barn y Cyngor Sir nad yn cael sel ei fendith. Caiff unrhyw negeseuon a anfonir at, neu o'r cyfeiriad e-bost hwn eu prosesu gan system E-bost Gorfforaethol Cyngor Sir Caerdydd a gallant gael eu harchwilio gan rywun heblaw'r person a enwir.
**********************************************************************
--
Scanned by iCritical.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask] All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
Any queries about sending or receiving messages please send to the list owner
[log in to unmask]
Full help Desk - please email [log in to unmask] describing your needs
To receive these emails in HTML format send the command:
SET data-protection HTML to [log in to unmask]
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Buckinghamshire County Council
Visit our Web Site : http://www.buckscc.gov.uk
Buckinghamshire County Council Email Disclaimer
This Email, and any attachments, may contain Protected or Restricted information and is intended solely for the individual to whom it is addressed. It may contain sensitive or protectively marked material and should be handled accordingly. If this Email has been misdirected, please notify the author or [log in to unmask] immediately. If you are not the intended recipient you must not disclose, distribute, copy, print or rely on any of the information contained in it or attached, and all copies must be deleted immediately. Whilst we take reasonable steps to try to identify any software viruses, any attachments to this Email may nevertheless contain viruses which our anti-virus software has failed to identify. You should therefore carry out your own anti-virus checks before opening any documents.
Buckinghamshire County Council will not accept any liability for damage caused by computer viruses emanating from any attachment or other document supplied with this email.
All GCSx traffic may be subject to recording and / or monitoring in accordance with relevant legislation.
The views expressed in this email are not necessarily those of Buckinghamshire County Council unless explicitly stated.
This footnote also confirms that this email has been swept for content and for the presence of computer viruses.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
Any queries about sending or receiving messages please send to the list owner
[log in to unmask]
Full help Desk - please email [log in to unmask] describing your needs
To receive these emails in HTML format send the command:
SET data-protection HTML to [log in to unmask]
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|