Training slides can attract legal professional privilege
22 June 2016
The Information Commissioner held that a set of training slides provided to a public authority were not protected by legal advice privilege. However, this decision was overturned by the Tribunal, meaning that – in certain circumstances – training materials provided by external lawyers will attract legal advice privilege: Ministry of Justice v The Information Commissioner & Joanna Shaw (EA/2015/0160), 18 March 2016.
Request for MOJ training materials
The second respondent, an individual, submitted a request for information to the Ministry of Justice (MOJ) under the Freedom of Information Act 2000 (FOIA) (the FOIA Request). The second respondent requested a copy of "any training notes or additional guidance" held by the MOJ regarding the application of exceptional case funding under the Legal Aid Scheme. The FOIA Request was made to the MOJ because the Legal Aid Agency (the LAA) (which administers the Legal Aid Scheme) is an executive agency of the MOJ.
Decision to withhold legally privileged training materials
The MOJ provided the second respondent with some information in response to her FOIA Request. However, the MOJ declined to provide a set of training slides (the Training Slides) that had been prepared by external counsel in order to advise the LAA on the application of the rules governing exceptional case funding under the Legal Aid Scheme. The MOJ asserted that the Training Slides were subject to legal professional privilege and therefore exempt from disclosure under s1(1) of the FOIA (which does not require the disclosure of items protected by legal professional privilege where the public interest is in favour of maintaining this protection).
The second respondent requested an internal review of the MOJ's decision to not provide her with a copy of the Training Slides. She argued that the MOJ's approach to her FOIA Request meant that a public authority could "exempt itself from almost any request for information by using the services of Counsel or a solicitor to provide advice on… government matters, thereby exempting itself from any obligations under FOIA". The second respondent argued that this could not have been the impact that FOIA was intended to have.
The Information Commissioner's decision
The Information Commissioner held that the MOJ could not rely on s 42 FOIA (legal professional privilege exemption) in order to withhold a copy of the Training Slides because the Training Slides did not appear to have been produced for the "dominant purpose" of providing legal advice. Rather, the purpose of the Training Slides appears to have been to provide generic training to LAA caseworkers regarding the determination of applications for exceptional case funding under the Legal Aid Scheme. As a result, the Information Commissioner held that Training Slides were not covered by legal advice privilege and should be disclosed.
The MOJ appealed to the First Tier Tribunal General Regulatory Chamber (Information Rights) (the Tribunal).
The Tribunal upheld the MOJ's appeal. It held that the Training Slides were privileged and it was not in the public interest that they should be disclosed. In support of its decision, the Tribunal noted that:
- The Training Slides contained legal advice relating to the obligations of the LAA under public law.
- There was a clear legal context relating to the Training Slides, in as much as LAA caseworkers were being advised by external lawyers as to what the law requires and on how best to discharge their legal duties in respect of exceptional case funding applications. It is reasonable to expect privilege to apply where external lawyers were providing materials as the basis for the training session and would need to be able to do so in an environment of "not holding back in… imparting what would be prudent and sensible".
- It was not persuaded that, as the Information Commissioner had argued, training sessions could not constitute legal advice for the purposes of privilege. The Tribunal noted that 'advice' can include telling the client the law and may also include advice as to what should prudently and sensibly be done in the relevant legal context.
The Tribunal's decision is likely to be a welcome one for the MOJ, as well as other public bodies who frequently find themselves in receipt of requests made under the Freedom of Information Act 2000. However, this decision is unlikely to mean that all training materials will attract legal advice privilege. Rather, the content of such materials will need to be considered carefully in order to determine whether legal advice is actually being provided and, in the FOIA context, it is in the public interest to withhold these materials from disclosure. The principles set out by the Tribunal in this case should also be considered by firms when requesting training from external lawyers, if there is a desire to ensure that the content of any training materials provided by external lawyers will attract legal advice privilege.
This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication. For more information please contact Sarah Garvey email@example.com, or tel +44 20 3088 3710