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Legal privilege should be subject to some qualifications

By Peter Timmins

As the Senate Legal and Constitutional Affairs Committee found earlier in the week, government lawyers can be quick to assert legal professional privilege when questions are raised about advice to government. Privilege is a frequently used exemption when dealing with freedom of information applications in all Australian jurisdictions.

The Australian Law Reform Commission recently released its final report on privilege in the context of the exercise of government investigatory powers - that is whether privilege should trump government powers to compel the production of documents to a royal commission or in other instances where government authorities are conducting an investigation.

The report makes some recommendations for change but reaffirms the right to claim privilege based on the rationale that this is vital to the administration of justice. However rights to privilege can be qualified, even taken away when parliament decides to enact legislation to reflect other important interests.

FOI policy makers should give this some thought. Federal Government guidelines (untouched so far by the Rudd Government) on the application of exemptions state that a 1986 Cabinet decision directed government agencies to only claim an exemption for documents on privilege grounds where disclosure will cause "real harm". This should have been on decision makers' desks since it was issued in a memorandum by the then Secretary of the Attorney General's Department in March that year. The Brazil memorandum is still an attachment to Government guidance on FOI Guidelines - Fundamental principles and procedures. However this hasn't always been applied. It should be given added force in the legislation by a suitable qualification on the exemption for documents that attract privilege. It's a similar situation in the states and territories. A couple of years ago the Deputy Ombudsman in NSW said that in one instance investigated by his office, an agency claimed privilege for the business card of its law firm.

There is also a case for considering whether legal advice, should be released because the public interest in disclosure outweighs the privilege claim in a particular instance. The NSW Ombudsman takes the view that this should be a consideration in the exercise of the discretion by any decision maker to release an otherwise exempt document, but his comments are not reflected in guidance from the lead agency in NSW, the Department of Premier and Cabinet.

Just this week in the UK the Information Tribunal for the first time has decided that legal advice should be disclosed on public interest grounds.

With a bit of buzz and interest in reform obvious in some government quarters this is an issue that deserves a closer look.

Thanks to UK Freedom of Information blog for the UK lead.

Full post as published by Open and Shut on February 21, 2008 (boomark / email).