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NSW Ombudsman Bruce Barbour has followed up with a special report to Parliament Removing nine words - Legal professional privilege and the NSW Ombudsman , his so far futile attempts and those of a parliamentary committee to have removed unique limitations in legislation that give an agency power to refuse his office access to information on this ground in the course of an investigation. The report includes case studies on problems encountered with the RTA, the Board of Studies and an unnamed local council during the course of an  Ombudsman investigation into the handling of Freedom of Information applications. The attitude in some cases was the agency claimed privilege and refused to provide the Ombudsman with information for the simple reason it could.

That's probably the situation with many FOI refusals on legal privilege grounds as well. Come 1 July and the commencement of the GIPA act, legal privilege will be a conclusive public interest factor against disclosure-no other test is required-although the agency must in each case give consideration to waiving privilege. The claim of privilege will be reviewable but not the refusal to waive. The Information Commissioner will not be as constrained as the Ombudsman in accessing information in the course of an investigation.

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