Key published decisions applying Section 43 FOI Act
Hewitt and Queensland Law Society Inc. (1998) 4 QAR 328
The applicant sought access to documents relating to complaints the applicant made to the Queensland Law Society (QLS) against his former solicitor. The QLS refused access to letter containing legal advice and part of a memorandum appearing under the heading ‘Analysis of Investigation’.
What is a legal proceeding for the purpose of the provision?
The Information Commissioner was satisfied a legal proceeding, for the purpose of section 43 of the FOI Act, refers to a ‘hypothetical legal proceeding’. [30]
Would the matter be privileged from production on the ground of LPP?
The Information Commissioner was satisfied the exemption turns on the application of those principles of Australian common law which determine whether a document is subject to legal professional privilege. [11] Having regard to common law principles of LPP the Information Commissioner was satisfied that LPP attached to the letter as it was created for the sole purpose of communicating legal advice, but that LPP did not attach to part of the memorandum.
Has LPP been negated?
The Information Commissioner considered that a subsequent letter, revealing the substance of the legal advice, waived LPP in respect of the first letter. [78] Accordingly, the letter was not exempt under section 43 of the FOI Act.
The applicant sought access to matter concerning his petition for the exercise of the royal prerogative of mercy by the Governor of Queensland. The Department of Justice and Attorney-General refused access to some of the relevant matter under section 43 of the FOI Act. Specifically, the relevant matter was communications between the Attorney-General and the Director-General and communications between Crown Law and a third party as well as internal Crown Law memoranda, annotations, files and research notes.
Would the matter be privileged from production on the ground of LPP?
The Information Commissioner, applying the principles of Australian common law to determine whether matter is subject to LPP, was satisfied the communications between the Attorney-General and the Director-General and communications between Crown Law and a third party were confidential communications for the dominant purpose of giving or seeking legal advice. [34-53] Accordingly, the communications would be privileged from production on the ground of LPP and exempt under section 43 of the FOI Act.
Similarly, the Information Commissioner was satisfied the ‘working documents’ including internal Crown Law memoranda, annotations, files and research notes would be privileged from production on the ground of LPP because they were confidential communications created for the dominant purpose of providing legal advice. [39] Accordingly, the working documents were exempt under section 43 of the FOI Act.
Has LPP been negated?
The applicant submitted that the relevant matter was created for an illegal or improper purpose and, accordingly, not subject to LPP. The Information Commissioner, having regard to common law principles, was satisfied the illegal or improper purpose exception to the application of LPP was not made out in the circumstances.
The applicant sought access to emails, memoranda and other communications between a named senior legal advisor and client. The Department of Corrective Services (DOCS) refused access to the relevant matter under section 43 of the FOI Act, on the ground of LPP. Specifically, the relevant matter consisted of emails between a senior legal advisor and client.
Would the matter be privileged from production on the ground of LPP?
The Acting Assistant Commissioner was satisfied the relevant matter consisted of confidential communications between a legal advisor and client made for the dominant purpose of either obtaining or providing legal advice and would be privileged from production in a legal proceeding on the ground of LPP. Accordingly, the relevant matter was exempt under section 43 of the FOI Act.
The applicant sought access to documents relating to Council’s Temporary Local Planning Instrument (TLPI) titled ‘Waste Management Facilities’ and a copy of the TLPI. The Department of Local Government, Planning, Sport and Recreation (Department) refused access to the relevant matter, relying on a number of FOI provisions including section 43 of the FOI Act.
Would the matter be privileged from production on the ground of LPP?
The Assistant Commissioner was satisfied that a document revealing confidential communication between a legal advisor and Council attracted LPP. [27]
Has LPP been negated?
The Department submitted that LPP attaching to the relevant document was waived when the major of the Council emailed a copy of the advice to the Director-General of the Department. [27]
The Assistant Commissioner was satisfied the disclosure of the document was for the limited and specific purpose of obtaining the Minister’s approval to adopt the TLPI and LPP attaching to the document was not waived. Accordingly, the relevant matter would be privileged from production in a legal proceeding and was exempt under section 43 of the FOI Act.
Last updated: March 5, 2012
