Overview of Section 43 FOI Act

Section summary

Matter will be exempt matter if it would be privileged from disclosure in a legal proceeding on the basis of legal professional privilege (LPP). The doctrine of LPP is both a rule of evidence and a common law right, distinct from freedom of information legislation. It is necessary to consider LPP at common law to determine whether this exemption is satisfied.

Other relevant FOI Act sections

Section 92 FOI Act
This provision states that legal professional privilege does not apply to the production of a document or the giving of evidence by a member of an agency or a Minister for the purposes of an external review. Accordingly, the Information Commissioner is entitled to full access to documents relevant to an external review, including documents that may be subject to LPP.