Department of Justice and Attorney-General and Department of Emergency Services

Department of Justice and Attorney-General and Department of Emergency Services
(2001 S0257, 28 June 2002) 

The access applicant sought documents held by the Department of Emergency Services (DES) concerning who was to pay the legal costs of two DES employees being sued by the access applicant for defamation.  Under s.51 of the FOI Act, the DES consulted DJAG about a memorandum from the Crown Solicitor to the Attorney-General.  DJAG asserted that the document was subject to legal professional privilege and exempt under s.43(1) of the FOI Act.  The DES decided that the document in issue did not attract legal professional privilege, and was not exempt under s.43(1) of the FOI Act.  DJAG sought external review of that decision, arguing that the document qualified for exemption on the basis of ‘advice privilege’, in the context of the legal professional relationship existing between the Crown Solicitor and the Attorney-General.

Assistant Commissioner Shoyer considered whether the advice contained in the document in issue was communicated for the dominant purpose of giving professional legal advice or assistance, or whether it was advice of an executive or administrative nature.  Having considered the context in which the advice was given, the relationship between the Crown Solicitor and the Attorney-General, and the nature of the legal issues requiring consideration in giving such advice, he was satisfied that the document attracted legal professional privilege, and qualified for exemption under s.43(1) of the FOI Act.