Harris and Department of Justice and Attorney-General
(210460, 21 January 2009)
Section 43(1) Legal Professional Privilege
The applicant sought access to a range of documents from the Department of Justice and Attorney-General (Department) under the Freedom of Information Act 1992 (FOI Act) in relation to his petition for the exercise of the royal prerogative of mercy. The Department decided that the relevant matter in issue was exempt in its entirety under section 43(1) of the FOI Act.
On external review, Assistant Commissioner Henry found:
· The category A matter (comprising communications and correspondence between relevant parties including the Attorney-General and the Director General of the Department of Premier and Cabinet) was exempt from disclosure in its entirety under section 43(1) of the FOI Act because it comprised:
o confidential communications between the Attorney-General and the Director-General of the Department of Premier and Cabinet made for the dominant purpose of seeking or giving legal advice
o confidential communications between Crown Law and a third party made for the dominant purpose of seeking or giving legal advice.
· The Category B matter (comprising internal Crown Law memoranda, annotations, file and research notes) was exempt from disclosure in its entirety under section 43(1) of the FOI Act as it was created for the dominant purpose of providing legal advice, was confidential and if disclosed, would reveal the content of privileged communications.
· The Category C matter (comprising copies of otherwise non-privileged documents) was exempt from disclosure in its entirety under section 43(1) of the FOI Act as it:
o comprised copies of documents made and communicated for the dominant purpose of giving legal advice
o fell within the principles established in the High Court's decision in Propend Finance (1997) 141 ALR 545.
The applicant submitted that the illegal/improper purpose exception to legal professional privilege applied in the circumstances on account of the Crown’s alleged lack of independence on various occasions.
After carefully considering the applicant’s submissions on this issue, and the relevant principles, Assistant Commissioner Henry decided that:
· Section 101C of the FOI Act did not confer power on the Information Commissioner (or delegate) to review the Crown’s conduct including in respect of matters which have been heard and concluded by the Queensland Courts.
· The scope of the external review was confined to a consideration of whether the matter in issue qualified for exemption from disclosure under the FOI Act.
· The relevant matter in issue was created in the course of a professional relationship which secured an independent character to it.
· There was no evidence to support the applicant’s submission that relevant communications were made in preparation for, or in furtherance of, an illegal or improper purpose.