Noosa Shire Council and Department of Communication and Information, Local Government and Planning; T M Burke Estates Pty Ltd (Third Party)

Noosa Shire Council and Department of Communication and Information, Local Government and Planning; T M Burke Estates Pty Ltd (Third Party)
(1996 S0157, 15 December 2000)

This was a 'reverse FOI' application by the applicant Council, which was the proponent of a Development Control Plan (subsequently approved) over land that the third party sought to develop. 

The applicant had sought legal advice concerning a possible course of action that might affect the level of any compensation payable to the third party.  The applicant provided a copy of the legal advice to the respondent, and made comments about the substance of the advice to the third party and to local newspapers. 

In the Information Commissioner's decision, it was considered whether the legal professional privilege (the ground for exemption under s.43(1) of the FOI Act) which initially attached to the legal advice, had been waived by the applicant.  The Information Commissioner found that the disclosure to the respondent had been made under an implied understanding of confidentiality and did not constitute an intentional general waiver of privilege.  However, the Information Commissioner also considered whether the other disclosures by the applicant amounted to an implied waiver of privilege. 

The Information Commissioner decided that the other disclosures were inconsistent with maintenance of confidentiality in the advice and the Information Commissioner stated that the finding in that regard could be supported without reference to any wider considerations of fairness to the third party.  The Information Commissioner therefore decided that the legal advice did not qualify for exemption under s.43(1) of the FOI Act.