Norman and Mulgrave Shire Council
(1993 L0021, 28 June 1994)
This case illustrates the application of s.43(1) of the FOI Act and general law principles relating to legal professional privilege in respect of a letter containing legal advice, a draft pleading and draft affidavits, all of which were prepared by solicitors acting for the respondent Council in respect of anticipated litigation against the applicant.
The applicant contended that, the litigation having been finalised, legal professional privilege should no longer apply to deny him access to the requested documents. After reviewing relevant authorities, the Information Commissioner held that where it is clear that a document is subject to legal professional privilege, the privilege endures (notwithstanding, for instance, the conclusion of the litigation for the purpose of which the privileged document was created) unless the privilege is waived by the client entitled to assert the privilege, or any of the recognised exceptions to the privilege apply. The Information Commissioner also said that, consistently with the objects of the FOI Act, there may be sound reasons why a government agency, in appropriate circumstances, should choose to exercise its discretion under s.28(1) of the FOI Act so as not to claim exemption under s.43(1) for a document that is technically subject to legal professional privilege. In this regard, the Information Commissioner explained the nature of the discretion conferred upon agencies by s.28(1) of the FOI Act.
The Information Commissioner also noted, however, that in a review under Part 5 of the FOI Act, the Information Commissioner is specifically deprived (by s.88(2) of the FOI Act) of the discretionary power possessed by agencies to permit access to exempt matter.