Primrose and Cooloola Shire Council

Primrose and Cooloola Shire Council
(2004 F0273, 14 June 2005) 

Legal professional privilege – deliberative processes 

The applicants sought access to documents relating to an application to the Council to establish commercial boarding kennels on a property adjacent to the applicants' residence.  The development was the subject of an appeal to the Planning and Environment Court. 

Information Commissioner Taylor found that the matter in issue did not comprise confidential communications between the respondent and its solicitors made for the dominant purpose of obtaining or giving legal advice or professional legal assistance.  Part of the matter in issue comprised communications which merely made recommendations or set out action to be taken, stemming from a consideration of legal advice, or discussed the progress of litigation and therefore did not attract legal professional privilege.  Other parts of the matter in issue comprised copies of information which had previously been disclosed to the applicant or was on the public record.  The balance of the matter in issue, for which exemption was sought by the Council under s.43(1), comprised brief covering letters and contained no information that could be regarded as a confidential communication between a lawyer and a client made for the dominant purpose of seeking or giving legal advice or professional legal advice. The Information Commissioner found that the matter in issue was not exempt under s.43(1) of the FOI Act. 

The Information Commissioner also found that part of the matter in issue for which exemption was sought by the Council under s.41 comprised merely factual matter and was excluded from eligibility for exemption under s.41(1) by the operation of s.41(2)(b).  The Information Commissioner decided that, although part of the matter in issue was part of a deliberative process of the Council, she was not satisfied that its disclosure to the applicant would, on balance, be contrary to the public interest.